Construction safety and health standards: Cranes and Derricks Negotiated Rulemaking Advisory Committee; intent to establish,

[Federal Register: July 16, 2002 (Volume 67, Number 136)]

[Proposed Rules]

[Page 46612-46616]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16jy02-28]

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. S-030]

RIN No. 1218-AC01

Safety Standards for Cranes and Derricks

AGENCY: Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION: Notice of intent to establish Negotiated Rulemaking Committee; request for nominees and comments.

SUMMARY: The Occupational Safety and Health Administration is announcing its intent to establish a Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC) under the Negotiated Rulemaking Act (NRA) and the Federal Advisory Committee Act (FACA). The Committee will negotiate issues associated with the development of a proposed revision of the existing construction safety standards for the cranes and derricks portion (``1926.550) of 29 CFR part 1926 Subpart N-Cranes, Derricks, Hoists, Elevators, and Conveyors. The Committee will include representatives of parties who would be significantly affected by the final rule. OSHA solicits comments on the initiative and requests interested parties to nominate representatives for membership on C-DAC.

DATES: Written comments and requests for membership must be submitted by September 16, 2002. Comments and requests for membership submitted by mail must be postmarked not later than September 16, 2002. E-mailed or faxed comments or requests for nomination must be received by September 16, 2002.

ADDRESSES: Written comments, including nominations for membership, may be submitted in any of three ways: by mail, by fax, or by e-mail. Please include ``Docket No. S-030'' on all submissions.

By mail, the address is: OSHA Docket Office, Docket No. S-030, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210, telephone (202) 693-2350. Note that receipt of comments submitted by mail may be delayed by several weeks.

By fax, written comments and nominations for membership that are 10 pages or fewer, may be transmitted to the OSHA Docket Office at telephone number (202) 693-1648.

By email, comments and nominations may be submitted through OSHA's Homepage at ecomments.osha.gov. Please note that you may not attach materials such as studies or journal articles to your electronic comments. If you wish to include such materials, you must submit three copies to the OSHA Docket Office at the address listed above. When submitting such materials to the OSHA Docket Office, clearly identify your electronic comments by name, date, subject, and Docket Number, so that we can attach the materials to your electronic comments.

FOR FURTHER INFORMATION CONTACT: Nancy Ford, Office of Construction Standards and Compliance Assistance, Occupational Safety and Health Administration, U.S. Department of Labor, Room NB3468, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone: (202) 693-2345.

SUPPLEMENTARY INFORMATION:

I. Background

The existing rule for cranes and derricks in construction, codified in volume 29 of the Code of Federal Regulations (CFR), Sec. 1926.550, which dates back to 1971, is based in part on industry consensus standards from 1967 to 1969. Since 1971, that section of subpart N has undergone only two amendments:

(1) In 1988, Sec. 1926.550 was amended by adding a new paragraph (g) to establish clearly the conditions under which employees on personnel platforms may be hoisted by cranes or

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derricks (see volume 53 of the Federal Register, pages 29116 to 29141).

(2) In 1993, Sec. 1926.550 was amended by adding a new (a)(19), which states that all employees shall be kept clear of loads about to be lifted and of suspended loads (58 FR 35183).

There have been considerable technological changes since the consensus standards upon which the 1971 OSHA standard is based were developed. For example, hydraulic cranes were rare at that time but are now prevalent. The existing OSHA standard does not specifically address hydraulic cranes. In contrast, industry consensus standards for derricks were updated in 1995 and crawler, truck and locomotive cranes were updated as recently as 2000.

A cross-section of industry stakeholders has asked the Agency to update Subpart N's crane and derrick requirements. They have indicated that over the past 30 years, the considerable changes in both work processes and crane technology have made much of Subpart N obsolete.

For the past two years, a number of industry representatives have been working with a cranes workgroup of the Advisory Committee for Construction Safety and Health (ACCSH). That workgroup has been developing recommended changes to Subpart N with respect to the requirements for cranes.

Based on the Agency's review of the issues, the progress made by the ACCSH cranes workgroup, and the continued interest in using negotiated rulemaking for this standard, OSHA proposes to use the negotiated rulemaking process to develop a proposed revision of the requirements in Subpart N for cranes and derricks.

The negotiated rulemaking effort described in this notice will be conducted in accordance with the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq., and the Department of Labor's policy on negotiated rulemaking. Further detail on the Department's negotiated rulemaking policy is in the ``Notice of Policy on Use of Negotiated Rulemaking Procedures by Agencies of the Department of Labor'' (57 FR 61860).

