[Federal Register Volume 78, Number 78 (Tuesday, April 23, 2013)]
[Rules and Regulations]
[Pages 23837-23843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09153]
[[Page 23837]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket No. OSHA-2007-0066]
RIN No. 1218-AC61
Cranes and Derricks in Construction: Underground Construction and
Demolition
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: On August 17, 2012, OSHA issued a notice of proposed
rulemaking, as well as a companion direct final rule, that proposed
applying the requirements in OSHA's 2010 cranes and derricks
construction standard to underground construction work and demolition
work. The notice of proposed rulemaking also proposed to correct
inadvertent errors in the underground construction and demolition
standards. After receiving a comment recommending that OSHA clarify the
proposed regulatory text of the demolition standard, OSHA clarified the
text and is issuing this final rule to apply the cranes and derricks
standard to underground construction work and demolition work.
DATES: This final rule is effective May 23, 2013. Petitions for review
of the final rule are due on June 24, 2013.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), OSHA designates the
Associate Solicitor of Labor for Occupational Safety and Health as the
recipient of petitions for review of the final rule. Contact Joseph M.
Woodward, Associate Solicitor, at the Office of the Solicitor, Room S-
4004, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-5445.
FOR FURTHER INFORMATION CONTACT: General information and press
inquiries: Mr. Frank Meilinger, OSHA Office of Communications, Room N-
3647, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-1999.
Technical inquiries: Mr. Garvin Branch, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
2020; fax: (202) 693-1689.
Copies of this Federal Register document and news releases: This
Federal Register document, as well as news releases and other relevant
information, are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Revisions to the Demolition Standard in This Final Rule
III. Revisions to the Underground Construction Standard in This
Final Rule
IV. Agency Determinations
A. Final Economic Analysis and Final Regulatory Flexibility
Analysis
B. Paperwork Reduction Act of 1995
C. Federalism
D. State Plan States
E. Unfunded Mandates Reform Act
F. Consultation and Coordination With Indian Tribal Governments
G. Legal Considerations
List of Subjects in 29 CFR Part 1926
Authority and Signature
Amendments to Standards
I. Background
On August 17, 2012, OSHA published a direct final rule and a
companion notice of proposed rulemaking in the Federal Register to
amend OSHA's construction standards in subpart S (Underground
Construction, Caissons, Cofferdams, and Compressed Air) and subpart T
(Demolition) of OSHA's construction standards at 29 CFR part 1926 (77
FR 49722; 77 FR 49741). The amendments apply subpart CC (Cranes and
Derricks in Construction) of 29 CFR part 1926, which contains
requirements for cranes and derricks used in construction, to
underground construction work, and demolition work, involving equipment
covered by subpart CC. Further, the direct final rule and notice of
proposed rulemaking corrected inadvertent errors made to the
underground construction and demolition standards in the 2010
rulemaking.
In both the proposed rule and the direct final rule, OSHA stated
that it would treat comments received on the direct final rule as
comments on the proposed rule, and comments received on the proposed
rule as comments on the direct final rule. OSHA received two comments
on the documents. The first comment addressed the timing of the
implementation and enforcement of the operator-certification provisions
of subpart CC (OSHA-2007-0066-0428). Specifically, the commenter
claimed that extending the existing operator-certification requirement
in subpart CC to crane operators in North Dakota who perform
underground construction work or demolition work will make the task of
certifying all crane operators in that state more difficult because of
the limited number of certified examiners and qualified trainers
available in that state.
OSHA is not revising the final rule in response to this comment.
This comment did not challenge the application of the subpart CC
standard to underground construction work or demolition work. Moreover,
OSHA does not believe that requiring employers engaged in underground
construction work or demolition work to meet the operator-certification
requirements of subpart CC will substantially impact the availability
of examiners or trainers in the commenter's state, or any other state
in OSHA's jurisdiction, and the commenter did not provide any evidence
to the contrary. The bulk of construction crane work already is subject
to subpart CC. In addition, subpart CC already requires certification
of any crane operator who performs other kinds of construction work, in
addition to underground construction or demolition. As OSHA recognized
in the preambles to its August 17, 2012, direct final rule and notice
of proposed rulemaking, applying subpart CC to underground construction
work and demolition work benefits contractors who also perform other
work because they will be subject to a single standard instead of
having some of their activities covered under subpart CC and other work
covered by the temporary requirements in subpart DD (77 FR 49722,
49725; 77 FR 49741, 49745).\1\
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\1\ Subpart DD of 29 CFR part 1926, which OSHA drafted during
the 2010 cranes rulemaking as a temporary measure to preserve the
requirements of the former crane standard at Sec. 1926.550 for
application to underground construction work and demolition work,
has been removed.
