Final Rule Derrrick Exemption

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at $4,500 and seizes the remaining $500 in
the account consistent with State law. The
financial institution is required to send a
notice to the account holder.
Example 3: Intraday transactions.
A financial institution receives a
garnishment order against an account holder
for $4,000 on Friday, September 10. The date
of account review is Monday, September 13,
when the opening balance in the account is
$6,000. A cash withdrawal for $1,000 is
processed after the open of business on
September 13, but before the financial
institution has performed the account review,
so that the balance in the account is $5,000
when the financial institution initiates an
automated program to conduct the account
review. The lookback period begins on
Sunday, September 12, the date preceding
the date of account review, and ends on
Monday, July 12, the corresponding date two
months earlier. The account review shows
that two Federal benefit payments were
deposited to the account during the lookback
period totaling $3,000, one for $1,500 on
Wednesday, July 21, and the other for $1,500
on Wednesday, August 18. Since the $3,000
sum of the two benefit payments posted to
the account during the lookback period is
less than the $5,000 balance in the account
when the account review is performed, the
financial institution establishes the protected
amount at $3,000 and, consistent with State
law, freezes the $2,000 remaining in the
account after the cash withdrawal. The
financial institution is required to send a
notice to the account holder.
Example 4: Benefit payment on date of
account review.
A financial institution receives a
garnishment order against an account holder
for $5,000 on Thursday, July 1. The date of
account review is the same day, July 1, when
the opening balance in the account is $3,000,
and reflects a Federal benefit payment of
$1,000 posted that day. The lookback period
begins on Wednesday, June 30, the date
preceding the date of account review, and
ends on Friday, April 30, the corresponding
date two months earlier. The account review
shows that two Federal benefit payments
were deposited to the account during the
lookback period totaling $2,000, one for
$1,000 on Friday, April 30 and one for $1,000
on Tuesday, June 1. Since the $2,000 sum of
the two benefit payments posted to the
account during the lookback period is less
than the $3,000 balance in the account when
the account review is performed, the
financial institution establishes the protected
amount at $2,000 and places a hold on the
remaining $1,000 in the account in
accordance with State law. The financial
institution is required to send a notice to the
account holder.
Example 5: Account co-owners with
benefit payments.
A financial institution receives a
garnishment order against an account holder
for $3,800 on March 22. The date of account
review is the same day, March 22, and the
balance in the account is $7,000. The
lookback period begins on March 21, the date
preceding the date of account review, and
ends on January 21, the corresponding date
two months earlier. The account review

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shows that four Federal benefit payments
were deposited to the account during the
lookback period totaling $7,000. Two of these
benefit payments, totaling $3,000, were made
to the account holder against whom the
garnishment order was issued. The other two
payments, totaling $4,000, were made to a coowner of the account. Since the financial
institution must perform the account review
based only on the presence of benefit
payments, without regard to the existence of
co-owners on the account or payments to
multiple beneficiaries or under multiple
programs, the financial institution establishes
the protected amount at $7,000, equal to the
sum of the four benefit payments posted to
the account during the lookback period.
Since $7,000 is also the balance in the
account at the time of the account review,
there are no additional funds in the account
which can be frozen. The financial
institution is not required to send a notice to
the account holder.
By the Department of the Treasury.
Richard L. Gregg,
Fiscal Assistant Secretary.
Dated: May 9, 2013.
By the Social Security Administration.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
Dated: May 1, 2013.
By the Department of Veterans Affairs.
Jose D. Riojas,
Interim Chief of Staff .
Dated: April 25, 2013.
By the Railroad Retirement Board.
Martha P. Rico,
Secretary to the Board.
By the Office of Personnel Management.
Elaine Kaplan,
Acting Director.
[FR Doc. 2013–12567 Filed 5–28–13; 8:45 am]
BILLING CODE 4810–25–P

received a significant adverse comment
on the direct final rule during the
comment period, and as a result, OSHA
withdrew the direct final rule on
February 7, 2013. After considering this
comment, OSHA is issuing this final
rule based on the notice of proposed
rulemaking.
This final rule is effective on
June 28, 2013.

DATES:

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.

