[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Rules and Regulations]
[Pages 56198-56247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24481]
[[Page 56197]]
Vol. 83
Friday,
No. 218
November 9, 2018
Part III
Department of Labor
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Occupational Safety and Health Administration
29 CFR Part 1926
Cranes and Derricks in Construction: Operator Qualification; Final Rule
Federal Register / Vol. 83 , No. 218 / Friday, November 9, 2018 /
Rules and Regulations
[[Page 56198]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID-OSHA-2007-0066]
RIN 1218-AC96
Cranes and Derricks in Construction: Operator Qualification
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is updating the agency's standard for cranes and derricks
in construction by clarifying each employer's duty to ensure the
competency of crane operators through training, certification or
licensing, and evaluation. OSHA is also altering a provision that
required different levels of certification based on the rated lifting
capacity of equipment. While testing organizations are not required to
issue certifications distinguished by rated capacities, they are
permitted to do so, and employers may accept them or continue to rely
on certifications based on crane type alone. Finally, this rule
establishes minimum requirements for determining operator competency.
This final rule will maintain safety and health protections for workers
while reducing compliance burdens.
DATES: Effective date: This final rule is effective on December 10,
2018, except the amendments to 29 CFR 1926.1427(a) and (f) (evaluation
and documentation requirements), which are effective February 7, 2019.
Compliance date: See Section C., Paperwork Reduction Act, of this
document regarding dates of compliance with collections of information
in this final rule.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the agency
designates Edmund C. Baird, Acting Associate Solicitor of Labor for
Occupational Safety and Health, Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210, to receive petitions for review of the final rule.
Docket: To read or download material in the electronic docket for
this rulemaking, go to http://www.regulations.gov or to the OSHA Docket
Office at Technical Data Center, Room N-3653, OSHA, U.S. Department of
Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
(202) 693-2350, TTY number (877) 889-5627. Some information submitted
(e.g., copyrighted material) is not available publicly to read or
download through this website. All submissions, including copyrighted
material, are available for inspection at the OSHA Docket Office.
Contact the OSHA Docket Office for assistance in locating docket
submissions.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone: (202) 693-1999; email:
[email protected].
Technical inquiries: Mr. Vernon Preston, Directorate of
Construction; telephone: (202) 693-2020; fax: (202) 693-1689; email:
[email protected].
Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Operator Competency Requirements
B. Operator Certification Requirement
C. Certification by Crane Rated Lifting Capacity
D. Post-2010 Rulemaking Concerns
E. Discussions with the Construction Industry Stakeholders
F. Consulting ACCSH-Draft Proposal for Crane Operator
Requirements
G. Promulgation of Notice of Proposed Rulemaking
H. National Consensus Standards
I. The Need for a Rule
J. Significant Risk
III. Summary and Explanation of the Amendments to Subpart CC
IV. Agency Determinations
A. Legal Authority
B. Final Economic Analysis and Final Regulatory Flexibility Act
Analysis
C. Paperwork Reduction Act
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act of 1995
G. Consultation and Coordination with Indian Tribal Governments
H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
I. Executive Summary
OSHA is amending 29 CFR 1926 subpart CC to revise sections that
address crane operator training, certification/licensing,\1\ and
competency. The purposes of these amendments are to alter the
requirement that crane-operator certification be based on equipment
``type and capacity,'' instead permitting certification based on
equipment ``type'' or ``type and capacity''; continue requiring
training of operators; clarify and continue the employer duty to
evaluate operators for their ability to safely operate equipment
covered by subpart CC; and require documentation of that evaluation.
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\1\ The term ``certification/licensing'' covers each of the
certification options in the proposed rule (third-party
certification or an audited employer certification program) as well
as state or local operator licensing requirements. Operators
employed by the U.S. military are also addressed in this standard
and must be ``qualified'' by the military. OSHA is not making any
substantive changes to the military qualification provision.
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This rule alters the requirement that crane operators be certified
by equipment ``type and capacity,'' which, based on the record, creates
regulatory burden without additional safety benefit and artificially
limits the potential for crane operators to obtain certification.
Allowing certification by equipment ``type'' or ``type and capacity''
removes a regulatory burden that did not create an additional safety
benefit.
This rule continues to require operator training. It likewise
clarifies and continues the employer duty to evaluate operators for
their ability to safely use equipment. Just as an employee's driver's
license does not guarantee the employee's ability to drive all vehicles
safely in all conditions an employer may require, crane-operator
certification alone does not ensure that an operator has sufficient
knowledge and skill to safely use all equipment. The record makes clear
that employers need to evaluate operators and provide training when
needed to ensure that they can safely operate cranes in a variety of
circumstances. Similarly, and also consistent with many employers'
current practices, employer evaluation of a crane operator's experience
and competency with respect to the particular equipment assigned is
essential to ensuring the safe operation of cranes on construction
sites. This final rule accordingly continues the common-sense
requirements that employers train operators and assess their competence
and ability to work safely.
OSHA's final economic impact analysis determined that the most
significant costs of the changes to the standard are associated with
the requirements to perform the operator competency evaluation,
document the evaluations, and provide any additional training needed by
operators. OSHA estimates employers impacted by this rule employ
approximately 117,130 crane operators. OSHA accordingly estimates the
annual cost to the industry
[[Page 56199]]
will be $1,481,000 for the performance of operator competency
evaluations, $62,000 for documenting those evaluations, and $94,000 for
any additional training needed for operators. OSHA's estimate of the
total annual cost of compliance is $1,637,000.
OSHA also expects some cost savings from the changes to the rule.
In particular, OSHA estimates a large one-time cost savings of
$25,678,000 from dropping the requirement that crane operators be
certified by capacity because that change eliminates the need for a
very large number of operators to get an additional certification. OSHA
also estimates that a small number of ongoing annual certifications due
to an operator moving to a higher capacity crane would also no longer
be needed, producing an additional annual cost savings of $426,000.
These various elements lead, at a 3 percent discount rate over 10
years, to net annual cost savings of $1,752,000. At a discount rate of
7 percent there are annual cost savings of $2,388,000.
The agency has concluded that, on average, the impact of costs on
employers will be low because most employers are currently providing
some degree of operator training and performing operator competency
evaluations to comply with the previous 29 CFR 1926.1427(k), and were
previously doing so to comply with Sec. Sec. 1926.550, 1926.20(b)(4),
and 1926.21(b)(2). Employers who currently provide insufficient
training will incur new compliance costs. Although OSHA anticipates
that a few employers might incur significant new costs, the agency has
concluded that, for purposes of the Regulatory Flexibility Act, the
changes to the standard will not have a significant economic impact on
a substantial number of small entities.
The agency has also determined that the final rule is
technologically feasible because many employers already comply with all
the provisions of the revised rule and the revised rule would not
require any new technology. In addition, because the vast majority of
employers already invest the resources necessary to comply with the
provisions of the revised standard, the agency concludes that the
revised standard is economically feasible.
II. Background
Explanation of record citations in this document.
References in parentheses in this preamble are to exhibits or
transcripts in the docket for this rulemaking. Documents from the
subpart CC--Cranes and Derricks in Construction rulemaking record are
available under Docket OSHA-2007-0066 on the Federal eRulemaking Portal
at http://www.regulations.gov or in the OSHA Docket Office. The term
``ID'' refers to the column labeled ``ID'' under Docket No. OSHA-2007-
0066 on http://www.regulations.gov. This column lists individual
records in the docket. This notice will identify each of these records
only by the last four digits of the record, such as ``ID-0032'' for
OSHA-2007-0066-0032. Identification of records from dockets other than
records in OSHA-2007-0066 will be by their full ID number.
A. Operator Competency Requirements
OSHA promulgated a new standard for cranes and derricks in
construction, referred to in the Background section as the ``2010 crane
standard,'' on November 10, 2010 (75 FR 47905). It was based on a
proposal drafted as the result of negotiated rulemaking and issued on
October 9, 2008 (73 FR 59714). Under this cranes standard, except for
employees of the U.S. military and the operation of some specified
equipment, employers were required to allow only certified operators to
operate equipment after November 10, 2014.\2\ In lieu of certification,
the rule also allowed operators to operate cranes if licensed by state
or local governments whose programs met certain minimum requirements.
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\2\ The term ``equipment'' was used in the cranes standard's
regulatory text because the rule covers cranes, derricks and other
types of equipment. When OSHA uses ``cranes'' in this preamble, it
is meant to apply to all covered equipment.
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This cranes standard included a four-year, phased-in effective date
for the certification requirements. That phase-in period was intended
to provide time for existing accredited testing organizations to
develop programs that complied with the standard's requirements; for
operators and employers to prepare for certification testing; and for
more testing organizations to become accredited to make certifications
available for the operation of the wide variety of cranes used in
construction. During the phase-in period, employers were required to
continue complying with two broad provisions: to ensure that crane
operators were competent to operate the equipment safely and, if
necessary, to train and evaluate employees who did not have the
required knowledge or ability to operate the equipment safely (Sec.
1926.1427(k)(2)(i) and (ii)) (``employer duties''). These employer
duties are essentially the same as those required by Sec.
1926.20(b)(4) and Sec. 1926.21(b)(2), which are discussed in more
detail in the ``Operator Certification Requirement'' section that
follows.
B. Operator Certification Requirement
In 1979, OSHA published 29 CFR 1926.550, which specified
requirements for crane and derrick operation that were adopted from
existing consensus standards. Among these requirements was an
employer's duty to comply with manufacturer specifications and
limitations (Sec. 1926.550(a)(1)). In addition, employers were subject
to general requirements elsewhere in the OSHA construction safety
standards that required employers to permit only those employees
``qualified by training or experience'' to operate equipment (Sec.
1926.20(b)(4)) and to ``instruct each employee in the recognition and
avoidance of unsafe conditions'' (Sec. 1926.21(b)(2)). However, crane
incidents continued to be a significant cause of injuries and
fatalities in the construction industry over the next few decades. In
response, industry stakeholders called on OSHA to update its existing
construction crane standard, including addressing advances in equipment
technology and industry-recognized work practices.
Between 1998 and 2003, OSHA's Advisory Committee for Construction
Safety and Health (ACCSH) tasked a workgroup with studying crane issues
and ultimately recommended that OSHA revise the construction crane
standard through negotiated rulemaking. The ACCSH workgroup reviewed
the requirements of the most recent American Society of Mechanical
Engineers (ASME)/American National Standard Institute (ANSI) B30 series
standards applicable to various types of cranes and recommended that
OSHA include work practices and protections from the ASME/ANSI B30
series standards in the new crane standard to the extent possible. The
workgroup's recommendations included a request that OSHA require
training and qualification provisions specific to crane operators, such
as those of the ANSI B30 series, to supplant and augment the general
provisions under Sec. Sec. 1926.21(b)(2) and 1926.20(b)(4) (see ACCSH
transcript Docket ID OSHA-ACCSH2002-2-2006-0194; pp. 129-135).
In 2003, OSHA commenced rulemaking by establishing a federal
advisory committee, the Cranes and Derricks Negotiated Rulemaking
Advisory Committee (C-DAC), to develop a proposal through consensus
(see OSHA-S030-2006-0663-0639). The committee comprised industry
stakeholders including employer users of cranes, crane manufacturers
and
[[Page 56200]]
suppliers, labor organizations, an operator training and testing
organization, a crane maintenance and repair organization, and
insurers. C-DAC met eleven times between July 30, 2003, and July 9,
2004, and produced a consensus document that OSHA proposed for comment.
Like the ACCSH workgroup, C-DAC acknowledged that the qualification and
training requirements of Sec. Sec. 1926.20(b)(4) and 1926.21(b)(2)
were ineffective, and it proposed that OSHA require written and
practical testing of crane operators (73 FR 59810). C-DAC also
concluded that significant advances in crane/derrick safety would not
be achieved without operator testing verified by accredited, third-
party testing. Therefore, per C-DAC's recommendation, OSHA's proposal
included a requirement for operator certification by ``type and
capacity'' of the equipment in lieu of the previous general requirement
that employers ensure their operators were competent to operate the
machinery. However, OSHA proposed to retain the general employer duty
during a four-year phase-in period for the operator certification (see
discussion of Sec. 1926.1427(k) at 73 FR 59938).
On October 12, 2006, ACCSH supported the C-DAC consensus document
and recommended that OSHA use it as the basis of a proposed rule (see
Docket ID OSHA-ACCSH2006-1-2006-0198-003).
On October 17, 2006, the Small Business Advocacy Review Panel
(SBAR) submitted its final report on OSHA's draft proposal (OSHA-S030A-
2006-0664-0019). The SBAR recommendations included a suggestion that
OSHA solicit comment on whether ``equipment capacity and type'' needed
clarification, which OSHA did (see 73 FR 59725). Regarding operator
training, many Small Entity Representatives (SERs) thought the C-DAC's
training requirements were too broad and should be focused on the
equipment the operator will use and the operations to be performed. Two
SERs recommended OSHA's powered industrial truck standard as a model
for crane operator training requirements.
OSHA published its proposal on October 9, 2008 (73 FR 59714) and
received over 350 public comments. The comments discussed a wide range
of topics addressed by the crane standard. In response to requests from
several public commenters, OSHA conducted a public hearing in March
2009. None of the commenters or hearing participants asked OSHA to
remove the requirement that operators be certified by equipment
capacity in addition to type. There were a few stakeholders who
expressed some concern about the proposal to phase-out the employer
duty and replace it with the requirement for employers to ensure
operator competence through third-party testing (see ID-0341-March 19,
2009, page 41 and ID-0445). However, most stakeholders overwhelmingly
supported the certification requirements in the rule as proposed.
On November 8, 2010, the final rule for cranes and derricks in
construction, including requirements for crane operator certification,
became effective. The original date by which all operators must be
certified was November 10, 2014, but OSHA subsequently extended that
date to November 10, 2017 (79 FR 57785 (September 26, 2014)) and then
further extended it to November 10, 2018 (82 FR 51986 (November 9,
2017)). Prior to the amendments to the standard contained in this
current final rule, the separate employer duty to evaluate operators
was to cease on the date when operator certification was required.
C. Certification by Crane Rated Lifting Capacity
The 2010 crane standard required operators to become certified and
permitted four options for doing so, one of which is certification by a
third-party organization. A third-party certification is portable (a
new employer can rely on it), but in relying upon a third-party
certification as confirmation of an operator's knowledge and operating
skills, employers need to know what kind of equipment the certification
applies to when making determinations about which equipment an operator
can operate at the worksite. Therefore, C-DAC recommended the
requirement, which was included in the 2010 final rule, that third-
party certification must indicate the equipment types and the rated
capacities that an individual is certified to operate. The other
certification options, which are not portable, do not require
certification by capacity.
To address the concerns that testing organizations might offer
certification for a variety of crane capacities but yet not offer a
certification for the particular capacity of crane matching the
equipment to which operators would be assigned, OSHA added subparagraph
Sec. 1926.1427(b)(2) to the 2010 crane standard. That paragraph
clarified that the certification must list the type and rated lifting
capacity of the crane in which the operator was tested, and for
purposes of complying with the 2010 crane standard the operator would
be ``deemed qualified'' to operate cranes of the same type that have
equal or lower rated lifting capacity of the crane in which they were
tested. During the rulemaking process for the 2010 crane standard, none
of the commenters asked OSHA to remove the requirement that operators
be certified by equipment capacity in addition to type.
D. Post-2010 Rulemaking Concerns
In OSHA outreach sessions following the publication of the 2010
crane standard, two accredited testing organizations that offered
certifications by type but not capacity, as well as other stakeholders,
questioned the need for specifying rated lifting capacities of
equipment on their certifications to comply with the new 2010 crane
standard. They expressed concern that meeting the capacity requirement
would require significant changes from their previous certification
practices without resulting in any real safety benefit because they
believed that certification by capacity is not a meaningful component
of operator certification testing. They asserted that employers already
take steps to ensure that even certified operators are capable of
safely operating the cranes at their worksites, regardless of the rated
lifting capacities of those cranes. Thus, these testing organizations
expressed the view that the certification by capacity requirement is
unnecessary.
Those two testing organizations and many other stakeholders also
expressed surprise and concern that on November 10, 2014, when OSHA's
operator certification requirements were to take effect, the temporary
requirements of Sec. 1926.1427(k)(2)--the employer duty to ensure that
operators are competent-- would no longer be in effect and a similar
requirement under 29 CFR 1926.20(b)(4), qualification and experience,
would not apply. A number of stakeholders described this as a step
backwards in safety.
OSHA also heard from many stakeholders that the employer should
play a direct role in ensuring that their operators are competent
because a standardized test cannot replicate all of the conditions that
operators will need to safely navigate on the jobsite. They indicated
that the employer typically has more information than a certifying
organization to ensure that an operator has the skills, knowledge, and
judgment required for safely completing a particular assignment on a
particular crane. Many stakeholders likened operator certification to a
learner's permit to drive a car. They cautioned that certification
should be one of several factors to be weighed by an employer before
allowing an employee to operate a crane.
[[Page 56201]]
E. Pre-NPRM Discussions With the Construction Industry Stakeholders
Discussions With Companies, Unions, and Organizations That Train,
Assess, and/or Contract Crane Operators
In order to gather factual information for this rulemaking, OSHA
conducted more than 40 site visits, conference calls, and meetings with
stakeholders between June 6, 2013, and March 27, 2015, regarding their
experiences with training, evaluating, and ensuring the competency of
crane operators. Among these stakeholders were:
3 crane rental companies [1 large (more than 100 cranes),
1 medium (more than 20 cranes), 1 small (fewer than 20 cranes)]
10 construction companies that own/operate cranes
[homebuilders, tank builders, propane delivery, steel erector]
3 large construction/operator training companies
5 crane manufacturers
3 construction labor unions
2 safety consultants/trainers
4 state agencies
British Columbia's qualification program
1 sole proprietor/owner operator homebuilding company
3 crane insurers
3 certification testing bodies and accrediting entities
During discussions with stakeholders, OSHA personnel took notes
that were consolidated into draft reports, which were provided to the
employer or organization for their corrections or comment before the
reports were finalized. Twenty-eight of the discussions were drafted
into written reports. The other conversations were not documented
because they were either informal or the organization's representatives
did not want their comments to be cited in the rulemaking record other
than being referenced anecdotally. The twenty-eight reports, as well as
a detailed summary of the reports, are in the docket for this
rulemaking (ID-0673). Overall, the stakeholders described their
business models for bringing cranes to construction sites, operator
competency programs, methods for ensuring that cranes brought to the
worksite are safely run by competent operators, and views on the use of
operator certification in their operator competency programs.
F. Consulting ACCSH--Draft Proposal for Crane Operator Requirements
OSHA presented draft revisions to the 2010 cranes standard to the
Advisory Committee for Construction Safety and Health (ACCSH) at a
special meeting conducted March 31 and April 1, 2015, in Washington,
DC. In response, ACCSH recommended that OSHA (OSHA-2015-0002-0037):
Move forward with the certification requirement and pursue
employer qualification of crane operators.
Clarify the requirement for certification so that
certification can be by type, or by type and capacity.
Reconsider the language in the draft revisions that
appears to require the employer to observe the operator operate the
crane in each and every configuration to determine whether the operator
was competent.
Use the text submitted by William Smith (OSHA-2015-0002-
0051) as a substitute for the draft language on evaluation in the draft
revisions.\3\
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\3\ William Smith, commenting as a private citizen, presented
revisions to 29 CFR 1926.1427(a) by the Coalition for Crane Operator
Safety (OSHA-2015-0002-0051). The document recommended revising
Sec. 1926.1427(a) by adding provisions that an operator must meet
OSHA's qualified person standard and mandating training if an
operator cannot safely operate the equipment. In Sec. 1926.1427(b),
he recommended removing the language that an operator will be deemed
qualified if he or she is certified. Throughout Sec. 1926.1427, he
recommended removing references to capacity.
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Delete the annual re-evaluation provision in the draft
revisions, and instead consider employer re-evaluations that coincide
with the re-certification period.
Consider adding a provision that if the operator operates
the equipment in an unsafe manner, the operator must be re-evaluated by
the employer.
G. Promulgation of Notice of Proposed Rulemaking
OSHA published a proposed rule on May 21, 2018 (83 FR 23534), and
subsequently extended the comment period by an additional 15 days (83
FR 28562). The agency received over 1,200 public comments before the
comment period closed on July 5, 2018.
H. National Consensus Standards
In adopting a standard, section 6(b)(8) of the Occupational Safety
and Health (OSH) Act (29 U.S.C. 651 et seq.) requires OSHA to consider
national consensus standards, and where the agency decides to depart
from the requirements of a national consensus standard, it must explain
why the departure better effectuates the purposes of the Act. As OSHA
explained when adopting the updated crane rule in 2010, the ASME B30
Standard is a series of voluntary consensus standards that apply to
most of the types of equipment, including cranes and derricks, covered
by subpart CC as a whole (75 FR 48129-48130). The B30 standards each
have chapters that address the operation of the equipment, which
typically include a section on crane operator qualification and crane
operator responsibilities (ID-0002, 0003, 0004, 0005, 0006, 0007, 0027,
0028). OSHA considered those provisions in drafting the proposed rule.
Similarly, OSHA considered the general requirements of ANSI/American
Society of Safety Professionals (ASSP) Z490.1,\4\ which generally
addresses the requirements of occupational safety and health training.
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\4\ The American Society of Safety Engineers (ASSE) changed the
name of the organization to the American Society of Safety
Professionals (ASSP).
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An association of occupational safety and health professionals
asked OSHA to revise the 2010 crane standard to incorporate by
reference the Z490.1 standard and the ``soon to be published A10
Standard for Construction and Demolition training'' (ID-1824). The
commenter specifically requested that OSHA require that ``any
occupational safety and health training program recognized in the rule
must meet the requirements in the ANSI/ASSP Z490.1 Standard and/or the
soon to be published A10 Standard for Construction and Demolition
Training'' (Id.). The commenter also requested that ``any training
accreditation organization recognized in the proposed rule,'' and any
training curricula, also meet the requirements of those consensus
standards (Id.).
OSHA is not incorporating either standard by reference in this
rulemaking. First, OSHA cannot legally incorporate by reference a
standard that has not yet been published. Second, the training
requirements of ANSI/ASSE Z490.1 outline a general training program
that is not specific to cranes. After years of interactions with
stakeholders, OSHA believes that its revised training requirements will
be more relevant to employers of crane operators. Third, given the
comprehensive nature of ANSI/ASSE Z490.1, it does not appear to provide
the same level of flexibility as OSHA's standard. OSHA developed this
final rule with enough flexibility so that employers in the crane
industry could adapt existing practices to comply with the standard and
ensure safety in a variety of contexts.
The final rule takes many of the underlying concepts regarding
operator qualification that are consistent across the B30 standards and
ANSI/ASSE Z490.1, and it places them in one standard. This allows
employers and crane operators to look to one place for OSHA
requirements for operator competence and safety, rather than throughout
fourteen relevant B30
[[Page 56202]]
standards. OSHA's standard re-frames the provisions of those standards
as enforceable employer duties, as the OSH Act requires, rather than as
employee responsibilities or non-mandatory suggestions.
OSHA believes the revisions in this final rule to the 2010 cranes
standard will better effectuate the purposes of the OSH Act than any
applicable national consensus standard because the revisions
consolidate all crane operator qualification requirements for ease of
reference and integrate the permanent operator evaluation and
documentation requirements into the standard, along with the existing
training requirements and certification requirement, in a manner that
OSHA can enforce under the Act.
I. The Need for a Rule
Based on the information collected from stakeholders and the
recommendations of ACCSH, OSHA proposed to amend 29 CFR part 1926
subpart CC by revising sections that address crane operator training,
certification/licensing, and competency. The purposes of the amendments
are to clarify and continue training requirements for operators; to
alter the requirement that crane-operator certification be based on
equipment ``type and capacity,'' instead permitting certification based
on equipment ``type'' or ``type and capacity''; to clarify and continue
an employer's duty to evaluate operators and operators-in-training for
their ability to safely operate assigned equipment covered by subpart
CC; and to require that employers document the evaluation. OSHA is also
reorganizing and clarifying the operator certification requirements in
Sec. 1926.1427.
Throughout this document OSHA refers to the ``previous'' or
``prior'' rule or standard as meaning 29 CFR part 1926 generally, Sec.
1926.1427, or the paragraphs therein, as promulgated in 2010 and
revised prior to this rulemaking. Discussion of the ``revised'' or
``amended'' standard refers to the amended standard as finalized
through this rulemaking.
Employer's Duty To Evaluate Its Operators
In the NPRM for this rulemaking, OSHA proposed a permanent employer
duty to evaluate operators that would not expire on the date
certification is required. For the reasons discussed below, this final
rule revises the prior 2010 crane standard to add that permanent
employer evaluation duty. The key difference between this revision and
the previous version is that the revision permanently maintains the
employer's duty to evaluate its operators, and provides greater
specificity as to what that duty entails in order to provide a clear
and enforceable standard.
In the NPRM, OSHA requested comment on making the employer
evaluation a permanent requirement in addition to certification. The
agency received supportive comments for keeping the employer evaluation
requirement in conjunction with certification (ID-0719, 1235, 1611,
1619, 1719, 1735, 1744, 1768). Generally, these comments supported
making the employer duty permanent because certification alone is
insufficient for an operator to competently operate the crane safely in
a variety of workplace conditions, and the employer is in the best
position to evaluate an operator's ability to use the specific crane
for the specific tasks the employer assigns. As one of these commenters
stated, ``[t]he intent should be to ensure that operators are fully
qualified to be perform their tasks no matter what certifications they
may hold and only the employer can ensure that,'' (ID-0719).
These comments are consistent with the feedback OSHA received from
stakeholders prior to publication of the NPRM (ID-0673). In those
discussions, most employers stated that they value third-party
certification, but do not treat it as sufficient, by itself, to
establish competency. Every employer with whom OSHA spoke stated that
the employer's role in ensuring the competency of crane operators
should be allowed to continue. All of the company representatives
stated that they would not let an operator run any of their cranes
based solely on his/her possession of an operator's certifications (see
e.g. Report #1, 4, 6, 9, 11, 12, 16, 18, 20, 21, 22, 25 of ID-0673).
Several industry representatives told OSHA that regardless of what
OSHA's crane standard requires, construction and insurance industry
influences would prevent many employers of crane operators from relying
solely on certification to verify the competence of their crane
operators (see e.g. Report #2, 3, 15, 19 of ID-0673). OSHA confirmed
from these discussions that, regardless of whether an operator has a
certification, all of the employers contacted evaluate their operators
to ensure competency (see e.g. Reports #1, 2, 3, 6, 8, 9, 10, 11, 12,
14, 15, 16, 18, 19, 22, 23, 26, 27, 28 of ID-0673). All stakeholders
said it is essential that the operator's employer determine whether the
operator is competent to safely operate a crane for a particular
construction activity (see e.g. Report #1, 3, 4, 6, 7, 10, 12, 18, 20,
21, 22, 25, 28).
OSHA received no comments on the proposed rule that opposed making
the employer duty permanent through an evaluation requirement. The
agency received comments recommending revisions to the evaluation
requirement. Those comments are addressed below in the discussion of
Paragraph (f)--Evaluation.
Under the 2010 crane standard, the employer duty to ensure operator
competence (Sec. 1926.1427(k)(2)(i)) ends in November 2018, after
which operator certification would be the only required way to assess
operator safety qualification. There were no other requirements for
operator safety qualifications beyond certification after that date.
Under the revised standard, the employer's evaluation is established as
a critical element to ensure safe equipment operations on construction
worksites. Third-party certification is portable so that operators do
not need to be re-certified just because they switch employers;
employers can rely on previous training the operator has received from
other employers (or labor organizations) because the revised standard
requires that every employer evaluate an employee first as an operator-
in-training before permitting him or her to operate equipment without
oversight. The evaluation process is performance-oriented and discussed
in more detail in the explanation for revised Sec. 1926.1427(f).
During its testimony in support of retaining an employer duty to
assess operators, the International Union of Operating Engineers (IUOE)
stated that removal of that duty would endanger operators and workers
in the vicinity of cranes, ``[c]rane operators would be in a far worse
position than they were before issuance of the final rule in August
2010'' (ID-0486). William Smith of Nations Builders Insurance Services
(NCCCO board member and C-DAC member) agreed, commenting that
``[l]eaving the rule as written [with certification but without a
continued employer duty after the initial deadline of November, 2014]
would take us back in time not forward in protecting lives'' (ID-0474).
A U.S. crane manufacturer stated that the lack of employer evaluation
of an operator would be a problem, and certification is a foundation,
but should not be a substitute for an employer competency evaluation.
(Report #4 of ID-0673).
An employer's evaluation assesses different operator skills than
certification tests. The reports from stakeholders prior to publication
of the proposed rule showed that most stakeholders viewed certification
only as a verification of an operator's basic
[[Page 56203]]
operating skills and crane knowledge such as reading load charts,
recognizing basic crane hazards, inspecting the equipment, knowledge of
applicable regulations, and familiarity with basic crane functions to
control the boom and load line (ID-0673). The rulemaking record
includes a list of activities from the IUOE that require specific
skills that are not evaluated during the certification practical exam,
but can be covered during an employer evaluation. These activities
include inspecting the equipment; assessing unstable loads; hoisting
loads of irregular size; operation from a barge; personnel hoisting;
rigging the load; leveling the crane; hoisting in tight spaces where
there is greater opportunity for damaging parts of the crane other than
the load line; making judgments about wind speed and other
environmental factors that can impact the performance of the equipment;
performing multiple crane lifts; traveling with or without a load;
operating near power lines; hoisting light loads; and hoisting blind
picks where the operator cannot see the load (see, e.g., Docket ID-
0527, p. 3). IUOE has also noted that different skills are required to
operate equipment with different attachments and identified in
particular the unique skills required to operate with clam bucket or
drag line attachments (Id.). By way of contrast, the IUOE stated that
the operator certification practical test covers only basic operation
functions (hoisting and lowering a load and guiding it through a
course), and ``does not test on the breadth of activities that are
involved in the operation of cranes'' (Id.). Local 49 of the IUOE
added: ``It is understood in the industry that it is not economically
feasible to simulate on a training site all scenarios that arise on a
construction site and that training and evaluations of training must
occur on an ongoing basis'' (ID-1719). Without the employer duty to
evaluate operators on the equipment to which they are assigned, an
employer could permit a certified operator to operate tower cranes and
other large equipment in any configuration with any number of
attachments without determining if the operator possesses the requisite
knowledge and skills necessary to ensure safety and address the issues
identified by IUOE and others.
Some employers described certification as a ``learner's permit''
(ID-0539, Reports #15, 26 of ID-0673), and a number of employers with
whom OSHA spoke stated that they would not allow a certified operator
to use their equipment without first also evaluating the operator to
verify competence (Reports #1, 6, 18, 20, 22 of ID-0673). The Executive
Director of the IUOE's certification program stated that he does ``not
know any contractors . . . at least the union contractors that we're
associated with, who fail to make sure that their people are
qualified'' (OSHA-2015-0002-0036). A trade association commented that
``[t]he record makes clear . . . that the fact that an employee has
been certified as competent to operate a crane does not mean that the
employee is qualified to operate the employer's particular equipment''
(ID-1768). A training company representative stated that operators with
very little experience can acquire a sufficient basis of knowledge of
the crane to pass a certification exam without being truly qualified to
operate independently and safely on a construction worksite (Report #21
of ID-0673). Two stakeholders expressed concern that relying solely on
certification could be dangerous because it would create a false sense
of qualification, leading some contractors to be less vigilant in
evaluating the competence of operators to safely operate equipment for
all of their tasks (Reports #9, 11 of ID-0673).
In addition to the commenters identified earlier as supporting an
evaluation requirement, OSHA had already heard from many stakeholders
that the employer should play a direct role in ensuring that their
operators are competent (ID-0539, Reports #1, 2, 3, 4, 6, 9, 10, 11,
12, 14, 15, 16, 18, 19, 20, 21, 22, 25, 26 of ID-0673). A commenter
asserted that extending the employer duty is ``logical'' because the
employer should ``have the ability to make an evaluation of an
operator's ability to operate equipment in a safe and responsible
manner'' (ID-1779). One commenter stated many of its members believe
``certification itself is not sufficient to establishing crane operator
competency, and believe that employers must initially evaluate and
continue to re-evaluate their crane operators to determine their
ability to safely operate a crane'' (ID-1735). Because a standardized
test cannot replicate all of the conditions that operators must safely
navigate on the jobsite, the employer is typically in a better position
than a certifying organization to fully evaluate an operator to ensure
that he or she has the skills, knowledge, and ability to recognize and
avert risks required for a particular assignment on a particular crane.