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Finally, OSHA's provisions regarding operator certification do not
take effect until November 10, 2014. OSHA will continue to work with
accredited testing organizations as the November 10, 2014,
implementation date approaches to ensure that employers are able to
meet the operator-certification requirements of subpart CC.
The second comment raised a concern about potential ambiguity in
the introductory language of OSHA's proposed demolition standard. The
commenter noted that the amendment to Sec. 1926.800(t) of subpart S
(Underground Construction, Caissons, Cofferdams, and Compressed Air)
uses the phrase ``employers must,'' while Sec. Sec. 1926.856(c) and
1926.858(b) of subpart T (Demolition) use the phrase ``Cranes,
derricks, and other mechanical equipment used must.'' The commenter
stated that the regulated community could misread the latter phrase to
mean that only the equipment must comply with the provisions in subpart
CC, and
[[Page 23838]]
that employers involved in demolition work would not have to comply
with the requirements in subpart CC that do not apply to equipment.
Reading the proposed language in this manner would mean that many of
the essential protective requirements in subpart CC would not apply to
the employers, including requirements for operating equipment, operator
certification and other personnel qualifications, inspections, and
other requirements that do not relate to the design or function of
equipment. The commenter recommended that OSHA use consistent language
for all areas addressed by subpart CC.
Reading the proposed language to apply only to equipment is not
consistent with OSHA's past application of similar language, or with
the stated purpose of this rulemaking. OSHA means for subpart CC to
apply as a comprehensive regulatory scheme, as it made clear in the
preambles of its August 17, 2012, direct final rule and proposed rule:
OSHA ``designed the final rule for cranes and derricks in construction,
codified at 29 CFR part 1926, subpart CC, to replace the earlier rule
(Sec. 1926.550) for all construction work'' (77 FR 49722, 49723; 77 FR
49741, 49743) and to ``bring all crane and derrick use in construction
work under new subpart CC'' (77 FR 49722, 49724; 77 FR 49741, 49743).
The 2010 final cranes rule contains many important requirements
regarding personnel qualifications and responsibilities, including:
operator-certification requirements at Sec. 1926.1427, requirements
for signal persons at Sec. Sec. 1926.1409-.1412 and 1926.1428, and
requirements for operating the equipment at Sec. 1926.1417. OSHA
emphasized the importance of applying all of subpart CC to demolition
work. The Agency explained that doing so ``would ensure that the
significant benefits of subpart CC, which include saving 22 lives per
year and preventing 175 non-fatal injuries per year compared to prior
Sec. 1926.550 (75 FR 48079) extend to demolition and underground
construction,'' and that ``construction workers in those sectors
receive the same safety protections from new subpart CC as other
construction workers'' (77 FR 49722, 49725; 77 FR 49741, 49744-45). The
final economic analysis for the final cranes standard, which estimated
the cost of all of the requirements in the final cranes rule for
industries involved in demolition work (see Section V.A (Final Economic
Analysis and Final Regulatory Flexibility Analysis) below), is
identical to the analysis provided with the draft final rule and
proposed rule, and also demonstrates that OSHA always intended that
subpart CC apply comprehensively to underground construction and
demolition work in construction.
II. Revisions to the Demolition Standard in This Final Rule
OSHA believes that the language in Sec. 1926.856(c) and Sec.
1926.858(b) of the proposed rule adequately specifies that the full
scheme of requirements for cranes and derricks used in construction,
including requirements for personnel qualifications and
responsibilities, applies to demolition work. In addition, for the
reasons stated in the proposed rule, OSHA concludes it is appropriate
to apply those requirements to demolition. However, OSHA agrees that
adopting different language similar to that in the Sec. 1926.800(t)
amendment would clarify application of the provisions. Therefore, to
avoid any ambiguity, OSHA is amending the demolition standard by adding
subparagraph headings and replacing the ``equipment used must''
language in both Sec. Sec. 1926.856(c) and 1926.858(b) with a
reference to the employer's duty to comply with all subpart CC
requirements.
