New rule broadens exemption for digger derricks in Cranes and Derricks in Construction standard
In a final rule published in the November 9, 2012, Federal Register, OSHA announced that it is broadening the exemption for digger derricks in its Cranes and Derricks in Construction Standard to include all digger derricks used in construction work subject to 29 CFR 1926, subpart V, Power Transmission and Distribution. This decision is the result of a petition that was submitted to U.S. Court of Appeals for the District of Columbia asking for a review of the Cranes and Derricks in Construction standard. Based on new information provided to OSHA regarding the use of digger derricks in the electric-utility industry and the resulting impact on the utilities' operations under the current digger derrick exemption in subpart CC, the exemption was reexamined.
According to the petitioner, the digger derrick exemption from subpart CC currently covers roughly 95 percent of work conducted by digger derricks in the electric-utility industry. The majority of the work under the remaining five percent is work that is closely related to the exempted work. 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 transformer on the ground is not.
OSHA now believes most (if not all) of the remaining five percent of work is at least as safe. Weight measurements provided by the petitioner demonstrated 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. In addition, 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- or pad-mounted. In those 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. Consequently, the lifting forces on a digger derrick should be approximately the same regardless of whether the transformer is pole- or pad-mounted.
Finally, the approximate height of the transformer relative to the employee installing the transformer is the same for the two types of transformers. 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 around the same height as the employee.
Because the same workers generally perform both types of work, utility employers must, when the standard becomes fully effective in November 2014, incur the cost of meeting all other requirements in subpart CC, including the operator-certification requirements, for those workers to perform the five percent of the work not currently exempted. OSHA realized that the result could be a sizable cost (about $21.6 million annually) for an activity that does not appear significantly more dangerous than the type of activity that OSHA already exempted. OSHA says it did not consider this result when it promulgated the standard, and acknowledges the arguments that there are minimal safety benefits attributable to imposing the standard's requirements on the remaining five percent of non-exempted work. Moreover, the exempted digger-derrick operations are still subject to the protections afforded to workers by OSHA's electric-utility and telecommunications standards (§ 1910.269, subpart V of 29 CFR 1926, and § 1910.268, respectively).
The direct final rule will become effective on February 7, 2013, unless OSHA receives significant adverse comment by December 10, 2012. If the agency receives a significant adverse comment, which in this case is one that explains why the amendments to OSHA's digger-derrick exemption would be inappropriate, the agency will withdraw the direct final rule and treat such comment as a response to the proposed rule.
OSHA says that all comment submissions whether transmitted, mailed, or delivered, must bear a postmark or provide other evidence of the submission date, which can be no later than December 10, 2012.