ADDRESSES:

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 notice
and news releases: This Federal
Register notice, 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

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1926
[Docket No. OSHA–2012–0025]
RIN 1218–AC75

Cranes and Derricks in Construction:
Revising the Exemption for Digger
Derricks
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Final rule.
AGENCY:

OSHA published a direct final
rule and a companion notice of
proposed rulemaking on November 9,
2012, to broaden the exemption for
digger derricks in its construction
standard for cranes and derricks. OSHA

SUMMARY:

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I. Discussion of the Digger-Derrick Exemption
in 29 CFR 1926 Subpart CC
A. Background
B. Comment on the Proposed Rule and
Withdrawal of the Direct Final Rule
C. Agency Decision To Issue a Final Rule
D. Revisions to the Text of the Exemption
in 29 CFR 1926.1400(c)(4)
E. Discussion of Conforming Revisions to
29 CFR 1926 Subpart V
II. Agency Determinations
A. Significant Risk
B. Final Economic Analysis and Final
Regulatory Flexibility Analysis
C. Technological Feasibility
D. Paperwork Reduction Act of 1995
E. Federalism
F. State Plan States
G. Unfunded Mandates Reform Act
H. Consultation and Coordination With
Indian Tribal Governments
List of Subjects in 29 CFR Part 1926
Authority and Signature
Amendments to Standards

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I. Discussion of the Digger-Derrick
Exemption in 29 CFR 1926 Subpart CC
A. Background
A digger derrick (also called a ‘‘radial
boom derrick’’) is a specialized type of
equipment designed to install utility
poles. A digger derrick typically comes
equipped with augers to drill holes for
the poles, and with a hydraulic boom to
lift the poles and set them in the holes.
Employers also use the booms to lift
objects other than poles; accordingly,
electric utilities, telecommunication
companies, and their contractors use
booms both to place objects on utility
poles and for general lifting purposes at
worksites (Docket ID: OSHA–2007–
0066–0139.1).
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 electricutility 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

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with 29 CFR 1910.268. When diggerderrick 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 diggerderrick 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 pad1 For telecommunications work, compliance with
the provisions of § 1910.268 is a condition of the
exemption in § 1926.400(c)(4). The scope
limitations in § 1910.268(a) (such as the language
stating that it does not apply to construction) are
irrelevant to application of the exemption. When an
employer uses a digger derrick for
telecommunications construction work and does
not comply with the provisions in § 1910.268, then
that employer fails to qualify for the exemption in
§ 1926.400(c)(4). As a result, that employer must
comply with all of the requirements in subpart CC
of 29 CFR part 1926, including the operatorcertification requirements in § 1926.1427. When the
employer fails to comply with subpart CC, and
cannot demonstrate that it complied with
§ 1910.268 for telecommunications work, or
§ 1910.269 for electric-utility work, then OSHA will
cite the employer under subpart CC (not
§§ 1910.268 or 1910.269). When the employer
demonstrates that it is complying with the
exemption in subpart CC, but is not complying with
the separate requirements in 29 CFR part 1926
subpart O, applicable to all motorized vehicles in
construction, then OSHA will cite the employer
under subpart O. Note that this explanation does
not mean that OSHA is restricting its enforcement
discretion on whether to issue citations at all.

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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
2 OSHA noted that EEI’s chart does not show
weights for concrete and plastic transformer pads,
and EEI did not indicate that utilities use digger
derricks to place these pads (77 FR 67315 and
67272). When utilities use digger derricks to lift
these pads, EEI’s presentation indicates that the
digger derricks lift the transformers separately.
Because the surface area of these pads is
comparable to the transformers on them, and
because these pads are generally only a few
hundred millimeters thick, OSHA stated its belief
that the pads did not weigh any more than
transformers or poles (Id.). OSHA received no
comments indicating that these assumptions were
invalid.

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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 electricutility 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 diggerderrick exemption, and did not submit
any objections to the proposed
expansion of the digger-derrick
exemption.
B. Comment on the Proposed Rule and
Withdrawal of the Direct Final Rule
OSHA received only one comment on
the direct final rule published on
November 9, 2012 ; the comment was
from a ‘‘safety professional and certified
industrial hygienist in safety
management’’ (see Docket ID: OSHA–
2012–0025–0008). OSHA previously
explained in the direct final rule and the
companion proposed rule for this
rulemaking that it would treat a
comment on either the direct final rule
or the notice of proposed rulemaking as
comment on both documents. The
Agency stated further that it would
withdraw the direct final rule and
determine whether it should proceed
with the proposed rule if it received a
significant adverse comment (77 FR
67314 and 67271).
OSHA explained that a ‘‘significant
adverse comment’’ is one that ‘‘explains
why the amendments to OSHA’s diggerderrick exemption would be
inappropriate,’’ and that withdrawal of
the direct final rule would be necessary
if the comment ‘‘raises an issue serious
enough to warrant a substantive
response in a notice-and-comment
process’’ (Id.). OSHA determined that
the comment met that test. As a result,
OSHA published a withdrawal of the
direct final rule on February 7, 2013 (78
FR 8985). In the withdrawal notice,