OSHA is making the other minor, proposed revisions to the
demolition rule for the reasons explained in the preamble to the
proposed rule. These revisions include reinserting into Sec. 1926.858
the requirement to comply with subpart N, in addition to subpart CC, of
29 CFR part 1926.
III. Revisions to the Underground Construction Standard in This Final
Rule
OSHA is not making any revisions to the underground construction
standard other than the revisions specified in the proposed rule; OSHA
is including those revisions for the reasons explained in the preamble
to the proposed rule (see 77 FR 49724-49725). Most significantly, OSHA
is requiring employers using cranes and derricks in underground
construction to comply with all of the requirements in subpart CC. OSHA
also is correcting several inadvertent errors in the underground
construction standard by making several minor grammatical corrections
and amending the introductory paragraph of Sec. 1926.800(t) to restore
the provision allowing employers to use cranes to hoist personnel for
routine access to the underground worksites via a shaft without
requiring them to demonstrate that conventional means of access are
more hazardous or impossible for this purpose. OSHA also is correcting
Sec. 1926.800(t) by restoring the clause ``Except as modified by this
paragraph (t)'' to the beginning of the introductory paragraph, and
restoring Sec. 1926.800(t)(1) through (t)(4).
IV. Agency Determinations
A. Final Economic Analysis and Final Regulatory Flexibility Analysis
When it issued the final cranes rule in 2010, OSHA prepared a final
economic analysis (FEA) as required by the Occupational Safety and
Health Act of 1970 (OSH Act; 29 U.S.C. 651 et seq.) and Executive Order
12866 (58 FR 51735). OSHA also published a Final Regulatory Flexibility
Analysis as required by the Regulatory Flexibility Act (5 U.S.C. 601-
612). OSHA's approach to estimating costs and economic impacts in these
analyses began by estimating, for all construction sectors, the total
number of cranes and whether they were owned and rented, owned without
rental, or leased. As a result, both analyses covered all cranes
engaged in construction activities, including cranes engaged in
underground construction work and cranes engaged in construction work
involving demolition. The FEA for the final cranes standard, which
included all cranes, crane operations, and industry sectors subject to
this final rule, found that the requirements of the rule were
technologically and economically feasible.
Because the FEA drew these conclusions from calculations
encompassing all of the underground construction and demolition crane
operations covered by this final rule, the conclusions in the earlier
FEA are valid for this final rule. The reference to the FEA for the
final cranes rule, therefore, establishes that this final rule is
technologically and economically feasible, addresses significant risks,
and reduces those risks significantly. The FEA, which OMB reviewed,
meets the requirements of Executive Orders 12866 and Executive Order
13563 with respect to the operations covered by this final rule; OSHA
included these operations in the FEA for the final cranes standard.
Therefore, OSHA believes that this final rule also complies with
Executive Orders 12866 and Executive Order 13563.
To determine if this final rule has annual costs of greater than
$100 million, or would have a significant economic impact on a
substantial number of small firms, OSHA examined the sectors most
affected by this final rule. This final rule affects two construction
sectors: NAICS 237990 (Other Heavy and Civil Engineering
[[Page 23839]]
Construction), which includes all establishments engaged in underground
construction, and NAICS 238910 (Site Preparation Contractors), which
includes all establishments engaged in demolition. This analysis,
therefore, reviews the results for these two sectors reported in the
final crane standard's FEA, which the Federal Register published on
August 9, 2010.
That FEA simply considered all cranes and crane operations in these
sectors, and did not analyze separately those operations involving
underground construction or demolition because OSHA planned to apply
subpart CC to these operations. OSHA will report here the results for
the entire heavy-and-civil engineering sector and the entire site-
preparation sector, which will inevitably involve greater costs and
impacts than for the activities addressed in this final rule because
employers included in the heavy-and-civil engineering sector, or the
site-preparation sector, have many cranes and crane jobs that do not
involve underground construction or demolition activities. Table B-9 of
the FEA shows that NAICS 237990, which includes all crane operations
involved in underground construction operations, had annualized
compliance costs of $1,903,569 for firms that own and rent cranes,
$205,532 for firms that own but do not rent cranes, and $1,151,759 for
firms that lease cranes, for total annualized costs of $3,260,860 (75
FR 48102-48105). Table B-9 also shows that NAICS 238910, which contains
all crane operations involving demolition, had annualized compliance
costs of $1,232,974 for firms that own and rent cranes, $292,601 for
firms that own but do not rent cranes, and $1,626,463 for firms that
lease cranes, for total annualized compliance costs of $3,152,038. The
total annualized compliance cost for both sectors is $6,412,898.
Because these two NAICS sectors include operations not involved in
underground construction or demolition, the total estimated annualized
compliance costs of $6,412,898 for these sectors will be greater than
the actual costs of this final rule. Based on these costs, OSHA
concludes that this final rule is not a significant rule under either
E.O. 12866 or the Unfunded Mandates Act. OSHA reached the same
conclusion in its preliminary analysis of the demolition standard
published in the preamble of the proposed rule on August 17, 2012, and
requested comment. OSHA did not receive any comments on this issue.