Just as an employee's driver's license would not guarantee the
employee's ability to drive all vehicles safely in all conditions an
employer may require, crane operator certification alone does not
ensure that an operator has sufficient knowledge and skill to safely
use equipment.
Many stakeholders indicated that in their experience operator
competency needed to be crane-specific (Reports #1, 2, 3, 4, 6, 16, 19,
21 of ID-0673). A comment to the proposed rule supporting a permanent
employer duty stated ``employers have a duty to evaluate all crane
operators to ensure that they are qualified to perform the assigned
work on the type and model used'' (ID-1719). Similarly, a certification
body believes that ``[i]t's always been the employer's duty to qualify
an operator for the specific crane and task'' (ID-1235). Some of the
stakeholders raised concerns about the importance of these different
crane characteristics in discussing whether OSHA should require
certification to be by type and capacity or just by type. For example,
one employer told OSHA that certification could be by type alone,
provided the employer was responsible for evaluating operator
competency on assigned equipment (Report #1 of ID-0673). A crane
operator training company that OSHA interviewed noted that no one
certification test could ever capture all of the types, configurations,
and capacities of cranes and the activities they may be used to perform
at the jobsite. Therefore, it is important that the employer typically
verify the operator's skill level through an experienced assessor
(Report #20 of ID-0673).
As OSHA noted in the NPRM, an extensive analysis of crane accidents
published by HAAG Engineering in 2014 concluded that crane incidents
are more likely to be reduced if a company ensures that an operator
possesses equipment-specific skills and knowledge in addition to
certification:
The certification process ensures that an operator has
demonstrated a core knowledge set of the principles of cranes and
crane operations, OSHA regulations, and ASME standards requirements
. . . has successfully demonstrated both knowledge and the physical
skill set to operate a type of crane. . . .
Comparing responsibility failure trends between crane types
gives strong evidence that crane model-specific training is an
overwhelmingly good idea. . . . In order for the industry to
theoretically provide a quality certification for each model crane,
the process would take decades just to develop certifications for
existing model cranes, and with new models coming out every year,
that development process would also be never-ending. Each time a new
model crane was released, its use would be prohibited until a
qualified certification process was developed if model-specific
certification was required. Model specific qualification is an issue
that cannot and should not be done by the
[[Page 56204]]
certification process, but should be done through training and
examination by the individual company and corresponding operator in
addition to earning type-specific certifications which ensure the
knowledge and skill sets discussed above.
Understanding of crane principles, general crane
characteristics, individual responsibilities, and national standard
guidelines is the basis for certification; however, an operator's
familiarity with the particular unit is invaluable in the goal to
reduce operator associated incidents.\5\
---------------------------------------------------------------------------
\5\ Wiethron, Jim D., Crane Accidents: A Study of Causes &
Trends to Create a Safer Work Environment, 1983-2013, pp. 105-106
(HAAG Engineering, 2014)
(83 FR 23541). No commenters challenged this assessment of the
significance of equipment-specific evaluations.
The evaluation requirement is a mechanism to help ensure that
operators possess the skill to account for and safely use the
variations within even a single type of crane; without the evaluation
requirement there would be no distinction between the competency
required to operate the same type that has differing controls. It is
OSHA's intent with the revised standard, including the evaluation, to
avoid accidents such as the Deep South collapse, in which an operator
was assigned to a crane of a type for which he was certified, but the
controls and operations were significantly different from those with
which he was familiar. Operator error factored into the collapse of the
crane, killing four people. The reviewing court upheld the Occupational
Safety and Health Review Commission's finding that the operator was not
qualified to operate that crane. The Commission noted that the crane
that collapsed was ``significantly different'' from the cranes that the
operator had previously operated and that the operator had not had
previous experience with the crane in a similar configuration (see Deep
S. Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff'd
Deep S. Crane & Rigging Co. v. Harris, 535 F. App'x 386, 390 (5th Cir.
2013)).
The evaluation requirement is also necessary to ensure safety as
the crane industry moves away from traditional training models. A crane
insurance representative stated that the industry is moving away from
assigning two employees to work on a crane, where the less experienced
employee is mentored by the other, to where only one person is assigned
to work on a crane, and expressed concern that this shift may impact
the availability of sufficiently qualified operators and the safety of
the industry (Report #25 of ID-0673). Such an approach increases the
importance of an employer evaluation requirement because informal
monitoring would be less frequent. Requiring certification by crane
type or type and capacity, and retaining the employer duty to evaluate
operators should help to ensure that crane operators have sufficient
training to maintain safety when two employees are no longer assigned
to work on a crane. The previous certification requirement ensures
baseline knowledge and skills to operate a crane, while retaining the
employer duty to evaluate operators provides some assurance that the
operator can safely handle the specifics of operating particular
equipment and performing more challenging tasks in a variety of
contexts.
The only concerns that commenters on the proposed rule expressed
about the evaluation requirement focused on the specifics of the
requirement, not the proposition that an employer should have a duty to
ensure operator competency. OSHA discusses the specific requirements of
the evaluation more fully in the preamble explanation of revised Sec.
1926.1427(f). It is also important to note that OSHA is not creating a
totally new duty. All employers were required to assess their operators
prior to the 2010 crane rulemaking, continued to have such a duty under
the previous Sec. 1926.1427(k), and none of the commenters raised any
hardships caused by an employer duty to assess operators. To promote
consistency and effectiveness and ensure safety, this rulemaking simply
clarifies what that evaluation involves and makes the duty permanent.
OSHA requested comment on whether there are more effective ways of
ensuring that operators are fully qualified to use cranes for the
specific activities that they will be required to complete.
Specifically, OSHA asked whether ``independent third-party
evaluations'' should be required (83 FR 23542). One commenter
responded, opposing such a requirement on the grounds that third-party
evaluators might not be commercially available and, even if available,
would not be more effective than evaluations conducted by the
operator's employer (ID-1615).
A different commenter suggested that OSHA should implement an
``operator training program such as an oiler was in the past'' so that
``the training is complemented with knowledge of the machine he will be
operating . . . seat time will give knowledge of the load charts to
understand the difference between structural, tipping capacity's [sic]
from a trained operator'' (ID-698). OSHA envisions the revised rule
functioning in a flexible manner that will lead to the results the
commenter describes: A combination of training and experiential
learning that ensures that the operator can safely operate the
equipment to which he or she is assigned.
OSHA considered several alternative approaches to the provisions in
paragraph (f) adopted through this rulemaking, but concluded that those
alternatives would not be as effective as the adopted measures in
ensuring crane operator competency and safety. The first approach was
to remove the phase-out of the employer duty without providing further
guidance or criteria. As discussed later in the preamble section for
paragraph (f), OSHA believes that evaluations of operator competency
are critical to safe crane operations and that proposing a general
requirement for this purpose, without providing additional criteria,
would be inadequate.
The second approach considered was adopting the ACCSH
recommendation to use the Coalition for Crane Operator Safety's
language requiring employers to ensure that operators ``meet the
definition of a qualified person'' before operating the equipment. As
explained later in the preamble discussion of paragraph (f), OSHA is
adopting a compromise version of this regulatory text as proposed by a
commenter. OSHA is concerned that the ACCSH recommendation, like the
general duty under Sec. 1926.21(b)(4), fails to provide sufficient
specifics to ensure operator competence. Moreover, the ability to
``resolve problems,'' which is a key component in the definition of a
``qualified person,'' only captures one aspect of what safe crane
operation entails. And by relying on the definition of a ``qualified
person,'' which can be met in some cases solely through ``possession of
a . . . certificate,'' the whole point of having some additional
assurance of operator competency beyond operator certification would be
lost: An operator could still conceivably become both certified and a
qualified person through the completion of a single certification test.
For these reasons, OSHA believes that this final rule better
establishes the employer's obligation to ensure crane operator
competency.
In the third approach, OSHA explored the practicality of modeling a
crane operator evaluation process on one implemented in the provinces
of Canada. In those provinces, a quasi-governmental agency tracks the
base level of certification and operating
[[Page 56205]]
experiences of the operators in an internet database. For example, the
British Columbia system has at least three different levels of
``qualification,'' and employers are responsible for observing,
evaluating, and ensuring the operators are competent to perform the
work required at each level (ID-0672). OSHA concluded, however, that
this level of oversight would be impractical on a national scale in the
United States. The expertise needed to develop and maintain a system
that works for the entire regulated community across the United States,
and to verify the information in such a system, would be substantial.
Moreover, even after providing certification for its operators,
employers in Canada still have the obligation to ensure the competency
of operators to safely perform assigned work, which is similar to the
operator evaluation requirements of this final rule.
Based on all of the reasons in the foregoing discussion, OSHA
concludes that it will improve crane safety to continue and make
permanent the requirement for employers to evaluate their operators and
operators-in-training in addition to ensuring that they are properly
certified. Employer evaluation increases safety by focusing on specific
knowledge and skills that operators need for the safe use of particular
equipment for particular tasks in a variety of contexts. The specific
evaluation requirements are set out in paragraph Sec. 1926.1427(f) and
are explained later in this document in the preamble discussion of that
paragraph.
Elimination of the Requirement To Certify Based on Capacity of Crane
As discussed above, OSHA proposed altering the requirement for
different certifications based on different lifting capacities of
equipment after receiving feedback that the capacity requirement does
not provide a significant safety benefit because the lifting capacity
of the equipment is not a meaningful component of operator
certification testing. In its request for comments on this issue, the
agency specifically asked for information that demonstrated the safety
benefits of certification by capacity.
OSHA received one comment claiming that ``[r]etaining capacity will
require more stringent testing resulting in an increase in crane
safety, thus fewer accidents,'' (ID-1235), but this commenter did not
provide any evidence of how certification by capacity increases safety
or reduces accidents. OSHA received a comment from an association
stating that its members were split on this issue, but the association
did not share why some of its members opposed the removal of capacity
(ID-1824). Another association commented that it ``concurs with the
proposed rule'' and suggested that it would be ``better than the
current rule,'' but the rest of its comment on this point was not clear
(ID-1632). Without further explanation, that commenter added that it
supported certification organizations having a choice and ``believes it
would be best for the safety of crane operations to certify by type and
capacity'' (Id.). However, the commenter did not offer any information
about the safety benefits of certification by capacity.
While testing organizations differed over whether a certification
by capacity provided any useful information to an employer, most
commenters agreed that capacity is just one factor to be considered in
the employer's overall evaluation of the operator's ability. The
majority of commenters that responded to this issue support removing
the certification by capacity requirement (ID-0690, 0703, 0719, 1611,
1616, 1619, 1628, 1632, 1719, 1735, 1744, 1755, 1764, 1768, 1801, 1816,
1826, 1828). A certification body commented that ``virtually unanimity
exists in the industry that certification by `capacity' should be
eliminated from the regulatory requirement'' (ID-1816). Another
certification body echoed that point, stating that ``The industry has
been clear in its comments that, whereas equipment ``type'' is critical
when delineating knowledge and skill, equipment ``capacity'' is just
one of many other factors (like configuration) to be considered in the
employer's overall evaluation of an operator's ability'' (ID-1755).
The majority of comments responding to this request did not know of
any safety benefits related to certification by capacity (ID-1615,
1628, 1755, 1768). One comment claimed that capacity ``did very little
to advance the safe operation of cranes at construction jobsites'' (ID-
1619). Two certification bodies that offer certification by capacity
did not offer any safety evidence to the agency in public hearings or
stakeholder meetings (ID-1719). Referring to consensus standards and
industry best practices, one commenter noted that ASME B30.5 ``does not
describe testing or examination by capacity,'' and the organization
``is not aware of any state or local regulatory body . . . that
requires certification or licensing by both type and capacity'' (ID-
1816).
In addition to many commenters stating that certification by
capacity has no demonstrable safety benefit, many also consider the
requirement to be burdensome (ID-0616, 0690, 0703, 0719, 1619). One of
these commenters stated that they paid for their operator to be
certified, but the operator only passed the test for cranes up to a
capacity of 21 tons and was forced to also take an entirely different
exam for cranes up to 75 tons in order to operate a crane of 23 tons,
just over the capacity limit of the lower test (ID-0616). A different
commenter concluded that some of their members find the capacity
requirement ``unwieldy and exceptionally burdensome'' (ID-1824). One
commenter explained that if the OSHA capacity requirement went into
effect, ``approximately 83% of those possessing certification'' would
not be compliant with the 2010 cranes standard (ID-1801).
One commenter believes ``[t]he industry has been clear . . .
``capacity'' is just one of many other factors (like configuration) to
be considered in the employer's overall evaluation of an operator's
ability'' (ID-1755). One commenter agreed with OSHA that the employer
evaluation was the appropriate time to consider the crane's capacity
among other factors (see discussion of Sec. 1926.1427(f)(1) later in
this document) (ID-1735).
Based on this record and the continued employer duty to evaluate
operators, which provides an additional means for ensuring that the
operator can safely use equipment for the range of tasks assigned, OSHA
has determined that employee certification by capacity of crane should
no longer be required; rather, it may be an option for those employers
who wish to use it. Employers can comply with the third-party
certification requirements of OSHA's crane standard by ensuring that
their operators are certified by an accredited organization by type of
crane or, alternatively, by both type of crane and by capacity.
J. Significant Risk
Section 3(8) of the OSH Act requires that OSHA standards be
``reasonably necessary or appropriate to provide safe or healthful
employment'' (29 U.S.C. 652(8)), which the Supreme Court has
interpreted as requiring OSHA to show that ``significant risks are
present and can be eliminated or lessened by a change in practices''
(Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642
(1980) (plurality opinion) (``Benzene'')). The Court clarified that
OSHA has considerable latitude in defining significant risk and in
determining the significance of any particular risk, noting that ``[i]t
is the Agency's responsibility to determine, in the first instance,
what it considers to be
[[Page 56206]]
a `significant' risk'' (Benzene, 448 U.S. at 655).
Although OSHA makes significant risk findings for both health and
safety standards, the methodology used to evaluate risk in safety
rulemakings is more straightforward. Unlike the risks related to health
hazards, which ``may not be evident until a worker has been exposed for
long periods of time to particular substances,'' the risks associated
with safety hazards such as crane tipovers, electrocution, and striking
or crushing workers with a hoisted load, ``are generally immediate and
obvious.'' Benzene, 448 U.S. at 649, n.54. The final rule for OSHA's
2010 cranes standard contained an extensive analysis in which the
agency examined fatality and injury data available in 2008 and
concluded that employees working in or around cranes and derricks face
a significant risk of death or serious injury (see 75 FR 48093).
When, as here, OSHA has previously determined that its standard
substantially reduces a significant risk, it is unnecessary for the
agency to make additional findings on risk for every provision of that
standard (see, e.g., Public Citizen Health Research Group v. Tyson, 796
F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the argument that OSHA
must ``find that each and every aspect of its standard eliminates a
significant risk''). Rather, once OSHA makes a general significant risk
finding in support of a standard, the next question is whether a
particular requirement is reasonably related to the purpose of the
standard as a whole. (Asbestos Information Ass'n/N. Am. v. Reich, 117
F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Secretary of
Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (DC Cir. 1980)).
As explained elsewhere in this preamble, this final rule meets this
test. OSHA previously concluded that the 2010 crane standard would
substantially reduce risk through a combination of mandatory operator
certification and other requirements, but OSHA did not claim that the
standard would eliminate the significant risk entirely. The employer
evaluation is reasonably related to the reduction of significant risk
because it reduces employee exposure to the previously identified
hazards. It reflects current industry best practices and helps to
ensure the employee has the skills and knowledge to operate the crane
safely during the lifts to which he or she is assigned.\6\
---------------------------------------------------------------------------
\6\ The removal of the requirement for certification by crane
lifting capacity is not implicated in this significant risk
discussion because it removes a requirement and does not impose any
new duties.
---------------------------------------------------------------------------
The agency notes that there is ample evidence in the record that
workers could continue to be exposed to the hazards that OSHA sought to
reduce through the 2010 cranes standard. OSHA relied on fatality data
available in 2008 when it promulgated the crane standard, but
unfortunately crane-related fatalities have continued to occur.
According to the Census of Fatal Occupational Injuries, 47 crane
operators were killed between 2011 and 2014 (this does not include
accidents with non-fatal injuries or crane incidents causing fatalities
or injuries to workers other than the crane operator).\7\
---------------------------------------------------------------------------
\7\ Bureau of Labor Statistics, Census of Fatal Occupational
Injuries (2011 forward), Fatalities to Crane and Tower Operators,
series ID FWU50X53702X8PN00, available at http://www.bls.gov/iif/data.htm.
---------------------------------------------------------------------------
Another useful data source is a report by an engineering forensics
firm, HAAG Engineering, of a large dataset of crane accidents that it
has investigated over a period of 30 years (Wiethorn, 2014, the ``HAAG
Report'') (ID-0674). The final dataset has 507 incidents, covering all
types of cranes and accidents. This dataset is likely biased towards
larger accidents since these are more likely to warrant significant
investigation for insurance and litigation issues. But while it is not
a representative sample of all crane accidents, it is a large sample
and may be suggestive of more general trends. The HAAG report states
that of 141 employee fatalities among its reported crane incidents, 28
were operators, meaning there were approximately 4 times more non-
operator employees killed than operators from crane accidents in this
sample ((141-28)/28=4.03).\8\ Similarly for injuries, out of 267
employee injuries, 29 were to operators, so that there were 8.2 non-
operator injuries for every operator injury ((267-29)/29=8.2).\9\ These
two categories are not mutually exclusive (there are often injuries
when there is a fatality).
---------------------------------------------------------------------------
\8\ The HAAG report, p. 31.
\9\ Id.
---------------------------------------------------------------------------
As noted in more detail in the ``Benefits'' section of the Final
Economic Analysis for this rule, three recent fatalities in particular
illustrate the dangers from improper equipment operation that could be
prevented by the evaluations included in this amendment to the
standard. In one instance, the crane operator was not familiar with the
controls of the equipment. In another incident, an operator hoisting
pipes longer than he had previously hoisted used an improper boom
angle, indicating that he did not possess adequate knowledge and skills
to address the additional challenges of the task he was required to
perform. In the third incident, a fatality occurred when an employee
operated a new, unfamiliar machine with controls in different locations
than the machines with which the operator was accustomed. While the
employee's use of that equipment arose from unexpected circumstances,
the result nonetheless demonstrates the risk inherent with operating a
crane without a method to ensure the operator knows how to operate new
equipment where there are differences in control locations and
functions.
None of the commenters disagreed that OSHA does not need to make a
separate determination of significant risk, nor did anyone challenge
the relevance of any of the fatalities noted by OSHA. As explained in
the ``Background'' and ``Need for Rulemaking'' sections of the
preamble, commenters have raised serious concerns that the current
level of risk would increase if OSHA did not continue the employer duty
to ensure operator competency on the actual equipment they operate. The
nearly unanimous message to OSHA is that crane operator certification
is designed to ensure a basic level of general operating competency,
but is not by itself sufficient to ensure that operators have the
necessary skills and knowledge to operate all assigned equipment or to
perform all assigned tasks safely in all workplace conditions.
III. Summary and Explanation of the Amendments to Subpart CC
Discussion of the Final Rule's Organization and General Terms Used in
Its Summary and Explanation
The following discussion summarizes and explains each new or
revised provision in this final rule and the substantive differences
between the revised and previous versions of OSHA's crane operator
requirements in subpart CC of 29 CFR part 1926. As a general matter,
OSHA has reorganized this section of the rule to improve comprehension
of the requirements. In the ``Background'' section of this notice, OSHA
summarizes the rationale for making permanent the employer duty to
evaluate operators and removing the requirement for certification by
equipment capacity.
Paragraph (a)--Duty To Train, Certify or License, and Evaluate
Operators
Paragraph (a) sets out the employer's responsibility to ensure that
each operator completes three steps before the employer permits the
operator to
[[Page 56207]]
operate equipment covered by subpart CC without continuous supervision.
In the regulatory text, OSHA refers to this entire three-step process
as ``qualification.'' Each operator must be trained to do the crane
activities that will be performed, be certified/licensed in accordance
with subpart CC, and be evaluated on his or her competence to safely
operate the equipment that will be used. In addition, paragraph (a)
sets out exceptions to these requirements for certain equipment, as
well as continuing to note that qualifications issued by the U.S.
Military to its non-uniformed employees satisfy OSHA's crane standard
(OSHA continues to apply the term ``qualification'' within the final
rule for operators working for the U.S. military, as it did in the
previous version of the rule). The new approach provides a clearer
structure than the previous format of the standard, which was not
designed to accommodate both certification and evaluation.
In addition, the final rule makes clear that post-certification
training is required. OSHA adopted this change because the previous
version of the standard focused on pre-certification training. The
final rule outlines the ongoing training necessary for certified
operators to learn to operate new equipment or perform new tasks. The
new final rule contemplates operators still needing additional training
after they are certified, such as training to operate a new type of
crane, perform new tasks, or handle new controls in a crane that differ
from previous models they have operated. The employer is obligated to
train employees, as necessary, even after they are certified, until the
employer has evaluated them in accordance with paragraph (f). The
training components are otherwise nearly the same under both the
previous and revised versions of the standard.
As under the previous version of the standard, (see prior Sec.
1926.1430(g)(2)), refresher training would also be required when
indicated by deficiencies in the employee's demonstrations of crane
knowledge or equipment operation.
The current certification/licensing requirement, which is the
centerpiece of the previous operator requirements, remains largely
unchanged under the revised standard, with the exception that different
certifications for different capacities of cranes would no longer be
required. The reference to ``certified/licensed'' is intended to
encompass each of the certification options in the standard (third-
party certification or an audited employer certification program) as
well as state or local operator licensing requirements.
Several commenters requested that OSHA remove the existing
requirement for operator certification from the standard (see, e.g.,
ID-1605, 1615, 1821, 1826). These commenters faulted OSHA for failing
to re-justify the requirement for operator certification or did not
think it should be applied to their specific industry.
However, operator certification was central to the 2010 final rule,
which was based on the industry stakeholder recommendations through a
negotiated rulemaking. Comment was requested on the proposal in that
rulemaking, and OSHA held several days of hearings on the proposal.
OSHA published the rationale and justification for the inclusion of the
certification requirement in the standard in the 2010 preamble, and so
there was no need to re-explain the agency's lengthy analysis in this
new rulemaking. In the NPRM for this rulemaking OSHA did not signal
that it was considering removing certification: To the contrary, one of
the main purposes of the rulemaking was to implement a change to the
certification requirement (removing capacity) in recognition of the
limited safety benefits of that requirement. This would reduce needless
regulatory burden and ensure that the employers of a majority of
operators would be able to comply with the certification requirement.
OSHA also proposed to clarify and make permanent other employer
evaluation duties, but those were proposed in addition to the operator
certification requirements and the proposal re-organized the standard
to encompass both.
With certification already a requirement of the standard, the main
issue in this rulemaking besides the content of the certificate was the
additional employer evaluation requirement. One commenter claimed that
OSHA's ``policy shift'' to include additional employer evaluation
duties in the current rulemaking ``demonstrates that even it does not
believe that certification is necessary to verify basic crane operating
skills and knowledge needed to safely operate the equipment'' (ID-1605,
p. 2). OSHA disagrees. OSHA accepted the construction industry
stakeholders' recommendation for a third-party certification
requirement in 2010 after OSHA's previous construction cranes standard,
which included a generic duty for employers to assess operators but no
independent certification of the operator's knowledge or abilities,
appeared ineffective in reducing fatalities and injuries caused by
crane operator errors. OSHA proposed the employer evaluation in this
current rulemaking as an addition to certification, not as an
alternative to certification, because those provisions are intended to
work in tandem as explained in more detail elsewhere in this preamble.
The certification provides an independent assessment of general
baseline knowledge and skill and the employer evaluation focuses on
specific knowledge and skills needed for the safe operation of
particular equipment for particular tasks.
OSHA also disagrees with the claim that adoption of a permanent
requirement for employer evaluation of operators undercuts the need for
certification (see also ID-1821). Many of the industry stakeholders who
participated on the negotiated rulemaking committee (C-DAC) who
recommended independent operator certification saw a need to verify
baseline crane operating knowledge and skills, and OSHA incorporated
that recommended requirement into its standard after public comment and
extensive analysis, as explained at length in its 2010 final rule and
accompanying preamble (75 FR 47905). But following that rulemaking,
industry stakeholders noted a distinction between the basic operating
knowledge and skill needed to pass a certification examination, on the
one hand, and on the other the knowledge and skill needed to safely
operate specific equipment to complete a specific task on a
construction site. Employers had traditionally addressed this
distinction when complying with OSHA's general construction requirement
in Sec. 1926.20(b)(4) (``The employer shall permit only those
employees qualified by training or experience to operate equipment and
machinery''). But the inclusion of specific operator training and
certification requirements in the 2010 standard supplanted that general
requirement, apparently to the surprise of some former C-DAC members,
who then began advocating for a replacement (see e.g. ID-0539). With
additional information from industry, the agency has taken action
through this rulemaking to prevent individuals from performing
construction work using even the types of machinery for which they are
certified until employers confirm that they are sufficiently familiar
with the particular machines they will operate and the specific tasks
they will perform in order to ensure safety.\10\
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\10\ The employer evaluation requirements should also allay
stakeholder concerns about the removal of the requirement for
certification by different crane capacities, which OSHA had
previously incorporated as a means of addressing significant
differences between machinery within a single type of crane.
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[[Page 56208]]
OSHA also disagrees with the assertion that OSHA had previously
stated that certification would, by itself, eliminate unqualified
operators, and that OSHA further stated that the ``intent of
certification . . . was clear all along: The test would demonstrate the
operator's technical knowledge specific to the equipment--meaning
certification equated to qualification'' (ID-1605). In support of the
claim, the commenter selectively quoted language in the regulatory text
in previous Sec. 1926.1427(b)(2) that operators would be ``deemed
qualified'' to operate equipment once certified. However, OSHA used
``deemed'' in the description ``deemed qualified'' in the previous
Sec. 1926.1427(b)(2), as well as separate references to certification
and qualification as alternatives, to avoid the impression that
certification resulted in a fully qualified operator.\11\ As OSHA
previously explained in the NPRM, OSHA only used the term ``deemed
qualified'' to recognize under a single rubric the full spectrum of
options for complying with OSHA's standard: Certification, military
authorization, state-licensing, and ``qualification by an audited
employer program.'' (See 83 FR 23549, n. 10.)
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\11\ In providing an overview of the function of the
requirements of section 1427, OSHA used the terms ``certification''
and ``qualification'' separately in describing the process for
compliance: ``In the final rule, paragraph (a) of this section
specifies that the employer must ensure that the operator . . . is
either qualified or certified to operate the equipment in accordance
with the provisions of this section. . . .'' Also, in describing the
alternative permitted under 1427(b), OSHA stated in the 2010 final
rule: ``As noted above, the proposed rule provided four options for
a crane operator to be qualified or certified.'' 75 FR 48017.
---------------------------------------------------------------------------
Many commenters requested exemptions from the operator
certification requirements or the entire rule. These comments, which
included several mass mailings of identical or nearly identical
comments, focused on exemptions for the use of cranes in three
industries: Delivery and installation of propane tanks; using equipment
attached to scaffolding to hoist loads up to the scaffolding; and using
equipment to install signs (see, e.g., ID-1184, 1631, 1830).\12\ OSHA
noted in the proposed rule that broad requests for exemptions from
existing requirements were beyond the scope of this rulemaking, but
requested comment on whether there should be exemptions from the
revised employer evaluation requirements (83 FR 23544). Thus,
exemptions from the revised employer evaluation requirements were the
only exemptions OSHA proposed in the NPRM.
---------------------------------------------------------------------------
\12\ One commenter from the pre-cast concrete industry requested
an exemption from the certification requirements for operators of
knuckleboom cranes, noting that these cranes ``are present in a
large number of precast concrete plants'' (ID-1047). The commenter
continued that ``[a]dding a national certification requirement for
knuckle-boom cranes would not likely have an impact on improving
safety within the plant . . . This assessment is backed by data from
the Bureau of Labor and Statistics, which identifies general
industry, of which the precast concrete industry is a part, as
accounting for a significantly lower rate of workplace accidents
involving cranes than the private construction industry.'' The
commenter described the burden on ``these small manufacturers'' and
also stated: ``While some precast concrete plants have crane
operators who would need to be certified on other classes of cranes,
there are likely thousands of plant personnel who operate only a
knuckle-boom style of crane.'' Taken together, the references to the
employers as manufacturers engaged in general industry work, the use
of the cranes in ``the plant,'' and their presence in a ``large
number of . . . plants,'' the commenter seems to misinterpret OSHA's
construction crane rule as applicable to that industry's general
industry activities. The operator certification requirement only
applies when equipment is used for construction work, not for the
manufacture of pre-cast concrete in a manufacturing plant. A
different commenter (ID-1190) also requested an exemption for ``pre-
cast concrete manufacturers'' and referred to ``drivers'' requiring
certification. OSHA has previously clarified that manufacturers who
simply deliver their products to the ground on a construction site
are not considered to have engaged in construction activity, so the
drivers in that scenario would not require certification under
OSHA's construction cranes standard.
A different commenter, without identifying his industry, asked
for an exemption for ``small truck mounted booms'' under the theory
that employers, rather than pay for operators to be certified, would
simply ``eliminate these valuable tools that will ultimately lead to
more back injuries because proper tools are not available to the
employee'' (ID-1373). OSHA notes that its standard already exempts
from the certification requirement operators of ``equipment with a
maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds
or less'' (revised 29 CFR 1926.1427(a)(2).
A third commenter noted his opposition to operator
certification because ``I believe that there are only three entities
that are recognized for this outside of the Operating Engineers for
union shops. OSHA . . . must provide a clear process for employers
to seek accreditation that is independent of the currently
accredited entities'' (ID-0704). OSHA's standard does not restrict
the number of third-party certifying entities or their accrediting
bodies. OSHA's standard also allows individual employers to comply
with the certification requirement by certifying their own employees
through a program audited by a third-party (see revised 29 CFR
1926.1427(e)).
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To the extent that commenters from these industries addressed
employer evaluations of operators, they suggested that they were
already performing the types of evaluations that would be required by
the revised standard.\13\ Indeed, despite the fact that employers in
these industries have been required to perform some sort of operator
assessment for the last eight years under Sec. 1926.1427(k), they
provided no examples of hardship or obstacles that have arisen during
these assessments that would indicate that the new evaluation
requirements would also pose an undue burden. OSHA is therefore not
persuaded that employers in these industries should be exempt from the
requirement to evaluate operators. Other than for operators of sideboom
cranes, derricks, or equipment with a lifting capacity of less than two
tons, the evaluation requirements in the new standard apply to all
operators.\14\
---------------------------------------------------------------------------
\13\ For example, a representative of the propane industry
explained that ``experienced propane field technicians provide
hands-on training to new employees in coordination with or
subsequent to review of written training materials'' (ID-1631).
Their industry also ``utilizes competency training materials that
provide training on the use of cranes to deliver and retrieve a
propane container,'' and ``utilizes the crane training materials
along with other industry-developed training materials to provide
new training before an employee is assigned a new responsibility as
well as at regular intervals to serve as refresher training'' (ID-
1631). A representative of the precast concrete industry explained
that their organization's ``engineers have visited hundreds of
plants and have observed . . . owners ensuring operators
competency'' (ID-1047). The rationale for the employer evaluation
seems equally applicable to these industries and the commenters do
not provide any persuasive evidence disputing that it is important
that employers evaluate operators to assess whether they have the
knowledge and skills to safely operate the equipment which they are
assigned to use to perform construction tasks.
\14\ One of the same group of commenters also suggested, if
removal of certification is not an option, that OSHA consider
allowing ``one certification based on function,'' such as a single
certification for operators of propane delivery cranes (as opposed
to a certification for each type of crane) (ID-1631). A different
commenter requested that OSHA remove the existing exemption from the
certification requirements for cranes with a lifting capacity lower
than 2,000 pounds (Sec. 1926.1427(a)(3)), asserting that these
smaller cranes can also pose safety hazards (ID-1475). Neither of
these requests address any of the changes proposed in the NPRM and
are therefore outside the scope of the rulemaking.