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OSHA stated that it would address the
comment in a follow-on final rule based
on the companion notice of proposed
rulemaking. OSHA hereby addresses the
significant adverse comment received as
a comment on the proposed rule, and
issues this final rule based on the
November 9, 2012 notice of proposed
rulemaking.
The comment addresses a single issue
in the proposed rule. The commenter
expressed concern that the exemption
for digger derricks decreased worker
safety by exempting riggers and signal
persons working with digger derricks
from the specific qualification, training,
and testing requirements contained in
subpart CC. Accordingly, the
commenter urged OSHA to further
revise its proposed amendments to
‘‘include the elements of rigger and
signal person qualification, training and
testing requirements for excluded
workers’’ (see Docket ID: OSHA–2012–
0025–0008). Specifically, the
commenter requested that OSHA amend
its proposed conforming amendments to
29 CFR 1926.952, which establish the
protections that apply to all electricutility digger-derrick activities
exempted from subpart CC, to include
the requirements for rigger and signal
person qualification, training, and
testing found currently in subpart CC.
The comment does not persuade
OSHA that a revision to the proposed
rule is necessary or appropriate. OSHA
notes that the commenter did not
acknowledge that the majority of digger
derrick activity in the electric-utility
industry already is exempt from the
subpart CC requirements he addresses.
The commenter did not distinguish the
5 percent of digger-derrick activity
proposed for exemption by this
rulemaking from the 95 percent of work
performed by digger derricks currently
exempted from the rigger and signal
person qualifications in subpart CC.
Therefore, the commenter appears to be
requesting action outside the scope of
this rulemaking (i.e., addressing all
digger-derrick work, not just the 5
percent of work proposed for exemption
by this rulemaking). Additionally, the
commenter did not indicate that EEI
was mistaken in its estimate that 95
percent of the digger-derrick work in its
industry was already exempt from
subpart CC; the commenter also did not
assert that the dangers posed by the 5
percent of work within the scope of this
rulemaking are greater than the dangers
present in the 95 percent of diggerderrick work already exempted.
Moreover, the commenter did not
indicate whether a rigger or signal
person would typically be necessary to

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perform the 5 percent of work addressed
in this rulemaking.
In addressing his recommended
revisions, the commenter discussed data
he assembled on seven digger-derrick
incidents between 2001 and 2011. The
commenter asserted broadly that the
presence of signal persons and riggers
would have prevented these incidents,
but did not support this assertion with
respect to any of the specific incidents.
When OSHA examined these incidents,
it determined that none of them
involved placing pad-mount
transformers on the ground or any other
type of work exempted by this
rulemaking.
If OSHA retained the qualification,
training, and testing requirements from
subpart CC for the 5 percent of utility
work subject to this rulemaking, it
would be imposing unwarranted costs
on employers and perpetuating the
problem that EEI identified when it
requested the expanded exemption.
Under this approach, 95 percent of
utility work would remain exempt from
these requirements, while 5 percent of
this work would not be exempt;
nevertheless, utility employers would
incur the full cost of meeting all of the
qualification, training, and testing
requirements in subpart CC for signal
persons and riggers to assist with 5
percent of the work. More importantly,
employers would incur these costs even
though there is no evidence that the
dangers present in the 5 percent of the
work are greater than those presented in
the 95 percent of digger-derrick work
already exempted.
In addition, although the commenter
expressed concern about the absence of
subpart CC qualification, training, and
testing requirements for exempt diggerderrick activities, OSHA notes that any
digger-derrick activity exempted from
subpart CC will still be subject to the
training requirements and other
requirements in subpart V. Subpart V
addresses the hazards present in
electric-utility work, particularly the
hazards of electrocution raised by the
commenter. In at least several of the
incidents cited by the commenter, it
appears that compliance with existing
OSHA standards would have prevented
the injury.
In summary, OSHA finds that there is
no evidence that the dangers present in
the 5 percent of the work are greater
than the hazards present in the 95
percent of digger-derrick work already
exempted from subpart CC. Moreover,
OSHA’s analysis indicates that the
incidents cited by the commenter did
not involve work exempted by this final
rule. In addition, there is no evidence
that the subpart CC training and

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qualification requirements
recommended by the commenter would
have prevented those incidents.