1. The Concept of Negotiated Rulemaking

   Usually, OSHA develops a proposed rule using staff and consultant resources. The concerns of affected parties are often identified through stakeholder meetings and an advance notice of proposed rulemaking (ANPR) published in the Federal Register. This is followed by formal consultation with ACCSH (under the Construction Safety Act, OSHA is required to consult with ACCSH on all proposed construction standards). Affected parties do not generally have an opportunity to submit arguments and data supporting their positions until the proposed rule is published. In contrast, in a negotiated rulemaking, there is greater opportunity for face-to-face, back-and-forth communications during the process among parties representing different interests and with agency officials.

   Many times, effective regulations have resulted from traditional rulemaking. However, as Congress noted in the Negotiated Rulemaking Act (5 U.S.C. 561), current rulemaking procedures Amay discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions * * *'' (Sec. 2(2)). Congress also stated that ``adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.'' (Sec. 2(3)).

   In negotiated rulemaking, a proposed rule is developed by a committee composed of representatives of government and the interests that will be significantly affected by the rule. Decisions are made by consensus. As defined in 5 U.S.C. 562 (2)(a)(b),

   `consensus' means unanimous concurrence among the interests represented on a negotiated rulemaking committee established under this subchapter, unless such committee agrees to define such term to mean a general but not unanimous concurrence or agrees upon another specified definition.

   The process is started by the Agency's careful identification of all interests potentially affected by the rulemaking under consideration. To help in this identification process, the Agency publishes a document such as this one in the Federal Register, which identifies a preliminary list of interests and requests public comment on that list.

   Following receipt of the comments, the Agency establishes an advisory committee representing these various interests to negotiate a consensus on the provisions of a proposed rule. Representation on the committee may be direct, that is each member represents a specific interest, or indirect, through coalitions of parties formed to represent a specific sphere of interest. The Agency is a member of the committee representing the Federal government's statutory mission.

   The negotiated rulemaking advisory committee is chaired by a trained facilitator, who applies proven consensus building techniques to help the advisory committee work towards a consensus. The many functions that he or she will perform are discussed below.

   Once the committee reaches consensus on the provisions of a proposed rule, the Agency, consistent with its legal obligations, uses that consensus as the basis for its proposed rule, to be published in the Federal Register. This provides the required public notice and allows for a public comment period. Members, other participants and other interested parties retain their rights under section 6(b) of the OSH Act to submit written comments and participate in an informal hearing (if requested). OSHA will then publish a final rule based on the record as a whole--the information that was received in the course of developing the proposed rule, together with the comments and information submitted after the proposal is published. OSHA anticipates that the pre-proposal consensus agreed upon by this Committee will effectively narrow the issues in the subsequent rulemaking and reduce the likelihood of litigation.

2. Selecting Part of Subpart N as a Candidate for Negotiated Rulemaking

   The Agency may establish a negotiated rulemaking committee if it has determined that the use of the negotiated rulemaking procedure is in the public interest. As discussed above, OSHA has made that determination in this case.

   The Agency bases this determination on prior experience with the negotiated rulemaking process. Even before the NRA was enacted, OSHA conducted negotiated rulemaking for its complex health standards for Methylenedianiline (MDA). This committee met seven times over a 10- month period (24 meeting days) and successfully negotiated standards for both general industry and construction. The final standards were ultimately based on the recommended proposed standards, and no litigation followed the standards' promulgation.

   Also, the new Steel Erection Standard (29 CFR part 1926 subpart R) was based on a proposal that was developed by the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC). The new final rule was published on January 18, 2001, and became effective January 18, 2002. The standard addresses the hazards that have been identified as the major causes of injuries and fatalities in the steel erection industry.

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   OSHA believes that the cranes and derricks portion of subpart N is an appropriate subject for negotiated rulemaking. In 1998, the Advisory Committee on Construction Safety and Health (ACCSH) formed a workgroup to review subpart N. In December 1999, ACCSH passed a motion submitted by the workgroup, recommending that OSHA consider negotiated rulemaking as the mechanism to revise/update subpart N. The workgroup has made considerable progress in identifying and prioritizing areas in the current standard that should be updated to reflect modern safety procedures.