---------------------------------------------------------------------------
The third element in the introductory text of revised paragraph (a)
refers to the employer's duty to assess the operator to ensure that an
operator has the skills, knowledge, and ability to recognize and avert
risks to operate equipment safely. The updated duty to evaluate
operators is similar to the duty in the prior version of the standard
at Sec. 1926.1427(k)(2)(i), which specified that employers must ensure
that operators are able to operate equipment safely. That employer duty
in the 2010 crane standard was scheduled to be phased out once the
operator certification requirements become effective on November 10,
2018. In the final rule, OSHA is permanently retaining an employer
assessment duty but has re-located it to paragraph (a) to increase
comprehension of the standard's requirements. The revised standard also
includes requirements for the individual who performs the evaluation
and requirements for
[[Page 56209]]
documenting the evaluation. It retains the previous duty for employers
to re-evaluate operators when necessary (see previous Sec.
1926.1430(g)(2)), but moves the requirement to the evaluation section
to improve comprehension of the requirements (see full discussion of
revised paragraph (f)--Evaluation below.)
Paragraphs (a)(1) to (3) provide limited exceptions to the general
requirement in paragraph (a) that operators must be trained, certified,
and evaluated before operating equipment.
Paragraph (a)(1) permits an employee to operate equipment as an
``operator-in-training'' prior to being certified and evaluated,
provided that he or she is supervised and operates the equipment in
accordance with the training requirements in paragraph (b). This is the
only means by which an individual may operate equipment prior to being
trained, certified, and evaluated as competent to do so. This exception
is substantively similar to the provision in the previous crane
standard at Sec. 1926.1427(a), which permitted uncertified operators
to operate equipment only when the employer complied with the
requirements specified under previous Sec. 1926.1427(f)--Pre-
qualification/certification training period. The revised standard also
permits certified/licensed operators to operate equipment as operators-
in-training before successfully completing an evaluation. For example,
this provision allows experienced and certified operators to become
accustomed to performing new crane operations or operating somewhat
different equipment while being evaluated by the employer for that
purpose. It also allows a newly hired operator to run the equipment
while a new employer gauges the operator's crane knowledge, operating
skills, and training needs. In addition, experienced operators who are
not certified may operate the equipment when all operator-in-training
requirements are met.
The standard recognizes that on-the-job training is an important
component of gaining the practical operating experience necessary to
safely operate a crane and to pass a competency evaluation. Other
employers agreed that, depending on a number of factors, determining
the competency of a new, inexperienced operator to become an
independent, safe, and efficient operator is a process that can vary in
time depending in part on having a crane available and demand for the
crane services (e.g., Reports # 2, 11 of ID-0673). This competency
process is often informal and integrated in day-to-day work, with
operators-in-training working closely with experienced operators in on-
the-job training who mentor them and show them how to use equipment
(Reports # 1, 2, 3, 6, 11, 15, 16, 18, 19, 23 of ID-0673). Operators
receive experience not only in the cab, but also in many tasks or
operations related to hoisting, such as rigging, assembly/disassembly
or set-up, or inspections. Moreover, many employers who train new
operators require them to complete operator certification at the
beginning, or in the middle of, their training program, while employer
evaluation of competency is generally a later step in the process and
may occur many times over an operator's career. Therefore, OSHA
believes that permitting an operator-in-training to operate equipment
under the conditions specified in paragraph (b) is appropriate and
necessary to ensure the safety of operators-in-training while they
train for competency evaluations by employers.
In addition, revised paragraph (a)(1) expressly states that an
operator-in-training may only operate equipment under supervision to
ensure that employers understand that supervision is a mandatory
component of operating in accordance with revised paragraph (b), and
therefore also required under this exception. Because the previous
crane standard also required operators-in-training to be supervised,
adding that requirement to paragraph (a) is a non-substantive,
clarifying amendment (see paragraph (b) for a more thorough discussion
of on-the-job and general training requirements).
OSHA did not propose any substantive changes to the existing
exemptions for derricks, sideboom cranes, and equipment with a maximum
manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less
from the training and supervision requirements in revised paragraph (b)
and the certification/licensing requirements in revised paragraphs (c)
and (d).
OSHA did propose a change to the regulatory text in Sec.
1926.1427(a)(2). While the prior regulatory text in Sec. 1926.1427(a)
had excepted operators of this group of equipment from only the
``Operator qualification or certification'' requirements of section
Sec. 1926.1427, corresponding scope provisions in Sec. 1926.1436(q)
(derricks), Sec. 1926.1440(a) (sideboom cranes), and Sec.
1926.1441(a) (cranes with capacity of a ton or less) each specify that
none of the requirements of Sec. 1926.1427 apply to operators of those
types of equipment. Therefore, OSHA proposed in the NPRM to better
align Sec. 1926.1427 with Sec. Sec. 1926.1436, 1926.1440, and
1926.1441. However OSHA proposed to apply the new employer evaluation
requirement to operators of these types of equipment, so the proposed
language of Sec. 1926.1427(a)(2) included an exception from only the
certification ``and training'' requirements of Sec. 1926.1427 (see
also the discussion of the proposed amendments to Sec. Sec. 1926.1436,
1926.1440, and 1926.1441). In light of OSHA's decision not to apply the
new evaluation and documentation requirements to operators of this
group of equipment (see discussion of revised paragraph Sec.
1926.1427(f) later in this preamble) OSHA has revised the paragraph to
preserve the previous categorical exclusion for this group of equipment
from all of the requirements in Sec. 1926.1427.
In the NPRM, OSHA also proposed a new note to Sec. 1926.1427(a)(2)
to specify that operators of sideboom cranes must comply with Sec.
1926.1430, which contains the general training requirements in the
cranes standard. Sideboom cranes were not previously exempted from the
training requirements in Sec. 1926.1430, but training is not expressly
addressed in the section of the standard dedicated to these cranes,
Sec. 1926.1440. OSHA, therefore, proposed this note to clarify the
training requirements that operators of this equipment had to meet.
OSHA is retaining the note in the final rule. OSHA did not receive any
comments on the note in proposed paragraph (a)(2).
Paragraph (a)(3) preserves a previous provision that states that
non-uniformed personnel employed and qualified as operators by the U.S.
military meet the licensing/certification requirements of Sec.
1926.1427. OSHA moved this provision from the other certification/
qualifications options because it operates as an exception: It
specifies that no certification/licensing or training obligation for
construction employers is needed beyond verifying that the employee is
employed by, and qualified by, the military. For the purpose of
confirming that a military operator has the basic crane knowledge and
operating skills required through licensing and certification, OSHA
defers to the operator qualification process of the U.S. military as
the employer. All of the provisions of the crane standard apply when an
operator operates equipment for an employer other than the U.S.
military.
OSHA requested comment on whether the relocation of this provision
was appropriate and whether it is clear that this is an exclusion from
all qualification and training requirements of this standard, not just
certification.
[[Page 56210]]
OSHA did not receive any comments on the introductory text or
restructuring of paragraph (a) (other than the requests for additional
exceptions, as addressed earlier). OSHA is therefore adopting the
changes as proposed.
Paragraph (b) Operator Training.
The requirement for employers to train and evaluate operators
before permitting them to operate equipment is contained in paragraph
(a). Paragraph (b) now sets forth minimum requirements for training,
specifies requirements for trainers, and establishes limitations on the
scope of activities for operators-in-training. This paragraph specifies
the conditions under which an individual may operate a crane prior to
acquiring certification or successfully completing an employer
evaluation. These training provisions are intended to provide a safe
avenue for employees to gain experience operating cranes in a variety
of circumstances.
The training requirements of revised paragraph (b) are largely the
same as the previous rule but also clarify that employers must continue
to address operator training needs after the operator has been
certified and demonstrated competency through employer evaluation on
specific equipment. Paragraph (b) further clarifies that the employer's
training duty is both equipment-specific and task-specific, and extends
until the employer has satisfactorily evaluated the operator-in-
training in accordance with paragraph (f)--Evaluation, or if any
retraining or subsequent training is required to perform the assigned
tasks. The revised standard recognizes that even a certified and
evaluated operator may need additional training to safely operate new
equipment or perform significantly different types of lifts. Therefore,
the employer's duty to train remains an ongoing responsibility that
must be met as the operator's experiences expand. The prior version of
the standard was not as clear (except with respect to when an
individual's deficient operating performance or crane knowledge
triggers retraining) that the employer's duty to train extends beyond
when the individual is certified and evaluated. This updated paragraph
clarifies that the employer's duty to train is aimed at ensuring that
the employee can safely use the equipment that will be operated.
Under the previous standard, OSHA divided the training requirements
between two sections. First, previous Sec. 1926.1427(f)--Pre-
qualification/certification training period, set forth the limited
conditions under which an operator-in-training could safely operate
equipment before being certified. Secondly, previous Sec. 1926.1430--
Training Requirements, brought together the triggers for operator
training requirements, including those for retraining. As discussed in
the explanation for this section, OSHA has removed the substantive
operator training requirements from Sec. 1926.1430 and replaced them
with a cross-reference to new Sec. 1926.1427(b) so that the substance
of the training requirements for operators, as well as all operator-in-
training requirements, are under one section. Relocating the
requirements of previous Sec. 1926.1427(f) to revised Sec.
1926.1427(b) also ensures that the organization of the crane operator
requirements corresponds with the order of a typical operator
competency program--i.e., initial training generally precedes
certification and an operator being determined competent by employer
evaluation.
The introductory language to paragraph (b) in the NPRM required the
employer to ``provide each operator-in-training with sufficient
training, through a combination of formal and practical instruction, to
ensure that the operator-in-training develops the skills, knowledge,
and judgment necessary to operate the equipment safely for assigned
work.'' (83 FR 23567). OSHA is retaining this language in the final
rule except for one change. For reasons discussed later in response to
comments to paragraph (f), OSHA decided to remove the term ``judgment''
from that section and replace it with ``the ability to recognize and
avert risk.'' OSHA is making the same change in the training section.
OSHA proposed corresponding language in the training and evaluation
sections because an operator-in-training should be trained and
evaluated to the same standard. In addition, this revised requirement
specifies that training must include a combination of formal and
practical instruction.
OSHA notes that this paragraph (b) does not mean that employers
must provide novice-level or redundant training when they hire an
experienced operator as a new employee. An employee who is an
experienced operator may need far less training than a less experienced
employee. Employers must determine what level of practical and formal
training an operator-in-training would need under paragraph (b) to
ensure that they develop the skills, knowledge and ability to recognize
and avoid risks necessary for safe crane operation in a variety of
conditions. Ultimately, the training methods chosen by the employer
must be effective and responsive to each operator's training needs.
One commenter, while urging OSHA to remove the requirement for
operator certification, also urged OSHA to ``limit the operator
training requirements to employer-based programs that can best be
customized to train operators on the specific equipment used at each
individual company'' (ID-1826). OSHA is not altering the training
requirements in paragraph (b), which require training on the subjects
listed in Sec. 1926.1427(j)(1) and (2). OSHA believes these
requirements provide enough flexibility to allow an employer to
efficiently customize its training programs. For example, the standard
continues to require the operator to have knowledge of ``the
information necessary for safe operation of the specific type of
equipment the individual will operate'' (Sec. 1926.1427(j)(1))
(emphasis added). There are some general requirements not tied to the
operation of particular machines, such as the requirement for training
on ``Procedures for preventing and responding to power line contact,''
that address serious hazards that vary by location, not equipment. The
mandated training criteria are longstanding requirements that were
adopted by OSHA on the recommendation of its negotiated rulemaking
committee because most were included in OSHA's pre-2010 cranes standard
(Sec. 1926.550) or were in industry consensus standards.
A different commenter suggested that OSHA incorporate requirements
from the Powered Industrial Truck standard into the crane operator
training requirements. This recommendation included more prescriptive
language in the regulatory text language specific to training on the
controls and instrumentation of the equipment, the operator's manual,
and when further training is required (ID-1719). Although the commenter
acknowledges that ``the proposed rule offers clear guidance on the
subject matters that initial training must cover,'' it believes its
recommended revision is necessary to ``provide sufficient guidance on
the triggers for supplemental training and re-training/remedial
training'' (ID-1719).
OSHA is not convinced that more prescriptive language for operator
training requirements is required. OSHA believes that the incorporation
of the paragraph (j), and subsequently Appendix C, provides employers
with thorough lists of subjects on which operators must be trained,
including elements such as the equipment's controls. OSHA concludes
that the more flexible, less prescriptive language
[[Page 56211]]
proposed for the training requirements is more appropriate for crane
operator training than the prescriptive list of elements offered by the
commenter.
OSHA has not retained the introductory text in previous paragraph
(f), which required that a non-certified employee could only operate as
an operator-in-training within the limitations of paragraph (f). That
introductory text has now been supplanted by the language in revised
paragraphs Sec. 1926.1427(a)(1) and (b), without substantive change
other than the addition of the evaluation requirement.
Most of the specific training requirements in paragraph (b) are
identical or similar to the previous training requirements. Paragraph
(b)(1) requires the employer to provide the operator-in-training with
instruction on the subjects in paragraph (j). This requirement is
identical to the requirement in previous Sec. 1926.1430(c)(1)--
Operators-in-Training for equipment where certification or
qualification is required by this subpart. However, under the revised
standard, even after the operator-in-training is determined competent
by employer evaluation, the employer's training duty can continue when
the operator operates new equipment or performs tasks that require new
skills or knowledge. An individual may be a fully certified and
evaluated operator with respect to one piece of equipment such that he
or she is allowed to operate that equipment independently, but
simultaneously be an operator-in-training (and thus subject to the
operating restrictions in the standard) with respect to different
equipment or tasks that require significantly different skills or
knowledge to ensure safety.
Section 1926.1427(j)--Certification criteria, which remains
unchanged, specifies the mandatory subject matter for third-party
licensing and certification, as recommended by C-DAC. It requires a
written and a practical test. Paragraph (j)(1)(i) specifies areas of
information that must be covered by the written certification test for
the type of crane that an individual will operate, such as controls,
operational/performance characteristics, load calculations, and ground
conditions. This paragraph also references a more comprehensive list of
areas of technical knowledge in Appendix C--Operator Certification:
Written Examination: Technical Knowledge Criteria. Paragraph (j)(2)
identifies the operating skill areas that must be covered by the
practical certification test.
OSHA concludes that operators-in-training must continue to receive
training in the subject matter identified in this section as
recommended by C-DAC. However, as proposed, OSHA relocated the training
requirement in Sec. 1926.1430(c)(1) to revised Sec. 1926.1427(b) so
that the requirements for operators-in-training may all be found in one
place. New language in revised Sec. 1926.1430--Training, discussed
separately below in this preamble, references Sec. 1926.1427(a) and
(b) rather than repeat the same requirement.
Paragraph (b)(2) requires the employer to ensure that a trainer
continuously monitors operators-in-training during all crane
operations. This requirement is identical to the previous requirement
for continuous monitoring under previous paragraph (f)(3).
Paragraph (b)(3) requires the employer to assign the operator-in-
training only tasks that are within his or her ability. This
requirement is substantively identical to the requirement under
previous paragraph (f)(2). OSHA made minor changes to the language of
this requirement to clarify that it is the employer's duty to assign
tasks to the operator-in-training.
OSHA also relocated the requirements of previous paragraph (f)(1).
The previous paragraph (f)(1) required the employer to provide each
operator-in-training with training sufficient to operate safely under
the limitations of previous paragraph (f). Its requirements are
retained in revised paragraphs (b)(1) and (3), which state that the
operator-in-training must be trained on the subject matter specified in
paragraph (j) of this section and may only perform tasks that are
within his or her abilities.
Paragraph (b)(3) retains a revised version of the limitations
specified in previous paragraph (f)(5), which precluded operators-in-
training from operating equipment next to energized power lines; from
hoisting personnel; or from performing multiple-equipment lifts, multi-
lift rigging operations, or lifts over shafts, cofferdams or in a tank
farm. OSHA previously determined in the 2010 final rule that these
equipment operations and worksite conditions are too complex, or
present such heightened risks, that it would be unreasonably dangerous
if an operator-in-training were to operate the equipment in these
circumstances (75 FR 48024). However, in the NPRM OSHA announced that
it would consider revising these limitations because they may have the
effect of preventing operators from gaining the experience necessary to
conduct these lifts.
OSHA received comments supportive of removing these limitations on
operators-in-training. A labor union commented that these tasks
``should not be prohibited'' because ``an operator must be trained in
how to safely perform them'' (ID-1615). Another commenter, in urging
OSHA to remove operation in tank farms from the list, argued that
``[t]he continuous monitoring requirement specified in the Rule along
with other safe work practices (e.g., work permits, joint jobsite
visits, etc.) are sufficient to identify and mitigate hazards that an
operator-in-training may encounter in a tank farm'' (ID-1647). OSHA did
not receive additional comments on this issue.
In response to these comments, OSHA revised the language of the
regulatory text to provide a measured expansion of the prior rule that
removes the prohibition as requested by the commenters. Operators-in-
training will now be allowed to perform these lifts, but only if they
have been certified in accordance with Sec. 1926.1427(c). The 2010
crane standard only allowed an operator to perform these lifts after
becoming certified, so OSHA is preserving the status quo in that
respect. OSHA continues to agree with C-DAC that these lifts are too
complex and potentially dangerous to be attempted by an operator
candidate who may lack the basic knowledge and skills required for
general crane operation. But the prior regulatory text left no way
forward for even a certified operator to gain the experience necessary
to perform those functions safely, and did not leave room for an
employer to have an operator evaluated on these tasks in accordance
with revised Sec. 1926.1427(f). This language change therefore
respects C-DAC's intent to prevent operators who have not acquired the
baseline knowledge of crane operation provided by certification from
performing these complex lifts, while allowing operators-in-training
the opportunity to train performing these lifts under the direction of
a trainer prior to being evaluated to perform these lifts as an
operator. Note that the employer must still train the operator on these
specialized lifts before allowing the operator to attempt them, even
under supervision, because paragraph (b)(3) only permits the employer
to assign tasks to an operator-in-training that are ``within the
operator-in-training's ability.''
Paragraph (b)(4) prescribes minimum requirements for monitored
training of operators-in-training and trainers who monitor operators-
in-training. Revised (b)(4)(i) specifies requirements for the
[[Page 56212]]
required trainer which are similar to requirements in paragraph (f)(3)
of the 2010 crane standard. Paragraph (b)(4)(i)(A), which requires that
the trainer must be an employee or agent of the operator-in-training's
employer, is identical to paragraph (f)(3)(i) of the 2010 crane
standard.
Paragraph (b)(4)(i)(B) requires that the trainer must ``have the
knowledge, training, and experience necessary to direct the operator-
in-training on the equipment in use.'' This requirement is the same as
the proposal but is different from the requirements of paragraph Sec.
1926.1427(f)(3) of the 2010 crane standard, which required that a
trainer either be a certified operator or have passed the written part
of a certification test, and have familiarity with the equipment's
controls. This revision recognizes that some uncertified trainers may
have the knowledge and experience to be competent to teach or monitor
the equipment operations of an operator-in-training.
In the NPRM, OSHA explained that it proposed this change for three
reasons. First, merely requiring that the trainer must have passed the
written part of a certification test is insufficient to confirm a
trainer's ability to train other operators. Paragraph (f)(3) of the
2010 crane rule presumed that all certified operators or individuals
who passed only written certification tests have the skills to monitor
an operator-in-training, but as explained above, certification alone is
insufficient to ensure that operators are competent to safely operate a
crane. Under the final rule, even after the basic crane knowledge and
operating skills of operators have been confirmed through certification
testing, employers must still determine through evaluation if operator
training already provided is sufficient or if more is necessary, based
on the complexity of equipment that will be used and activity that will
be performed. Thus, requiring an individual to pass a written
certification exam appears to be likewise insufficient as the sole
criterion for confirming a trainer's ability to monitor and train an
operator-in-training.
Second, using certification as a required criterion for the trainer
could exclude individuals from the role who have extensive operating
experience and familiarity with the controls of the relevant equipment
but do not possess a certification. Under the trainer requirements of
the 2010 crane rule, an experienced but uncertified operator may have
been required to be monitored by a less experienced but certified
individual. In stark contrast, an uncertified person who has
significant experience operating the particular equipment used during
the training may have more insight into the function of its controls
and the nuances of its operation than someone who is certified for that
type of equipment but has never operated that particular equipment.
Allowing only certified operators in these training roles is also
inconsistent with the industry practice of pairing inexperienced
operators with experienced trainers who monitor the safety and
professional development of the inexperienced operator.
Third, passing a written certification test is not a definitive
indicator of safe training practices in the industry and requiring
certification of all trainers could significantly alter many previous
work practices in the industry. Stakeholder feedback suggests that many
different employees or agents of an employer successfully fulfill the
role of a trainer but may not be certified. Some formal training might
be administered by an individual who is not certified but has extensive
knowledge of a particular make and model of crane. For example, some
crane manufacturers offer technical training to their customers
regarding the operation, maintenance, and troubleshooting of cranes
they sell (see Reports # 4, 5, 13 of ID-0673). On-the-job training is
often conducted by a seasoned crane operator with years of experience
(see Reports # 1, 2, 19, 23, 28 of ID-0673) or in some cases by a
retired operator (see Report # 26 of ID-0673). These operators may no
longer be certified. In addition, an employer might employ various non-
certified employees, such as an experienced safety manager, foreman, or
site manager, to monitor some work training activities, or an
experienced small business owner might fill the role of trainer in some
cases (see Reports # 1, 2, 15, 26 of ID-0673). And OSHA spoke with
three companies that offer other employers private training from
experienced operators who are not certified (see Reports # 20, 21, 22
of ID-0673). In sum, stakeholders reported that some individuals who
have the necessary knowledge, training, and experience but do not
possess a certification or have not passed the written certification
exam can, nevertheless, be successful trainers.
In the proposed revision of this provision, OSHA proposed language
similar to the requirement in ASME B30.5 (2014) at 5-3.1.2(e) that
training must be performed by a ``designated person who, by experience
and training, fulfills the requirements of a qualified person.'' The
language is also similar to the ``qualified person'' definition that is
familiar to the construction industry. Under this language, employers
have some flexibility in determining the level of knowledge and
experience that the trainer must possess based on the skill level of
the operator-in-training and the nature of the activity performed.\15\
---------------------------------------------------------------------------
\15\ OSHA expects that in many cases, the trainer will possess a
certification. However, this final rule allows the possibility that
the trainer's experience with the task and equipment used could be
sufficient for providing training even without the trainer
possessing a certification.
---------------------------------------------------------------------------
OSHA received comments supporting the proposed changes to the
trainer criteria. A trade association agreed with the proposed language
because it provides employers with ``flexibility in determining the
level of knowledge and experience that the trainer must possess based
on the skill level of the operator-in-training and the nature of the
activity performed . . . even when the individual has not passed the
written certification exam, possesses an operator certification, or has
prior experience operating a crane'' (ID-1801). One commenter agreed
with OSHA that certification or passing the written part of the
certification test is not determinative of whether an individual can
train an operator-in-training, stating that it ``fails as a measure of
a trainer's competencies and capabilities'' (ID-1821). Similarly, a
comment supporting the proposed language asserted that ``[t]he current
requirement that trainers obtain certification or at least pass the
written portion of the certification requirement does not necessarily
correlate with the individual's ability to provide practical
instruction or impart valuable knowledge to other employees'' (ID-
1631).
A different commenter supported the ``requirement that the trainer
should be a `qualified person,''' as defined in the cranes standard,
without other requirements (ID-1828). OSHA believes that the proposed
new language, which the commenter did not directly oppose, comes close
to that approach while still providing the additional focus on the
training.
Several other commenters opposed the proposed change and preferred
that the trainers at least pass the written portion of the
certification exam. One commenter responded that trainers possessing
certification have been ``a long established standard and best practice
among the industry,'' and interprets ASME B30.5's term ``qualified
operator'' to mean ``one who possesses a certification for the type of
equipment for which he/she is instructing an operator-in-training''
(ID-1816). OSHA disagrees with that interpretation of
[[Page 56213]]
ASME B30.5 because that definition, like the definition of ``qualified
person'' in OSHA's cranes standard, clearly states that certification
is only one of two paths to become a qualified person.\16\
---------------------------------------------------------------------------
\16\ See definition of ``qualified person'' in ASME B30.5 (2004)
(``by possession of a recognized degree in an applicable field or
certificate of professional standing, or who, by extensive
knowledge, framing, and experience . . .'') (emphasis added).
---------------------------------------------------------------------------
That commenter also compared operator certification to a driver's
license and stated that ``one would not want a driving instructor who
herself does not possess a driver's license,'' (id.), but there may be
many reasons why an experienced crane operator may no longer possess a
valid certification. Many seasoned crane operators who have safely
operated cranes for decades have the knowledge, operating experience,
and ability to effectively train and direct an inexperienced operator
even though they never had a need to acquire a certification during the
course of their operating careers or let their certifications expire
after transitioning into new roles. Contrary to the commenter's
assertion, the seasoned operator may be preferred as a trainer because
of the greater experience, particularly if that experience is with the
particular equipment that will be operated. OSHA concludes that the
emphasis of the trainer qualifications should be on a person's ability
to train and direct an operator-in-training, rather than whether the
trainer possesses a certification.
Another commenter stated that it is ``infeasible to consider how a
trainer or evaluator can determine an operators qualifications if they
have never operated a crane . . . OSHA should consider going to the
original definition they are using for the trainer'' (ID-1623). That
comment incorrectly assumes that trainers without a current
certification, or those who have not passed the written portion of a
certification exam, have not previously operated a crane. In some
cases, the trainers may be retired or semi-retired operators who are
fully capable of training other operators but who have not elected to
take an operator certification examination because they no longer
operate cranes. The record of the 2010 rulemaking and this rulemaking
also contains a number of statements indicating that some employers
have very experienced operators who have difficulty with written exams
(see, e.g., 73 FR 59816-59817). In some cases, the language or literacy
barriers that impede an experienced operator from passing a written
exam may have no relevance to that person's ability to instruct an
operator-in-training. OSHA does not agree that such a trainer should be
disqualified from training an operator so long as there is effective
communication between the operator-in-training and the trainer.\17\
---------------------------------------------------------------------------
\17\ A different membership organization agreed with OSHA's
proposal and drew on its members' experience in using experienced
but un-certified instructors. The commenter considered OSHA's
revised language ``appropriate'' because members of their
organization often assign as trainers experienced operators who may
not have passed the written certification exam, but have more
experience with the equipment than some certified operators. (See
ID-1826). Not moving forward with the proposed language, this
commenter warned, ``would prevent certain operators who are highly
qualified, experienced and knowledgeable on certain equipment from
serving as trainers'' (ID-1826).
---------------------------------------------------------------------------
One certification organization conceded that ``certification may
not be an appropriate `sole' criterion or a sufficient indication of
competence as a trainer,'' but contended that it is an ``appropriately
necessary condition of establishing such competence and ensuring a
`baseline' of knowledge and skills'' (ID-1755). That commenter
suggested that OSHA go further than the previous rule and require that
trainers be both certified and possess the requisite knowledge,
training, and experience.
OSHA does not agree that it is necessary to go as far as the
commenter suggests in order to ensure that appropriate trainers are
instructing operators-in-training. As stated earlier, OSHA anticipates
that many trainers will be certified operators. As one commenter
noticed, the proposed language ``does not preclude employers from
following the existing trainer requirements if they so choose'' (ID-
1801). Moreover, a certification could provide partial evidence of the
knowledge, training, and experience necessary to train an operator-in-
training, but is not sufficient for verifying competency and safe crane
operation. The requirement for even a partially certified trainer would
come at the price of excluding the experienced trainers currently
relied on by the earlier commenter (ID-1826). The final rule will
preserve greater flexibility for the employer seeking to ensure safety
through available resources, and is also more closely aligned with the
existing industry guidance in ASME B30.5.
One of the certification organizations asserted that ``[r]equiring
that a trainer have a baseline of knowledge and skills as an operator
is likely, not only to improve the quality of training, but also to
increase safety during training in the event the operator-in-training
engages in an unsafe act and the trainer is forced to intervene'' (ID-
1755). The agency agrees that it is important for the trainer to be
able to direct an operator-in-training should their operation
potentially result in an incident or near miss and has included that
requirement in the standard (``Have the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use''). But requiring that a trainer must have passed the
written part of the certification test does not indicate that a trainer
would be able to do more. OSHA's standard, both as revised and prior to
this revision, does not permit anyone other than a certified operator
to be at the controls absent supervision, so a trainer who has only
passed the written exam would not be permitted to operate the crane
without another person serving as a trainer to that person. It does not
follow that a person who has passed the written portion of the
certification exam, but not necessarily demonstrated any practical
skill at operating a crane, would be inherently better prepared to
correct an operator than a person who has the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use.
It is true that a trainer who is a certified operator (and properly
evaluated under the new standard) would be permitted to sit in the cab
and take over the controls in the event of perceived unsafe action, but
there is no record that this is a common occurrence or has been shown
to be effective. In the absence of a clearer record on this point, OSHA
is hesitant to disturb C-DAC's judgment that requiring all trainers to
be fully certified operators was unnecessarily restrictive (see 75 FR
48024). In its 2008 NPRM explanation of the trainer requirements, which
were included without change in the final rule, OSHA acknowledged that
full certification was unnecessary and explained that the trainer's
knowledge of the particular equipment being operated was paramount to
certification:
The Committee determined that a supervisor who had passed the
written portion of a certification test would not need to be
sufficiently proficient to pass the practical portion in order to
effectively supervise a trainee/apprentice. However, both in the
instance where the supervisor is certified and in the instance where
he/she is not certified but has passed the written portion of the
certification test, the Committee believed that it is necessary that
he/she be familiar with the proper use of the equipment's controls,
since such knowledge is essential to being able to effectively
supervise a trainee/apprentice.
(73 FR 59815 (Oct. 9, 2008)). OSHA does not find any of the
comments persuasive enough to further restrict
[[Page 56214]]
employer options or to shift the focus away from the trainer's
knowledge of the equipment to be used by the operator-in-training.
As stated previously, OSHA proposed language for its similarity to
language from ASME B30.5 and OSHA's qualified person standard, and the
flexibility it offers employers in choosing trainers for their crane
operators. OSHA considered simply requiring a trainer to be a
``qualified person,'' but relying solely on the definition of qualified
person as criteria for trainers presents a problem. In Sec. 1926.1401,
OSHA defines a qualified person as one ``who, by possession of a
recognized degree, certificate, or professional standing, or who by
extensive knowledge, training and experience, successfully demonstrated
the ability to solve/resolve problems relating to the subject matter,
the work, or the project.'' However, even under the previous standard
OSHA did not intend for the possession of a certificate to be enough
for an individual to be a trainer--the previous standard also required
knowledge of the equipment's controls. Relying on the definition of
``qualified person'' in the crane standard as the lone criteria for
trainers would mean that anyone possessing a certificate would
automatically be a ``qualified person,'' regardless of their knowledge
of any of the controls or other aspects of the equipment to be
operated. OSHA will retain its proposed language.
The remainder of paragraph (b)(4) does not contain any substantive
changes from the previous rule, did not receive any comments, and is
promulgated as proposed. Paragraph (b)(4)(ii) prohibits the trainer
from performing any task that detracts from his or her ability to
monitor the operator-in-training. It is identical to previous paragraph
(f)(3)(iii).
Paragraph (b)(4)(iii) requires the operator's trainer and the
operator-in-training to be in each other's direct line of sight, and
that they communicate verbally or with hand signals. This requirement
is substantively the same as previous paragraph (f)(3)(iv), with minor
simplifying changes. The revised standard relocates this provision to
an independent subparagraph to clarify that the employer has the
ultimate responsibility for ensuring compliance with this requirement.
This revised paragraph also retains an exception for tower cranes so
that the trainer and operator-in-training must be in direct
communication with each other, but are not required to maintain a
direct line of sight because the height of the operator's station may
make it infeasible. (See also, the discussion of previous paragraph
(f)(3)(iv) in the preamble to the 2010 final crane rule at 75 FR
48024.) This exclusion in this final rule is also substantively the
same as paragraph (f)(3)(iv) of the 2010 crane rule, with minor
simplifying language changes.
Paragraph (b)(4)(iv) requires that an operator-in-training be
monitored while operating the equipment at all times except for short
breaks and retains the conditions specifying monitoring under paragraph
(f)(4) of the 2010 crane rule. Paragraph (b)(4)(iv)(A) requires that a
trainer's break while the operator-in-training runs the crane can last
no longer than 15 minutes and can occur no more than once per hour.
Paragraph (b)(4)(iv)(B) requires the employer to ensure that the
trainer and operator-in-training communicate about the tasks, if any,
that can and cannot be performed in the trainer's absence while on
break. Paragraph (b)(4)(iv)(C) limits tasks performed during the
trainer's break to only those that are within the abilities of the
operator-in-training.