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C. Agency Decision To Issue a Final
Rule
Based on the rulemaking record as a
whole, OSHA concludes that it is
appropriate to proceed with the
proposed rule and remove the burdens
imposed on employers by the remaining
5 percent of non-exempt work.
Therefore, OSHA is expanding the
digger-derrick exemption to include all
digger derricks used in construction
work subject to 29 CFR part 1926
subpart V. Based on its estimates in the
Final Economic Analysis provided in
the 2010 final rule, the Agency
determines that expanding the
exemption for digger derricks will
enable employers in NAICS 221120
(Electric Power Generation) to avoid
compliance costs of about $15.9 million
per year, while employers in NAICS
221110 (Electric Power Transmission,
Control, and Distribution) will avoid
compliance costs of about $5.7 million
per year, for a total cost savings of about
$21.6 million annually.
When the Agency promulgated the
final Cranes and Derricks in
Construction rule, OSHA’s primary
concern about extending the diggerderrick exemption beyond pole work
was that such action would provide
employers with an incentive to use
digger derricks on construction sites to
perform construction tasks normally
handled by cranes—tasks that are
beyond the original design capabilities
of a digger derrick. In discussing this
concern, OSHA stated, ‘‘[T]he general
lifting work done at those other
worksites would be subject to this
standard if done by other types of lifting
equipment, and the same standards
should apply as apply to that
equipment . . . .’’ (75 FR 47925). OSHA
acknowledges that revising the
exemption would extend the diggerderrick exemption to include some work
at substations. However, EEI indicated
that employers in the electric-utility
industry limit such uses to assembly or
arrangement of substation components,
and that these employers use other
types of cranes instead of digger
derricks to perform lifting and
installation work at substations (see
OSHA–2012–0025–0005: Jan. 2011 EEI
letter). If OSHA finds that employers are
using digger derricks increasingly for
other tasks, the Agency may revisit this
issue and adjust the exemption
accordingly.

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D. Revisions to the Text of the
Exemption in 29 CFR 1926.1400(c)(4)
OSHA is revising the exemption in
existing 29 CFR 1926.1400(c)(4) to
include within the exemption the
phrase ‘‘any other work subject to
subpart V of 29 CFR part 1926’’ as
proposed. This revision expands the
exemption to remove from coverage
under subpart CC of 29 CFR part 1926
the types of non-pole, digger-derrick
work described by EEI. The Agency also
is making several minor clarifications to
the text of the exemption. First, OSHA
is replacing ‘‘and’’ with ‘‘or’’ in the
phrase ‘‘poles carrying electric or
telecommunication lines’’ (emphasis
added). This revision will ensure that
the regulated community does not
misconstrue the exemption as limited to
poles that carry both electric and
telecommunications lines. This
clarification is consistent with OSHA’s
explanation in the preamble of the final
Cranes and Derricks in Construction
rule (see 75 FR 47925).
Second, OSHA is adding the phrase
‘‘to be eligible for this exclusion’’ at the
beginning of the sentence requiring
compliance with subpart V of 29 CFR
part 1926 and § 1910.268. This revision
limits the exemption to the use of digger
derricks that comply with the
requirements in subpart V or § 1910.268.
If an employer uses a digger derrick for
subpart V or telecommunications work
without complying with all of the
requirements in subpart V or § 1910.268,
then the work is not exempt and the
employer must comply with all of the
requirements of subpart CC of 29 CFR
part 1926. This clarification is
consistent with OSHA’s explanation of
the exemption in the preamble of the
final rule (see 75 FR 47925–47926).
Third, in § 1926.1400(c)(4) of this
final rule, OSHA is replacing the
reference to § 1910.269 with a reference
to subpart V. This revision is not
substantive in that electric-utility
employers having activities that fall
within the digger-derrick exemption
currently must comply with subpart V
because the exempt activity is subpart V
work, and they also must comply
currently with § 1910.269 because
subpart V requires them to do so (see 29
CFR 1926.952(c)(2)). By replacing the
reference to § 1910.269 in the
§ 1926.1400(c)(4) exemption with a
reference to subpart V, OSHA is
removing any implication that these
employers need only comply with
§ 1910.269 and not with all subpart V
requirements, including subpart O
requirements for motorized vehicles.