   The Agency believes that the selection criteria listed in the NRA (5 U.S.C. 563(a)) have been met. Interests that will be affected by a revised subpart N are known, are limited in number, and to a significant degree are already organized in interest-based coalitions. There appears to be a good possibility of reaching consensus on a proposed rule. In addition, OSHA expects that persons likely to be significantly affected by such a rule will negotiate in good faith. The need for updating provisions is acknowledged by all known interests. As progress has already been made through the efforts of the ACCSH workgroup, OSHA believes that the negotiated rulemaking process will not unreasonably delay the proposal or issuance of a final rule.

3. Agency Commitment

   In initiating this negotiated rulemaking process, OSHA is making a commitment on behalf of the Department of Labor that OSHA and all other participants within the Department will provide resources to ensure timely and successful completion of the process. This commitment includes making the negotiations a priority activity for all officials of the Department who need to be involved.

   OSHA will take steps to ensure that the negotiated rulemaking committee has sufficient resources to complete its work in a timely fashion. These include the provision or procurement of such support services as: adequate and properly equipped space; logistical support and timely payment of participant travel and expenses where necessary as provided for under the NRA; word processing, communications and other information handling services required by the committee; the services of a facilitator; and such additional statistical, economic, safety, legal, or other technical assistance as may be necessary.

   OSHA, to the maximum extent possible consistent with its statutory mission and the legal obligations of the agency, will use the consensus of the committee as the basis for the rule proposed by the Agency for public notice and comment. The Agency believes that by updating the existing standard, it can limit or reduce the number of deaths and injuries to employees associated with cranes and derricks used in construction. The Agency, therefore, is committed to publishing a consensus proposal that is consistent with OSHA's legal mandates.

4. Negotiating Consensus

   An important benefit of negotiated rulemaking is that it necessarily involves a mutual education of the parties on the practical concerns about the effect of different approaches to various issues. This stems from the fact that in negotiated rulemaking, agreement is by consensus of the interests. As noted above, the NRA defines consensus as the ``unanimous concurrence among interests represented on a negotiated rulemaking committee * * * unless such committee agrees to (a different definition).'' In addition, experience has demonstrated that using a trained facilitator to work with the Committee will assist all parties, including OSHA, to identify their real interests in the rule, and will enable them to reevaluate previously stated positions on issues involved in this rulemaking effort.

5. Some Key Issues for Negotiation

   OSHA expects that the key issues to be addressed as part of these negotiations will include:

   1. The identification/description of what constitutes ``cranes and derricks'' for purposes of determining the equipment that will be covered by the proposed rule.

   2. Qualifications of individuals who operate, maintain, repair, assemble, and disassemble cranes and derricks.

   3. Work zone control.

   4. Crane operations near electric power lines.

   5. Qualifications of signal-persons and communication systems and requirements.

   6. Load capacity and control procedures.

   7. Wire rope criteria.

   8. Crane inspection/certification records.

   9. Rigging procedures.

   10. Requirements for fail-safe, warning, and other safety-related devices/technologies.

   11. Verification criteria for the structural adequacy of crane components.

   12. Stability testing requirements.

   13. Blind pick procedures.

   II. Proposed Negotiation Procedures

   OSHA is proposing to use the following procedures and guidelines for this negotiated rulemaking. The Agency may modify them in response to comments received on this document or during the negotiation process.

1. Committee Formation

   This Committee will be formed and operated in full compliance with the requirements of the Federal Advisory Committee Act (FACA) and the NRA, in a manner consistent with the standards-setting requirements of the OSH Act.

2. Interests Involved

   The Agency intends to ensure full and adequate representation of those interests that are expected to be significantly affected by the proposed rule. Section 562 of the NRA defines the term ``interest'' as follows:

   (5) ``interest'' means, with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner.

   The following interests have been tentatively identified as ``significantly affected'' by this rulemaking:

   -- Crane and derrick manufacturers, suppliers, and distributors -- Companies that repair and maintain cranes and derricks -- Crane and derrick leasing companies -- Owners of cranes and derricks -- Construction companies that use leased cranes and derricks -- General contractors -- Labor organizations representing construction employees who operate cranes and derricks and who work in conjunction with cranes and derricks -- Owners of electric power distribution lines -- Civil, structural and architectural engineering firms and engineering consultants involved with the use of cranes and derricks in construction -- Training organizations -- Crane and derrick operator testing organizations -- Insurance and safety organizations, and public interest groups -- Trade associations -- Government entities involved with construction safety and with construction operations involving cranes and derricks.