With respect to technological feasibility, the earlier FEA, which
included consideration of both underground construction and demolition
operations, noted:
In accordance with the OSH Act, OSHA is required to demonstrate
that occupational safety and health standards promulgated by the
Agency are technologically feasible. Accordingly, OSHA reviewed the
requirements that would be imposed by the final regulation, and
assessed their technological feasibility. As a result of this
review, OSHA has determined that compliance with the requirements of
the final standard is technologically feasible for all affected
industries. The standard would require employers to perform crane
inspections, utilize qualified or certified crane operators, address
ground conditions, maintain safe distances from power lines using
the encroachment prevention precautions, and to fulfill other
obligations under the standard. Compliance with all of these
requirements can be achieved with readily and widely available
technologies. Some businesses in the affected industries already
implement the requirements of the standard to varying degrees (some
states have requirements), as noted during the SBREFA Panel. OSHA
believes that there are no technological constraints in complying
with any of the proposed requirements, and received no comments that
suggested that these standards were technologically infeasible.
(75 FR 48095.)
In Table B-12 of the FEA for the final cranes rule, OSHA examined
the costs as a percentage of revenues and as a percentage of profits in
these two sectors. This table shows that the greatest potential impacts
were on establishments that own and rent cranes with operators. This
table showed that for NAICS 237990, which includes all underground
construction operations, costs were 0.18 percent (less than 1 percent)
of revenues and 3.54 percent of profits. This table also showed that
for NAICS 238910, which includes all demolition operations involving
cranes, costs were 0.18 percent of revenues and 4.05 percent of
profits. (Table B-12 of the FEA, and the FEA as a whole, provide the
full calculations and derivations.) The FEA from the 2010 final cranes
standard stated:
The Agency concludes that the final standard is economically
feasible for the affected industries. As described above, a standard
is economically feasible if there is a reasonable likelihood that
the estimated costs of compliance ``will not threaten the existence
or competitive structure of an industry, even if it does portend
disaster for some marginal firms.'' United Steelworkers of America
v. Marshall, 647 F.2d 1189, 1272 (DC Cir. 1980). The potential
impacts on employer costs associated with achieving compliance with
the final standard fall well within the bounds of economic
feasibility in each industry sector. Costs of 0.2 percent of
revenues and 4 percent of profits will not threaten the existence of
the construction industry, affected general industry sectors, or the
use of cranes in affected industry sectors. OSHA does not expect
compliance with the requirements of the final standard to threaten
the viability of employers or the competitive structure of any of
the affected industry sectors. When viewed in the larger context of
the construction sector, an increase in costs of $148.2 million a
year is effectively negligible, and will have no noticeable effect
on the demand for construction services. Even when viewed as an
increase in the costs of using cranes, an increase in the cost of
rentals services of 0.2 percent will not cause the construction
industry to forego the use of cranes and, thus, put crane leasing
firms out of business.
(75 FR 48112.) Because the 2010 FEA included the costs of this
underground construction and demolition final rule, which was only one
part of the overall costs of the 2010 final rule, and OSHA considered
the total cost of the 2010 final rule to be economically feasible, OSHA
concludes that the FEA for this underground construction and demolition
final rule is economically feasible. OSHA included the same conclusion
in its preliminary economic analysis of the underground construction
and demolition proposed rule and requested comment on that conclusion
(77 FR 49746), but did not receive any comments on this issue.
Tables B-14 and B-15 of the FEA for the cranes and derricks final
rule examine the costs as a percentage of revenues and as a percentage
of profits in these two sectors for small firms as defined by the Small
Business Administration, and very small entities with fewer than 20
employees, respectively. Because so many firms owning cranes are small,
there is no appreciable difference between the impacts on small and
very small firms versus the impacts for all firms already discussed.
Comparison of the two tables shows that, for NAICS 237990, the impacts
for very small firms were equal to or greater than those for small
firms. Table B-15 shows that, for NAICS 237990, costs were 0.18 percent
of revenues and 3.54 per cent of profits. This table also shows that,
for NAICS 238910, including all demolition operations involving cranes,
there were no very small entities that owned and rented cranes, with
the result that the greatest impacts are for small entities that own
and rent cranes, for which costs are 0.18 percent of revenues and 4.05
percent of profits.
In its regulatory flexibility analysis, OSHA generally defines a
significant economic impact on small entities as one with costs in
excess of one percent of revenues or five percent of profits. The
possible costs of this final rule clearly are well below these
thresholds.
[[Page 23840]]
OSHA reached the same conclusion in its preliminary economic analysis
of the proposed amendments to the underground construction and
demolition standards (77 FR 49746), and requested comment on that
conclusion, but did not receive any comments. OSHA, therefore,
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.