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E. Discussion of Conforming Revisions
to 29 CFR 1926 Subpart V
As part of the harmonizing process
mentioned in the previous section,
OSHA in this final rule also is revising
§ 1926.952(c)(2) in subpart V, which
requires compliance with § 1910.269 for
all digger-derrick work exempted from
subpart CC, including compliance with
§§ 1910.269(p), Mechanical equipment,
1910.269(a)(2), Training, and
1910.269(l), Working on or near exposed
energized parts. When OSHA
promulgated subpart CC of 29 CFR 1926
in 2010, the Agency also revised
§ 1926.952(c)(2) (75 FR 48135). This
revision mirrored the terminology in the
digger-derrick exemption at
§ 1926.1400(c)(4), and required
employers using digger derricks so
exempted to comply with § 1910.269. In
making this revision, the Agency
explained that it revised § 1926.952(c) to
require digger derricks to comply with
§ 1910.269 to provide ‘‘comparable
safety requirements’’ (Id.).
OSHA is revising § 1926.952(c)(2) in
this final rule so that it continues to
mirror the updated terminology in the
digger-derrick exemption at
§ 1926.1400(c)(4). As part of the revision
to § 1926.952(c)(2), OSHA is clarifying
that the requirement to comply with
§ 1910.269 is in addition to, not in place
of, the general requirement in
§ 1926.952(c) that all equipment
(including digger derricks) must comply
with subpart O of 29 CFR part 1926.
II. Agency Determinations
A. Significant Risk
The purpose of the Occupational
Safety and Health Act of 1970 (OSH Act;
29 U.S.C. 651 et al.) 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)). An occupational safety or
health standard is a standard that
‘‘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
and places of employment’’ (29 U.S.C.
652(8)). A standard is reasonably
necessary or appropriate within the
meaning of Section 652(8) when it
substantially reduces or eliminates
significant risk (see Industrial Union
Department, AFL-CIO v. American
Petroleum Institute, 448 U.S. 607
(1980)).

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This final rule does not impose any
additional requirements on employers.
It, therefore, does not require an
additional significant risk finding (see
Edison Electric Institute v. OSHA, 849
F.2d 611, 620 (DC Cir. 1988)). Moreover,
for the reasons explained above, OSHA
believes that adopting the proposed rule
will not adversely affect safety.
B. Final Economic Analysis and Final
Regulatory Flexibility Act Analysis
When it issued the final rule for
Cranes and Derricks in Construction 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 Orders 12866 (58 FR
51735 (Sept. 30, 1993) and 13563 (76 FR
3821 (Jan. 21, 2011)). OSHA also
published a final regulatory flexibility
analysis as required by the Regulatory
Flexibility Act (5 U.S.C. 601–612).
In the FEA for the 2010 final rule
(OSHA–2007–0066–0422), the Agency
estimated that there were about 10,000
crane operators in NAICS 221110
(Electric Power Generation), and about
20,000 crane operators in NAICS 221120
(Electric Power Transmission, Control,
and Distribution). OSHA based these
figures on estimates of the number of
construction work crews in these
industries from its subpart V
Preliminary Economic Analysis, with an
allowance (to assure maximum
flexibility) that there be three trained
crane operators for every work crew (see
75 FR 48084). Based on submissions to
the record, OSHA estimated that 85
percent of these 30,000 operators
(25,500) worked on digger derricks,
while 15 percent of the operators
operated truck-mounted cranes, or boom
trucks; therefore, a total of 25,500
digger-derrick operators would require
operator certification (Id.).
In its FEA for the 2010 final rule,
OSHA estimated that the annual total
costs for NAICS 221110 would be $6.7
million ($4 million for operator
certification), and the annual total costs
for NAICS 221120 would be $18.7
million ($8.7 million for operator
certification) (see FEA Table B–9 at 77
FR 48103). Fully exempting digger
derricks from the scope of the standard
also eliminates costs for other activities
besides operator certification, such as
inspections and power-line safety. In
the 2010 FEA, the two main cost
components for an industry were the
number of crane operators and the
number of jobs involving cranes. That
FEA estimated that digger derricks
represented 85 percent of operators, and
85 percent of jobs involving cranes.
OSHA, therefore, estimates that digger

