E7-5609. Notice of Availability of the Regulatory Flexibility Act Review of the Occupational Safety Standard for Excavations

AGENCY:

Occupational Safety and Health Administration, Department of Labor.

ACTION:

Notice of availability.

SUMMARY:

The Occupational Safety and Health Administration (OSHA) has completed a review of its Excavations Standard pursuant to section 610 of the Regulatory Flexibility Act and section 5 of Executive Order 12866 on Regulatory Planning and Review. In 1989, OSHA issued a final, revised Excavations Standard to reduce deaths and injuries from excavation and trenching activities in the construction industry. This regulatory review concludes that the 1989 Excavations Standard has reduced deaths from approximately 90 to 70 per year while real construction activity has increased by 20%. The review also concludes that the Standard has not had a negative impact on small business, that the cost of control technology has been reduced, that the Standard is understandable and does not conflict with other rules, and that commenters agree that the Standard should be retained. Based on this review, OSHA concludes that the Excavations Standard should remain in effect, but OSHA will issue some improved guidance and training materials, based on commenters suggestions.

ADDRESSES:

Copies of the entire report may be obtained from the OSHA Publication Office, Room N-3101, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone]; Fax [phone]. The full report, comments, and referenced documents are available for review at the OSHA Docket Office, New Docket No. OSHA-2007-0012, Old Docket No. S-204A, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone] (OSHA's TTY number is [phone]). OSHA's Docket Office hours of operation are 8:15 a.m. to 4:45 p.m., e.t. The main text of the report, this Federal Register Notice and any news releases will become available at the OSHA Webpage at http://www.OSHA.gov. Electronic copies of this Federal Register Document, the full text of the report, comments and referenced documents are or will become available at http://www.regulations.gov

FOR FURTHER INFORMATION CONTACT:

General information: Joanna Dizikes Friedrich, OSHA Directorate of Evaluation and Analysis, Room N-3641, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone]. Technical inquiries about the Excavations Standard: Garvin Branch, OSHA, Directorate of Construction, Room N-3468, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone]. Press inquiries: Elaine Fraser, OSHA Office of Communications, N-3637, 200 Constitution Avenue, NW., Washington DC 20210; telephone [phone].

SUPPLEMENTARY INFORMATION:

The Occupational Safety and Health Administration (OSHA) has completed a “lookback” review of its Excavations Standard, 29 CFR part 1926, Subpart P, §§ 1926.650 to 1926.652 and Appendices A to F, titled “Regulatory Review of 29 CFR part 1926, Subpart P: Excavations, March 2007” (“Regulatory Review”). This Federal Register document announces the availability of the Regulatory Review and briefly summarizes it.

The Regulatory Review was undertaken pursuant to and meets the requirements of section 610 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and section 5 of Executive Order 12866 (59 FR 51739, Oct 4, 1993). The purpose of a review under section 610 of the Regulatory Flexibility Act is to determine whether a rule should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes to minimize any significant impact of the rule on a substantial number of small entities. In making this determination, the Agency considers the following factors:

(1) The continued need for the rule;

(2) The nature of complaints or comments received concerning the rule from the public;

(3) The complexity of the rule;

(4) The extent to which the rule overlaps, duplicates or conflicts with other Federal rules; and to the extent feasible, with state and local governmental rules; and

(5) The length of time since the rule has been evaluated and the degree to which technology, economic conditions, or other factors have changed in the areas affected by the rule.

Under section 5 of Executive Order 12866, agencies examine whether rules have become unjustified or unnecessary as a result of changed circumstances, whether they are both compatible with other rules and not duplicative or inappropriately burdensome in the aggregate, whether they are consistent with the President's priorities and the principles set forth in the Executive Order, within applicable law, and whether their effectiveness can be improved.

On October 31, 1989, OSHA issued a final, revised Standard for excavation and trenching, at 54 FR 45894. The revision updated the previous standard by simplifying many of the existing provisions, adding and clarifying definitions, eliminating duplicate provisions and ambiguous language, and giving employers added flexibility in providing protection for employees. In addition, the Standard provided several new appendices. One appendix provided a consistent method of soil classification. Others provided sloping and benching requirements, pictorial examples of shoring and shielding devices, timber tables, hydraulic shoring tables and section charts that provide a graphic summary of the requirements contained in the Standard.

On August 21, 2002, OSHA published a Federal Register document requesting public comments on the Excavations Standard and, specifically, on all issues raised by section 610 of the RFA and section 5 of Executive Order 12866 (67 FR 54103). The Regulatory Review summarizes the public comments and responds to them, and makes the following major findings:

• There is a continued need for the Standard. The annual number of trenching and excavation fatalities has declined from an estimated 90 fatalities per year prior to the enactment of the 1989 Standard, to approximately 70 per year since 1990.

This 22% reduction is even more impressive given the 20% real increase in construction activity over this period. Therefore, in relation to increased construction activity, fatalities have been reduced by more than 40%. Although the Standard has improved safety, it remains needed in light of the ongoing occurrence of related fatalities, most of which result from violations of the Standard. OSHA intends to expand outreach and maintain enforcement to further reduce fatalities.

• The Standard does not impose an unnecessary or disproportionate burden on small business or on industry in general. The cost of protective systems has decreased by 10 percent in real dollars between 1990 and 2001. The number of small businesses engaged in excavation activity has increased, and the percentage of excavation work done by small business has increased. Real construction activity has increased.
• There is no indication that employers are unable to comply due to the complexity of the revised Standard. Nonetheless, public comments suggested some ways in which the Standard might be simplified or clarified (although some argued that any changes would only serve to confuse and discourage those who now understand and follow the Standard). The expanded outreach will address these matters.
• In general, the Standard does not overlap, duplicate, or conflict with other state or Federal rules. Several commenters, however, identified a possible conflict between the Excavations Standard and OSHA's standard for confined spaces. OSHA will address this issue in its future rulemaking for confined spaces in construction.
• Economic and technological trends have not reduced the need for the Standard. However, the development of so-called “trenchless” technologies (e.g., directional boring machines) has added a new dimension to excavation work (including additional hazards) that OSHA will monitor.
• Public comments contained some specific suggestions for how the Standard could be made more effective, although the comments were divided as to whether or not the Standard should be modified. In light of the effectiveness of the Standard, the certainty it has created, and limited regulatory resources, major modifications are not of high priority.
• The National Transportation Safety Board (NSTB) recommended that OSHA amend the Excavations Standard to require employers to notify appropriate authorities after excavation activities create a gas leak or leak of other hazardous substances. Since then, the “Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006” has been enacted. Section 2 of PIPES requires all persons (including employers) engaged in demolition, excavation, tunneling, or construction to immediately call 911 if: (1) They damage a pipeline that may endanger life or cause serious bodily harm or damage to property; and (2) such damage results in the escape of flammable, toxic, or corrosive gas or liquid. OSHA will monitor the implementation of PIPES and consider whether amending the Excavations Standard as suggested by NTSB is necessary and appropriate.
• The Standard remains consistent with the President's priorities to the extent that it has produced the intended benefits, a reduction in trenching and excavation fatalities and injuries, while not causing negative economic effects.

Based on the findings of this review, OSHA finds that the Excavations Standard should be continued. OSHA also believes that further increases in safety might be achieved through increased outreach and training.

Signed at Washington, DC, this 19th day of March, 2007.

Edwin G. Foulke, Jr.,

Assistant Secretary of Labor.