Paragraph (b)(5) requires the employer to provide retraining when,
based on the performance of the operator or an assessment of the
operator's knowledge, there is an indication that retraining is
necessary. This language is identical to the requirement in previous
Sec. 1926.1430(g)(2) but is included in paragraph (b) to consolidate
all substantive training requirements to the extent practical for
operators covered under Sec. 1926.1427. Because the requirements of
Sec. 1926.1430(g) apply more broadly to all employees covered by this
standard, however, OSHA is not deleting that requirement from Sec.
1926.1430(g). Thus, identical language will appear in two different
paragraphs of the final standard. This retraining requirement is
consistent with the retraining described as already implemented by
employers who spoke with OSHA during interviews and site visits (see
Reports # 1, 2, 3, 15, 18, 19, 22, 26 of ID-0673). Note that the need
for retraining under paragraph (b)(5) would also trigger the
requirement for re-evaluation under paragraph (f)(7) (see also preamble
discussion below of paragraph (f)--Evaluation).
OSHA received one substantive comment proposing revisions to the
retraining requirements. The commenter recommends incorporating
language from the Powered Industrial Trucks standard that states when
retraining is necessary, including unsafe operation, an accident or
near-miss, a failed evaluation, or insufficiency of training (ID-1719).
OSHA does not believe this is necessary because the revised retraining
requirements allow the employer to determine whether an operator needs
additional training based on their performance and their knowledge.
This final rule not only requires that retraining be triggered based on
an operator's performance, but it also requires an employer to conduct
retraining if the operator indicates it is necessary (see revised Sec.
1926.1427(b)(5)). OSHA concludes that this approach gives employers
more flexibility in determining when retraining is needed to ensure
safety.
One commenter also noted that OSHA uses the words ``retraining''
and ``refresher training'' interchangeably in proposed paragraph (b)(5)
without defining either term, and requested clarification (ID-1719).
Another commenter agreed that additional clarification would be
helpful.\18\ In response to such comments, OSHA will replace the term
``refresher training'' with ``retraining''.
---------------------------------------------------------------------------
\18\ ``OSHA discusses in detail an employer's obligation to
provide ongoing training as necessary when an operator's experience
expands or is assigned to operate new equipment or perform new
tasks. However, this concept is not explicitly stated anywhere in
the proposed regulatory text. Only refresher training, required when
indicated by deficiencies in the employee's demonstrations of crane
knowledge and equipment operation, is present in proposed paragraphs
(b)(5) and (f)(5), which do not apply to new equipment or an
expansion of experience. If OSHA's intent is to clarify an
employer's obligation to provide ongoing training, we believe the
proposed regulatory text fails to make this clear.'' (ID-1801). In
response to the comment that OSHA does not explicitly include
ongoing training provisions in the regulatory text, the agency
disagrees. This requirement extends from the duty in paragraph
(b)(1) that employers must train operators to ensure they have the
knowledge, skills, and ability to recognize and avert risk necessary
to operate the equipment safely for assigned work. This ongoing
training requirement need not be restated elsewhere in the
regulatory text.
---------------------------------------------------------------------------
Paragraph (c) Operator Certification and Licensing.
At the ACCSH meeting on March 31-April 1, 2015, ACCSH members
unanimously recommended that OSHA move forward with a rulemaking that
retains certification and permanently extends the employer's duty to
ensure the competency of operators (OSHA-2015-0002-0037). Paragraph (c)
retains the certification and licensing structure of the 2010 crane
standard with only a few minor modifications intended to improve
comprehension of certification/licensing requirements.
First, OSHA moved the military qualification provisions of previous
Sec. 1926.1427(e)(4) to the exception in paragraph (a), as noted
earlier.
Second, OSHA removed the reference to an ``option'' with respect to
mandatory compliance with previous state and local licensing
requirements.
[[Page 56215]]
When a state or local government issues operator licenses for equipment
covered under subpart CC, and that government licensing program meets
the requirements specified in the standard, then employers must ensure
that equipment operators are properly licensed when working in the
state or local jurisdiction, even if the operator is also certified by
a nationally accredited certification organization. However, the state
or local license would satisfy OSHA's certification requirement: OSHA
will not require an operator who obtains such a state or local license
to also obtain a separate certification from a nationally accredited
certification organization or an employer-audited program.
The content of revised paragraph (c)(1) is virtually identical to
provisions in Sec. 1926.1427(e)(2) of the 2010 crane rule, with one
exception: Revised (c)(1)(v). For a more detailed explanation of the
other provisions in this paragraph, see the preamble discussion of
Sec. 1926.1427(e)(2) in the 2010 crane rule at 75 FR 48021-23 (August
9, 2010).
As in the 2010 crane standard, this final rule includes minimum
``federal floor'' criteria for state and local crane operator
licensing. If a license does not meet the minimum ``federal floor''
criteria specified in OSHA's crane standard (see revised Sec.
1427(c)(1) and (j)), then the state or locality could still enforce its
own licensing requirements, but employers operating cranes for
construction within that jurisdiction could not rely on that license to
satisfy OSHA's operator certification requirement. The employer must
then comply with one of the other options for certification/
qualification specified by this final rule. In the NPRM, OSHA proposed
amending Sec. 1926.1427(c)(1)(v) to add a new requirement to the
``federal floor'': The license must specify the ``type, or type and
capacity'' of equipment for which the license is applicable. The
purpose of this proposed change was to make it easier to determine
whether the licensing procedure required the operator to have knowledge
about the ``type'' of crane to be operated, as required by OSHA's
standard in Sec. 1926.1427(j)(1).
OSHA received three comments (ID-1611, 1779, 1824) warning that
inserting any additional requirements into the ``federal floor'' for
state or local licenses could make it more likely that some states or
localities would not meet that ``federal floor.'' For employers in
jurisdictions where the state or local licensing program did not comply
with the federal floor, they would need to ensure that their operators
were not only licensed as required by the state or locality but also
certified through a third-party program or audited employer program in
order to comply with OSHA's standard. One commenter expressed concern
that OSHA's proposed change would result in ``duplicative or multiple
layers of identical certification requirements'' for employers, and
that a change designed primarily to facilitate compliance (rather than
to add a substantive safety requirement) would not warrant the
potential impact for employers (ID-1779). ``Provided that the state or
local licensing requirement is in fact equivalent or more stringent
than the OSHA expectation of determining competency,'' the commenter
stated, ``then duplicative certification is unduly burdensome,
especially for small businesses'' (Id.).
OSHA is sensitive to concerns raised about unnecessary regulatory
duplication, particularly when the purpose of the change is to
facilitate compliance rather than adding a new safety measure. To avoid
needless burden, OSHA has decided not to implement the proposed change.
Proposed paragraph (c)(1)(v) has been removed and proposed paragraph
(c)(1)(vi) is designated (c)(1)(v).
The remainder of the requirements of paragraph (c)(1) are
substantively the same as those in Sec. 1926.1427(a)(1), (a)(2), and
(e) of the previous rule, except that OSHA combined the requirements of
those three paragraphs into one paragraph and clarified some of the
language to facilitate better comprehension of state or local
government entity requirements. Paragraph (c) restates more clearly the
requirement in previous paragraph (a)(1) that the employer must ensure
operators are certified and licensed. Paragraph (c)(1) substantially
incorporates the requirements of previous paragraph (a)(1)(i) and
combines it with the licensing criteria in previous paragraph
(e)(2)(i)-(iv). Paragraph (c)(1)(v) is substantially the same as
previous paragraph (e)(3)(ii).
Paragraph (c)(2) specifies the certification requirements for two
remaining situations: The construction occurs in a state or local
jurisdiction that does not require licensing of equipment operators, or
the construction occurs in a state or local jurisdiction where the
licensing program does not meet the ``federal floor'' of requirements
established in this standard. In each of those situations, the operator
would have to be certified in accordance with paragraph (d) (third-
party certification) or (e) (audited employer program) of this section.
Paragraph (c)(2) is identical to previous Sec. 1926.1427(a)(2), except
that it references only the paragraphs containing criteria for
certification by an accredited testing organization and an audited
employer program--and not the option for qualification by the U.S.
military which is addressed as a scope exclusion in Paragraph (a)(3).
Revised paragraphs (d) and (e), discussed later, correspond to previous
paragraphs Sec. 1926.1427 (b) and (c), respectively.
Paragraph (c)(3) requires employers to provide at no cost to
employees the certification or licensing required by Sec. 1926.1427.
This revised requirement is almost identical to that of Sec.
1926.1427(a)(4) of the previous rule, except that it has been revised
to clarify that it applies to all operators certified or licensed after
the effective date of the new standard, not just those operators who
were ``employed by the employer on November 8, 2010,'' as previous
Sec. 1926.1427(a)(4) stated.\19\ This revision is in line with, and
will be enforced similarly to, other OSHA provisions that require
employers to provide personal protective equipment, medical
examinations, or other functions at no cost to the employees. The
requirement would also be consistent with the way in which OSHA
assessed costs in the 2010 economic analysis. In the final economic
analysis of subpart CC, OSHA modeled all of the costs for compliance
with the previous certification requirements as if all employers always
paid for the certifications/licenses they provide for operators. Note,
however, that this provision does not mandate an employer to maintain
its employment of an employee/operator who cannot pass certification
testing or who is not a good operator candidate. Furthermore, an
employee who does not possess a certification may still be allowed by
the employer to operate a crane, but only as an operator-in-training
and through the employer's compliance with all requirements of
paragraph (b) of this section.
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\19\ As in previous Sec. 1926.1427(a)(4), revised paragraph
(c)(3) does not require employers to cover the costs to employees of
licensing that does not conform to the requirements of Sec.
1926.1427.
---------------------------------------------------------------------------
Paragraph (c)(4) retains, without change, the content of previous
Sec. 1926.1427(g), which states that a testing entity is permitted to
provide training as well as testing services as long as the criteria of
the applicable accrediting agency (in the option selected) for an
organization providing both services are met.
[[Page 56216]]
Paragraph (d)--Certification by an Accredited Crane Operator Testing
Organization.
As noted above, paragraph (c)(2) provides two options for
certification: Compliance with paragraph (d) (third-party
certification) or paragraph (e) (audited employer program). Compliance
with the requirements of paragraph (d) is the option that OSHA expects
the vast majority of employers to use. Paragraph (d) retains, with some
non-substantive language clarification and two exceptions discussed
below, the requirements of previous paragraph Sec. 1926.1427(b) and is
unchanged from the proposal.
First, the most significant change is that paragraph (d)(1)(ii)(B)
replaces the references to certification by ``type and capacity'' that
appeared in previous paragraph (b)(1)(ii)(B) with ``type, or type and
capacity,'' as recommended by ACCSH (see OSHA-2015-0002-0037 pg. 71).
OSHA has therefore also reworded previous paragraph Sec.
1926.1427(b)(1)(ii)(B) to remove the requirement that an operator's
certificate list a lifting capacity for which the operator was
certified. The need for these changes is explained in the ``Need for a
Rule'' section of this preamble. These revisions remove the requirement
to obtain a certification for a designated crane capacity, but also
clarify in the regulatory text that OSHA considers testing
organizations whose programs provide certifications that specify ``type
and capacity'' equally acceptable.
The ``type, or type and capacity'' language was requested by Crane
Institute Certification and recommended by ACCSH. Several other
commenters also made this request (OSHA-2015-0002-0036). The language
has been included in the final rule to make clear that while all
certifying bodies must certify by type of crane for their
certifications to meet OSHA's requirements, testing organizations may
also choose to specify for their certifications different levels of
rated lifting capacity of cranes.
As explained in the section Elimination of the Requirement to
Certify Based on Capacity of Crane of this final rule, almost all the
comments received relating to the proposed removal of the requirement
to certify by capacity were in favor of its removal. The commenters
were split, however, on whether OSHA should keep the ``type, or type
and capacity'' language in the regulatory text. One of those commenters
specifically requested OSHA to keep the proposed language because many
of its members ``currently require certification by type and capacity,
and have expressed that they find both types of certification to be
beneficial to establishing a baseline operator competency,'' and added
that this language ``will help alleviate confusion about the changes to
the requirement and allow employers to maintain their current
certification requirements as they see fit'' (ID-1735). The one
commenter who opposed OSHA's decision to remove the requirement for
certification by capacity concluded that if OSHA did remove that
requirement, then ACCSH's recommended language of ``type, or type and
capacity'' should stay in the rule (ID-1235).
The agency also received comments requesting that OSHA not include
the language ``or type and capacity'' in the standard. Two of these
comments were submitted by certification bodies that currently provide
certification by type only. Both believe removing this language will
add clarity and reduce confusions among the regulated community (ID-
1755 and 1816). One of them is concerned that keeping the language will
inaccurately convey that ``the only options for certification are
either (a) by type, or (b) by type and capacity,'' whereas ``testing
organizations may in fact seek to consider factors other than `type' ''
or capacity when developing operator certification programs (ID-1755).
A different commenter believes removing the reference to capacity
``does not restrict crane certifying bodies from certifying according
to capacity should they so choose'' (ID-1611). Another commenter
suggested OSHA revise the proposed language to require certification
``by type and/or type and capacity'' (ID-1828).
OSHA has decided to retain the proposed ``type, or type and
capacity'' language for paragraph (d)(1)(ii)(B) because it makes it
clear that the agency will accept certifications that are otherwise
compliant with the standard from any of the four accredited
certification bodies of which OSHA is aware. OSHA does not believe that
including this language will lead to confusion in the industry because,
currently, certifications are offered by type or type and capacity.
None of the comments recommending the removal of certification
expressed any confusion about including this language.\20\
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\20\ The requested revision that the language read ``by type
and/or type and capacity'' creates confusion because it could be
read as requiring an employer to have either a certification by
``type'' or ``type and capacity'' or to have two certifications--one
by ``type'' and another by ``type and capacity.'' OSHA's revised
language makes clear that, for a certification to be compliant with
OSHA standards, the certification must, at the very least, include
the type of crane on which the operator was certified. Furthermore,
retaining this language is responsive to the recommendation from
ACCSH.
---------------------------------------------------------------------------
Second, the revision does not include the reference in previous
Sec. 1926.1427(b)(2) to an employee being ``deemed qualified'' to
operate equipment under certain conditions if no accredited testing
organization offers certification examinations for a specific type of
equipment. A credentialing organization suggested that OSHA ``remove
misconceptions regarding what it means to be `certified' '' by
replacing ``deemed certified'' with ``deemed to have complied with the
certification requirements of this section'' because it is ``more
precise while remaining entirely consistent with the language currently
proposed by OSHA'' (ID-1668). OSHA agrees with the commenter and is
revising the regulatory text to adopt their suggested language. This
change is intended to avoid the misconception that an operator could be
considered competent to safely operate equipment without also being
evaluated and determined competent by the operator's employer.\21\
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\21\ OSHA had included the ``deemed qualified'' language simply
as a means of clarifying that an operator would be considered
qualified to operate a crane of the same capacity or less than the
one on which the operator was tested. The use of ``qualified''
instead of ``certified'' at that time was meant to reflect the
varying paths to compliance with the standard: Certification through
a third party or employer-audited program, or other qualification
through a state or licensing program or meeting the requirements
specified by the U.S. military. In this final rule, OSHA has
clarified the language by replacing ``deemed qualified'' with
``deemed to have complied with the certification requirements of
this section.''
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All other provisions in paragraph (d) are unchanged from previous
paragraph (b), and discussion and justification of these provisions can
be found in the preamble to the 2010 final cranes rule (75 FR 48017).
A labor union commented that paragraph (d)(2) should be revised to
establish a benchmark for the types of cranes for which a separate
certification is required. They argue that without a benchmark, OSHA
will be ``effectively delegating to an accredited testing organizations
responsibility for determining the number of types of cranes for which
a separate certification is required . . . .'' This concerns the
organization because ``for-profit testing organizations, which benefit
financially from an increased number of mandatory certifications, have
an incentive to develop testing for additional types of crane,
regardless of whether extra testing will improve safety'' (ID-1719).
They propose that operators of
[[Page 56217]]
equipment for which there is no certification must still be certified
on the equipment most similar to the equipment they will operate, but
only if a national consensus standard does not recommend a separate
certification for the equipment. In explaining their reliance on
national consensus standards for making this determination, they point
to the National Commission for the Certification of Crane Operator's
(NCCCO) Crane Type Advisory Group, a group that has yet to publish a
standard but is considering ``the skill sets required to operate
various types of cranes for which separate certifications are not
offered and a comparison of those skill sets to determine if they are
already encompassed in existing testing (ID-1719).
OSHA explained its rationale in the preamble of the 2010 cranes
rule for including similar language in previous Sec. 1926.1427(b)(2).
When OSHA was informed that there were not certification tests for a
number of cranes, it decided to add ``flexibility in the certification
requirement to deal with specialized types of cranes or newly developed
equipment for which certification examinations might not be
available.'' (75 FR 48018). To do this, OSHA applied C-DAC's proposed
requirement for dedicated pile drivers--that operators be certified on
the equipment most similar to the equipment they operated if there was
no available certification test for the equipment they operated. OSHA
has not adopted the recommendation of the labor union (ID-1719) because
the agency does not believe it is in the best position to determine the
various types of cranes for which certifications should be necessary.
It would be unwise for OSHA to consider a major change to the standard
before the NCCCO Crane Type Advisory Group concludes its work, which
could include a consensus standard that identifies crane types that
require a similar skillset and knowledge to operate.
OSHA requested comment on whether it should delete the requirement
for operator recertification every five years, which was proposed as
Sec. 1926.1427(d)(4). OSHA mostly received comments in support of
retaining the recertification requirement. One certification
organization was not convinced that retraining and re-evaluation are
sufficient substitutes for recertification. The commenter contrasted
the retraining and re-evaluation requirements with recertification,
asserting that:
Recertification procedures of an accredited certification
program are, by their nature, subject to standardized psychometric
rigor and impartiality. By incorporating the rigorous test
development and administration standards required by accrediting
bodies, recertification requirements provide substantial benefits
that are likely to enhance public confidence and improve safety at
the worksite.
(ID-1755). Similarly, a different commenter warned:
Remanding the recertification process to the discretion of
employers will result in inconsistencies in how operators are
assessed on their continuing knowledge and skills as well as an
increased risk of endangering the public. As operators move between
employers, there will be confusion in the marketplace about skill
levels, the potential need for costly retraining, and increased
safety concerns.
(ID-1668). A consultant added that ``[r]ecertifying by 3rd party is
completely unbiased,'' and focuses on new information that may not be
conveyed during an evaluation (ID-1764). Another commenter expressed
concern about relying on retraining in lieu of recertification, arguing
that ``a training program does not indicate skill mastery or competency
as measured against a defensible set of standards set through an
industry-wide process'' (ID-1150).
Many commenters agreed that recertification was necessary to
continue establishing a baseline knowledge of crane operation (ID-1150,
1719, 1744, 1755, 1768, 1816, 1828). For example, one commenter stated
certification is an ongoing process and recertification is necessary
for an operator to maintain the knowledge and skills necessary for safe
crane operation because ``unused skills atrophy and there are ever-
evolving technological changes in newly-manufactured cranes and
periodic regulatory changes'' (ID-1719). To this point, a certification
body submitted comments that at least 3,755 certified operators have
failed their recertification exams, operators that ``[i]f OSHA were to
delete the requirement for operator recertification every five years .
. . would be legally able to continue operating cranes--even though an
independent, third-party assessment would have determined them to lack
the baseline competence to do so'' (ID-1755).
Additionally, many of the comments supportive of keeping the
recertification requirement pointed out accreditation organizations
ANSI and NCCA require recertification as part of an accredited
certification program (ID-1150, 1668, 1719, 1744, 1755, 1794, 1816,
1828). An affiliate of one of these organizations commented that ISO
17024, a consensus standard ``recognized by several federal agencies as
a requirement for credentialing organizations that offer
certification,'' requires recertification (ID-1150). Another comment
noted that many states and localities also require recertification of
crane operators (ID-1719).
Some supporters of the recertification requirement recommended that
OSHA also require a set number of hours an operator must spend gaining
experience with the crane prior to recertifying. One of these
commenters explained that each certification body requires an operator
to document 1,000 hours of ``crane-related experience'' in the five
years prior to recertification and, accordingly, recommended that OSHA
require operators attempting to recertify to meet this standard (ID-
1816). During its 2010 rulemaking, OSHA considered and rejected a
nearly identical request for seat-hour-requirements (75 FR 48019).
The record amply demonstrates the sufficiency of the accreditation
process that must be passed for a testing organization to become
accredited. That process is designed to ensure that accredited testing
organizations use a sufficiently reliable process for certifying
operators. The record also shows that such a mechanism is an effective
one for determining operator competence . . . . There is insufficient
information in the record to include an additional requirement for
1,000 hours of ``crane related experience . . . .'' The commenter does
not specify what should be included in ``crane related experience,'' or
why 1,000 hours would be the appropriate amount of such experience for
this purpose.'' (75 FR 48019). The commenter has not presented any new
evidence to persuade OSHA to change its position. If all accrediting
bodies did require the certification bodies they accredit to include a
minimum amount of time for ``crane related experience,'' then the
commenter would not need to ask OSHA to mandate that requirement. Even
after nearly a decade following OSHA's consideration of that point in
the 2010 rulemaking, the prominent accrediting bodies that accredit the
four major crane certification organizations have not imposed this
approach. OSHA continues to rely on the accreditation process to
determine whether, based on analytics and careful scientific study of
the issue, recertification requires a prescribed number of hours
gaining experience with the equipment. If the accrediting bodies
determine it is necessary, then they will presumably require the
certification organizations to
[[Page 56218]]
include it as part of their testing criteria. The agency believes there
is insufficient evidence in the record to support such a new
requirement, especially one that may be very onerous on crane operators
who may not have the opportunity to gain 1,000 hours experience with
the equipment.
Another commenter recommended language that would allow a minimum
number of hours of crane experience to substitute for the practical
recertification test, also citing the 1,000 hours of ``industry
experience'' as a threshold accredited testing organizations accept in
place of retaking the practical test (ID-1719). The commenter also
cites state laws that require recertification, but those requirements
vary vastly. For example, while California requires operators to
recertify every five years and have 1,000 hours operating experience on
the crane for which recertification is sought, Washington only requires
that a certification be renewed to ensure operators maintain qualified
operator status (ID-1719). Similarly, a different commenter opposed a
recertification requirement because ``if an operator has been operating
safely for five years, there is no need to recertify'' (ID-1615). The
commenter continued, stating ``most employers provide their operators
with updates on new equipment and changes to government regulations''
(ID-1615).
OSHA is not persuaded that merely gaining ``industry experience''
for a certain number of hours, without any true measure of the safety
of operation during that period, or operating ``safely'' for five
years, should replace a third-party validation of the operator's
knowledge, skills, and abilities. Besides the vagaries of ``crane
experience'' and ``industry experience'' already noted in response to
the prior commenter, as well as the subjective nature of ``operating
safely,'' OSHA notes the previously discussed comments from the
certification organization about the importance of staying abreast of
``ever-evolving technological changes in newly-manufactured cranes and
periodic regulatory changes,'' as well as the 3,755 certified operators
who failed their recertification exams but would otherwise have been
legally able to continue operating cranes (ID-1755). Even if ``most''
employers do actually provide their operators with updates on equipment
and changes in regulations, it is not clear that the operators
comprehend those changes, and it does not take into account the
operators who are not fortunate enough to work for employers that
provide these updates. The fact that an operator has logged 1,000 hours
or five years in the cab of a crane, even without injury, does not mean
that the operator is aware of technological and regulatory changes that
have occurred during that period, that the operator has operated
without near misses or other issues, or that the next hazard the
operator faces will not result in injury.
Another commenter urged removal of the recertification requirement,
stating that recertification is unnecessary because it is duplicative
of the refresher training provided to crane operators at regular
intervals in their industry (ID-1631). As OSHA explained in the 2010
rulemaking, ``the rulemaking record shows that a training requirement
alone is insufficient to ensure that crane operators have the requisite
level of competence,'' and cannot substitute for third-party validation
of the operator's comprehension of that training (75 FR 48013).
OSHA agrees with the comments submitted in support of retaining the
recertification requirement. As the agency has previously concluded,
certification is a necessary component for safe crane operation.
Recertification establishes a standardized, baseline knowledge of
equipment operation for operators and indicates to an employer that a
certified operator has at least a certain knowledge of how to operate a
crane. Recertification helps to ensure that an operator does not lose
this baseline knowledge over time. It also helps to ensure continuing
education for certified operators so they are aware of any regulatory
changes that impact their work. The agency believes there are some
employers that would find it difficult to make sure their operators are
up to date on changes to equipment and updates to regulations that
affect their operation unless they had the ability to have their
operators recertified. Therefore, OSHA is retaining the requirement for
recertification as proposed.
Paragraph (e) Audited Employer Program
The substantive content of paragraph (e) is the same as previous
Sec. 1926.1427(c), and it is promulgated as proposed. It sets out the
parameters for a nonportable certification program administered by the
employer and audited by a third party. The changes to the regulatory
text for the audited employer program are the removal of the word
``qualification'' and the replacement of three cross references with
updated references to their new locations in the revised standard.
OSHA has removed reference to ``qualification'' from the heading of
the paragraph. It has been removed to avoid the misconception by some
that the term signaled full competency, rather than its intended
meaning as an equivalent to certification. The employer-audited program
will continue to be an alternative to certification by an independent
third party.
Three cross references have also been changed. First, the reference
in previous Sec. 1926.1427(c)(1)(i) to ``paragraph (b)'' was revised
to ``paragraph (d)'' in the updated rule. Second, the reference in
previous Sec. 1926.1427(c)(1)(ii)(A) to ``paragraph (b)'' was revised
to ``paragraph (d).'' Finally, the reference in previous Sec.
1926.1427(c)(4) to ``paragraphs (c)(1) and (2)'' was revised to
``paragraphs (e)(1) and (2).'' OSHA did not receive any comments to the
proposed changes to this paragraph.\22\
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\22\ OSHA received one comment asking the agency to make the
audited employer program ``more feasible,'' by ``expand[ing] its
definition of `auditor' so that more accredited auditing
organizations are available as resources to meet the requirements of
this option,'' even asking OSHA to designate staff to audit employer
programs (ID-1647). The commenter asserted that OSHA's standard
requires an audited employer program to use tests developed by an
accredited crane operator testing organization and to obtain
approval from an auditor certified by an accredited crane operator
testing organization to evaluate these tests. The commenter stated
that this creates ``a conflict of interest for the crane operator
testing organization to the detriment of the audited employer
program option. As long as all auditing must go through one of these
three organizations, there is little incentive for them to approve
or audit an employer program since such auditing would remove
certification candidates from their own programs'' (ID-1647).
In the NPRM, OSHA explained that it was proposing only minimal
changes to the audited-employer program provisions--the removal of
``qualification'' and the updating of cross-references--and
requested commented on the ``proposed variations from the existing
Sec. 1926.1427(c).'' The comment discussed above is not responsive
to that request because its suggestion is outside the scope of the
proposed variations from existing Sec. 1926.1427(c). Furthermore,
OSHA proposed and finalized this requirement in the 2010 cranes
standard based largely on C-DAC's recommendation ``that independent,
third-party involvement was needed to ensure the reliability and
integrity of any testing program.'' (75 FR 48020). Relying on the
written and practical tests developed by an accredited crane
operating testing organization or an auditor's approval that these
tests meet industry recognized criteria ensures that operators
certified under this section have the baseline knowledge of safe
crane operation.
---------------------------------------------------------------------------
Finally, in Sec. 1926.1427(e)(5), OSHA explains what an employer
must do in the event an auditor discovers a significant deficiency in
an employer's operator qualification program. OSHA considers a
significant deficiency anything that would result in an employer-
audited program being noncompliant. For example, failure to meet
requirements listed in Sec. 1926.1427(e)(1)-(4) would result in a
[[Page 56219]]
significant deficiency that would trigger the requirements in Sec.
1926.1427(e)(5).
Paragraph (f) Evaluation
Paragraph (f) sets out specific requirements that employers must
follow to conduct an operator evaluation, including evaluation
criteria, minimum qualifications for the person conducting the
evaluation, documentation, and re-evaluation requirements.
The rationale for the evaluation requirement is explained earlier
in the ``Need for a Rule'' section of this preamble; the discussion
here focuses on OSHA's rationale for when and how the evaluations will
be conducted. OSHA's goal in paragraph (f) is to give employers
flexibility to conduct evaluations in the course of normal business,
but at the same time to provide enough specificity to ensure that an
evaluation satisfies the minimum criteria necessary for the safe
operation of cranes by operators.
Paragraph (f)(1) requires employers to evaluate their operators and
specifies the two goals of the evaluation: Ensure that the operator has
(1) the ability to safely perform the assigned work, and (2) the
necessary skills, knowledge, and ability to recognize and avert risks
in order to safely operate the actual equipment that will be used.
These performance-based evaluations are intended to be more directly
focused on the operator's ability to perform assigned work than the
general knowledge and skills tested during the certification process.
In paragraph (f)(1)(i), OSHA provides a list of performance-based
criteria to ensure that the evaluation encompasses various aspects of
the equipment, such as safety devices, operational aids, software, and
the size and configuration of the equipment. Paragraph (f)(1)(ii)
focuses on the importance of the operator's ability to perform specific
tasks, such as blind lifts, personnel hoisting, and multi-crane lifts.
In developing the performance-based evaluation criteria, OSHA
considered the training requirements in the powered industrial truck
operator training standard at subpart O--Motor Vehicles, Mechanized
Equipment, and Marine Operations, Sec. 1926.602(d), which incorporates
the requirements of Sec. 1910.178(l). That standard requires the
employer to evaluate a powered industrial truck operator's performance
as it relates to several topics at least once every three years.
Powered industrial trucks share many of the same operating hazards as
cranes, such as those related to ground conditions, load limits, and
hazards in the area surrounding the equipment. But powered industrial
trucks are generally far less complex, smaller, and less hazardous
pieces of equipment in terms of the extent to which they expose other
employees to their risks.
Almost all employers who spoke with OSHA said that, when they
observe operators handling loads at construction worksites, they can
tell whether the operators appear competent (Reports #1, 2, 3, 6, 8, 9,
10, 11, 12, 14, 15, 16, 18, 19, 22, 23, 26, 27, 28 of ID-0673). These
employers are accustomed to assessing operator skills because having
competent operators that can safely and productively handle loads
quickly, smoothly, and without corrections, eliminates injuries and
reduces costs.
A number of commenters provided suggestions about the language of
the evaluation requirement in Sec. 1926.1427(f). Commenters expressed
support for providing flexibility for employers, as opposed to trying
to specify a definitive list of evaluation criteria in the regulatory
text. As OSHA explained in the NPRM, it would be very difficult, if not
impossible, to specify in regulatory text a definitive list of minimum
equipment characteristics that an operator competency evaluation must
cover to ensure operators are competent to safely operate equipment in
all of its possible configurations. However, there was significant
disagreement among commenters about the extent of the flexibility and
guidance that OSHA should provide.
Three industry associations supported the language proposed by
OSHA. One of these commenters found the proposed language
``sufficiently flexible'' because it contains phrases such as
``includes but is not limited to'' and ``including, if applicable''
(ID-1611). A different commenter praised OSHA's proposed text and urged
the agency to ``maintain this flexibility in the final rule so that
employers have the ability to continue their existing programs or craft
new programs that meet the needs of their company's workplace'' (ID-
1735). Another of those commenters appreciated the fact that the
language is ``general and not exhaustive'' because ``[a]ny attempt to
develop an exhaustive list of factors runs the risk of including
factors that are not relevant, leaving out factors that are important,
and `freezing' the list in time requiring a rulemaking process to
update the list as technology develops and industry practice changes .
. . the employer should have the discretion to develop its own list of
factors affecting an operator's ability to safely operate equipment''
(ID-1779).
AGC of Texas (ID-1615), expressed concern that OSHA's proposed
language would require too many evaluations:
As written this requirement is infeasible. Cranes have multiple
configurations (counterweight, attachments, boom configurations
etc.) as well as capacities based on these and the radius of any
given lift. It is not possible to evaluate an operator on each
potential configuration that could be encountered throughout the
day. Set up/configuration will vary dependent on the work involved
and will be job specific so this will vary from job to job. Rarely
if ever would the required components for every possible
configuration of any given crane be available on a job . . . . The
(f) Evaluation section of the rule as written makes it nearly
impossible for an employer to evaluate operators on each machine and
it's [sic] many different capacities and configurations prior to any
given lift in a timely and efficient manner.