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derricks account for 85 percent of the
costs attributed to NAICS 221110 and
NAICS 221120. Applying this 85
percent factor to the total costs for the
industries yields costs for digger
derricks of $5.7 million per year in
NAICS 221110 and $15.9 million per
year in NAICS 221120, for a total of
$21.6 million per year.3
This final rule will eliminate nearly
all of the estimated $21.6 million per
year in costs associated with digger
derricks. These estimated cost savings
may be slightly overstated because
OSHA noted in its 2010 FEA that the
cost assumptions might not represent
the most efficient way to meet the
requirements of the rule. However,
OSHA wanted to assure the regulated
community that, even with somewhat
overstated cost estimates, the rule
would still be economically feasible.
At the same time, it does not appear
that there will be any significant
reduction in benefits from the subpart
CC rule. In its 2010 FEA (OSHA–2007–
0066–0422), OSHA reported an average
of 0.5 crane-related fatalities per year in
SIC codes NAICS 221110 and NAICS
221120. However, the 2010 FEA did not
indicate that any of these fatalities
involved digger derricks or other
equipment covered by the standard.
Moreover, in light of the information
provided by EEI, there is no indication
that the additional 5 percent of diggerderrick activity exempted through this
rulemaking poses any hazard greater
than the hazard posed by the diggerderrick activities already exempted in
the 2010 final rule.
Because this rule estimates cost
savings of $21.6 million per year, this
rule is not economically significant
within the meaning of Executive Order
12866. The rule does not impose
additional costs on any private-sector or
public-sector entity, and does not meet
any of the criteria for an economically
significant or major rule specified by
3 Based on the size of digger derricks and EEI’s
descriptions of digger-derrick activities, OSHA
understands that the vast majority of digger-derrick
use for construction activity in the electric-utility
industry will involve transmission and distribution
work subject to subpart V of 29 CFR part 1926.
Employers categorized under NAICS 221120
generally conduct electric-transmission and
electric-distribution work. However, OSHA is
including digger derricks under NAICS 221110,
which is the SIC code for power generation, because
some employers may be under that SIC code when
their primary work is in that area, but those
employers also may engage in transmission work
covered by subpart V. Because the record does not
indicate that employers use digger derricks for
power-generation construction activities, OSHA
assumes that the use of digger derricks under
NAICS 221110 is for subpart V work. OSHA
included this identical explanation in the preamble
to the proposed rule, and received no comments
challenging this assumption.

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Executive Order 12866 and the relevant
statutes. This rule is not a ‘‘major rule’’
under Section 804 of the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.).
OSHA developed this rule consistent
with the provisions of Executive Orders
12866 and 13563. Accordingly, this rule
follows closely the principle of EO
13563 that agencies should use new
data developed after completion of a
rulemaking (retrospective analysis) to
determine if a regulation ‘‘should be
modified, streamlined, expanded, or
repealed.’’ In this case, review of data
submitted after completion of the initial
rulemaking provided OSHA with the
opportunity to streamline a rule by
dropping its application to all digger
derricks used in the electric-utility
industry, thereby saving the industry an
estimated $21.6 million per year. As
described previously, this action
removes duties and costs for the
electric-utility industry, and does not
impose any new duties on any
employer. Because this final rule will
reduce costs for small entities, the
Agency certifies that the final standard
will not impose significant economic
costs on a substantial number of small
entities.
OSHA included a similar economic
analysis and certification in the
preamble of the proposed rule and did
not receive any comments challenging
that analysis or the certification. The
one comment that OSHA received,
described earlier in this preamble,
suggested that there might be additional
net savings if OSHA revised the
exemption to retain qualification,
training, and testing requirements for
signal persons and riggers, but the
comment did not dispute OSHA’s
analysis of the cost reductions
associated with the exemption as
proposed. For the reasons explained
previously, OSHA determined that it
would not revise the exemption as
requested by the commenter.
C. Technological Feasibility
A standard is technologically feasible
when the protective measures it requires
already exist, when available technology
can bring the protective measures into
existence, or when that technology is
reasonably likely to develop (see
American Textile Mfrs. Institute v.
OSHA, 452 U.S. 490, 513 (1981);
American Iron and Steel Institute v.
OSHA, 939 F.2d 975, 980 (D.C. Cir.
1991)). This rule does not require any
additional protective measures. In the
2010 FEA, OSHA found the standard to
be technologically feasible (75 FR
48079). OSHA concludes that this
revision is feasible as well because it