B. Paperwork Reduction Act of 1995
When OSHA issued the final cranes rule on August 9, 2010, it
submitted an Information Collection Request (ICR) to the Office of
Management and Budget (OMB) titled Cranes and Derricks in Construction
(29 CFR Part 1926, Subpart CC). This ICR \2\ covered all establishments
in the construction industry, including all of the establishments in
NAICS 237990 and NAICS 238910. On November 1, 2010, OMB approved the
ICR under OMB control number 1218-0261, with an expiration date of
November 30, 2013. Subsequently, in December 2010, OSHA discontinued
the Cranes and Derricks Standard for Construction (29 CFR 1926.550) ICR
(OMB Control Number 1218-0113) because the new ICR superseded the
existing ICR. In addition, OSHA retitled the new ICR to Cranes and
Derricks in Construction (29 CFR Part 1926, Subpart CC and Subpart
DD).\3\
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\2\ The ICR is part of Exhibit 0425 in the docket for the final
rule on cranes and derricks in construction (OSHA-2007-0066). It is
available at www.regulations.gov and at www.reginfo.gov (OMB Control
Number 1218-0261).
\3\ This request, OMB's approval for discontinuing the previous
Cranes and Derricks in Construction ICR (OMB Control Number 1218-
0113) and the retitling of the ICR, are available at
www.reginfo.gov.
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This final rule requires no additional collections of
information.\4\ OMB's approval of OSHA's ICR under Control Number 1218-
0261 already covers all collections of information required by this
final rule, and OSHA does not believe it is necessary to submit a new
ICR to OMB seeking to collect additional information under this final
rule. OSHA made the same determinations in the proposed rule (77 FR
49746) and requested comment on these determinations, but did not
receive any comments.
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\4\ Although the final rule for cranes and derricks in
construction did not require employers covered by subpart DD to meet
the information-exchange requirements of subpart CC, OSHA did not
deduct these employers from its analysis of the burden and costs for
these requirements in the paperwork analysis for subpart CC.
Therefore, this approach inflated the burden and costs estimates of
the ICR approved by OMB for subpart CC; however, the burden and
costs estimates are accurate now that OSHA is applying subpart CC to
underground construction work and demolition work.
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OSHA notes that a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the agency displays
a currently valid OMB control number. The public need not respond to a
collection of information requirement unless the agency displays a
currently valid OMB control number, and, notwithstanding any other
provision of law, no person shall be subject to a penalty for failing
to comply with a collection of information requirement if the
requirement does not display a currently valid OMB control number.
C. Federalism
OSHA reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that Federal agencies, to the extent possible,
refrain from limiting state policy options, consult with states prior
to taking any actions that would restrict state policy options, and
take such actions only when clear constitutional authority exists and
the problem is national in scope. Executive Order 13132 provides for
preemption of state law only with the expressed consent of Congress.
Federal agencies must limit any such preemption to the extent possible.
Under Section 18 of the OSH Act, Congress expressly provides that
states may adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards. OSHA refers to
states that obtain Federal approval for such a plan as ``State Plan
states.'' Occupational safety and health standards developed by State
Plan states must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
29 U.S.C. 667. Subject to these requirements, State Plan states are
free to develop and enforce under state law their own requirements for
safety and health standards.
OSHA previously concluded from its analysis that promulgation of
subpart CC complies with Executive Order 13132. 75 FR 48128-29. That
analysis applies to the extension of subpart CC to establishments
engaged in underground construction work or demolition work; therefore,
this final rule complies with Executive Order 13132. OSHA included this
determination in the proposed rule (77 FR 49747), and did not receive
any comment. In states without an OSHA-approved State Plan, any
standard developed from this final rule would limit state policy
options in the same manner as every standard promulgated by OSHA. In
states with OSHA-approved State Plans, this rulemaking does not
significantly limit state policy options.
D. State Plan States
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plan states must amend their
standards to reflect the new standard or amendment, or show OSHA why
such action is unnecessary, e.g., because an existing state standard
covering this area is ``at least as effective'' as the new Federal
standard or amendment. 29 CFR 1953.5(a). The state standard must be at
least as effective as the final Federal rule. State Plan states must
adopt the Federal standard or complete their own standard within six
months of the promulgation date of the final Federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than an existing standard, State Plan
states need not amend their standards, although OSHA may encourage them
to do so. The 27 states and U.S. territories with OSHA-approved
occupational safety and health plans are: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming;
Connecticut, Illinois, New Jersey, New York, and the Virgin Islands
have OSHA-approved State Plans that apply to state and local government
employees only.