OSHA understands the concern about an excessive number of
evaluations, but the agency disagrees that its revised standard would
require the frequency of evaluation suggested by the commenter. For
example, the standard does not require operators to be evaluated on
``every possible configuration of any given crane.'' Later in this
preamble section OSHA provides additional guidance about when
evaluations are required, and when they are not.
Associated General Contractors (AGC, ID 1801) expressed its
preference for retaining the existing language in Sec. 1926.1427(k).
The Specialized Carriers & Rigging Association (SC&RA) agreed,
asserting that ``[t]here is no supporting evidence indicating employers
are not fulfilling their obligations to train and evaluate their
operators for the cranes to which they are assigned. As such, there is
no need for further clarification, requirements or language'' (ID-
1828). SC&RA went on to advocate for slightly different language (see
the discussion of the ACCSH proposal in the next paragraphs).
As OSHA explained in the NPRM, the agency does not agree that the
employer duty under prior Sec. 1926.1427(k) provided sufficient
direction to employers. That language was intended originally only as a
temporary measure to preserve the pre-2010 status quo pending the
application of the certification requirement and was drawn from the
language in Sec. 1926.20(b)(4) (``The employer shall permit only those
employees qualified by training or experience to operate equipment and
machinery''). Part of the genesis for the 2010 final rule was that OSHA
had concerns about relying primarily on the general guidance in Sec.
1926.20(b)(4) rather than more clearly defined measures specific to
crane operators, noting that C-DAC had
[[Page 56220]]
implicitly deemed it insufficient for operator safety by recommending a
new standard.
The Coalition for Crane Operator Safety (ID-1744), a group of
national labor, construction management, equipment manufacturers and
distributors, insurance underwriters and accredited certification
organizations, and two of its members writing separately (Specialized
Carriers & Rigging Association, ID 1828 and William Smith, ID 1623), as
well as the North America's Building Trades Union (ID-1768), advocated
for OSHA to adopt ACCSH-recommended language. ACCSH recommended that
OSHA replace the entire evaluation requirement with an employer duty to
``ensure that operators of equipment covered by this standard meet the
definition of a qualified person in Sec. 1926.1401 to operate the
equipment safely.'' These commenters did not respond, however, to
OSHA's explanation in the NPRM (83 FR 23556) that this approach would
fail to accomplish the purpose of additional evaluation beyond
certification. Relying on the definition of a ``qualified person,''
which can be met in some cases solely through ``possession of a . . .
certificate,'' would return the standard to the inadequate
``certification only'' approach that prompted the same commenters to
urge OSHA to propose the permanent employer evaluation duty in the
first place (ID-0670). Under this approach, an operator would become
both certified and a ``qualified person'' through the completion of a
certification test. Nor did the commenters respond to OSHA's
explanation that the ACCSH language fails to provide employers with
``sufficient specifics to ensure operator competence,'' including the
``specific step[s]'' that an employer must take to ``qualify''
operators.
Mr. Smith also expressed concern that the evaluation OSHA proposed
``is flawed because there are no standards for the industry to follow
in the evaluation therefore each evaluator will do it differently. The
results will be ambiguous at best because there is no baseline to
consider for qualifications'' (ID-1623). OSHA recognizes that employer
evaluations may not be uniform. That is the tradeoff for allowing the
flexibility that OSHA has allowed employers in the standard. However,
OSHA expects that the criteria it has included in the regulatory text,
as well as the examples it provides in this preamble, will provide
meaningful markers for effective evaluations to ensure safety. OSHA
also notes that this commenter's concern about insufficient
specification of criteria in the regulatory text supports, rather than
contradicts, OSHA's decision not to adopt the more simplified
regulatory text proposed by ACCSH that he recommends.
AGC (ID-1801) offered alternative regulatory text that modified and
combined paragraphs (f)(1)(i) and (ii) into a single paragraph (f)(1)
stating, ``Through an evaluation, the employer must ensure that each
operator demonstrates the skills, knowledge, and ability necessary to
operate the equipment safely for the assigned work or task.''
While OSHA views this approach as more workable than relying on the
definition of a ``qualified person'' because it retains the goals of
the evaluation, the agency is concerned that this alternative still
lacks the level of specificity necessary to provide effective guidance
to employers.
One local chapter of a member of the Crane Safety Coalition, the
International Union of Operating Engineers (IUOE Local 49) (ID-1719),
provided a separate comment that included a different alternative that
OSHA believes would be a better bridge between the ACCSH proposal and
OSHA's proposed text. In its comment, IUOE acknowledged OSHA's prior
rationale for rejecting the ``qualified person'' approach and responded
with a combination of the ACCSH recommendation and OSHA's proposed
text:
Evaluation. Through an evaluation, the employer must
ensure that each operator is qualified by a demonstration of: * * *
[The skills, knowledge, and the ability to recognize and avert risk
necessary to operate the equipment safely, including . . . . The
ability to perform the hoisting activities required for assigned
work, including . . . .]
This alternative is similar to the ACCSH recommendation because it
still contains the requirement that the operator be qualified, but
avoids OSHA's concern about relying on the term ``qualified person''
with a requirement to ensure that ``each operator is qualified by a
demonstration of . . . .'' OSHA is adopting this compromise language in
the final rule because it incorporates part of the language recommended
by ACCSH while still preserving the criteria that provides guidance to
employers. OSHA notes that while ``qualified'' is not defined in the
cranes standard, there is a definition of that term in Sec. 1926.32
that applies generally to construction and that definition also equates
the possession of a certificate with being ``qualified.'' OSHA is
therefore adding a new paragraph Sec. 1926.1427(f)(3) to clarify that
the definition of ``qualified'' in Sec. 1926.32 does not apply to
Sec. 1926.1427(f). Unlike the ACCSH recommendation that relied on the
definition of ``qualified person'' in Sec. 1401 for its substance, the
use of ``qualified by a demonstration of'' does not necessitate a
separate definition of ``qualified'' because the remainder of paragraph
(f)(1) provides a functional definition.
IUOE's alternative also eliminates the requirement to evaluate the
operator's ``judgment'' and as a result helps to address the following
objection raised by AGC concerning the term (ID-1801):
First, the term is not used in any other OSHA standard or
requirement that we are aware of. * * * Second, an operator's proper
judgement is almost impossible to discern during the evaluation
process and there are a variety of factors that could impair an
individual's judgement which are unrelated to their assigned work
and operational ability. Lastly, this could be a catch-all in the
event of an incident as an operator's judgement could always be
cited as a factor.
The American Public Power Association shared similar concerns:
As a practical matter, employers will be evaluating operator
judgement when the evaluation is taking place. However, we are
concerned that the term ``judgment'' if contained in the Final Rule
will lead to unintended consequences, especially in an enforcement
context.
(ID-1779). The Associated General Contractors of Texas (AGC of Texas),
commenting separately, suggested that OSHA replace judgment with
``competence,'' which would include the ``authorization to take prompt
corrective measures'' (ID-1615).
In the earlier quotation of the IUOE text, ``judgment'' was
replaced with ``ability to recognize and avert risk.'' OSHA has adopted
this change in the final rule. This approach focuses on one part of the
definition of judgment previously identified by OSHA. In the NPRM, OSHA
explained that ``judgment'' referred to not only an operator's ability
to apply the knowledge and skill that he or she possess, but also ``an
operator's ability to recognize risky or unusual conditions that call
for additional action such as re-evaluating a lift plan, stopping work,
or asking for the help of another competent and/or qualified person''
(83 FR 23550). OSHA had also explained that the term ``judgment''
connotes the ``successfully demonstrated ability'' of a ``qualified
person,'' as defined by OSHA's standards in Sec. 1926.1401, ``to
solve/resolve problems relating to the subject matter, the work, or the
project'' and the capability of a ``competent person'' to identify
``previous and predictable hazards'' (Id.). OSHA is implementing this
language instead of referring to a
[[Page 56221]]
``competent person'' because that term is used elsewhere in the
standard and for this purpose OSHA prefers the emphasis on the ability
of an operator to identify and avert risk rather than focusing on his
or her authority.
Adopting IUOE's more focused version of this component of the
evaluation also addresses AGC's point that employers may have
difficulty examining an operator's judgment on a wide variety of
subjects during the evaluation process. During an evaluation, the
operator must demonstrate his or her ability to recognize and avert
risks.
For example when operating a floating crane, an experienced
operator should recognize that a change in tidal ranges could affect
the boom angles at which work must be performed, potentially affecting
the safety of hoisting operations during particular times of day.
Another example is when an operator appropriately recognizes that a
different crane will be needed because the ground conditions at a
particular jobsite prevent him or her from setting up the current crane
at the only locations where picks with that crane would be safe. A
knowledgeable operator would also know that even though the current
crane can boom out sufficiently from an alternate set-up position, the
weight of the loads will easily exceed that permitted by the load chart
at that boom length and radius. Another crane will be needed for that
job if the alternate set-up area must be used. Another example of an
operator's ability to recognize and avert risk would be when an
operator knows to consider the wind speed and direction when
determining where on the jobsite air turbulence is likely and may
torque broad loads, making them more unstable. An experienced operator
can also demonstrate the ability to recognize and avert risk by
engaging site authorities, such as the project manager, site
supervisor, or project engineer, during the planning of the project's
progression. It is then that the operator can recommend plans for
utilizing the crane more efficiently and making safer picks, such as
those that are in plain view, not adjacent to power lines, and not over
people or other structures.
One commenter requested that OSHA replace the employer's duty to
``ensure'' that the operator possesses the requisite skills, knowledge,
and ability to recognize and avert risk with a simpler duty ``to take
reasonable measures to evaluate operators' ability to operate equipment
in a safe manner'' (ID-1779). OSHA is not adopting this change for two
reasons. First, OSHA views this reduced duty as an unnecessary and
significant departure from OSHA's common practice of requiring
employers ``to ensure'' compliance with performance standards. OSHA
notes, for example, that 29 CFR 1926.1400(f) includes a similar mandate
in the scope of the cranes standard, requiring employers to establish,
communicate, and enforce work rules ``to ensure compliance with such
provisions.'' Similarly in Sec. 1926.1402(c)(1), OSHA requires
controlling entities to ``ensure that ground preparations necessary to
meet the requirements'' of the standard are met. For crane assembly and
disassembly near power lines, OSHA provides one compliance option in
which employers must ``ensure'' that no part of the equipment, load
line or load gets closer than 20 feet to a power line (Sec.
1926.1407(a)(2)).
Second, OSHA is concerned that the suggested language would be so
vague as to potentially render the entire duty ineffective and
unenforceable. Employers might, for example, perceive a requirement to
``take reasonable measures to evaluate'' operators as requiring no more
than appointing an evaluator. Because OSHA has framed the evaluation
requirement as a flexible performance measure as requested by
stakeholders and commenters, it is particularly important that the
employer have a duty to satisfy the performance requirement, not just
take steps towards doing so.
For the reasons identified in the previous discussion, the revised
rule retains the performance-based character of the previous evaluation
requirements in Sec. 1926.1427(k)(2)(i), but makes clear that the
operator must possess the necessary skills and knowledge to operate
``the equipment'' safely, as well as the ability to recognize and avert
risk in order to operate the equipment safely. Those skills, knowledge,
and abilities must be relevant to the actual equipment that will be
operated. While the specifications and characteristics of equipment and
operations can be learned in a classroom setting, the application of
equipment operation and hoisting techniques can only be fully learned
from hands-on experience at worksites. For example, the operator must
not only know what each control does and where it is located, but also
be able to demonstrate how and when to use particular controls or
operational aids.
Much of the subject matter on which the operators must be evaluated
is specified in the testing criteria listed in paragraph (j), but it is
critical to ensuring safety that the employer evaluation is equipment-
and task-specific. For example, an experienced and certified operator
may have previously demonstrated the ability to lift a crate of
materials onto a roof using one crane. However, if the company gets a
new crane that has different controls, the employer would need to
evaluate the operator's knowledge and skill at using the new controls
in the new crane (note that the employer would not need to re-evaluate
the operator's general knowledge about crane operations). The
employer's evaluation could focus exclusively on the operator's
familiarity with the controls in their different locations. As another
example, if an inexperienced operator has already been evaluated for
operation of a new model of crane, but has only used that equipment to
hoist packaged materials, the employer would likely need to evaluate
the operator's ability to control a wrecking ball attachment before
allowing that operator to use the wrecking ball in a demolition project
(note that the employer would not need to re-evaluate that operator's
knowledge of the controls or general operation of the crane).
A commenter from the insurance industry expressed concern about the
impact of the rule on employers that work in the Petro Chemical and
Refinery industries who use Union halls to ``ramp up when 30 to 75
crane operators are needed for a shut/down turnaround on a 30 day
period.'' These employers would, the commenter asserted, ``have to
evaluate and set up every crane to be used in the refinery and evaluate
each newly hired operator prior to the job and before letting them work
in the plant'' (ID-1623). OSHA disagrees. An operator could be
evaluated on a single crane and then allowed to operate other equipment
that do not require substantially different skills, knowledge, or
abilities to identify and avert risk. OSHA also notes that the American
Fuel & Petrochemical Manufacturers, which describes itself as ``a
national trade association comprising virtually all U.S. refining and
petrochemical manufacturing capacity,'' also submitted comments on the
rule but did not raise similar concerns about the evaluation
requirements (ID-1628). Neither comment explained how the use of cranes
at refineries and petrochemical plants would constitute construction
work.
Stakeholders who spoke with OSHA said that most employers are
already able to determine the subject matter and crane knowledge that
their operators need to safely perform hoisting activities with their
cranes (Reports #2, 3, 4, 9, 11, 15, 18, 21, 26, 28 of ID-0673).
However, not all employers do so. OSHA's requirements should encourage
[[Page 56222]]
consistency throughout the industry in confirming the basic knowledge,
operating skills, and abilities of all operators in construction work,
as well as ensure that all operator evaluations cover subject matter
that is specific to the equipment used and the construction activities
performed.
Paragraph (f)(1)(i) also specifies that the operator's knowledge,
skills, and ability to identify and avert risk must be ``specific to
the safety devices, operational aids, software, and the size and
configuration of the equipment.'' This list of equipment
characteristics, which stakeholders identified as critical for safe
operation (Reports #1, 4, 5, 6, 10, 11, 18, 19, 20, 21, and 25 of ID-
0673), is not comprehensive, but provides employers with some basic
characteristics of equipment that might require different levels of
knowledge and operating skills. For example, the employer must verify
that the operator knows enough about how the safety devices,
operational aides, and software work on a particular crane. The
operator must be able to apply that knowledge to recognize when the
particular characteristics of the equipment may contribute to
potentially unsafe conditions or operations and to determine how to
proceed safely. Such a determination might include using particular
operating skills to safely land or maintain a suspended load if an
operational aid malfunctions during use, or simply refusing to hoist
the load until a safety issue is addressed.
OSHA is including equipment software in this list because many
stakeholders noted that operators must have the skills to use a
computerized operating system if the crane has one (Reports #2, 4, 18,
21 of ID-0673) and that specific operating systems (Reports #4, 9, 13,
18, 19, 21, 22, 24 of ID-0673) or cranes by different manufacturers
(Reports #4, 6, 13, 16, 18, 21, 24 of ID-0673) can require different
skills or knowledge. Indeed, newer cranes often have integrated
computer systems to protect workers and the crane. Operators must
understand how these systems prevent damage to the crane that could
impair safe operation of the crane, especially if the crane can be
operated with the system turned off. That is not the only issue with
newer cranes that may require evaluation. One construction company that
also provides crane operator training noted that the materials used to
make some new cranes can be more ``brittle,'' meaning that they have
reduced safety factors and allow for less room for error (Report #21 of
ID-0673). Exceeding these operating tolerances can lead to structural
equipment failure such as a crane collapse or tipover, so evaluating
operators is critical to ensure that they understand how to avoid
exceeding specified tolerances.
OSHA is including boom length in the list of characteristics
because longer booms may require specialized depth perception skills or
may be harder to control (Reports #2, 3, 22 of ID-0673). OSHA notes
that at least one certification testing organization uses different
boom lengths as a proxy for changing the capacity of the crane because
the boom length can have a significant impact on the performance of the
crane (see OSHA-2007-0066-0521, p. 268-69).
The stakeholders OSHA interviewed also identified crane
configurations (Reports #4, 6, 11, 18, 19, 20, 21, 22, 25 of ID-0673);
the use of attachments (Reports #6, 18, 19, 20 of ID-0673); and the use
specific safety devices and operational aids such as those listed in
Sec. 1926.1416 Operational aids (Report #21 of ID-0673) as important
crane characteristics that can require unique skills, knowledge, or the
ability to recognize and avert risks.
In proposed paragraph Sec. 1926.1427(f)(1)(i) (83 FR 23568), OSHA
specified that the ``size and configuration'' of cranes, including
lifting capacity, as well as boom length, attachments, use of a luffing
jib, and counterweight set up, are important considerations in the safe
operation of cranes. AGC of Texas specifically objected to the
inclusion of ``lifting capacity'' in the listed evaluation criteria,
noting that the capacity of a crane changes nearly every time an
operator makes a lift because there are so many factors that affect the
determination of what the capacity of the crane will include: The
configurations of the crane (counterweight, attachments, boom
configurations, etc.), radius, boom length, and boom angle. AGC of
Texas wrote:
It is not possible to evaluate an operator on each potential
configuration that could be encountered throughout the day. Set up/
configuration will vary dependent on the work involved and will be
job specific so this will vary from job to job. Rarely if ever would
the required components for every possible configuration of any
given crane be available on a job. E.G >500-ton lattice boom crane
that has a max boom length of 200' may be configured for 100 feet of
boom and enough counterweight to have 375 tons of capacity as that
is all that is required for the scope or scopes of work involved.
The components (boom and additional counterweight etc.) necessary to
configure the crane for a 500-ton capacity and 200 feet of boom
would not be available * * * Capacity is a function of many factors
and not actual operation of the crane. Its effect on safe operation
is taken into account with proper lift planning.
(ID-1615). That commenter suggested that if removal of ``lifting
capacity'' was not possible, then OSHA should substitute: ``The ability
to determine capacity based on the configuration of the crane, the
load, and deductions as required by the manufacturer.'' William Smith
appeared to disagree, stating: ``The capacity issue is mute [sic] since
there is no requirement for a load to be placed on the crane'' (ID-
1623).
OSHA has retained the language that lifting capacity is a component
of ``size and configuration'' to be assessed during an evaluation. In
response to removing the capacity from the certification requirement,
some stakeholders explained that capacity as it relates to crane
operation is better assessed by the employer (Report #20 of ID-0673,
ID-1735, 1755). The revised rule does not require employers to evaluate
their operators in every possible configuration of equipment or
combination of configuration and boom length, etc., that would factor
into a crane's capacity. Additional evaluations are only required when
the operator's existing skills, knowledge, or ability to identify and
avert risk are not sufficient for that operator to operate the
equipment in a new model, configuration, etc.
OSHA requested comment on items listed in paragraph (f)(1)(i).
Besides the objection to the inclusion of ``lifting capacity,'' one
commenter suggested a different approach:
A performance-based assessment of an operator's ability to
inspect (operational not detailed mechanical) and set up the crane
for operation (to include the LMI); to utilize the manuals/load
charts for determining capacities and to operate/handle a load, as
well as a ``seat test'' to determine safe operating capabilities is
all that is needed to evaluate an operator.
(ID-1615). While OSHA had previously rejected requests that the agency
include minimum seat hours in the standard, OSHA expects that some
``seat test'' time is implicit in the items already listed in paragraph
(f)(1). Similarly, the ability to utilize the manual and load chart is
required for certification, and the use of a particular manual or chart
is inherent in possessing the skills and knowledge to operate a
particular piece of equipment safely. As discussed in the NPRM, OSHA is
not including specific references to assembly and disassembly or
inspections because those are already addressed in other sections of
subpart CC. Operators may not be assigned to perform these activities
unless they are trained to safely perform activities in
[[Page 56223]]
accordance with the applicable sections of subpart CC.
The lists in paragraphs (f)(1)(i) and (ii) are not exhaustive, so
in addition to the items listed there, employers must consider still
other differences that may be important to the safe operation of the
equipment. For example, an operator who previously demonstrated
competence in operating a small crane to hoist materials to and off of
buildings being demolished does not necessarily have the knowledge and
operating skills needed to safely swing a wrecking ball to demolish the
same building. The physics of swinging a wrecking ball into a building,
which can lead to equipment failure due to side loading or shock
loading the boom, are different from smoothly controlling a load, which
does not present these hazards. Similarly, an operator who has operated
a crane in support of pile driving work, using pile driving
attachments, does not necessarily have the skills necessary to smoothly
control and place steel members suspended by multi-lift rigging or to
safely control a suspended personnel platform.
Paragraph (f)(1)(ii) requires the employer to evaluate the
operator's ability to perform hoisting activities required for assigned
work, including, if applicable, special skills needed for activities
like blind lifts, personnel hoisting, or lifts involving more than one
crane. This list of activities is not exclusive, but rather provides
examples of lifts for which an employer must evaluate the operator's
ability. The words ``if applicable'' are used to indicate that
employers must evaluate operators only for the types of lifts they will
perform and not all possible variants of hoisting procedures.
As noted earlier, OSHA considered the training requirements of the
powered industrial truck standard (Sec. 1910.178(l)) as a model when
developing the evaluation requirements in the proposed standard. The
powered industrial truck standard requires that employers evaluate an
operator's ability to perform job-specific tasks that include
``workplace-related topics,'' and refresher training when there are
changes in a workplace condition that could affect safe operation of
the truck (Sec. 1910.178(l)). Paragraph (f)(1)(ii) similarly requires
the evaluation of an operator to cover the workplace aspects of the
operator's job, including the specific hoisting activities that he or
she will perform.
Stakeholders who spoke with OSHA asserted that the performance of
different types of work sometimes requires different skill sets. Many
employers currently evaluate their operators based not only on their
knowledge and skills regarding specific characteristics of the
equipment, but also on their operators' ability to perform specific
tasks with the equipment (Reports #1, 2, 3, 4, 6, 9, 10, 13, 15, 16,
18, 19, 20, 21, 22, 23, 26 of ID-0673). Several of those stakeholders
noted specific examples of operational challenges that may require
additional operator skills to ensure safe operations. One crane rental
company stated that if an operator who spends a year on a large project
with repetitive work is then moved to a different job that involves
different lifts and set-ups every day, that individual may not be
competent to do some of that kind of work (Report #6 of ID-0673). A
residential construction employer stated that residential jobs can be
especially challenging to crane operators because lifts may have to be
performed on previously disturbed soil, which can cause the cranes to
lose stability and may necessitate special preparations and operations
under some worksite conditions. However, this employer also said that
residential construction crane operators might not gain necessary
experience performing blind lifts or lifting heavy/unstable loads that
may be typical to operating a crane on commercial projects (Report #16
of ID-0673). A larger construction employer stated that it includes
job-specific components in its evaluation of operators to ensure that
operators have the ability to work on/around underground utilities and
power lines (Report #18 of ID-0673). Finally, a crane operator training
company noted that operators may require significant practice to
develop the ability to control a dragline or perform operations with a
clamshell or bucket attachment (Report #20 of ID-0673).
OSHA requested comment on all aspects of proposed paragraph
(f)(1)(ii). One commenter requested clarification on the requirement to
evaluate the ``ability to perform hoisting activities required for
assigned work:''
The terms task-specific and assigned tasks, in our opinion, can
potentially be interpreted to mean jobsite-specific training. If
this is the intent, compliance with this proposed provision would be
very onerous as operators may encounter jobsite conditions that are
similar but not identical to the conditions for which they have been
previously trained. In addition to the jobsite conditions being
different, the loads which may be required to be hoisted may also be
different. For example, a tower crane operator on a building project
may lift materials and loads ranging from bundles of steel to
bundles of plywood. * * * operators can be required to hoist a
variety of materials and perform various lifts for the project such
as hoisting concrete buckets or formwork, conducting blind picks, or
picks below grade.
(ID-1801). As discussed earlier, the standard does not require separate
evaluations for every conceivable difference in equipment or task.
OSHA's intent is that the employer identify the substantive differences
that require new skills, knowledge, or abilities that the operator has
not already demonstrated during a previous evaluation. The standard
does not require a new evaluation of the same tasks at a different
jobsite unless the new jobsite requires the operator to have new
skills, knowledge, or abilities. Absent special circumstances (very
long pieces that would change the dynamics of a lift, significantly
different bundling methods, etc.), OSHA expects that a certified tower
crane operator who has been evaluated lifting a bundle of steel would
also be qualified to lift a bundle of plywood. The employer would not
need to re-evaluate the operator because lifting a bundle of lumber
does not require any significant new skill, knowledge, or ability that
the operator had not already demonstrated by lifting a bundle of steel.
OSHA did not receive any other comments specifically addressing
paragraph (f)(1)(ii) (other than the requests for broad revisions of
(f)(1) discussed earlier) and is promulgating that paragraph as
proposed.
OSHA is adding a new paragraph (f)(2), which was not in the
proposal, in response to several commenters raising concerns about the
process of evaluating experienced operators during the transition
period as the new evaluation and documentation requirements in the
final rule take effect. Several commenters (ID-1623 and ID-1828)
suggested ``grandfathering'' (exempting) currently certified operators
from the evaluation requirements. One of these commenters explained:
The challenge for the industry is that operators working for the
same or several employers that have 15, 20, 25, even 30 years in the
business and every crane that they have operated has not been
documented. This is the impracticable and infeasible part of the
rule where a Grandfather Clause may be required for all currently
certified operators and any new operator entering the industry after
the date of enforcement goes through a documentation process to move
forward and make sense of the rule.
(ID-1828). While the comment focuses on the documentation aspect of the
new rule (see later discussion of Sec. 1926.1427(f)(6)), the comment
also raises the question whether employers will need to re-evaluate
every operator. Under the new language in Sec. 1926.1427(f)(2), the
answer is ``no.''
[[Page 56224]]
For operators already employed by an employer, paragraph (f)(2) allows
that employer to rely on its ``previous assessments of the operator in
lieu of conducting a new evaluation'' of that operator. OSHA's final
rule does not require employers to make each existing operator re-sit
for formal re-evaluations on all applicable equipment and perform
different tasks when the employer has already previously assessed that
operator prior to the effective date of the rule and determined that he
or she is qualified to safely operate such equipment for certain tasks.
Several terms may require additional explanation. For the purposes
of Sec. 1926.1427(f)(2), an ``operator'' encompasses anyone who has
been operating equipment covered by this subpart, including operators
in training, such that the employer has had an opportunity to assess
the operator's performance on the relevant equipment and tasks and has
determined the operator can safely perform on those equipment and
tasks. The reference to ``its previous assessments'' is intended to
ensure that the operator was previously assessed, even if that
assessment was not previously documented in accordance with new Sec.
1926.1427(f)(6), and that the operator's employer (or its agent)
conducted the assessment. The employer cannot rely on recommendations
or evaluations from a previous employer. It is important that the
employer have its own factual basis for its determination that the
operator has the skills, knowledge, and ability to identify and avert
risk necessary to operate particular equipment safely for particular
tasks. But that factual basis does not require a previous formal
evaluation by the employer's current evaluator. For example, the
current evaluator might not have observed an operator's previous 25
years of work. In such a case, the employer would satisfy the
requirements of paragraph (f)(2) if it noted that the operator had
operated specified equipment safely for that employer. OSHA has
provided a corresponding exception in the documentation requirements of
Sec. 1926.1427(f)(6), which is discussed later in this preamble.
OSHA prefers this approach to any ``grandfather'' approach that
would completely exempt existing operators from all evaluation. Such an
exemption would not accomplish the purpose of providing a baseline of
operator qualification against which an employer could compare future
equipment and assignments to determine if they require new skills,
knowledge, or the ability to identify and avert risks. Furthermore,
completely exempting existing operators from all evaluation would not
achieve a primary objective of the rulemaking: With respect to future
assignments, there would be no employer duty to ensure that these
operators have the skills, knowledge, and ability to safely operate
assigned equipment for assigned tasks in a variety of contexts. Such an
exemption would be a step backwards from the prior temporary employer
duty in Sec. 1926.1427(k), which did not provide any exemption for
previously employed operators.
Paragraph (f)(4) establishes minimum criteria for the person who
performs the required evaluation of an operator-in-training. The
evaluation must be conducted by an individual who possesses the
knowledge, training, and experience necessary to assess operators. This
standard affords some flexibility to employers as they seek to ensure
operator safety. An evaluator could be, for example, a current or
former operator who is also trained to assess equipment operators. The
key, however, much like the criteria for the person performing training
and evaluation of operators under the powered industrial truck operator
training standard (Sec. 1910.178(1)(2)(iii)), is that the evaluator
possess the requisite knowledge, training, and experience for assessing
an operator's knowledge, skill, and ability to recognize and avert
risk. Such knowledge, training, and experience is not necessarily the
same as the knowledge, training, and experience to perform the
particular construction operations or processes oneself.
Stakeholders spoke with OSHA at site visits and meetings about how
they comply with the employer duty described in Sec.
1926.1427(k)(2)(i) in the prior standard. Several of those companies
specifically employ individuals to assess operators (Reports #18, 22 of
ID-0673). A large construction company with a very robust and formal
evaluation process has ``Authorized Examiners'' who perform evaluations
of operator applicants for the company. These are personnel with
significant experience and training, including completion of crane
operator certification and rigger courses (Report #18 of ID-0673). In
many other cases, the evaluations are performed by other personnel such
as experienced riggers, maintenance personnel, signal personnel, or
tradesmen who have demonstrated the necessary experience or training to
conduct this assessment (Reports #1, 2, 3, 6, 15, 16, 20, 23 of ID-
0673). Day-to-day assessment of an operator's performance may be
conducted by a qualified person who is often a manager or foreman at
the job site. (Reports #1, 3, 6, 18 of ID-0673). A seasoned operator
who has been designated by the employer to mentor an operator-in-
training may also make determinations about when an operator-in-
training is ready to perform certain tasks, and may weigh in on the
evaluation or confirm that an individual is ready to operate without
monitoring (see, e.g., Report #2 of ID-0673).
Stakeholders who spoke with OSHA offered competing recommendations
about whether OSHA should require that evaluators be certified as
operators. Several employers who spoke with OSHA stated that an
individual may have the ability to evaluate an operator without being a
certified operator (Reports #1, 6, 18, 20, 26 of ID-0673). They
indicated that evaluators may be safety managers or other senior
employees with significant experience working around cranes, but who
might not currently be certified (see, e.g., Reports #1, 6, 18, 26 of
ID-0673). Others may be specifically trained to evaluate operators. But
at the May 2015 ACCSH meeting, several representatives from the crane
industry asserted that evaluators should be certified (OSHA-2015-0002-
0036).
Based on information obtained from the stakeholders, OSHA opted in
the proposal to maintain employer flexibility in choosing who may
perform the required evaluation as long as those evaluators have, or
develop, the requisite assessment knowledge and experience. OSHA noted
that the national consensus standard for cranes (ASME B30.5-2014 Mobile
and Locomotive Cranes, Chapter 5-3) does not require or recommend that
evaluators of operators must be certified by third-party testing
entities; a ``designated'' person who qualifies operators must be a
qualified person by experience and training but need not be certified
(B30.5, section 5-3.1.2(e)). Similarly, previous Sec.
1926.1427(f)(3)(ii) required that the trainer of an operator-in-
training must have passed at least the written part of a certification
test, but did not require that the trainer must be an operator or
certified. Additionally, employers who spoke with OSHA and publicly
commented at the March 2015 ACCSH meeting expressed the view that
passing the written portion of a certification test alone does not mean
an individual has the ability to effectively evaluate the competency of
an operator (OSHA-2015-0002-0036). But along with other crane-related
experiences, OSHA believes that, if a person has passed the written
portion of the
[[Page 56225]]
certification test, it should be taken into account when deciding if
that person has the knowledge and abilities necessary to evaluate crane
operators.