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reduces or removes current
requirements on employers. OSHA also
reiterated that finding in the preamble
of the proposed rule for this rulemaking,
and did not receive any comment on
that finding.
D. Paperwork Reduction Act of 1995
When OSHA issued the final rule on
August 9, 2010, the Agency 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). 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 that ICR. In addition, OSHA
retitled the new ICR to Cranes and
Derricks in Construction (29 CFR Part
1926, Subpart CC and Subpart DD).
This rule, which expands the diggerderrick exemption, does not require any
additional collection of information or
alter the substantive requirements
detailed in the 2010 ICR. The only
impact on the collection of information
will be a reduction in the number of
entities collecting information. OMB did
not require OSHA to submit a new
proposed ICR when OSHA issued the
proposed rule, and OSHA does not
believe it is necessary to submit a new
ICR to OMB now. OSHA will identify
any reduction in burden hours when it
renews the ICR. OSHA requested
comment on this approach in the
proposed rulemaking describing the
digger-derrick exemption, but received
none.
OSHA notes that a federal agency
cannot conduct or sponsor a collection
of information unless it is approved by
OMB under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq., and
the agency also displays a currently
valid OMB control number for the
collection of information; the public
need not respond to a collection of
information requirement unless the
agency displays a currently valid OMB
control number. Also, notwithstanding
any other provisions 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.
E. Federalism
OSHA reviewed this final rule in
accordance with the Executive Order on
Federalism (Executive Order 13132 (64

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FR 43255 (Aug. 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 (29
U.S.C. 667), 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. 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 concluded in 2010 that its
promulgation of subpart CC complies
with Executive Order 13132 (75 FR
48128 and 48129). Because the current
rulemaking does not impose any
additional burdens, that analysis applies
to this revision of the digger-derrick
exemption. Therefore, this final rule
complies with Executive Order 13132.
In states without OSHA-approved state
plans, any standard developed from this
rule will impact state policy options in
the same manner as every standard
promulgated by OSHA. In State Plan
States, this rulemaking does not limit
state policy options.
F. State Plan States
When federal OSHA promulgates a
new standard or a more stringent
amendment to an existing standard, the
27 states and U.S. territories with their
own OSHA-approved occupational
safety and health plans 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
in protecting employees as the new
federal standard or amendment (29 CFR
1953.5(a)). The state standard must be at
least as effective in protecting
employees as the final federal rule. State
Plan States must issue the standard
within six months of the promulgation
date of the final federal rule. When

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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 OSHAapproved 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 made in this rule do
not impose any new requirements on
employers. Accordingly, State Plan
States need not amend their standards
to incorporate the expanded exemption
specified in this rule, but they may do
so if they so choose.
G. 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
Reform Act of 1995 (UMRA; 2 U.S.C.
1501 et seq.) and Executive Order
13132. OSHA concluded that the final
rule did not meet the definition of a
‘‘Federal intergovernmental mandate’’
under the UMRA (75 FR 48130).
OSHA’s standards do not apply to state
or local governments except in states
that have voluntarily adopted state
plans. OSHA further noted that the rule
imposed costs of over $100 million per
year on the private sector and, therefore,
required review under the UMRA for
those costs; the Agency determined that
its Final Economic Analysis met that
requirement (Id).
As discussed above in Section II.B. of
this preamble, this rule reduces
expenditures by private-sector
employers. For the purposes of the
UMRA, OSHA certifies that this 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. OSHA included an identical
certification in the preamble of the
proposed rule, and received no
comment challenging that certification.
H. Consultation and Coordination With
Indian Tribal Governments
OSHA reviewed this rule in
accordance with Executive Order 13175

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(65 FR 67249 (Nov. 9, 2000)), and
determined that it does not have ‘‘tribal
implications’’ as defined in that order.
This 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.
List of Subjects in 29 CFR Part 1926
Cranes and derricks, Construction
industry, Electric power, Occupational
safety and health.
Authority and Signature
David Michaels, Ph.D., MPH,
Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution
Ave. NW., Washington, DC 20210,
authorized the preparation of this
notice. OSHA is issuing this final rule
under the following authorities: 29
U.S.C. 653, 655, 657; 40 U.S.C. 3701 et
seq.; 5 U.S.C. 553; Secretary of Labor’s
Order No. 1–2012 (77 FR 3912, Jan. 25,
2012); and 29 CFR part 1911.
Signed at Washington, DC, on May 22,
2013.
David Michaels
Assistant Secretary of Labor for Occupational
Safety and Health.

Subpart CC—Cranes and Derricks in
Construction
3. Revise the authority citation for
subpart CC to read as follows:

■

Authority: 40 U.S.C. 3701; 29 U.S.C. 653,
655, 657; and Secretary of Labor’s Order No.
5–2007 (72 FR 31159) or 1–2012 (77 FR
3912), as applicable; and 29 CFR part 1911.

4. Amend § 1926.1400 by revising
paragraph (c)(4) to read as follows:

■

§ 1926.1400

Scope.