The amendments in this final rule will result in more stringent
requirements for cranes and derricks used in underground construction
or demolition work. Therefore, states and territories with approved
State Plans must adopt comparable amendments to their standards for
cranes and derricks used in underground construction or demolition
within six months of the effective date of this final rule unless they
demonstrate that such a change is not necessary because their existing
standards are already the same, or at least as effective, as OSHA's new
final rule.
E. Unfunded Mandates Reform Act
When OSHA issued the 2010 final rule for cranes and derricks in
construction, it reviewed the rule according to the Unfunded Mandates
[[Page 23841]]
Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order
13132 (64 FR 43255) (Aug. 10, 1999). OSHA concluded that the final rule
for cranes and derricks in construction did not meet the definition of
a ``Federal intergovernmental mandate'' under the UMRA because OSHA
standards do not apply to state or local governments except in states
that have voluntarily adopted State Plans. 75 FR 48130. OSHA further
noted that the final rule for cranes and derricks in construction
imposed costs of over $100 million per year on the private sector and,
therefore, required review under the UMRA for those costs; OSHA
determined that its final economic analysis met that requirement.
As discussed above in Section V.A (Final Economic Analysis and
Final Regulatory Flexibility Analysis) of this preamble, this final
rule does not impose any costs on private-sector employers beyond those
costs already taken into account in the final rule for cranes and
derricks in construction. Because OSHA reviewed the total costs of this
final rule under the UMRA, no further review of those costs is
necessary. Therefore, for the purposes of the UMRA, OSHA certifies that
this final rule does not mandate that state, local, or tribal
governments adopt new, unfunded regulatory obligations, or increase
expenditures by the private sector of more than $100 million in any
year.
F. Consultation and Coordination with Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it does not have ``tribal
implications'' as defined in that order. The rule does not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.
G. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) is ``to assure so far as possible every working man
and woman in the nation safe and healthful working conditions and to
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal,
Congress authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A
safety or health standard is a standard ``which requires conditions, or
the adoption or use of one or more practices, means, methods,
operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment or places of employment.'' 29
U.S.C. 652(8). A standard is reasonably necessary or appropriate within
the meaning of Section 652(8) when a significant risk of material harm
exists in the workplace and the standard would substantially reduce or
eliminate that workplace risk. See Industrial Union Department, AFL-CIO
v. American Petroleum Institute, 448 U.S. 607 (1980). In the cranes and
derricks 2010 final rule, OSHA made such a determination with respect
to the use of cranes and derricks in construction, while at the same
time noting that the Agency would apply subpart CC to the activities
addressed in this final rule (75 FR 47913, 47920-21).
This final rule will not reduce the employee protections put in
place by the standard OSHA is updating under this rulemaking. Instead,
this rulemaking likely will enhance employee safety by ensuring that
the construction workers involved in underground construction or
demolition receive the same safety protections from recently published
subpart CC as other construction workers. OSHA explained in the
proposed rule that the revisions also will benefit construction
contractors that engage in underground construction or demolition work
in addition to other types of construction work, because these
contractors will now be subject to a single standard rather than having
some of their construction work under subpart CC, and other work
covered by former subpart DD. This action, therefore, will clarify
employer obligations by applying a single cranes and derricks standard
to all construction work, including demolition and underground
construction projects. Accordingly, it is unnecessary to make a
separate determination of significant risk, or the extent to which this
rule would reduce that risk, as typically required by Industrial Union
Department.
List of Subjects in 29 CFR Part 1926
Construction industry, Demolition, Occupational safety and health,
Safety, Underground construction.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210, authorized the
preparation of this document. OSHA is issuing this document pursuant to
29 U.S.C. 653, 655, and 657, 40 U.S.C. 3701 et seq., 5 U.S.C. 553,
Secretary of Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012), and 29
CFR part 1911.
Signed at Washington, DC, on April 12, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this final rule, OSHA
amends 29 CFR part 1926 to read as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart S--Underground Construction, Caissons, Cofferdams, and
Compressed Air
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1. The authority citation for subpart S of 29 CFR part 1926 continues
to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059),
9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-2007 (72
FR 31159), or 1-2012 (77 FR 3912), as applicable.
0
2. Amend Sec. 1926.800 by revising paragraph (t) to read as follows:
Sec. 1926.800 Underground construction.
* * * * *
(t) Hoisting unique to underground construction. Except as modified
by this paragraph (t), employers must: Comply with the requirements of
subpart CC of this part, except that the limitation in Sec.
1926.1431(a) does not apply to the routine access of employees to an
underground worksite via a shaft; ensure that material hoists comply
with Sec. 1926.552(a) and (b) of this part; and ensure that personnel
hoists comply with the personnel-hoists requirements of Sec.