OSHA requested public comments on the proposed criteria, including
whether OSHA should require that the evaluator be an operator, have
been an operator, or at least have passed the written portion of
certification testing. There was disagreement among the commenters on
this issue. An insurance company representative expressed the view that
evaluators must be both former operators and a trainer in accordance
with Sec. 1926.1427(b) (ID-1623). NCCCO proposed certification for
operators, or alternatively that evaluators should be required at least
to have passed the written part of a certification test and have
familiarity with the equipment's controls, consistent with the
requirements previously required for trainers under the prior standard
(ID-1755). Certification, that commenter explained, ``should be
regarded as an appropriately necessary condition of establishing such
competence and ensuring a `baseline' of knowledge and skills:''
Requiring that an evaluator have a baseline of knowledge and
skills as an operator is likely, not only to improve the quality of
evaluations, but also to increase safety during any evaluation in
the event the operator-in-training engages in an unsafe act and the
evaluator must intervene. Since November 10, 2010, when the crane
Rule became effective, no fewer than 685 candidates have been
prohibited from continuing with their practical exams after engaging
in unsafe acts as recorded by NCCCO Practical Examiners during
practical exams. Had the Examiners not also been certified
operators, with the training and experience to recognize hazardous
and potentially dangerous crane operations, these unsafe acts that
might have been allowed to continue, with consequent property
damage, personal injury, or worse.
(Id.).
Two other commenters disagreed. One commenter urged OSHA to ``grant
employer flexibility in choosing who may perform the required
evaluation'' and to ``leave the decision as to who may evaluate, and
the qualifications of the evaluator, to the employer'' because the
employer is in a better position to ensure that an operator is
competent to complete an assignment safely (ID-1779). Another commenter
agreed that the evaluator need not be certified, nor a former operator:
``With a clearly defined evaluation process, an individual who is
qualified, or competent in crane safety and operation would be able to
assess an operator'' (ID-1615).
OSHA is not requiring that evaluators must be certified or have
previous experience as an operator. While experience as an operator and
certification might be helpful, C-DAC did not recommend either for
trainers and OSHA is not requiring it in the final rule because it does
not think it is necessary to hold evaluators to a higher standard than
C-DAC recommended for trainers. As stated in the NPRM, OSHA heard from
stakeholders who have successfully involved a variety of personnel in
the evaluation of operators, including riggers, maintenance personnel,
signal personnel, tradesmen, managers, and foremen who have
demonstrated the necessary experience to conduct this assessment. These
personnel are typically not certified to operate cranes (See Reports
#1, 2, 3, 6, 15, 16, 18, 20, 23 of ID-0673). Based on the record, OSHA
does not wish to prevent these kinds of personnel from performing
effective evaluations.
OSHA acknowledges the certification organization's concern about
safety during the evaluation (ID-1755), but the agency believes the
standard already addresses that concern. An operator-in-training must
remain under the supervision of a person who meets the definition of a
``trainer,'' which includes ``the knowledge, training, and experience
necessary to direct the operator-in-training on the equipment in use''
(Sec. 1926.1427(b)(4)(i)(B) (emphasis added)). Because the operator-
in-training cannot move out of that status until the completion of an
evaluation, a trainer is required at the evaluation if the evaluator
does not also meet the definition of a trainer (see later discussion
about trainer also serving as evaluator).
As OSHA explained in the NPRM, paragraph (f)(4) will allow
employers the flexibility to contract with a third-party agent to
conduct evaluations if the employer does not maintain the expertise on
staff, or to identify existing staff who may not have operator
experience but are capable of conducting an evaluation. OSHA wants to
allow employers to continue using effective and safe solutions that
they have already identified and are currently in use. For example,
OSHA spoke with an employer that took steps to qualify its first
operator without having an experienced mentor-operator on staff. This
was accomplished by enrolling the operator-in-training in several
outside classes, including a crane manufacturer's training and training
with the local union, and then arranging for an experienced union
operator to mentor the operator-in-training. Later, when the employer
hired additional operators-in-training, the first operator, now
experienced, was able to serve as the trainer and evaluator (Report #16
of ID-0673).
A sole proprietor OSHA spoke with followed a similar path when he
first started operating cranes for a former employer by seeking out the
mentorship of an experienced operator before beginning to operate
independently. When the company later hired other operators, this
individual trained new operators and supervised them for at least a
month before evaluating them (Report #23 of ID-0673).
One commenter suggested that OSHA clarify that it is the employer
of the operator who ultimately bears the responsibility for ensuring
that the operator is evaluated. The commenter stated ``if a crane
operator has been made available through a third party and the third
party also owns the crane, then [the operator] effectively works for
the third party and thus, the third party should be responsible for the
evaluation'' (ID-1615). A different commenter requested that OSHA add
language to paragraph (f)(5) to clarify that an ``employer may not
relinquish its duties under these paragraphs [by] delegating them to a
third-party:''
The evaluator must be an employee or agent of the employer.
Employers that assign evaluations to an agent retain the duty to
ensure that the requirements in paragraph (f) are satisfied.
(ID-1719). While this addition is arguably unnecessary because Sec.
1926.1427(f)(1) includes the introductory text ``the employer must
ensure,'' OSHA is adding the commenter's suggested text for
clarification and consistency with the requirements for a trainer in
Sec. 1926.1427(b)(4)(i)(A). OSHA requires operator trainers to be an
``employee or agent of the operator-in-training's employer'' (Id.).
Several commenters requested additional guidance regarding
evaluators. One commenter asked for clarification about whether a
trainer can also serve as the evaluator, expressing support for the
idea because the ``process of properly training an operator-in-training
should not be drastically different from successfully evaluating that
same operator'' (ID-1801). Another commenter expressed support for
trainers to also potentially serve as evaluators, stating that ``the
employer should use its best judgment in identifying the suitable
criteria for evaluator qualifications for the particular task, jobsite,
and equipment at use for that employer'' (ID-1779). A different
commenter opposed allowing a single person to serve in both roles,
noting that national accrediting
[[Page 56226]]
standards bar the same person from performing both a training role and
an evaluation role out of concern that an evaluator may not effectively
evaluate of an operator the evaluator had trained:
NCCCO proposes that trainers should be precluded from acting as
evaluators within the framework of the Rule. Alternatively, NCCCO
proposes that trainers should be precluded from acting as evaluators
with respect to any operator whom the evaluator has previously
trained. NCCCO submits that individuals responsible for training
operators are less likely to be in a position effectively to
evaluate operators for whom they provide training services. The
evaluation contemplated by the proposed Rule should provide an
independent assessment of the ``skills, knowledge, and judgment''
necessary to operate the equipment safely. If the training and
evaluation functions are combined and not separated, and if the
evaluator is called upon to exercise substantial judgment in
evaluating the subject or potential subject of training, then the
validity of the evaluation tool is likely to be compromised because
an evaluator may lack the requisite objectivity when conducting
assessments of operators who are former or potential trainees. * * *
By separating the training and evaluation functions, the proposed
Rule is more likely to result in outcomes that ensure the quality of
evaluations and improve worksite safety.
(ID-1755).
OSHA understands the arguments against allowing trainers to act as
evaluators for operators that they trained, but declines to prohibit
this practice. It has not traditionally prohibited this type of
practice, where employers conduct trainings for employees and also
ensure that they comprehend that training. In this context, moreover,
the certification and evaluation requirements are intended to work in
tandem, and the certification requirement ensures that the operator has
demonstrated basic skills, knowledge, and abilities through an
objective, third-party examination process. OSHA also seeks to maintain
a flexible standard that will allow employers to continue current
practices where possible and minimize any additional cost or burden,
such as hiring additional staff, on employers and small firms. If OSHA
prohibited trainers from also serving as evaluators, employers would be
bound to a process in which a formal evaluation would take place only
after the completion of training. While that model is acceptable under
the standard, OSHA also intends to allow employers to maintain more
flexible models in which operators may be allowed to try new equipment,
configurations, or tasks under the guidance of a trainer as the
opportunities present themselves at the worksite. If the trainer also
meets the requirements of an evaluator, that person would be able to
determine when the trainee has demonstrated sufficient skill,
knowledge, and ability for particular equipment or tasks. The trainer/
evaluator could evaluate and document the trainee's success and move on
to other areas of training. This model may be particularly useful in
scenarios where an operator is expected to operate many different
pieces of equipment for many different tasks, using different
configurations or attachments, when there are significant differences
that would require additional skills, knowledge, or ability. A trainer
also serving as an evaluator would be able to evaluate the operator as
the operator gains experience with those different tasks,
configurations, and equipment differences; it could save significant
time and effort that would otherwise be required to replicate all of
those scenarios later in front of a different evaluator. Finally, by
allowing a trainer to also evaluate the operator in actual work
settings engaged in tasks that the operator will be expected to
perform, the evaluations might actually provide a more realistic gauge
of the operator's skills, knowledge, and ability than in a more sterile
evaluation setting. For all of those reasons, OSHA is not prohibiting
an operator's trainer from also serving as that operator's evaluator.
One commenter asked how a small contractor could comply with the
evaluation requirement when ``hiring a crane'' for a single lift,
implying that the contractor does not have someone on staff who would
qualify as an evaluator (ID-1476). There are at least two methods of
compliance in that scenario. First, that contractor could select a firm
that offers the crane along with a qualified operator who has been
certified and evaluated by that firm. In that scenario the crane firm
would be operator's employer and have the responsibility to ensure that
the operator is certified and evaluated. Second, the contractor could
hire a certified operator and contract with an outside party to
evaluate the operator.\23\
---------------------------------------------------------------------------
\23\ The same commenter (ID-1476) asked about the role of
Construction Manager in this requirement under multi-employer
projects. OSHA notes that the commenter did not include enough
information to allow for a response because, for example, the
construction manager might or might not be an employee of the
operator's employer and may or may not have the required
qualifications to serve as an evaluator.
---------------------------------------------------------------------------
A ``bare rental'' company that rents cranes without an operator
asked for clarification about its duties under OSHA's standard:
Who will be responsible for signing off on the operator's
document of evaluation? As the owner of the crane that we rent it to
a company, we do not know who they will select to operate the crane,
and from a legal stand point we do not want to sign off on somebody
we do not know.
(ID-1495). In that scenario, the crane rental company is not the
employer of the operator and will not be on site or otherwise be
controlling the operator. OSHA's standard does not require that crane
rental company to ensure that the operator of its crane is certified or
evaluated. That would be the responsibility of the employer of the
operator.
Paragraph (f)(5) permits the employer to allow an operator to
operate equipment other than the specific equipment on which the
operator was evaluated, as long as the employer can demonstrate that
the new equipment does not require substantially different skills,
knowledge, or abilities to operate. An additional evaluation would be
required before an operator would be allowed to operate equipment that
requires substantially different skills, knowledge, or abilities to
operate.
OSHA believes this approach addresses the concerns of some
stakeholders about unnecessary competency evaluations while ensuring
appropriate evaluations of operators. Many stakeholders warned that
unnecessary competency evaluations could be very time consuming and
burdensome without providing any real safety benefit. Many employers
who spoke with OSHA during meetings and site visits explained, for
example, that they assign operators to run the same crane every day, or
to operate a crane from a specific group of the company's cranes that
are all very similar (Reports #1, 2, 3, 6, 13, 16, 19 of ID-0673).
Others said that they permit their operators to run similar cranes
interchangeably (see Report #15 of ID-0673). But other stakeholders
indicated that they already follow practices that may exceed what OSHA
is requiring. One large construction company, for example, requires its
operators to go through a formal evaluation for any different equipment
that the operators are assigned to run, even if the operators have
already demonstrated competency, through an evaluation, to operate
other similar equipment (Report #11 of ID-0673). Another large national
construction firm provides supplemental testing for different crane
configurations (Report #18 of ID-0673). And one stakeholder at the
March 2015 ACCSH meeting explained that it requires a ``seat check,''
an evaluation that may take a day or two, ``every time that operator
goes to a new machine . . . [w]e want to do the walk around
[[Page 56227]]
inspection. We want to test him on what he's absorbed when we walked
around . . . includ[ing] safety checks, prestart and post-start'' (see
OSHA-2015-0002-0036, pg. 232-239).
As previously explained, OSHA does not intend to require the
additional evaluation of operators when it is not necessary, such as
when there are minor differences between equipment models of the same
type that do not necessitate substantially different skills, knowledge,
or abilities to operate the crane safely. As discussed earlier in
reference to the general requirements in Sec. 1926.1427(f)(1), OSHA's
evaluation requirements will provide employers some flexibility when
determining whether an additional evaluation is required.
This flexibility is necessarily cabined, however, by the employer's
duty to ensure that its operator's skills, knowledge, and ability to
recognize and avert risk are sufficient for safe operation at the
jobsite. Some employers explained to OSHA that they often need
operators to operate very different sizes and configurations of the
type of equipment (or equipment of a different type) on which they
evaluated the operator, to perform various tasks (see Reports #2, 4, 6,
and 22 of ID-0673). Even an experienced operator, when assigned to
operate a different crane, may need time operating the equipment under
supervision to become familiar with how to safely operate it. One
owner/operator stated that when he used different cranes in the past,
even if they were all boom trucks built by the same manufacturer, he
needed a substantial amount of time to familiarize himself with the
significant differences between the cranes before he had the skills,
knowledge, and ability to recognize and avoid risks necessary to safely
operate them (Report #23 of ID-0673). OSHA concludes that it is
reasonable that the employer may need to conduct an additional
evaluation of the operator before determining that the operator is
competent to safely run a different piece of equipment alone (Reports
#3, 6, 16, 22 of ID-0673).
One commenter (ID-1615) requested clarification of the meaning of
``that the employer can demonstrate'' in Sec. 1926.1427(f)(5), which
relieves the employer of the need for additional evaluation for other
equipment that the ``employer can demonstrate does not require
substantially different skills, knowledge, or ability to recognize and
avert risk to operate.'' Specifically, the commenter asked whether an
additional evaluation would be necessary for operation of two specific
crane models: A 50-ton rough terrain hydraulic crane and a 60-ton rough
terrain hydraulic crane, which the commenter stated are ``identical in
operation, but different in capacity.''
In requiring that employers demonstrate that the different
equipment does not require substantially different skills, knowledge,
or ability to identify and avert risk, OSHA intends that the employer
will be able to justify the basis for its determination. An example of
this justification could include an employer consulting an operator who
has experience safely operating both pieces of equipment and could
provide feedback about the differences in operation, or the employer
could cite discussions with equipment manufacturers about the
differences between models as justification for the basis of its
determination. In response to the commenter, it is not likely that this
change in capacity would require the employer to conduct an additional
evaluation as long as the cranes are operated in similar configurations
and other aspects of the crane (such as the computer operating systems,
spatial arrangement of controls, control functions, safety devices,
operational aides, mode of travel, and function of the equipment) are
similar. However, changes in the configuration such as the use of
different attachments (e.g., wrecking ball versus a clamshell),
significant changes in boom length, or the addition of counterweights
are a few examples of differences that may require an additional
evaluation. Similarly, design differences like the location and
function of the controls (e.g., the boom hoist control is located where
the line hoist control was located on the other equipment) may also
require the operator to become familiarized with these changes and some
other limited evaluation of the operator's grasp of these changes. An
evaluator meeting the requirements of Sec. 1926.1427(f)(5) must be
able to make these determinations, but can consult other appropriate
individuals like the crane manufacturer or additional operators
experienced with the equipment. Ultimately, if the difference in the
controls and functions of the equipment is significant enough that the
operator's unfamiliarity with the equipment may create a hazardous
condition, then the employer must conduct an additional evaluation.
One of the certification entities, NCCCO, requested that OSHA
``clarify the proposed Sec. 1926.1427(f)(3) to indicate that the
employer is only determining whether additional evaluation is necessary
for different equipment, and that the employer's approval to operate
``other equipment'' may be given only if the operator is also certified
or deemed to have complied with the certification requirements for type
of the other equipment at issue'' (ID-1755). OSHA agrees that Sec.
1926.1427(f)(5) has no impact on the requirements for operator
certification. Regardless of the employer's determinations in the
evaluations required under Sec. 1926.1427(f), the employer must ensure
that the operator is certified or working as an operator-in-training.
OSHA does not expect that the evaluation requirement will be overly
burdensome for employers, particularly with the flexibility provided in
paragraphs (f)(2) and (5). Although OSHA heard concerns from several
commenters that OSHA would require that an operator be evaluated on
every crane that their companies might use, or in every possible
configuration, OSHA has explained that its revised rule does not
require that. Furthermore, these commenters appear to have mistakenly
assumed that OSHA would require each evaluation to be in the form of a
time-consuming formal test rather than a much simpler observation of
the operator performing construction operations using the crane. The
required supplemental re-evaluation of a previously evaluated operator
can focus on the operator's abilities to handle the differences between
the new equipment and the one previously assigned; it would not require
a complete evaluation of all of the operator's skills, knowledge, and
abilities.
In general, the determination whether a new evaluation is needed
turns on whether the safe operation of the new crane requires
additional skills, knowledge, or ability to recognize and avert risk.
For example, an employer may evaluate an operator and determine that he
or she has demonstrated the ability to safely operate a large crane in
a relatively complex configuration. If the employer determines that the
operator has the skills, knowledge, and ability to identify and avert
risk necessary to safely operate a smaller crane of the same type and
operating system, in a simpler configuration with a shorter boom, then
the operator would not need to be re-evaluated (assuming that the tasks
are similar). Similarly, a new evaluation may not be necessary for an
operator to operate a larger crane for the same task. Where the two
cranes are configured similarly, and they have similar controls
(including computer operating systems, spatial arrangement of controls,
and control functions), safety devices, operational aides, mode of
travel, and overall function, such that significant new skills,
knowledge, and
[[Page 56228]]
ability to identify and avert risk are not necessary to operate the
cane safely, then a new evaluation would not be required.
A commenter asked whether additional evaluations would be required
if a crane and operator move to multiple locations (ID-1476). They
would not, assuming that the operator remains employed by the same
employer, the crane remains in the same configuration, and the operator
would not be performing different tasks that require significantly
different skills, knowledge, or ability to identify and avert risk.
Evaluations are specific to the operators, equipment, and tasks, but
are not dependent on location. However, if assigned work at multiple
locations requires an operator to have substantially different skills,
knowledge, or ability to recognize and avert risk, then an employer
must perform an evaluation of the operator to ensure he or she can
perform the assigned work.
Paragraph (f)(6) requires the employer to document the evaluation
of each operator and to ensure that the documentation is available at
the worksite. OSHA, by requiring this documentation to be available at
the worksite in the NPRM, implied that the documentation must be
maintained by the employer for the duration of the operator's
employment. OSHA is adding language to this final rule that states
explicitly the documentation must be maintained while the operator is
employed by the employer. This language is similar to language in Sec.
1926.1428(a)(3) requiring employers to maintain documentation of a
signal person's evaluation while the signal person is employed by the
employer.
This documentation requirement is also similar to documentation
requirements in other OSHA standards that require competency
evaluations, such as OSHA's powered industrial truck operator training
requirements (Sec. 1910.178). The documentation under Sec.
1926.1427(f)(6) must include: The operator's name, the evaluator's
name, the date of the evaluation, and the make, model, and
configuration of the equipment on which the operator was evaluated. But
the documentation would not need to be in any particular format.
Rather, employers would have the flexibility to capture this
information using their own existing systems or create documentation
that best meets the needs of their workplace. For example, employers
could issue operator cards that include this information, keep records
electronically in a database accessible at the worksite, develop logs
for each piece of equipment, or use any other method that memorializes
the mandatory information.
The documentation requirement will ensure accountability and direct
the employer's attention to the critical aspects of operating the
assigned equipment that must be considered during the evaluation. The
documentation of the evaluation will record key baseline information
that an employer can use to help make subsequent determinations about
whether the operator is competent to operate particular equipment on
future projects. It will also provide a quick reference for site
supervisors, lift directors, and any employee, such as a hoist crew
member, whose safety is affected by crane operations. This information
can help prevent any misunderstandings about, or mischaracterization
of, an individual operator's established competency as determined by
the employer, as in the Deep South fatal incident. There, an operator
was assigned to operate a crane of a type for which he was certified,
but the controls and operations were substantially different from those
with which he was familiar. Had the employer conducted an evaluation
and documented it rather than relying only on information specified on
the operator's certification, this incident could have been prevented.
The agency's discussions with stakeholders indicated that
information about operators is typically collected but not necessarily
for regulatory compliance purposes. Many employers who spoke with OSHA
during meetings and site visits explained that they maintain for their
own purposes a log or record to track operator experiences,
certifications, and performance evaluations. For example, at least two
employers reported that they issue cards to evaluated and competent
operators with information about those operators' qualifications.
(Reports #11, 18 of ID-0673). Others use written records to track
operators' performance, training, or other criteria. (Reports #1, 2, 3,
4 of ID-0673). And employers who own cranes and have long-term
operators must provide lengthy and detailed operator information to
their insurance providers.
Many subcontractors, too, are becoming accustomed to maintaining a
written record of their operators' experience and evaluations. Some
employers explained that, on multi-employer construction sites,
subcontractors are often asked by general contractors, insurers, or
other employers on the site to provide documented information about
their operators, such as certifications and verifications of training
and ``qualification'' for the cranes operated. One crane rental company
noted that it keeps records for each operator, and that this kind of
information is often requested or required by customers. (Report #6 of
ID-0673). Another company told OSHA that it frequently provides written
information about its operators to contractors, even when not
requested. (Report #26 of ID-0673). A contractor that sometimes works
with subcontractors' operators noted that it maintains an in-house
database of those operators, site supervisors, and directors that it
has encountered on projects, with evaluations and notes about their
performance. (Report #22 of ID-0673). Another company that employs
operators as subcontractors keeps records of near misses involving its
subcontractors, as well as documentation of operators that the company
feels may not be qualified to operate equipment. (Report #14 of ID-
0673). Finally, OSHA notes that it is a common practice within the
construction industry for operators to carry certification cards
provided by the testing entities as proof of certification. The
documentation requirement of this paragraph will be even more useful in
communicating operator competency for employers who must consider crane
safety on multi-employer worksites.
As previously discussed, paragraph (f) permits the employer to
evaluate the operator on one crane and then make a determination that
the operator is also competent to safely run other equipment that
requires the same level of operating skills, crane knowledge, and
ability to recognize and avert risk. This provision allows employers to
document these determinations collectively. For example, if an employer
with five cranes, possibly configured in slightly different ways,
determines that an operator's evaluation on Crane #2 also demonstrates
the operator's competency with respect to the other four cranes, the
employer could use a single document to record the operator's
competence to operate all five cranes. In fact, the documentation for
the original evaluation could simply be amended to state that it is
also applicable to identified equipment that does not require
substantially different skills, knowledge, or abilities. However, when
the operation of a crane requires a level of operating skills,
knowledge, or abilities that is significantly different from the crane
on which the operator was evaluated, a new evaluation must be carried
out and documented. Varying the facts in the earlier example, if two of
that employer's cranes include
[[Page 56229]]
computer software to control safety devices and the three other cranes
do not have such software but are otherwise similar, then an operator
already evaluated on a crane without the software would need to be
evaluated separately on the use of that software, with that evaluation
also documented. However, the evaluation can be limited to only making
determinations about the operator's ability to safely use the cranes
that rely on computer systems.
Several commenters expressed concern that the documentation would
take too much time and effort, particularly if employers are required
to take time to separately evaluate and document each operator on each
potential piece of equipment, safety device, operational aid, software,
and the size and configuration of the equipment (see IDs 1611, 1615,
1623, 1801). One of these commenters asked OSHA not to require
employers to document the make, model, and configuration of the
equipment on which the operator was evaluated to ``further reinforce''
that operators are not required to be evaluated on every crane that
their companies might use, or every possible configuration'' (ID-1801).
These concerns are misplaced because, as OSHA explained earlier,
the rule does not include any requirement that an operator must sit in
the cab of each crane the company owns to be evaluated and documented
as competent to run every make, model, or configuration of the
employer's equipment. Moreover, when evaluations are required, the
process of recording the specific information about the crane(s) in
which the operator was evaluated (including the make, model, and
configuration of the equipment) helps to avoid additional evaluations.
The required documentation provides the baseline against which the
employer can determine whether particular equipment used on future
projects can be safely operated by that operator because it would not
require substantially new skills, knowledge, or abilities. The make and
model of the equipment provides a fixed reference point for the
configuration and system of controls that are in particular machines as
well as particular designs of safety devices and operational aids, etc.
This information can be used in comparisons with other equipment that
the operator may be assigned to operate on future projects. If
employers do not preserve this information, it makes it more difficult
for them to determine whether an operator requires a new evaluation to
operate other equipment.
Another commenter acknowledged some uncertainty about the impact of
the documentation on its members and acknowledged documentation as
``good corporate practice'' followed by its members, but nevertheless
asked OSHA to remove the documentation requirement:
Our view is that record keeping for evaluations is a good
organizational practice, but should be not be a driver in a safety
standard as it may divert resources away from activities that
improve safety. Documentation and record keeping should be reserved
as good corporate practice and should not be a requirement of the
rule. * * * If documentation and record keeping are to remain a part
of this rule, OSHA should ensure than small businesses, as qualified
by SBREFA, are exempt in order to reduce undue burden on business
operations or detract from safe work practices.
(ID-1779). A different commenter stated that it would ``make sense for
an employer to track evaluations on operators, so they would know what
cranes an employee has been evaluated to operate and to provide
protection from liability,'' but then claimed that OSHA's documentation
requirement is ``purely punitive in nature'' and ``only benefits
OSHA.'' That commenter, however, offered no alternative means of
tracking other than documentation (ID-1615).
These comments support OSHA's observation in the NPRM that many
responsible employers already have systems in place to evaluate their
operators and document that process; OSHA disagrees that the
documentation is merely a ``good corporate practice'' that diverts
resources from safety or a ``punitive'' measure that provides no
benefit to the employer. First, as discussed above, the documentation
is a critical means of tracking an operator's baseline qualifications
in order to avoid future evaluations. This documentation must be
available at the worksite in the event there is some uncertainty about
the operator's qualifications. OSHA notes that ``available at the
worksite'' includes accessing this information at the worksite via a
computer or other electronic means. Second, because not all employers
follow this ``good corporate practice,'' the documentation requirement
will help to ensure compliance with the standard. OSHA notes that
``available at the worksite'' includes accessing this information at
the worksite via a computer or other electronic means.
Several commenters supported the documentation requirement. One
commenter described OSHA's proposed documentation requirements as
workable and providing sufficient flexibility to preserve existing
employer practices:
ABC appreciates that this proposal does not create a new system
of documentation, and instead leaves employers the flexibility to
capture this information in a way that makes sense for their
workplace. * * * ABC members already have advanced operator
competency programs in place, which include their own system of
documentation, and therefore, any requirement from OSHA to document
this information in a standardized form would be duplicative and
unnecessary.
(ID-1735). The National Roofing Contractors Association expressed
support for the proposed rule, which included the documentation
requirement, as ``provid[ing] the necessary components to ensure the
safety of NRCA members' workers and others while not altering
significantly current compliance burdens members are obligated to
meet'' (ID-1619). The American Fuel & Petrochemical Manufacturers too
supported the rule, stating that OSHA's approach was ``aligned with''
their previous requests for documentation of the evaluations and making
that documentation available at the worksite (ID-1628).
OSHA is retaining the documentation requirement for the reasons
discussed above. The agency views the documentation as critical to
identifying the baseline for future evaluations of operators, similar
to how documentation of monthly or annual inspections required under
Sec. 1926.1412 is used by a competent person or qualified person
during subsequent inspections as the basis for tracking potential
issues with the equipment and making determinations about whether that
equipment is suitable for planned tasks. OSHA has also concluded that
the documentation requirement includes enough flexibility to address
the concerns raised by commenters.
In addition, OSHA is modifying the text of paragraph (f)(6) to
provide a corollary to the new provision in paragraph (f)(2)) that
allows employers to provide initial documentation for operators that
they are employing on the effective date of the rule, based on prior
evaluations of those operators by the employers--another evaluation of
those operators is not required for initial compliance with paragraph
(f)(2). Because paragraph (f)(6) requires the documentation of the
``completion of the evaluation,'' thereby implying that some evaluation
has occurred, OSHA is adding language to that paragraph to clarify how
employers following the new alternative approach in (f)(2) may satisfy
the documentation requirement. In such cases, employers need only
ensure that the documentation reflects the date of the employer's
determination
[[Page 56230]]
of the operator's ability to safely operate the ``make, model and
configuration of equipment on which the operator has previously
demonstrated competency.'' This documentation preserves the baseline
measure for these operators against which their future crane operations
can be measured. Again, the employer is only required to document the
make, model, and configuration of the equipment on which the employer
has previously assessed that operator. Employers are free to, but not
required to, list all of the makes, models, and configurations of all
of the equipment that the operator is permitted to operate. For
example, the employer may document that the operator has previously
demonstrated that he or she is qualified to operate Crane A, and then
also record that, based on that qualification to operate Crane A, the
operator is also qualified to perform the same tasks using the Cranes
B, C, and D. In that example, the employer does not have to record the
make and model of Cranes B, C, and D in order for the operator to
operate them as long as it is clear which cranes are referenced.
Paragraph (f)(7) requires the employer to re-evaluate an operator
whenever the employer is required to retrain the operator under Sec.
1926.1427(b)(5). Section 1926.1427(b)(5) requires retraining if the
operator's performance or an evaluation of the operator's knowledge
indicate that retraining is necessary. OSHA intends this requirement to
ensure that when an employer becomes aware that an operator is not
competent in a necessary aspect of safe crane operation, the employer
provides additional training to the operator and re-evaluates the
operator. Re-evaluation is needed to ensure that the operator is
competent in the area of the observed deficiency.
As discussed in the explanation for paragraph (b)(5), triggers for
retraining under paragraph (b)(5) and re-evaluation under paragraph
(f)(7) might include a wide variety of feedback, such as (but not
limited to) information from an on-site supervisor or safety manager,
contractor, or other person that the operator was operating equipment
unsafely, OSHA citations, a crane near miss, or other incidents that
indicate unsafe operation of the crane.\24\ The re-evaluation must
target the deficiency in skills, knowledge, or ability to recognize and
avert risk that triggered the retraining, but need not include a re-
evaluation of other previously evaluated skills, knowledge, or ability.
Re-evaluations would need to be conducted by a person who meets the
requirements of paragraph (f)(4).
---------------------------------------------------------------------------
\24\ In proposed Sec. 1926.1427(f)(5), OSHA inadvertently
referred to compliance with retraining requirements under a non-
existent paragraph (b)(6) instead of the correct reference to
paragraph (b)(5). OSHA has corrected this error in the final rule.
---------------------------------------------------------------------------
OSHA does not view this re-evaluation as a significant departure
from typical practices in the industry. As discussed previously, many
stakeholders who spoke with OSHA at meetings and site visits emphasized
that observation and re-evaluation take place on an ongoing, daily
basis (see the Background and Need for a rule sections). For example,
several stakeholders told OSHA that they would re-evaluate an operator
if there was a crane near-miss or other incident indicating unsafe
operation of the crane, or if they received negative feedback about
that operator's performance from the controlling contractor or another
party on a jobsite. (Reports #1, 2, 3, 18, 19, 22, 26 of ID-0673). Some
employers conduct random worksite audits. (Reports #2, 3, 15, 18, 19 of
ID-0673). One large construction company stated that it conducts over
100 safety audits of job sites each year to ensure operators are
properly qualified. (Report #15 of ID-0673). Four companies that hire
crane rental companies (crane rental with operators) noted that they
raise any observed issues with the employer of the crane operator or
the union from which the operator was selected. (Reports #12, 14, 15,
16 of ID-0673).
OSHA requested comment on the re-evaluation requirement, noting in
the NPRM that the requirements for re-evaluation are also in line with
the powered industrial truck operator training standard, in which OSHA
requires re-evaluation if there is reason to believe that the operator
is operating unsafely, if there is a near-miss or other incident, if
the nature of the work to be performed changes, or if other factors
indicate a deficiency (Sec. 1910.178(l)(4)) (see 83 FR 23554). One
commenter generally agreed with this approach, but requested that OSHA
not include a fixed time period for renewals such as the 3-year period
required in the powered industrial truck standard. ``As a practical
matter,'' the commenter stated, ``reevaluation of [powered industrial
truck] operators employed in the construction industry occur far more
frequently than triennially'' and ``contractors evaluate crane
operators daily, mandatory reevaluations of crane operators at
arbitrarily-selected intervals are unnecessary and will not advance
crane safety'' (ID-1719). Another commenter suggested that re-
evaluation of an operator should be required ``if there is a
demonstrated need, or the technology or operations controls or
expectations change'' (ID-1615). A different commenter, however,
asserted that, in addition to requiring re-evaluations following
observations of unsafe operation, OSHA should specify a fixed time
period for re-evaluations ``at least on the same cycle as
recertification (that is, at least every 5 years)'' because
``certification procedure does not ensure competency for the particular
equipment the operator is assigned'' (ID-1768).