*

*
*
*
*
(c) * * *
(4) Digger derricks when used for
augering holes for poles carrying electric
or telecommunication lines, placing and
removing the poles, and for handling
associated materials for installation on,
or removal from, the poles, or when
used for any other work subject to
subpart V of this part. To be eligible for
this exclusion, digger-derrick use in
work subject to subpart V of this part
must comply with all of the provisions
of that subpart, and digger-derrick use
in construction work for
telecommunication service (as defined
at § 1910.268(s)(40)) must comply with
all of the provisions of § 1910.268.
*
*
*
*
*
[FR Doc. 2013–12665 Filed 5–28–13; 8:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199

PART 1926—[AMENDED]

RIN 0720–AB48

Subpart V—Power Transmission and
Distribution

[Docket ID: DOD–2011–HA–0029]

1. Revise the authority citation for
subpart V to read as follows:

Authority: 40 U.S.C. 3701; 29 U.S.C. 653,
655, 657; Secretary of Labor’s Order Nos. 12–
71 (36 FR 8754); 8–76 (41 FR 25059); 9–83
(48 FR 35736), 1–90 (55 FR 9033), 5–2007 (72
FR 31159), or 1–2012 (77 FR 3912), as
applicable. Section 1926.951 also is issued
under 29 CFR part 1911.

2. Amend § 1926.952 by revising
paragraph (c)(2) to read as follows:

■

§ 1926.952

Mechanical equipment.

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*

*
*
*
*
(c) * * *
(2) Use of digger derricks must
comply with § 1910.269 (in addition to
29 CFR part 1926, subpart O) whenever
29 CFR part 1926, subpart CC, excludes
such use in accordance with
§ 1926.1400(c)(4).
*
*
*
*
*

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Office of the Secretary, DoD.
Final rule.

AGENCY:
ACTION:

This final rule implements
Section 702 of the Ike Skelton National
Defense Authorization Act for Fiscal
Year 2011 (NDAA for FY11). It
establishes the TRICARE Young Adult
(TYA) program to provide an extended
TRICARE Program coverage opportunity
to most unmarried children under the
age of 26 of uniformed services
sponsors. The TYA program is a
premium-based program.
DATES: This rule is effective June 28,
2013.
FOR FURTHER INFORMATION CONTACT:
Mark Ellis, TRICARE Management
Activity, TRICARE Policy and
Operations Directorate, 7700 Arlington
Boulevard, Suite 5101, Falls Church, VA
22042–5101, telephone (703) 681–0039.
SUMMARY:

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A. Overview
An interim final rule was published
in the Federal Register on April 27,
2011 (76 FR 23479–23485) that
established the TYA program by
implementing Section 702 of the Ike
Skelton NDAA for FY 2011 (Pub. L.
111–383). The TYA program provides
TRICARE Program coverage to
unmarried children under the age of 26
of TRICARE-eligible sponsors who no
longer meet the age requirements for
TRICARE eligibility (age 21, or 23 if
enrolled in a full-time course of study
at an approved institution of higher
learning, and the sponsor provides more
than 50 percent of the student’s
financial support), and who are not
eligible for medical coverage from an
eligible employer-sponsored plan based
on their individual employment status
(as defined in section 5000A(f)(2) of the
Internal Revenue Code of 1986). If
qualified, they can purchase TRICARE
Standard/Extra or TRICARE Prime
benefits coverage. The particular
TRICARE option available depends on
the uniformed service sponsor’s
eligibility and the availability of the
TRICARE option in the dependent’s
geographic location.

II. Provisions of the Rule Regarding the
TYA Program

TRICARE Young Adult

■

I. Introduction and Background

B. Public Comments
The interim final rule was published
in the Federal Register on April 27,
2011. One online comment was received
via www.regulations.gov. We thank the
commenter for the comments. Specific
matters raised by those comments are
summarized below.

Amendments to Standards
For the reasons stated in the preamble
of this rule, OSHA amends 29 CFR part
1926 as follows:

SUPPLEMENTARY INFORMATION:

A. Establishment of the TYA Program
(§ 199.26(a))
1. Provisions of Interim Final Rule.
This paragraph describes the nature,
purpose, statutory basis, scope, and
major features of TYA, a full cost,
premium-based TRICARE Program
coverage made available for purchase
worldwide. TYA is similar to young
adult coverage under the Patient
Protection and Affordable Care Act, but
reflects a number of differences between
TRICARE, a statutorily-created DoD
health benefits program and typical
civilian health care plans. Among these
is that TYA is a full cost premium based
program; it is limited to unmarried
dependent children of TRICARE-eligible
sponsors; and the dependent child must
not be eligible for medical coverage
from an eligible employer-sponsored
plan based on their individual

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