1926.552(a) and (c) of this part and the elevator requirements of Sec.
1926.552(a) and (d) of this part.
(1) General requirements for cranes and hoists. (i) Materials,
tools, and supplies being raised or lowered, whether within a cage or
otherwise, shall be secured or stacked in a manner to prevent the load
from shifting, snagging or falling into the shaft.
(ii) A warning light suitably located to warn employees at the
shaft bottom and subsurface shaft entrances shall flash whenever a load
is above the shaft bottom or subsurface entrances, or the load is being
moved in the shaft. This paragraph does not apply to fully enclosed
hoistways.
(iii) Whenever a hoistway is not fully enclosed and employees are
at the shaft bottom, conveyances or equipment shall be stopped at least
15 feet (4.57 m) above the bottom of the shaft and held
[[Page 23842]]
there until the signalman at the bottom of the shaft directs the
operator to continue lowering the load, except that the load may be
lowered without stopping if the load or conveyance is within full view
of a bottom signalman who is in constant voice communication with the
operator.
(iv)(A) Before maintenance, repairs, or other work is commenced in
the shaft served by a cage, skip, or bucket, the operator and other
employees in the area shall be informed and given suitable
instructions.
(B) A sign warning that work is being done in the shaft shall be
installed at the shaft collar, at the operator's station, and at each
underground landing.
(v) Any connection between the hoisting rope and the cage or skip
shall be compatible with the type of wire rope used for hoisting.
(vi) Spin-type connections, where used, shall be maintained in a
clean condition and protected from foreign matter that could affect
their operation.
(vii) Cage, skip, and load connections to the hoist rope shall be
made so that the force of the hoist pull, vibration, misalignment,
release of lift force, or impact will not disengage the connection.
Moused or latched openthroat hooks do not meet this requirement.
(viii) When using wire rope wedge sockets, means shall be provided
to prevent wedge escapement and to ensure that the wedge is properly
seated.
(2) Additional requirements for cranes. Cranes shall be equipped
with a limit switch to prevent overtravel at the boom tip. Limit
switches are to be used only to limit travel of loads when operational
controls malfunction and shall not be used as a substitute for other
operational controls.
(3) Additional requirements for hoists. (i) Hoists shall be
designed so that the load hoist drum is powered in both directions of
rotation, and so that brakes are automatically applied upon power
release or failure.
(ii) Control levers shall be of the ``deadman type'' which return
automatically to their center (neutral) position upon release.
(iii) When a hoist is used for both personnel hoisting and material
hoisting, load and speed ratings for personnel and for materials shall
be assigned to the equipment.
(iv) Material hoisting may be performed at speeds higher than the
rated speed for personnel hoisting if the hoist and components have
been designed for such higher speeds and if shaft conditions permit.
(v) Employees shall not ride on top of any cage, skip or bucket
except when necessary to perform inspection or maintenance of the
hoisting system, in which case they shall be protected by a body belt/
harness system to prevent falling.
(vi) Personnel and materials (other than small tools and supplies
secured in a manner that will not create a hazard to employees) shall
not be hoisted together in the same conveyance. However, if the
operator is protected from the shifting of materials, then the operator
may ride with materials in cages or skips which are designed to be
controlled by an operator within the cage or skip.
(vii) Line speed shall not exceed the design limitations of the
systems.
(viii) Hoists shall be equipped with landing level indicators at
the operator's station. Marking the hoist rope does not satisfy this
requirement.
(ix) Whenever glazing is used in the hoist house, it shall be
safety glass, or its equivalent, and be free of distortions and
obstructions.
(x) A fire extinguisher that is rated at least 2A:10B:C (multi-
purpose, dry chemical) shall be mounted in each hoist house.
(xi) Hoist controls shall be arranged so that the operator can
perform all operating cycle functions and reach the emergency power
cutoff without having to reach beyond the operator's normal operating
position.
(xii) Hoists shall be equipped with limit switches to prevent
overtravel at the top and bottom of the hoistway.
(xiii) Limit switches are to be used only to limit travel of loads
when operational controls malfunction and shall not be used as a
substitute for other operational controls.
(xiv) Hoist operators shall be provided with a closed-circuit voice
communication system to each landing station, with speaker microphones
so located that the operator can communicate with individual landing
stations during hoist use.
(xv) When sinking shafts 75 feet (22.86 m) or less in depth, cages,
skips, and buckets that may swing, bump, or snag against shaft sides or
other structural protrusions shall be guided by fenders, rails, ropes,
or a combination of those means.
(xvi) When sinking shafts more than 75 feet (22.86 m) in depth, all
cages, skips, and buckets shall be rope or rail guided to within a rail
length from the sinking operation.