OSHA agrees with the commenters opposing fixed evaluations times
that the record does not indicate a compelling need for re-evaluations
at fixed intervals. While the one commenter requesting fixed re-
evaluations is correct that the re-certifications required every five
years do not serve the same function as re-evaluation on particular
equipment, re-certification would at least ensure that the operator is
familiar with significant changes in the industry. In general,
operators should not require the same type of refresher for specific
equipment that is not changing, particularly equipment that they are
operating regularly. If there are significant changes to the equipment
on which an operator was previously evaluated, such as the retrofitting
of a new computer system or significant safety device onto that
equipment, the employer would need to retrain the operator on that
equipment and re-evaluate the operator's ability to operate the
retrofitted equipment if an evaluation of the operator's knowledge
indicates that retraining is necessary for the operator (this
evaluation is required under paragraph (f)(1) because the employer must
ensure that the operator demonstrates the skills and knowledge to
operate the equipment safely, ``including those specific to the safety
devices, operational aids, software'').
Thus, the regulatory text addresses the commenter's concern about
changes in technology (ID-1615). Near misses and other unsafe operation
are examples of when the ``performance of the operator . . . [provides]
an indication that retraining is necessary'' under paragraph (b)(5).
OSHA is not clear about the intent of the same commenter's suggestion
of re-evaluation when ``expectations change'' (ID-1615), but regulatory
text would require evaluations when there is a change in the tasks to
which the operator is assigned that would require new knowledge, skill,
or ability to identify and avert risk.
Paragraph (g)--[Reserved]
This paragraph is reserved because the text at previous Sec.
1926.1427(g) was moved to revised paragraph Sec. 1926.1427(c)(4). The
provision was
[[Page 56231]]
moved to improve clarity of certification program requirements.
Paragraph (h)--Language and Literacy Requirements
Previous paragraph Sec. 1926.1427(h) allowed operators to be
certified in a language other than English, provided that the operator
understands that language. Revised paragraph (h) is nearly identical to
previous paragraph (h) with one exception. The last sentence of
paragraph (h)(2) has been reworded to clarify that an operator is
permitted to operate equipment only when he or she is furnished
materials that are necessary for safe operation of the equipment and
required by subpart CC, such as operations manuals and load charts, in
the language of the operator's certification. The reference to previous
paragraph (b)(2) was not maintained in proposed (h)(2) because it is no
longer needed.
Paragraph (h) continues to allow ``tests'' in languages understood
by the operator. In revised paragraph (h), ``tests'' encompasses both
the certification test and the employer's evaluation of the operator.
Either or both may be in any language understood by the operator. The
language of the operator's manual or other furnished materials required
by the standard would only need to match the language of the
certification.
Paragraph (i)--[Reserved]
Paragraph (j)--Certification Criteria
Paragraph (j) specifies criteria that must be met by an accredited
testing organization under revised paragraph (d) and an audited
employer program under revised paragraph (e). The criteria specified by
revised paragraph (j) of this section are the same as those specified
under previous Sec. 1926.1427(j). However, the introductory regulatory
text in the previous version of Sec. 1926.1427(j) states that
``qualification and certifications'' must be based, at a minimum, on
several criteria for the written and practical tests found in Sec.
1926.1427(j)(1) and (2). Revised paragraph (j) deletes the words
``qualification and'' because they are no longer necessary: Under the
revised rule, a certification issued by an audited employer program is
intended to be equivalent to that of an accredited testing program for
purposes of complying with OSHA's rule. In the NPRM, OSHA neglected to
replace the word ``qualification'' with ``certification'' in paragraph
(e)(6)(i), so it is making that revision in this final rule. The other
references to ``qualification'' have been removed from paragraph (e) in
the final rule.
Paragraph (k)--Effective Date
Almost all of Subpart CC has already been in effect since 2010, the
certification requirements were scheduled to go into effect on November
10, 2018 per OSHA's extension rule published last year (see 82 FR 51986
(November 9, 2017)). The effective date of this final rule applies to
the certification requirements and all but one of the amendments. As
explained below and as an exception, OSHA has decided to allow 90 days
after the publication of the final rule for employers to conform their
practices for evaluating their operators, including documenting the
evaluations, to the requirements of OSHA's standard.
OSHA anticipates that most employers will require only minimal
adjustment to their current practices, if any, such as documenting
evaluations if they have not previously followed that practice.
Employer assessment of operators has been a key part of the entire
scheme of Sec. 1926.1427 in effect through Sec. 1926.1427(k) for
eight years, so employers should already have a system in place that
could be adapted as necessary to the new requirements.
Nevertheless, several commenters requested additional time to
adjust to the new evaluation requirements. Three commenters requested
that OSHA extend the November 10, 2018, deadline for one year (ID-1605,
1779, and 1801). One of these commenters stated that the extension was
needed to provide ``an adequate amount of lead-time for instituting any
new requirements for crane operator qualification'' and ``allow OSHA
enough time and the opportunity to finalize the proposed rule'' (ID-
1605). The second of these stated that the additional time would
``permit entities subject to certification requirements additional time
to plan for and implement compliance'' and ``help alleviate any burden
felt by small business affected by the rule'' (ID-1779). The third of
this group of commenters suggested that the additional time was
necessary to ``provide employers who have not currently certified their
operators with sufficient time to do so,'' and encouraged OSHA to
``align the effective date for successful evaluations of new or
existing operators with that of the requested operator certification
extension,'' but did not provide any additional rationale for their
recommendation (ID-1801).
Three commenters requested a six-month extension for OSHA to
finalize the rulemaking and allow time for employers to adjust (IDs
1611, 1735, and 1826). Another requested an indefinite extension of the
operator certification requirement while OSHA reconsidered exemptions
from the standard (ID-1707).
OSHA agrees that some phase-in period is appropriate for the
evaluation and documentation requirements, but disagrees that it is
appropriate for the certification requirements. Employers have had
ample notice since 2010 that certification requirements were going to
go into effect.
A trade association for the lumber industry (ID-1821) requested a
year to develop training and evaluation programs that would comply with
Sec. 1926.1427(b) and (f) because ``the training requirements in
proposed Sec. 1926.1427(b) significantly differ from the current
training requirements, and . . . would impose new measureable standards
that will take time to incorporate in current training and evaluation
programs'' (footnotes omitted). OSHA does not recognize any substantive
difference between the revised training requirements in Sec.
1926.1427(b) and the previous requirements in Sec. 1926.1427(f) except
that the revised training requirements are clearer regarding the duty
for continued training even after obtaining certification. The
commenter's footnote 34, however, indicates that the commenter is
comparing the revised training requirements to the phase-in operator
competency requirements in Sec. 1926.1427(k), which are separate and
different from the main training requirements in prior Sec. Sec.
1926.1427(f) and 1926.1430. Those operator training requirements have
been in effect since 2010.
A labor organization (ID-1816) urged OSHA not to delay the
effective date of the certification requirement or the amendments to
the standard:
Given the health of the construction economy there are,
unfortunately, crane operators running types of equipment for which
they are not fully qualified. In this way, the tight labor market
places particular urgency on OSHA to implement the crane
certification requirement thereby reducing the safety risks to
workers as soon as possible. * * * we do not believe that a 6-month
``phase-in'' period is necessary given the certainty that now exists
for workers, employers, and other stakeholders in crane-operator
certification.
With respect to the evaluation requirements, there are more
specific substantive differences between the revised standard and the
previous standard, so it is understandable that employers may need some
period of adjustment. The time periods suggested by the commenters
appear excessive because the adjustment from the type of assessment
required to comply with
[[Page 56232]]
prior Sec. 1926.1427(k) compared to the revised provisions should not
be that significant. OSHA believes that the 90-day extension strikes a
more appropriate balance to address the urgency expressed by the labor
organization and the need for some transition period as outlined by
other commenters.
Section 1926.1430(c)--Conforming Changes to Operator Training
As noted earlier in this preamble, OSHA has amended only paragraph
(c) of the training requirements in Sec. 1926.1430 by replacing the
substantive operator training requirements with a reference to Sec.
1926.1427(a) and (b). The primary purpose of this revision is to
centralize the training requirements that are specific to operators in
revised paragraph Sec. 1926.1427(b). However, OSHA has retained in
Sec. 1926.1430 the training requirements that are more broadly
applicable. OSHA requested comments on the proposed change, but
received none. The paragraph is therefore revised as proposed.
Paragraph Sec. 1926.1430(c)(1) requires that the employer train
operators of equipment covered by subpart CC in accordance with Sec.
1926.1427(a) and (b), which contain all of the requirements for
training under the final rule. Operators of equipment that remains
exempted from the training requirements of Sec. 1926.1427--derricks,
sideboom cranes, and cranes with a rated hoisting/lifting capacity of
2000 pounds or less--are addressed by paragraph Sec. 1926.1430(c)(2).
Revised paragraph (c)(2), which is substantively the same as paragraph
(c)(3) of the 2010 crane rule, provides a general requirement to train
operators on the safe operation of the equipment. Paragraphs (c)(1) and
(2) of this section work together to specify training requirements and
clarify that all operators must be trained, regardless of whether an
operator must be licensed/certified by any entity (including the U.S.
military) to operate equipment.
Section 1926.1430(c)(2) of the 2010 crane rule, Transitional
Period, is no longer needed because employees need to train all
operators under this final rule. The requirements of previous Sec.
1926.1427(c)(4) have been moved to paragraph (c)(3) of this section.
Sections 1926.1436(q)--Derricks, 1926.1440(a)--Sideboom Cranes, and
1926.1441(a) Equipment With a Rated Hoisting/Lifting Capacity of 2,000
Pounds or Less
As noted in the explanation for revised Sec. 1926.1427(a)(2), OSHA
had proposed to apply the employer evaluation requirements to the
following group of equipment otherwise exempt from the requirements of
Sec. 1926.1427: Derricks, sideboom cranes, and equipment with a rated
hoisting/lifting capacity of 2,000 pounds or less. To accomplish the
application of the evaluation requirements, OSHA had proposed revising
Sec. 1926.1436(q) (Derricks), Sec. 1926.1440(a) (Sideboom Cranes),
and Sec. 1926.1441(a) (Equipment with a Rated Hoisting/Lifting
Capacity of 2,000 Pounds or Less) to require employers to evaluate
operators according to the requirements in revised Sec. 1926.1427(f).
One commenter (ID-1611) opposed any new evaluation requirements for
derricks absent substantial evidence that this additional measure,
which includes a requirement to document the evaluations, is warranted.
In the 2010 final rule, OSHA relied on C-DAC's recommendation to
exclude digger derricks, sideboom cranes, and low-capacity cranes
(hoisting capacity at or below one ton) from the certification
requirements of the standard and also went further in excluding this
group of equipment from all of the requirements of Sec. 1926.1427,
including the phase-in requirement for employer assessment of operators
in Sec. 1926.1427(k). Instead, OSHA required employers to ``train each
operator . . . on the safe operation of equipment the individual will
operate'' (derricks and low-capacity cranes; see Sec. Sec.
1926.1436(q) and 1926.1441(e)) or comply with the operator
qualification provisions of ASME B30.14-2004 (sideboom cranes, see
Sec. 1926.1440(c)(10)). In the NPRM of this rule, OSHA also clarified
that sideboom cranes would need to comply with the training
requirements in Sec. 1926.1430 (see proposed Sec. 1926.1427(a)(2)).
In light of the concern about an unwarranted burden on employers
raised by the commenter and the fact that OSHA had not previously
explained its exclusion of this group of equipment from the phase-in
assessment requirements in Sec. 1926.1427(k), OSHA has decided not to
change the status quo that has existed for the last eight years with
respect to this group of equipment. OSHA still requires employers to
train operators of this equipment in accordance with the requirements
of this standard. The agency therefore is not requiring employers to
comply with the evaluation or documentation requirements in Sec.
1926.1427(f) when their operators use derricks, sideboom cranes, or
low-capacity cranes. As a result, operators of this group of equipment
do not have to comply with any of the provisions of Sec. 1926.1427, so
it is not necessary to revise Sec. 1926.1436(q), Sec. 1926.1440(a),
or Sec. 1926.1441(a) as proposed because those paragraphs already
state that compliance with Sec. 1926.1427 is not required.\25\
---------------------------------------------------------------------------
\25\ Another commenter was concerned that OSHA was changing the
scope of the existing exemption for ``digger derricks,'' which is a
group of equipment used primarily for electric utility and
telecommunications construction (ID-1779). This limited exemption,
which is in Sec. 1926.1400(c)(4), removes digger derricks from the
entire cranes standard, but only to the extent that employers are
using this equipment for work covered by OSHA's electric utility
standard for construction (Subpart V of 29 CFR part 1926) or
telecommunications construction (29 CFR 1910.268). OSHA did not
propose to change this exemption for digger derricks and is not
altering the exemption in this final rule, so the new evaluation
requirements in this final rule do not apply to operators of digger
derricks exempted from the scope of the standard by Sec.
1926.1400(c)(4).
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IV. Agency Determinations
A. Legal Authority
The purpose of the OSH Act, 29 U.S.C. 651 et seq., 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, 655(b), and 658. A safety or health standard
``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 safety standard is reasonably
necessary or appropriate within the meaning of 29 U.S.C. 652(8) if:
It substantially reduces a significant risk of material
harm in the workplace;
It is technologically and economically feasible;
It uses the most cost-effective protective measures;
It is consistent with, or is a justified departure from,
prior agency action;
It is supported by substantial evidence; and
It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.
(See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II).) In addition, safety standards must be highly
protective. See id. at 669.
A standard is technologically feasible if the protective measures
it requires already exist, available technology can bring these
measures into existence, or there is a reasonable expectation for
developing the technology that can produce these measures. (See, e.g.,
[[Page 56233]]
American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980
(D.C. Cir. 1991) (per curiam).) A standard is economically feasible
when industry can absorb or pass on the costs of compliance without
threatening an industry's long-term profitability or competitive
structure. (See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,
530 n. 55 (1981); Lead II, 939 F.2d at 980.) A standard is cost
effective if the protective measures it requires are the least costly
of the available alternatives that achieve the same level of
protection. (See, e.g., Lockout/Tagout II, 37 F.3d at 668.)
Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA
explains deviations from relevant consensus standards elsewhere in this
preamble.
B. Final Economic Analysis and Regulatory Flexibility Certification
Introduction
When it issued the final crane rule in 2010, OSHA prepared a final
economic analysis (2010 FEA) as required by the OSH Act (29 U.S.C. 651
et seq.) and Executive Order 12866 (58 FR 51735 (Sept. 30, 1993)). OSHA
also published a Final Regulatory Flexibility Analysis as required by
the Regulatory Flexibility Act (5 U.S.C. 601-612). Both the 2010 FEA
and Regulatory Flexibility Analysis are in Docket ID 422. On September
26, 2014, the agency included a separate FEA when it published a final
rule extending until November 10, 2017, both the deadline for all crane
operators to become certified, and the employer duty to ensure operator
competency (79 FR 57785). In November 2017, OSHA published another
extension for an additional year, until November 10, 2018 (82 FR
51986), which closely tracks the 2014 FEA analysis. For each
rulemaking, OSHA published a preliminary economic analysis (PEA) and
received public comment on the analysis before publishing the final
analysis.
In the NPRM for the current rulemaking, OSHA included a PEA that
relied on some of those earlier estimates, extensive agency interviews
with industry stakeholders, crane incident data, and other documents in
the rulemaking record. For example, the 2017 FEA for the deadline
extension rule included a cost analysis of the employer evaluation to
ensure operator competency. As a result, the cost estimates in the PEA
in the current rulemaking were based on that analysis, which in turn is
drawn from the 2014 FEA. Following the approach taken in the PEA, this
Final Economic Analysis estimates new costs only for elements that have
not previously been accounted for in either the 2010 final rule or in
the deadline extensions. These are:
Additional evaluations to ensure operator competency when
there are changes not just in the type of crane (accounted for in the
2017 FEA) but also changes that would require new skills, knowledge, or
ability to recognize and avert risk necessary to operate the equipment
safely, including those specific to the use of equipment or its safety
devices, operational aids, software, or the size or configuration of
the equipment.
The permanent status of the employer duty to assess
competency. While the cost of employer's duty to assess operator
competency was estimated in the 2017 rule, the duty to assess was
assumed to phase out after the deadline had passed. This final rule
makes this duty permanent, so these costs are included in this FEA.
Documentation by employers. This rule now requires
employers to document the successful completion of operator
evaluations.
Additional training required beyond the training necessary
for certification.
Certain unit costs, such as the initial cost of operator
certification and recertification every five years, are not re-analyzed
in the FEA because they are unchanged by this rulemaking. The rule
makes no changes that would impact the costs of certification by type
of crane; OSHA simply allowed the existing operator certification
deadline to be instituted as planned. The employer evaluation, which
under the 2010 final crane rule (and the 2014 and 2017 extensions) was
set to be phased out when certification took effect, remains in effect
and is therefore a cost of the final rule. The unit costs of the
employer evaluations were analyzed in the final rule of the deadline
extension FEAs, and the agency relied on that analysis in calculating
the ongoing evaluation costs in this FEA. In this FEA the agency has
also updated wage rates to reflect the latest 2017 estimates that are
from the same source as used in the PEA: Occupational Employment
Statistics (OES), prepared by the U.S. Bureau of Labor Statistics. The
PEA relied on 2016 wages because the 2017 data was not yet available in
time for the preparation of the PEA.
The rule's cost savings are associated with withdrawing the
requirement that crane operator certification be both for type and
capacity of crane in favor of new regulatory text that certification be
required only for type of crane.
For the PEA, OSHA included an overhead rate when estimating the
marginal cost of labor in its primary cost calculations. Overhead costs
are indirect expenses that cannot be tied to producing a specific
product or service. Common examples include rent, utilities, and office
equipment. Unfortunately, there is no general consensus on the cost
elements that fit this definition, and the lack of a common definition
has led to a wide range of overhead estimates. Consequently, the
treatment of overhead costs needs to be case-specific. OSHA adopted an
overhead rate of 17 percent of base wages.\26\ This is consistent with
the overhead rate used for sensitivity analyses in the FEA in the 2017
final rule on Improved Tracking (81 FR 29624) and the FEA in support of
the 2016 final rule on Occupational Exposure to Respirable Crystalline
Silica (81 FR 16286). For example, to calculate the total labor cost
for a crane and tower operator (SOC: 53-7021), three components are
added together: Base wage ($26.78) + fringe benefits ($11.92, slightly
more than 44% of $26.78) + applicable overhead costs ($4.55, 17% of
$26.78).\27\ This increases the labor cost of the fully-loaded wage for
a crane operator to $43.25. OSHA received no comments on this approach
to estimating overhead costs and, as a result, has used the same
approach in this FEA.
---------------------------------------------------------------------------
\26\ The methodology was modeled after an approach used by the
Environmental Protection Agency. More information on this approach
can be found at: Cody Rice, U.S. Environmental Protection Agency,
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (ID-2025). This analysis itself was based
on a survey of several large chemical manufacturing plants: Heiden
Associates, Final Report: A Study of Industry Compliance Costs Under
the Final Comprehensive Assessment Information Rule, Prepared for
the Chemical Manufacturers Association, December 14, 1989.
\27\ Throughout this chapter, OSHA presents cost formulas in the
text, usually in parentheses, to help explain the derivation of cost
estimates for individual provisions. Because the values used in the
formulas shown in the text are shown only to the second decimal
place, while the actual spreadsheet formulas used to create final
costs are not limited to two decimal places, the calculation using
the presented formula will sometimes differ slightly from the
presented total in the text, which is the actual and mathematically
correct total.
---------------------------------------------------------------------------
One change in costs for this FEA beyond updating economic data was
[[Page 56234]]
that the 2017 OES does not include the same occupation category for
crane inspector (SOC 5353-1031 First-Line Supervisors of Transportation
and Material-Moving Machine and Vehicle Operators) that was in the 2016
OES and that was used in the PEA. The agency instead proxies the 2017
mean hourly wage for this SOC category by adjusting the 2017 OES crane
operator hourly wage by the percentage markup of the 2016 crane
inspector hourly wage over the 2016 crane operator hourly wage (8%,
28.75/26.58). The resulting estimated crane inspector hourly wage is
$28.97 (26.78 x 1.08). Including a benefit markup of 1.45 (but not
including overhead), the full hourly wages of a crane operator and
crane inspector are $38.70 and $41.86, respectively.
As noted earlier in the preamble, OSHA received a comment from the
National Propane Gas Association (NPGA, ID--1631), echoed by many
others, questioning whether OSHA had accurately estimated the number of
operators in the propane gas industry affected by the standard as
follows:
OSHA states that there are approximately 117,130 crane operators
subject to the proposal and an annual cost to the proposal of
$1,425,133. There is no indication that these estimates include the
propane industry, which has about 40,000 propane field technicians
who perform delivery and retrieval functions and, thus, would be
subject to the third-party certification required by the proposal. *
* * [T]he industry uses two types of cranes interchangeably to
deliver or retrieve propane containers . . . [so] propane field
technicians would require two certifications; one for each type of
crane.
(ID-1631).
OSHA has previously accounted for the propane gas industry. In its
2010 FEA, OSHA estimated that ``each of the retail establishments has,
on average, a truck-mounted crane that would be engaged occasionally in
construction activity covered under the rule'' (see 75 FR 48087). OSHA
also estimated in 2010 that there were a total of 5,567 establishments
in the propane industry (NAICS 454312, Liquefied Petroleum Gas
Dealers). Therefore, with an average of one crane per establishment
affected by the standard, there were 5,567 cranes affected by the
standard (Id.). OSHA continued to rely on these numbers in the economic
analyses accompanying the two extension rulemakings in 2014 and 2017,
treating the number of establishments as a proxy for the number of
propane crane operators requiring certification under the standard.\28\
---------------------------------------------------------------------------
\28\ The NPGA did not dispute OSHA's estimates of the number of
crane operators when it commented on the 2014 extension (ID-0487).
In response to the 2017 extension, the NPGA only encouraged OSHA to
``consider more recent cost estimates'' but did not specify any new
numbers (ID-0648).
---------------------------------------------------------------------------
To support its claim that OSHA has underestimated the rule's cost
to the propane industry, NPGA pointed OSHA to a recent study of the
consumer propane industry in 2015 prepared by the Propane Education &
Research Council (PERC) (see ID 1631, Part 2). NPGA relies on that
study in asserting that OSHA underestimated the number of
establishments, and therefore operators, in the PEA for this
rulemaking. Specifically, NPGA claims that a new 4-Digit NAICS code for
``Fuel Dealers'' (45431) encompasses relevant propane establishments
that are covered by the cranes standard but were not accounted for in
OSHA's previous analysis of NAICS 454312, Liquefied Petroleum Gas
Dealers (Id.).
Based on NPGA's comment, OSHA believes that it may have previously
underestimated the number of covered establishments and has decided to
increase its estimate in this analysis. Because the PERC study does not
identify which establishments in the ``Fuel Dealers'' NAICS code are
actually propane delivery firms that might occasionally engage in
construction activity, OSHA has conservatively revised the industry
profile to include all 8,341 of the establishments in that more general
NAICS code. However, OSHA believes that many of these 8,341
establishments may not be propane delivery firms that engage in
construction activity. This revision adds 2,774 additional
establishments to OSHA's previous estimate of 5,567 establishments in
the PEA. Continuing OSHA's methodology of estimating one certified
crane operator per establishment, OSHA is estimating that there are
8,341 crane operators in this industry that occasionally use a crane
for construction activity.
The NPGA's analysis takes a different approach, disregarding OSHA's
approach of estimating the number of operators engaged in construction
work per establishment. Instead, as quoted earlier, NPGA asserts that
every operator possible--``about 40,000 propane field technicians who
perform delivery and retrieval functions''--will use two different
types of cranes, with each technician evidently requiring two different
certifications under the theory that each technician uses both types of
cranes for work covered by OSHA's construction standard (ID-1631).
Thus, NPGA asks OSHA to assume that every propane field technician in
the industry operates two different cranes and does so in situations
involving construction activity, and that propane gas employers are
ignoring standard measures of economic efficiency by having all
employees engage in all tasks.
OSHA disagrees with this approach. Propane field technician
operators would fall under the crane rule in only one very specific and
limited scenario: Installation of new tanks (not replacement of
existing tanks in kind) at a construction site. As the NPGA
acknowledges, delivery occurs at a construction site ``a far lower
percentage of the time'' than at non-construction sites and that OSHA's
cranes standard applies to only ``a small percentage'' of propane
delivery work (ID-1631). Indeed, another stakeholder from the propane
industry estimated that only ``around 10 percent of new construction
jobs (such as new homes in rural areas) annually will require propane
delivery'' (Report #19 of ID-0673, p. 76). NPGA has not indicated that
conversion of existing homes to propane from other sources (thus
requiring the delivery of a brand new tank) constitutes any significant
percentage of their deliveries. OSHA therefore concludes that propane
deliveries covered by OSHA's construction standard constitute ten
percent or less of propane employer activities.
OSHA notes that its conclusion is confirmed by a review of
additional data. Using New Construction starts data from the US Census
(at https://www.census.gov/construction/nrc/pdf/quarterly_starts_completions.pdf) the average number of construction
starts (both single family and multi-unit) per year for the years 2015-
2017 was 1,163,000. If 10% of the new construction starts involve the
installation of propane, then 116,300 deliveries subject to OSHA's
standard would be required. The same research group that created the
2015 propane report that NPGA relied on in its comments also provided
an estimate that ``about 30,000 fuel oil households per year have
converted to propane.'' \29\ Adding this to the new construction
estimate above gives a total of 146,300 deliveries of new tanks per
year, which, based on NPGA's estimate of 40,000 operators in the
propane industry, results in an average of 3.66 jobs per
[[Page 56235]]
propane operator per year (146,300/40,000).
---------------------------------------------------------------------------
\29\ Sloan, Michael, 2016 Propane Market Outlook, ICF
International for the Propane Education and Research Council), p.
20, available at https://www.afdc.energy.gov/uploads/publication/2016_propane_market_outlook.pdf (visited 10/1/18).
---------------------------------------------------------------------------
Given that only operators engaged in construction activity must be
certified under OSHA's standard, and that only a very small percentage
of overall delivery activity constitutes construction activity covered
by OSHA's standard, OSHA disagrees that all operators in this industry
will require certification. While it is technically possible that every
operator would go on two different jobs with two different cranes such
that all would need two certifications, such an approach would ignore
economic convention. As with specialized work in general, an
economically rational employer will, in most cases, be able to assign a
consistent operator to handle this small percentage of specialized
activity rather than assuming the cost to have all of its employees
prepared to engage in a small percentage of the employer's overall
activity. OSHA therefore continues to estimate that each establishment
on average will require one certified operator to handle the occasional
delivery of tanks that would be covered by OSHA's construction rule.
OSHA's estimate is consistent with the information OSHA obtained
during its interview with a propane distribution company that told OSHA
it operates approximately 50 delivery centers in 11 states and
maintains a fleet of 49 truck cranes (Id.), which is an average of
almost one crane per delivery center. It is possible that a few
establishments may require more than one certified operator due to
special circumstances, but OSHA expects that number to be offset by the
number of smaller establishments that would not be covered by OSHA's
construction standard because they use equipment that is outside the
scope of the standard (rated lifting capacity of less than 2,000
pounds). Such establishments would only engage in re-fueling existing
tanks or replacing existing tanks in kind, or they only deliver new
tanks to the ground at a construction site (see OSHA's June 27, 2016,
response to Mr. Robert F. Helminiak, former Director of Regulatory
Affairs for the National Propane Gas Association, that simply
transferring propane tanks from the equipment directly to the ground is
considered ``delivery'' and covered by applicable requirements of
general industry standards, not construction standards. Included in
NPGA's comments, ID-1631, Appendix b-3). Furthermore, OSHA believes
that its adoption of the highest end of the potential number of
establishments provides an adequate margin to account for differences
between the one-operator-per-establishment estimate and the actual
number of operators at each establishment who would be engaged in
construction activity.
Due to these factors, the agency is not persuaded by the NPGA's
economic analysis for either the number of operators or the cost of
certification. OSHA has increased the number of affected establishments
(and thus affected operators) in this FEA for this industry, but not to
the extent proposed by NPGA.
The remainder of the FEA first discusses the estimates for each
type of cost and cost savings and then summarizes the net cost savings.
Subsequent sections discuss economic and technological feasibility,
regulatory flexibility certification, and finally potential benefits of
this final rule. For this FEA, OSHA reviews any comments about its
estimates at the end of the relevant sections.
Given the updating of economic data, and the changes from the
proposal to the final rule, the revisions to the standard will result
in a cost savings of $1,752,000, at a 3 percent discount rate (versus
the PEA estimated cost savings of $1,828,000), and $2,388,000 at the
discount rate of 7 percent (versus the PEA estimated cost savings of
$2,469,000k).
Evaluation Costs
This section evaluates two kinds of evaluation costs: (1) The
addition of evaluations when operators change equipment,
configurations, or tasks that require new evaluations; and (2) the
addition of evaluation requirements for all new employees. OSHA also
increased its estimates of how many operators would require evaluations
as a result of the addition of more propane delivery operators, as
discussed above.
As noted in the preamble explanation of this final rule, OSHA
received feedback during stakeholder meetings, site visits, and
interviews that, for a small percentage of employers, the proposed
rule's requirements for additional evaluations for specific situations
may have increased the number of operator evaluations they would
conduct. The increase from previous estimates would result if employers
need to conduct additional equipment-specific or task-specific
evaluations.
To estimate the costs for the new evaluations required by this rule
(evaluations of operator knowledge and skills required to operate
different equipment or perform new tasks), the agency had taken the
following steps in the PEA, and the agency followed the same
methodology for the FEA. First, it estimated the number of new
evaluations required by the proposed rule. Then it estimated the unit
costs for each evaluation. Finally, the agency multiplied the number of
evaluations times the unit cost to identify the total costs of the
proposed rule due to new evaluations.
OSHA began its preliminary estimate of the number of evaluations by
looking to its former rulemakings. In the 2017 deadline extension
economic analysis, OSHA estimated employers' evaluations due to
turnover of crane operators between employers, changes in the type of
equipment operated for the same employer, and evaluations of operators
new to the occupation. OSHA used the same estimate of total number of
evaluations in the original 2010 crane rule.
In the 2017 deadline extension economic analysis, OSHA estimated
the total number of new evaluations needed each year to be 30,981
evaluations (26,940 successful initial evaluations as well as 4,041 (15
percent of 26,940) for operators who have to be re-assessed (82 FR
51993)). The added propane field technician operators, with the
standard 23% turnover and 15% re-assessment, contribute another 733
evaluations (23% * (1 + 15%) * 2,774) for a total of 31,715 evaluations
each year.
However, after conducting extensive interviews with crane industry
stakeholders for this rule, OSHA preliminarily determined in the PEA
for this rulemaking that the agency had previously overestimated the
number of new evaluations that the rule would require to be performed
because OSHA had assumed that, in the absence of the rule, no employer
would conduct evaluations. In fact, stakeholders reported that almost
all employers conduct evaluations of new employees. As a result, the
agency modified its estimates to estimate that 50 percent of employers
(rather than 100 percent) would need to conduct such evaluations and,
as a result, 15,490 annual evaluations would be attributable to this
rule (83 FR 23559). The addition of the propane field technician
operators, discussed earlier, adds another 367 evaluations (50% of the
733 total propane evaluations, as identified earlier) for a total of
15,857 evaluations each year that will occur as a result of this rule.
The agency believes that even this estimate likely overestimates costs
given that most employers conduct such evaluations and that assessments
have been required for at least the last eight years under Sec.
1926.1427(k). None of the commenters questioned OSHA's estimate that at
least 50 percent of
[[Page 56236]]
establishments already provided the appropriate evaluations, and thus
OSHA has not changed this estimate for this FEA.
In the PEA, OSHA also estimated a small increase in evaluation
costs from those in the 2017 deadline extension analysis because of the
additional specificity in this rule about when evaluations are required
and what an employer must evaluate. Specifically, proposed Sec.
1926.1427(f) required evaluation as necessary to ensure that the
operator maintains the ``skills, knowledge, and judgment necessary to
operate the equipment safely'' and to perform assigned tasks, including
specialty lifts such as blind lifts or multi-crane lifts. A similar
version of this requirement is included in this final rule (with the
replacement of ``judgment'' with ``ability to recognize and avert
risk'') and therefore OSHA retains this estimated increase in
evaluation costs for this FEA.