   This list of potential interests is not presented as a complete or exclusive list from which committee members will be selected. The list merely indicates interests that OSHA has tentatively identified as being significantly affected by the outcome of the Subpart N

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   negotiated rulemaking process. One purpose of this document is to obtain public comment about whether an updated crane standard would significantly affect interests that are not listed above. OSHA invites comment and suggestions on this list of ``significantly affected'' interests.

3. Members

   The negotiating group should not exceed 25 members, and 15 would be preferable. The Agency believes that the more members there are over 15, the more difficult it is to conduct effective negotiations.

   OSHA is aware that there may be more interests, whether they are listed here or not, than membership slots on the Committee. In order to have a successful negotiation, it is important for interested parties to identify and form coalitions that adequately represent significantly affected interests. To provide adequate representation, these coalitions must agree to support, both financially and technically, a member on the Committee whom they will choose to represent their interest.

   It is important to recognize that interested parties who are not selected to membership on the Committee can make valuable contributions to a negotiated rulemaking in any of several ways:

   Asking to be placed on the Committee mailing list and making written comments; Attending the Committee meetings, which are open to the public, caucusing with his or her interest's member on the Committee, or even addressing the Committee (often allowed at the end of an issue's discussion or the end of the session, as time permits); and/or

   Assisting in the work of a Committee workgroup.

   Informal workgroups are usually established by an advisory committee to help it address technical issues or other particular matters. They might also help analyze costs and compliance data, help draft regulatory text, or initially address novel issues that arise during negotiations. Workgroup members usually have expertise or a particular interest in the technical matter(s) being studied. Because of the importance of this work on technical details, OSHA will also provide appropriate technical expertise for such workgroups, as needed.

4. Request for Nominations

   OSHA solicits requests for appointment to membership on the Committee. Members can be individuals or representatives of organizations. However, an organization that requests membership should identify the individual who will be its representative. If the negotiation is to be successful, members must be able to fully and adequately represent the viewpoints of their respective interests. Those individuals or representatives of organizations who wish to be appointed as members of the Committee should submit a request to OSHA, in accordance with the ``Public Participation'' part of this document.

   This document gives notice of the selection process to all potential participants and affords them an opportunity to request representation in the negotiations. The procedure for requesting such representation is set out under the Public Participation part of this document, below.

5. Good Faith Negotiation

   Committee members need to have authorization to negotiate on behalf of their interests and be willing to negotiate in good faith. First, each member needs to have good communications with his or her constituencies. An ``intra-interest'' network of communication should be established to channel information between the member and his/her organization and interest coalition. Second, in nominating a member to represent it, each organization or coalition should designate a person with credibility and authority to insure that information is shared and decisions are made in a timely manner. Negotiated rulemaking efforts can require a very significant contribution of time by the appointed members, which must be sustained for a year or more.

   Certain considerations are central to negotiating in good faith. One is the willingness to bring all issues to the table in an attempt to reach a consensus, instead of keeping key issues in reserve. The second is a willingness to keep the issues at the table and not take them to other forums. Finally, good faith includes a willingness to move away from the type of adversarial positions often taken in rulemaking proceedings, and instead to explore openly with other parties all relevant and productive ideas that may emerge from the discussions of the committee.

6. Facilitator

   The facilitator will not be a party to the substantive development of the standard. Rather, the facilitator's role will generally include:

   (1) Chairing the meeting of the committee in an impartial manner;

   (2) Impartially assisting the members of the committee in conducting discussions and negotiations, and

   (3) Supervising the taking of minutes and keeping of records and other relevant responsibilities.

7. OSHA Representative

   The OSHA representative, as a full member of the Committee, will participate fully with the other members in the negotiations. The OSHA representative will meet regularly with various senior OSHA officials, briefing them on the negotiations and receiving their suggestions and advice, in order to effectively represent the Agency's views regarding the issues before the Committee. OSHA's representative will also inform the Office of Management and Budget of the status of the negotiations. OSHA's representative will also communicate with ACCSH on a regular basis, informing it of the status and content of the negotiations.

   In addition, the OSHA representative will present the negotiators with the available evidence that the Agency has gathered on an issue- by-issue basis for their consideration. The Committee may also consult OSHA's representative to obtain technical information, and to discuss issues associated with setting and administering standards (such as jurisdiction, scope, enforceability, costs and feasibility concerns, and paperwork burden issues). The OSHA representative, together with the Facilitator, will also be responsible for coordinating the administrative and committee support functions to be performed by OSHA's support team.