(xvii) Cages, skips, and buckets in all completed shafts, or in all
shafts being used as completed shafts, shall be rope or rail-guided for
the full length of their travel.
(xviii) Wire rope used in load lines of material hoists shall be
capable of supporting, without failure, at least five times the maximum
intended load or the factor recommended by the rope manufacturer,
whichever is greater. Refer to Sec. 1926.552(c)(14)(iii) of this part
for design factors for wire rope used in personnel hoists. The design
factor shall be calculated by dividing the breaking strength of wire
rope, as reported in the manufacturer's rating tables, by the total
static load, including the weight of the wire rope in the shaft when
fully extended.
(xix) A competent person shall visually check all hoisting
machinery, equipment, anchorages, and hoisting rope at the beginning of
each shift and during hoist use, as necessary.
(xx) Each safety device shall be checked by a competent person at
least weekly during hoist use to ensure suitable operation and safe
condition.
(xxi) In order to ensure suitable operation and safe condition of
all functions and safety devices, each hoist assembly shall be
inspected and load-tested to 100 percent of its rated capacity: at the
time of installation; after any repairs or alterations affecting its
structural integrity; after the operation of any safety device; and
annually when in use. The employer shall prepare a certification record
which includes the date each inspection and load-test was performed;
the signature of the person who performed the inspection and test; and
a serial number or other identifier for the hoist that was inspected
and tested. The most recent certification record shall be maintained on
file until completion of the project.
(xxii) Before hoisting personnel or material, the operator shall
perform a test run of any cage or skip whenever it has been out of
service for one complete shift, and whenever the assembly or components
have been repaired or adjusted.
(xxiii) Unsafe conditions shall be corrected before using the
equipment.
(4) Additional requirements for personnel hoists. (i) Hoist drum
systems shall be equipped with at least two means of stopping the load,
each of which shall be capable of stopping and holding 150 percent of
the hoist's rated line pull. A broken-rope safety, safety catch, or
arrestment device is not a permissible means of stopping under this
paragraph (t).
(ii) The operator shall remain within sight and sound of the
signals at the operator's station.
(iii) All sides of personnel cages shall be enclosed by one-half
inch (12.70 mm)
[[Page 23843]]
wire mesh (not less than No. 14 gauge or equivalent) to a height of not
less than 6 feet (1.83 m). However, when the cage or skip is being used
as a work platform, its sides may be reduced in height to 42 inches
(1.07 m) when the conveyance is not in motion.
(iv) All personnel cages shall be provided with a positive locking
door that does not open outward.
(v) All personnel cages shall be provided with a protective canopy.
The canopy shall be made of steel plate, at least 3/16-inch (4.763 mm)
in thickness, or material of equivalent strength and impact resistance.
The canopy shall be sloped to the outside, and so designed that a
section may be readily pushed upward to afford emergency egress. The
canopy shall cover the top in such a manner as to protect those inside
from objects falling in the shaft.
(vi) Personnel platforms operating on guide rails or guide ropes
shall be equipped with broken-rope safety devices, safety catches or
arrestment devices that will stop and hold 150 percent of the weight of
the personnel platform and its maximum rated load.
(vii) During sinking operations in shafts where guides and safeties
are not yet used, the travel speed of the personnel platform shall not
exceed 200 feet (60.96 m) per minute. Governor controls set for 200
feet (60.96 m) per minute shall be installed in the control system and
shall be used during personnel hoisting.
(viii) The personnel platform may travel over the controlled length
of the hoistway at rated speeds up to 600 feet (182.88 m) per minute
during sinking operations in shafts where guides and safeties are used.
(ix) The personnel platform may travel at rated speeds greater than
600 feet (182.88 m) per minute in completed shafts.
* * * * *
Subpart T--Demolition
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3. The authority citation for subpart T of 29 CFR part 1926 continues
to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059),
9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-2007 (72
FR 31159), or 1-2012 (77 FR 3912), as applicable.
0
4. Amend Sec. 1926.856 by revising paragraph (c) to read as follows:
Sec. 1926.856 Removal of walls, floors, and material with equipment.
* * * * *
(c) Cranes, derricks, and other mechanical equipment. Employers
must meet the requirements specified in subparts N, O, and CC of this
part.
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5. Amend Sec. 1926.858 by revising paragraph (b) to read as follows:
Sec. 1926.858 Removal of steel construction.
* * * * *
(b) Cranes, derricks, and other hoisting equipment. Employers must
meet the requirements specified in subparts N and CC of this part.
* * * * *
[FR Doc. 2013-09153 Filed 4-22-13; 8:45 am]
BILLING CODE 4510-26-P