Final rule to broaden exemption for digger derricks in regulations

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May 28, 2013
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Phone: 202-693-1999
OSHA issues final rule to broaden exemption for digger derricks in
its Cranes and Derricks standard
WASHINGTON – The Occupational Safety and Health Administration has issued a final rule that broadens the current exemption for digger derricks used in the electric-utility industry. The exemption has been expanded to include telecommunications work in addition to electric-utility work. This final rule provides a complete exemption from having to follow the requirements of Subpart CC of the Cranes and Derricks in Construction standard. The digger derricks exemption is part of the Cranes and Derricks final standard that was issued Aug. 9, 2010.

Digger derricks are pieces of equipment used to drill holes for utility poles. These digger derricks are commonly used by companies to place poles inside holes and attach transformers and other items to the poles.

OSHA published a direct final rule and a companion notice of proposed rulemaking on Nov. 9, 2012, and received a significant adverse comment on the direct final rule during the comment period. The agency then withdrew the direct final rule on Feb. 7, 2013. After considering the comment, OSHA is issuing this final rule based on the notice of proposed rule making.
The rule becomes effective June 28, 2013.

OSHA's current standard for Cranes and Derricks in Construction, promulgated in 2010 as 29 CFR part 1926 subpart CC, covers digger derricks, but includes a limited exemption for all pole work in the electric-utility and telecommunications industries, including placing utility poles in the ground and attaching transformers and other equipment to the poles (see 29 CFR 1400(c)(4); 75 FR 47906, 47924-47926, and 48136 (Aug. 9, 2010)). As explained in more detail in the preamble to the proposed rule, OSHA developed its 2010 standard through a negotiated rulemaking involving stakeholders from many affected sectors. In its proposed rule based on the draft standard from the stakeholders, OSHA included only a narrow exemption for digger derricks used to dig holes. OSHA later expanded the exemption in the 2010 final rule in response to commenters who complained that the proposed narrow exemption did not include customary uses of the digger derrick that involve placing a pole in the hole and attaching transformers and other items to the pole (see 75 FR 47906, 47924-47926, and 48136 (Aug. 9, 2010)).
In the current digger-derrick exemption to subpart CC, OSHA clarifies that employers engaged in exempted digger-derrick construction activities must still comply with the applicable worker protections in the OSHA standards governing electric-utility and telecommunications work at § 1910.268, Telecommunications, and § 1910.269, Electric power generation, transmission, and distribution. Accordingly, exempt digger-derrick work subject to 29 CFR part 1926 subpart V—Power Transmission and Distribution, must comply with 29 CFR 1910.269, while digger derricks used in construction work for telecommunication service (as defined at 29 CFR 1910.268(s)(40)) must comply with 29 CFR 1910.268. When digger-derrick activities are exempt from subpart CC of 29 CFR part 1926, employers also must comply with all other applicable construction standards, such as 29 CFR part 1926 subpart O—Motor Vehicles, Mechanized Equipment, and Marine Operations, and subpart V. [1]
On October 6, 2010, Edison Electrical Institute (EEI) petitioned for review of the Cranes and Derricks in Construction standard in the U.S. Court of Appeals for the District of Columbia. During subsequent discussions with OSHA, EEI provided new information to OSHA regarding the use of digger derricks in the electric-utility industry, and the impact on utilities' operations of the current digger-derrick exemption in subpart CC. According to EEI, the exemption from subpart CC covers roughly 95 percent of work conducted by digger derricks in the electric-utility industry (see OSHA-2012-0025-0004: EEI Dec. 7, 2010, letter, page 2). The majority of work under the remaining 5 percent is work closely related to the exempted work (Id.). For example, when electric utilities use digger derricks to perform construction work involving pole installations, the same digger-derrick crew that performs the pole work typically installs pad-mount transformers on the ground as part of the same power system as the poles. While the pole work is exempt under 29 CFR 1926.1400(c)(4), the placement of the pad-mount transformers on the ground is not.
On November 9, 2012, OSHA published a direct final rule and a companion proposed rule to broaden the digger-derrick exemption in subpart CC to exempt the placement of pad-mount transformers (77 FR 67313 and 67270 (Nov. 9, 2012)). In these documents, OSHA concluded that, compared to currently exempted pole work, most (if not all) of the remaining 5 percent of work is at least as safe (77 FR 67315 and 67272). Weight measurements provided by EEI demonstrate that transformers placed on a pad on the ground are roughly the same weight as, or in some cases lighter than, the weight of the transformers lifted onto the poles or the poles themselves (see OSHA-2012-0025-0003: EEI handout, “Typical Weights” chart). [2] In addition, OSHA explained that electric utilities typically place distribution transformers in a right of way along front property lines, close to a roadway, or along rear property lines, irrespective of whether the transformers are pole mounted or pad mounted (77 FR 67315 and 67272). In these cases, the lifting radius of a digger derrick placing a transformer on a pad is similar to the lifting radius of a digger derrick placing a transformer on a pole (Id.). Consequently, the lifting forces on a digger derrick should be approximately the same regardless of whether the transformer is pole mounted or pad mounted (see, e.g., OSHA-2012-0025-0003). Finally, OSHA noted that the approximate height of the transformer relative to the employee installing the transformer is the same for the two types of transformers (Id.). An employee installing a pad-mounted transformer is on the ground, near the pad, whereas an employee installing a pole-mounted transformer is either on the pole, or in an aerial lift, near the mounting point for the transformer. In either case, the transformer would be near the same height as the employee. OSHA received no comments challenging these statements.
OSHA also noted EEI's concerns about how the limited exemption failed to produce a significant economic savings for the electric-utility industry. Because the same workers generally perform both types of work, utility employers would, when the standard becomes fully effective in November 2014, incur the cost of meeting all of the other requirements in subpart CC, including the operator-certification requirements, for those workers who perform the 5 percent of work not currently exempted from subpart CC. OSHA noted that compliance with the entire standard could result in a sizable cost to the electric-utility industry (about $21.6 million annually) for an activity that does not appear significantly more dangerous than the type of activity that OSHA already exempts, and that OSHA did not consider this result when it promulgated the 2010 standard (77 FR 67315 and 67272) (see Section IV.B. in this preamble for a summary of these costs). OSHA did not receive any comments disputing this economic impact.
OSHA also notes that the largest labor organization for workers in the electric-utility industry, the International Brotherhood of Electrical Workers, participated in the settlement discussions and corroborated the general validity of the information provided by EEI, actively supported EEI's request for an expanded digger-derrick exemption, and did not submit any objections to the proposed expansion of the digger-derrick exemption.

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