8. Plain Language

   OSHA intends to write its standards in plain language. This means that the provisions must be clear, logically organized, and written with a minimum of industry jargon. It is important to avoid the use of ambiguous regulatory language. It often takes significant effort to express complex and technical concepts in language that can be understood by non-experts. Agency staff will assist the Committee in its drafting efforts.

   I. Additional Members

   During the course of the Committee's negotiations, an unanticipated issue significantly affecting one or more unanticipated, unrepresented interests may arise. The Committee may decide that it is necessary for that issue to be addressed in the proposed rule. If so, the Agency will publish in the Federal Register a request for additional nominations to represent such interests. The Secretary may then select one or

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   more additional representatives, who will be added as Committee members.

   The additional members will not be entitled to revisit any issue that has already been negotiated, unless the Committee agrees by consensus to do so.

10. Replacement Members

    In the event an appointed member becomes unavailable or otherwise unable to serve, the Secretary will select a replacement member to represent the interest the original member had represented.

11. Tentative Schedule

    When OSHA publishes a notice establishing the Committee and appointing its members, the Agency will include a proposed schedule of committee meetings. The first meeting will focus largely on procedural matters, including the proposed ground rules. The Committee will agree on dates, times, and locations of future meetings, and will identify and determine how best to address principal issues for resolution.

    To prevent delays that might postpone timely issuance of the proposal, OSHA intends to terminate the Committee's activities if it does not reach consensus on a proposed rule within 18 months of the first meeting. The process may end earlier if the Facilitator or the committee itself so recommends.

    L. Record of Meetings

    In accordance with FACA's requirements, the Facilitator will supervise the keeping of minutes and a record of all committee meetings. These materials will be placed in the public docket No. S- 030. Committee meetings will be announced in the Federal Register and will be open to the public.

13. Agency Action

    As set forth in the NRA, ``the Agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment.''

14. Committee Procedures

    Under the general guidance and direction of the Facilitator, and subject to any applicable legal requirements, appropriate detailed procedures for committee meetings will be established.

    III. Public Participation

    In a negotiated rulemaking, there are many opportunities for an individual who is interested in the outcome of the rule to participate. As a first step in response to this notice of intent to negotiate, OSHA recommends that potential participants take a close look at the list of significantly affected interests. They should analyze the list for completeness or over-or under-inclusiveness, and for the purpose of coalition-building. Parties should try to identify others who share a similar viewpoint and who would be affected in a similar way by the rule. They should then communicate with these parties of similar interest and begin organizing coalitions to support their shared interests. Once the coalitions are formed, the parties can discuss which individuals should represent their interests and in what capacities.

    As indicated above, not every interested party will be able to serve as a member of the Committee. However, an interested party may participate in a variety of other ways. These include working within the interest coalitions (promoting communication, providing expert support in a workgroup or otherwise helping to develop internal ranges of acceptable alternatives, etc.), attending committee meetings in order to caucus with the interest's member, or submitting written comments or materials to the Committee or workgroups.

    Persons who will be significantly affected by the revision in the crane and derricks portion of Subpart N, whether or not their interest is listed above in this document, may apply for or nominate another person for membership on the committee to represent such interests. Such requests must be received by the Docket Office (see instructions under ADDRESSES near the beginning of this Notice), no later than September 16, 2002. In general, under the NRA, members of the negotiated rulemaking committee shall be responsible for their own expenses, except in certain limited circumstances (see 5 U.S.C. section 588).

    Each application or nomination must include:

    (1) The name of the applicant or nominee and a description of the interest(s) such person will represent; (2) evidence that the applicant or nominee is authorized to represent those interests that the person proposes to represent, and (3) a description of the person's qualifications and expertise regarding those interests. Each applicant must submit a written commitment to actively participate in good faith in the development of the rule.

    All written comments, including comments on the appropriateness of using negotiated rulemaking to develop a proposed cranes and derricks standard, and the topics to be covered regarding cranes and derricks, should be directed to Docket No. S-030, and sent to the OSHA Docket Office (see instructions under ADDRESSES near the beginning of this Notice).

    IV. Authority

    This document was prepared under the direction of John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, pursuant to section 3 of the Negotiated Rulemaking Act of 1990, (5 U.S.C. 561 et seq.), FACA (5 U.S.C. Appendix 2), the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), and Secretary of Labor's Order No. 3-2000 (65 FR 50017, Aug. 16, 2000).

    Signed at Washington, DC, this 10th day of July, 2002. John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health.

    [FR Doc. 02-17768Filed7-15-02; 8:45 am]

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