In the PEA, OSHA preliminarily estimated that the proposed rule's
specificity would lead to an additional 15 percent of evaluations, on
top of the 15,490 evaluations conducted to comply with the less
specific prior rule (83 FR 23559), or 2,324 ``new evaluations.'' OSHA
explained that the stakeholder meetings and extensive OSHA interviews
indicated that this new language would not require many employers to
change their existing operator evaluation practices. Even before its
2010 rulemaking, OSHA required employers engaged in construction to
ensure that their operators were capable of operating their equipment
safely (Sec. Sec. 1926.550 and 1926.20(b)(4) prior to promulgation of
the crane standard on November 10, 2010). So for most employers, this
final rule will simply be a requirement to continue their existing
evaluation practices. OSHA further noted in the proposal that none of
the stakeholders OSHA met with expressed any concerns about their
ability to comply with these requirements (83 FR 23559). None of the
commenters contested OSHA's estimate of a 15 percent increase in
evaluations or disputed the agency's assessment of existing practices.
In this FEA the agency again estimates that this rule will add 15
percent more evaluations, but that 15% is calculated from a higher
total number of operator evaluations that includes the additional 367
propane operators. Thus, in this FEA OSHA estimates that there will be
an additional 2,379 (15% x 15,857) ``new evaluations'' as a small
percentage of employers increase their evaluations of operators who are
switching equipment or performing more difficult tasks. This represents
a very small percentage of the total costs of evaluations.
The second element needed in order to estimate the total cost of
evaluations is the unit costs for these evaluations. OSHA's unit cost
estimates for evaluations, which are unchanged from the PEA except for
increases in wage rates, took into account the time needed for the
evaluation, along with the wages of both the operator and the
specialized operator evaluator who will perform the evaluation. In its
2017 FEA, OSHA estimated that an initial evaluation of an experienced
operator with a compliant certification would take, on average, one
hour (82 FR 51992). The new evaluations generated by the specificity of
the rule would all be for previously evaluated, experienced operators
who are adding a new skill or new knowledge to an existing skill set,
not an initial evaluation for a brand new operator or an experienced
employee new to the firm. Thus, in many cases any evaluation time will
be minimal.
Due to the specificity of the evaluation requirement in this rule,
OSHA included the ongoing cost for the initial evaluations, which it
had estimated previously in the 2017 FEA. These evaluations will
continue to be necessary because of turnover of crane operators between
employers, changes in the type of equipment operated for the same
employer, and evaluations of operators new to the occupation. The total
cost for these evaluations in this FEA is lower than the total
evaluation cost estimated in the 2017 FEA. This is partly because the
evaluations cost in the 2017 FEA was for an operator population that
was a mix of operators with a compliant certification (certified by
both the type and capacity of crane), non-compliant certification (by
type but not capacity), and no certification. The time for evaluation,
and hence its cost, was linked to operator certification status and
varied for these three types with the least time (one hour) for an
evaluation of an operator with a compliant certification. The new final
rule removes the existing requirement for certification by capacity,
meaning there would be no operators in the previously estimated ``non-
compliant certification'' group. This means that all operators would
receive evaluations for operators with a compliant certification and
hence will have the same unit cost for a one-hour evaluation. The
hourly wage of the evaluator was estimated to be the same as the hourly
wage of occupation First-Line Supervisors of Transportation and
Material-Moving Machine and Vehicle Operators (SOC: 53-1031 from the
BLS 2016 OES dataset updated to 2017) of $46.78 in 2017 dollars
including a markup for fringe benefits and overhead.\30\ The operator's
time is valued at the wage plus fringe benefits of occupation Crane and
Tower Operators (SOC: 53-7021) plus overhead, at $43.25. Hence, the
combined hourly cost for an evaluation or a training episode is $90.04
($43.25 + $46.78).
---------------------------------------------------------------------------
\30\ The fringe markup is 1.45, derived from the BLS Employer
Costs for Employee Compensation, Private Industry Total Benefits for
Construction Industries March 2018.
---------------------------------------------------------------------------
Multiplying that unit cost by the 15,857 initial evaluations
estimated in this FEA, the total annual cost for these ongoing initial
evaluations is $1,428,000 ($90.04 x 15,857).\31\
---------------------------------------------------------------------------
\31\ Totals may not add up due to rounding.
---------------------------------------------------------------------------
The total cost for the 2,379 new evaluations, which are for
experienced operators who are adding a new skill or new knowledge to an
existing skill set, is therefore the product of multiplying that unit
cost by the total number of evaluations: $22.51 x 2,379 new evaluations
= $54,000.
The total annual cost for evaluations is therefore $1,481,000,
which is the sum of the $1,428,000 in initial evaluations and the
$54,000 for new evaluations.\32\
---------------------------------------------------------------------------
\32\ Totals may not add up due to rounding.
---------------------------------------------------------------------------
No commenter raised specific objections to the estimates used in
the PEA for the costs of evaluation. Some comments suggested generally
that OSHA's preliminary estimate of the number of evaluations was low,
based on an apparent misunderstanding of the standard (see, e.g., ID
1623, 1801). For example, one commenter (ID-1801) was concerned that
OSHA's requirement to document the make and model of crane on which an
operator was evaluated meant that OSHA would require a separate
evaluation for every single make and model of crane that a crane
operator might use. This is not the case. While the employer must list
the make and model of the crane that the operator was evaluated on, the
employer can then rely on that evaluation as a baseline and allow the
operator to use other cranes that do not require significant new
skills, knowledge, or ability to identify and avert risk in order for
the operator to operate the equipment safely. Another commenter (ID-
1623) states that ``One crane company alone testified [at an ACCSH
meeting] that the cost to document all of his employees on every crane
he owns, with each capacity, configuration and new additional
requirements would cost him more than ONE MILLION dollars.'' The
commenter did not provide any explanation or basis for that
[[Page 56237]]
amount, and the agency does not find this plausible and suggests it is
a misreading of the rule. OSHA's single evaluation cost is $90.04, so
to reach one million dollars in cost for a single employer, that
employer would have to do 11,106 evaluations each year (1,000,000/
90.04).
Other commenters expressed some confusion about who had to conduct
the evaluation. Some asked if an employer renting a crane with an
operator(s) had to conduct its own evaluation (see ID-1495, ID-1615).
This is not required. The crane rental company is the employer of the
operator in that scenario and carries the duty to evaluate its
operator. Thus, there is no expense for an additional evaluation for
operators who are provided with rented cranes. Some small businesses
were concerned that they might not have an employee with the expertise
to evaluate a crane operator (see ID-1495.) The employer is responsible
for assuring that an operator has been evaluated, but need not conduct
that evaluation itself. The employer can, for example, arrange for an
evaluator from another organization, such as a labor organization or
crane operator training company, to serve as its agent and evaluate a
crane operator from a union hiring hall.
Employer Evaluation Documentation Costs
The rule adds a new documentation requirement for a successful
evaluation. In both the PEA and the FEA, OSHA estimated the annual
evaluation documentation costs using the following three steps: It
estimated unit costs of meeting this requirement; estimated the total
number of cases of documentation that employers will need to perform in
any given year; and multiplied unit costs of documentation by the
number of cases to determine the annual costs.
This final rule requires that employers document information about
the equipment that the operators is evaluated on (make, model, and
configuration) and include the evaluator's signature. Because of this,
the agency determined that the evaluator will complete all
recordkeeping related to this documentation. OSHA's unit cost estimates
for evaluation documentation take into account the time needed and the
wage of the employee who completed the documentation. The time needed
for creating and filing the needed information is estimated to be 5
minutes of the evaluator's time. As above, the hourly wage of the
evaluator is estimated to be $46.78. Hence, the cost of documenting a
successful evaluation is $3.90 ((5/60) x $46.78).
The revised standard does not require employers to re-evaluate
operators who have already previously demonstrated that they have the
skills, knowledge, and abilities to operate the employer's equipment
safely. The employer may rely on previous assessments of these
operators, but must still document their qualifications (see preamble
discussion of Sec. 1926.1427(f)(1)(iii) and (f)(4)). In the PEA, the
agency preliminarily determined that employers would have documented
most evaluations in the past, but estimated the number of past
evaluations still needing documentation at 15 percent of the number of
operators, or 17,570 (15% x 117,130) (see 83 FR 23560). This approach
assumed that each employer would need to document employees evaluated
within the year prior to effective data of the rule, but not all
existing employees. To account for the one time need to document the
evaluations for all existing employees, and not just those hired in the
last year, OSHA is assuming all employees not hired in the last year
(85 percent derived as 100 percent minus the 15 percent new in that
year) would need to be documented. The FEA is thus raising the number
of evaluations needing documentation to 85 percent of the number of
operators, or 99,561 (85% x 117,130), thus taking account of the need
to document past or ongoing evaluations of all employees.
With the addition of 2,774 propane field technician operators, the
total number of evaluations needing documentation is estimated to be
102,335 (99,561 + 2,774) in this FEA. This estimate is based on the
final rule's clarification that all evaluations of existing employees
must be documented, but existing operators at the time the rule becomes
effective do not need to be re-evaluated from scratch. This estimate
assumes that all existing employees not subject to turnover or changes
in equipment will need new documentation. This almost certainly
overestimates the need for documentation because it ignores existing
documentation practices, which OSHA's interviews with stakeholders
indicate exist. This total extra first year cost is $399,000 ($3.90 x
102,335). Annualized over 10 years at a 3 percent discount rate gives
an annualized cost of $47,000. At a discount rate of 7 percent, this
annualized cost is $57,000.
Employers are only required to document successful evaluations, and
OSHA estimates that 15% of the operators will fail their evaluations.
As noted above, OSHA estimates 15,857 initial evaluations and 2,379 new
evaluations, for a total of 18,236 evaluations. With this 15% failure
rate, only 15,857 evaluations would require documentation (18,236/
1.15). OSHA calculated that the total annual documentation cost, absent
the first year extra documentation costs for existing, previously
evaluated operators, is $62,000 ($3.90 per evaluation x 15,857
evaluations).
In the PEA, OSHA requested comment on its estimates of the
documentation costs. While none of the commenters dispute any of the
individual components of OSHA's documentation cost estimates, most of
the same comments that expressed concern about costs because of an
apparent confusion about the number of evaluations that would be
required also raised the same concern about the number of
documentations and resulting costs (ID-1623, 1801).
Employer Costs for Operator Training
The final rule clarified the operator training requirements as
proposed, and OSHA retained the same methodology in its analysis of the
training costs. As explained in the 2010, 2014, and 2017 rulemakings,
employers were already required to train their operators prior to the
2010 rule, and OSHA did not estimate additional training costs other
than costs of optional certification preparation training classes in
its recent rulemakings (see, e.g., 75 FR 48097). The revised rule
clarifies that the training already required under the previous rule
continues to be required even after an operator is certified, including
training necessary when an operator requires new knowledge or skills
because of a change in equipment or tasks. Although OSHA's site visits
and interviews indicated that most firms are already providing the
required training, including the additional training necessary to
ensure that certified operators have the skills and knowledge to
operate new equipment or perform new tasks, OSHA calculated costs for
additional trainings that may occur as a result of this clarification.
OSHA's calculation of the cost of these additional trainings
required several steps. First, OSHA estimated the average annual number
of equipment-specific or task-specific trainings as a percentage of the
new evaluations required by the rule, as estimated earlier. OSHA
expected the number of trainings to be a subset of the number of
evaluations because in many cases the operator will already possess the
required skills necessary for a new piece of equipment or a new task
and be able to demonstrate competency after only a cursory explanation
of the differences.
[[Page 56238]]
For example, an experienced operator conducting a blind lift for the
first time may have sufficient mastery of the equipment such that she
could pass an evaluation after only a very brief discussion of the
signals to be used. In the PEA, the agency judged that 50 percent of
the new evaluations, or 1,162 evaluations (50% x 2,324), would also
require trainings (83 FR 23560-23561). OSHA did not receive any comment
on this estimate. Using the same estimates for the newly included
propane field technician operators adds 28 additional evaluations (15%
of 366 evaluations is 55, and 50% of 55 is 28) that will require
additional training for a total of 1,189 (1,162 + 28) instances where
additional training will be needed.
The second step is to identify an average amount of time that each
training will take. Some trainings are likely to require detailed
instructions about operating particular equipment and discussions of
protocol prior to a lift. Other trainings might involve a very short
period of instruction, such as to familiarize an experienced operator
with the setup of standard controls in a different crane of the same
type with which the operator already has experience. While OSHA lacked
data about the frequency of these different types of trainings, it
estimated in the PEA that the average time for each training is one
hour (83 FR 23561). For context, this is the same amount of time that
OSHA previously estimated that it would take for an inexperienced
operator to take the practical portion of the standard crane operator
test. OSHA solicited comment on this one-hour estimate, but received
none. OSHA has therefore relied on the same estimate in this FEA.
OSHA expects two employees to be occupied during this hour of
training: The equipment operator and the trainer. Using the same wage
estimates as above, the hourly wage for the operator would be $43.25
and a supervisor's hourly wage of $46.78 for the trainer. However, not
all of the training time will result in a loss of productivity to the
employer. OSHA's site visits and interviews indicate that it is common
for operators to spend at least some of the training time operating the
crane under the instruction of the trainer, performing tasks that
actually are useful for the employer. While all of the trainer's time
is an opportunity cost for the employer, at least part of the
operator's time results in productivity for the employer. OSHA
estimated in the PEA that, on average, 75 percent of the operator's
training time (45 minutes of the hour) would consist of pure
instruction or other activities that would not be productive for the
employer (Id.). OSHA requested comment on this estimate but received
none and is therefore relying on that estimate in the FEA. Based on the
estimated one hour for each training, the unit cost for each training
is therefore the supervisor's wage for one hour ($46.78) plus $31.95 in
operator's wages for the 45 minutes of non-productive time (Three
quarters of the operator's hourly wage of $43.25), or $79.22 per
training. Thus, the total cost of the training industry-wide is $94,000
($79.22 x 1,189).
Cost Savings of Avoiding Additional Certifications
Absent this final rule, all crane operators who are currently
certified only by crane type would have needed to obtain certification
both by type and capacity. This final rule removes the requirement for
certification by capacity and allows employers to rely on either ``type
and capacity'' or ``type only'' crane certifications, leaving only
certification by crane type as the obligation of the crane standard. To
calculate the cost-savings of additional certifications that would be
avoided by the final rule, OSHA estimated the number of crane operators
not yet in compliance with the type-and-capacity certification
requirement and multiplied that estimate by the estimated cost of
obtaining such certification.
Based on OSHA's previous rulemakings, OSHA estimated that 71,700
crane operators do not yet possess a type-and-capacity certification.
(82 FR 51993). Although the 2014 FEA estimated a gradual decline over
time of the number of such operators (an estimate of 61,474 in 2016,
see Table 1, 79 FR 57796), the 2017 extension estimated that 71,700
operators were not yet in compliance and would not be for much of 2017
and 2018 leading up to the new 2018 deadline. (see Table 1, 82 FR
51995). In the PEA, the agency accordingly estimated the number of
operators certified by crane type only would remain at 71,700 each year
and no commenters provided better data. OSHA adopted this approach
because 71,700 was the last hard data point the agency had, and relies
on it again in the final rule.\33\ Certification has likely gradually
spread as an expected job qualification in the crane operator job
market, so it is quite possible that the number of operators possessing
a type, but not type-and-capacity certification, is actually higher
today. The largest certification school issues a certificate by type
only, which means there may be additional cost savings that OSHA is not
attributing to this final rule since there are more operators certified
by type only who would not have to become certified by type and
capacity.
---------------------------------------------------------------------------
\33\ Note that this 71,700 operators is not impacted by OSHA's
increase in the total number of operators to account for additional
propane industry operators because this number only reflects
operators certified by type of crane, but not capacity, who would
have needed to obtain a new certificate by capacity. The NPGA has
indicated that the majority of its operators have not yet obtained
any certification under the hope that they would be excluded from
the standard, so those operators are not included in the group of
71,700.
---------------------------------------------------------------------------
OSHA looked to the 2017 deadline extension rule to estimate the
unit cost of a type and capacity certificate. There, the agency
estimated that such a test would take 2.5 hours and require a $250
fixed testing fee (82 FR 51994). At the hourly crane operator wage
noted above ($43.25), the total cost for a compliant certification is
$358.13 ($250 + (2.5 x $43.25)). If 71,700 crane operators needed to
take the test, the cost would be $25,678,000 (71,700 x $358.13). These
costs include only the time and costs necessary for certification, and
do not include the costs necessary for training for the certification
examination, which would occur prior to taking the type-only
examination. Because this rule would remove the requirement for
additional certifications by capacity, that amount becomes a cost
saving.
Commenters presented two different challenges to OSHA's estimates
of the unit cost for certification. The NPGA's comment, mirrored in
many of the comments that were part of a mass mailing from the propane
industry, claimed that the unit cost for two certifications is $3,790,
which would be $1,185 per certificate ((ID-1631, Part 2). However, the
NPGA's estimates are for a brand new operator (including preparatory
class time as well as the tests), which is different than the cost that
OSHA estimated here for the purpose of determining costs savings from
avoiding an additional certificate for an operator who already has a
type-only certificate.\34\
---------------------------------------------------------------------------
\34\ The economic analysis used by the agency to estimate costs
for new operators (those without any certificates) results in a
comparable number that is actually slightly higher than NPGA's
estimate. See, for example, the 2014 deadline extension analysis:
``OSHA estimated that training and certification costs for an
operator with only limited experience would consist of $1,500 for a
2-day course (including tests) and 18 hours of the operator's time,
for a total cost of $2,141.16.'' (79 FR 57794).
---------------------------------------------------------------------------
The IUOE identified a per-certification cost from NCCCO of $225,
which is slightly lower than OSHA's estimate of $250 (ID-1816). But the
IUOE estimate does not account for the hourly cost of the operator's
time to take the certification exam. The agency notes
[[Page 56239]]
that its estimate costs the average price in the market, not a single
firm, and believes its current costs are reasonable. Note to the extent
the agency is underestimating costs this means its estimate of cost
savings is too low.
This, of course, is a one-time cost savings, while costs of
continued evaluations and most of the other cost elements of the rule
are ongoing. Using the agency's standard 10 year horizon, the result is
an annualized cost savings of $3,010,000 at a discount rate of 3
percent, and an annualized cost savings of $3,656,000 at a discount
rate of 7 percent.
The agency estimates there will also be ongoing cost savings due to
a number of certifications that would have only been needed for a
change in capacity (but not type) and hence no longer will be needed.
More than half of certified crane operators have been certified by a
certifying body (including state and local governments) that does not
issue certificates by capacity, which indicates that many of these
operators may not need multiple capacity certifications. OSHA
conservatively estimated the value of this cost savings by taking 50
percent of the 2,379 additional evaluations, or 1,189 (0.50 x 2,379) as
an additional number of annual certifications that would have been
required solely due to changes in crane capacity but not crane type.
The unit cost for this certification follows previous analysis in
assigning a $250 flat fee for the certificate, as well as 1.5 hours of
the operator's time for the written exam and 1 hour for the practical
exam. This gives a unit cost of $358.13 ($250 + (2.5 x $43.25)).
Finally, the total annual cost savings for these avoided certifications
is $426,000 (1,189 x $358.13). Hence, along with the one-time cost
savings due to omitted certifications, the total cost savings for these
two elements are $3,436,000 ($3,010,000 + $426,000) at a 3 percent
discount, and total cost savings for these two elements of $4,082,000
($3,656,000 + $426,000) at a 7 percent discount rate.\35\
---------------------------------------------------------------------------
\35\ Totals may not add up due to rounding.
---------------------------------------------------------------------------
As noted above, OSHA may be somewhat underestimating the cost
savings of this final rule, which would offset any potential
underestimation of costs. Regardless, this has no effect on the
economic feasibility of this rule.
Total Cost of the Final Rule
The total annual cost of the final rule comprises the cost items
identified above: Evaluations (those previously calculated with offsets
from the removal of the requirements to certify by capacity and with
the additional evaluation costs to account for new skills and tasks),
documentation of the evaluations (including the one-time first year
evaluation documentation for existing, currently employed operators
without such documentation), and training costs. The cost savings is
due to averting the need for all operators who currently have a type
only certification to obtain a type-and-capacity certification. Since
the last item is relatively large and primarily occurs in the first
year while the other costs are ongoing, the discount rate and discount
horizon have a significant impact on the final total cost. At a
discount rate of 3 percent the sum of those parts is a cost savings of
$1,752,000 ($1,428,000 + $54,000 + $62,000 + $94,000 + $47,000-
$3,010,000-$426,000). Using a discount rate of 7 percent there are cost
savings of $2,388,000 ($1,428,000 + $54,000+ $62,000 + $94,000 +
$57,000-$3,656,000-$426,000).\36\
---------------------------------------------------------------------------
\36\ Totals may not add up due to rounding.
---------------------------------------------------------------------------
Here is a summary table of all the costs:
Summary Table-Annualized Costs
------------------------------------------------------------------------
3% Discount 7% Discount
rate rate
------------------------------------------------------------------------
initial evaluations..................... $1,428,000 $1,428,000
new evaluations......................... 54,000 54,000
ongoing documentation evaluation........ 62,000 62,000
Training................................ 94,000 94,000
initial evaluation documentation 47,000 57,000
(annualized)...........................
non-capacity certifications, current (3,010,000) (3,656,000)
population (cost savings, 10 years
annualized)............................
non-capacity certifications, ongoing (426,000) (426,000)
(cost savings).........................
-------------------------------
Total............................... (1,752,000) (2,388,000)
------------------------------------------------------------------------
Economic and Technological Feasibility
The agency has determined that the proposal is technologically
feasible because many employers already comply with all the provisions
of the revised rule and the rule would not require any new technology.
Ignoring cost savings, the cost elements of significance for this rule
making are the evaluation requirement with associated training of
$79.22 per training and $90.04 for each operator evaluation, for a
total of $169.25 per operator, which should be a small expense for the
businesses covered under this rule. The vast majority of employers
already invest the resources necessary to comply with the provisions of
the standard. Hence the agency preliminarily concludes that the
standard is economically feasible.\37\
---------------------------------------------------------------------------
\37\ A number of commenters questioned the impact of the
standard's requirement for operator certification on their
industries (see for example 1612, 1631, 1746 and many other comments
from the propane gas industry). The requirement for operator
certification is already part of the standard and the removal of
that requirement is beyond the scope of this rulemaking, as
explained earlier in the preamble to this rulemaking. OSHA
demonstrated the economic feasibility of operator certification
requirement in the 2010 rulemaking; the agency need not re-analyze
it in this rulemaking, which addresses certification only to the
extent that it reduces the number of certifications required by the
standard.
---------------------------------------------------------------------------
Certification of No Significant Economic Impact on a Substantial Number
of Small Entities
The largest cost element of the revisions to the rule is an
evaluation requirement with associated training of $79.22 per training
and $90.04 for each operator evaluation, for a total of $169.25. Small
businesses will, by definition, have few operators, and the $169.25
cost for each operator evaluation with training will not be a
significant impact for even the smallest businesses. At an hourly wage
of $43.25, the annual salary for an operator is $86,500 ($43.25 x 8 x 5
x 50), so this operator evaluation cost is 0.2% (169.25/86,500) of an
operator's annual salary. Hence, OSHA certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities.
[[Page 56240]]
As with economic feasibility, there were a number of commenters
focused on the impact of the standard's requirement for operator
certification on OSHA's preliminary determination that the rule would
not have a significant impact on a substantial number of small
businesses. As noted in the economic feasibility analysis, this
rulemaking addresses certification only to the extent that it reduces
the number of certifications required by the standard.
Benefits
OSHA's 2010 Cranes and Derricks in Construction standard included
an extensive analysis of the benefits attributed to preventing crane-
related fatalities and serious injuries. In that analysis, OSHA relied
on IMIS injury data made available in 2008 (see 75 FR 48093), finding
that the standard would prevent 175 injuries and 22 fatalities per year
for a total annual benefit of $209.3 million (75 FR 48079-48080).
OSHA, in the proposal for this rule, preliminarily concluded that
allowing certification by type only would result in no loss of
benefits. OSHA received only one comment challenging that conclusion.
That commenter, a representative of a certification body that issues
certifications by capacity, claimed that ``[r]etaining capacity will
require more stringent testing resulting in an increase in crane
safety, thus fewer accidents,'' (ID-1235), but this commenter did not
provide further explanation of why the testing would be more stringent
or any evidence that it would increase safety.
While testing organizations differed over whether a certification
by capacity provided any useful information to an employer, the
remainder of the commenters agreed that capacity is just one factor to
be considered in the employer's overall evaluation of the operator's
ability. Only one commenter opposed removing certification by capacity,
but even that commenter did not point to any specific loss of safety
benefits. The majority of commenters that responded to this issue
support removing the certification by capacity requirement (ID-0690,
0703, 0719, 1611, 1616, 1619, 1628, 1632, 1719, 1735, 1744, 1755, 1764,
1768, 1801, 1816, 1826, 1828). None of the commenters supporting the
removal of the requirement for certification by capacity indicated that
the removal of that requirement would result in any loss in safety
benefit. An industry group whose membership uses cranes for roofing
work stated that capacity ``did very little to advance the safe
operation of cranes at construction jobsites'' (ID-1619). A local
chapter of a labor union noted that the two certification bodies that
offer certification by capacity did not offer any safety evidence to
the agency in OSHA's previous public hearings or stakeholder meetings
(ID-1719). Referring to consensus standards and industry best
practices, a national labor organization implied that there is no
industry recognition of a safety benefit from certification by
capacity, noting that ASME B30.5 ``does not describe testing or
examination by capacity,'' and the organization ``is not aware of any
state or local regulatory body . . . that requires certification or
licensing by both type and capacity'' (ID-1816). In its request for
comments on this issue, the agency specifically asked for information
that demonstrated the safety benefits of certification by capacity, but
it did not receive any such information.
As noted in the sections on ``Background'' and ``Need for a Rule,''
OSHA received significant feedback from stakeholders following the 2010
final rule indicating that the standard, to be fully effective, would
need to preserve the employer duty to evaluate operators separately
from the general operator certification requirement. Certifications are
intended to address basic operator knowledge and skills, but do not
assess operators' familiarity with the actual equipment they will
operate or the specific tasks they will perform. The amendments to the
standard in this rulemaking make that employer duty permanent and add
specificity, thereby ensuring that the full benefits of the standard
will be realized.
The safety benefit of the rule is the prevention of injuries or
fatalities resulting when operators certified to operate the type of
crane assigned still lack the knowledge or skill to operate that crane
for the assigned task. As noted earlier, there are many variables in
equipment and controls between different models of the same type of
crane, and there are many crane operations that require additional
knowledge and skill beyond that demonstrated during certification
(e.g., swinging a ``headache ball'' instead of lifting a load,
performing a blind lift, participating in a multi-crane lift, etc.).
Certification does not address these variables or provide assurance
that the operators are qualified to safely operate the equipment for
the task assigned, so without these amendments operators could be
permitted to perform equipment operations after November 2018 that they
are not qualified to operate safely. OSHA has already determined that
there is a significant risk of injury when operators are allowed to
operate heavy machinery that they are not qualified to operate.
The 2010 crane rule estimated annual net benefits at $55.2 million
in 2010 dollars (75 FR 47914). Since there are cost savings for this
final rule, net benefits of the joint 2010 final rule and this final
rule are vastly greater than zero.
While this rule attempts to realize the full benefits already
identified in 2010 for the standard, and OSHA need not parse the
benefits of each provision of the standard separately, OSHA recognizes
that the revision to the standard is also likely to generate additional
benefits from the more specific requirement for employers to evaluate
operators on specific equipment for specific tasks. To explore this,
OSHA conducted further analysis of recent IMIS incident reports in an
effort to illustrate the new benefits of the evaluation requirements
beyond the benefits that would be achieved through the previous
standard with operator certification alone.
OSHA looked at IMIS accident reports for 2009-2013, years
subsequent to the data used for the FEA for the 2010 rulemaking. All
accidents with any of the search terms ``boom,'' ``crane,'' or ``pile
driver'' in either the event description or in the abstract were
examined, the same keywords as used in the analysis for the 2010 final
rule. OSHA identified incidents where there was an express mention in
the IMIS description that the crane operator was unfamiliar with the
specific crane equipment used during the incident, or with the specific
task. Using this methodology, the agency has been able to identify
three fatalities that may have been prevented if the updated evaluation
requirement had been in place at the time. It is true that there was a
general duty to ensure operator competency at the time of these
incidents (see Sec. Sec. 1926.20(b)(4) and 1926.1427(k)(2)). But, as
explained above, that previous employer duty was stated very generally
and employers might have believed that a preliminary general
examination of the operator could satisfy the requirement without
accounting for evaluation of the operator's ability to operate
different models of the same type or perform new tasks.
OSHA believes that the revised rule, which makes the evaluation
duty permanent and includes more detailed evaluation documentation
requirements, would make it more likely an employer conducts the
appropriate type of evaluation and therefore more likely that such
incidents would be avoided in the future. By specifying the elements to
[[Page 56241]]
be evaluated, OSHA expects the evaluations to be more effective at
preventing injuries by identifying operator limitations in a timely
manner. For example, the employer might have believed it was complying
with the previous general employer duty if it evaluated an operator and
found that the operator was qualified to operate a particular crane to
lift pallets of material, even though the employer did not perform any
additional evaluation before assigning the operator to a lift that
required additional skills, such as a blind lift or lifting poles
instead of pallets. As indicated by the second IMIS example below,
there is greater risk of injury if the operator is not qualified to
perform the new task. OSHA expects the documentation requirement to
assist employers in complying with the different evaluation elements of
the standard. And OSHA expects that the documentation requirement will
facilitate communication between supervisors and operators and help
avoid assignment of an operator to equipment or tasks for which he or
she is not qualified, thereby reducing the risk of injury from
unqualified operation.
The IMIS summaries are not particularly detailed or uniform, so
many more of these incidents may also have involved similar operator
failures that were not explicitly detailed in the IMIS summary. But the
complete IMIS abstract of each fatal incident follows.
Case One: Operator not competent to use specific equipment:
At approximately 2:50 p.m. on June 16, 2009, an employee was
walking toward a seawall the company was reconstructing when a
section of the boom failed and fell on him. The employee was killed.
The crane had been built in 1964, and was bought by Ray Qualmann
Marine Construction, Inc. on April 29, 2008. The company never
performed an annual inspection of the crane or a monthly one, and
documentation was not available to indicate any maintenance had been
done to the crane. The only documentation available for the crane
was an inspection report dated June 10 2009, made by a crane
operator who worked for the company, which failed to identify that
the crane did not have a boom angle indicator, that several lacings
were bent on it, and that the angles and spacing of the repaired
lacings were uneven. In addition, neither the crane operator who
operated the crane on the day of the accident, nor the foreman, had
ever seen the operator's and maintenance manual for the crane
involved in the accident. The crane operator was not familiar with
the controls of the crane. The operator did not know the weight of
the load, and did not know the length of the boom. The crane was
overloaded when the accident occurred.
The general manager of Ray Qualmann Marine Construction claimed
that the operator had extensive crane experience and had worked for the
company for more than 20 years. OSHA concluded in its investigation,
however, that the company allowed the operator use of the Link-Belt LS-
58 crane with no training for this equipment. The abstract indicates
that the lack of familiarity with the specific equipment used
contributed to the fatality. An evaluation of the operator's competency
on the specific equipment, rather than the general skills and knowledge
tested as part of the third-party certification process, would have
been more likely to identify the problem in this case and avoid the
resulting fatality.
Case Two: Operator not competent to perform specific task:
On November 17, 2009, employees with Moreau's Material Yard were
driving pilings for an oil rig foundation in which a 4,000 lb
hammer, attached to the top of the lead, was used to drive 70 to 75
ft poles into the ground. Employee #1 was working on a crawler crane
platform approximately 20 to 25 ft above the ground. He was wearing
a harness with a lanyard connected to a ladder rung. When the crane
tipped over, Employee #1 attempted to jump from the platform to the
ground below. He was struck by the crane and killed. The crane
operator sustained minor injuries. Other employees indicated that
the employer had never lifted poles of that size and the crane boom
may have been used at an improper angle for the load being carried.
It is clear from the IMIS report that the operator was familiar
with crane equipment but had never lifted poles of that size. While all
of the details of the task are not included in the abstract, the note
about the different pole size and the operator's use of an improper
boom angle suggest that the activity was significantly different from
previous activities such that it would have required different
knowledge or skills. This incident and resulting injuries might have
been prevented if the employer took the time to evaluate the operator
for the specific task assigned.
Case Three: Operator inadequately trained:
On June 23, 2011, Employee #1, an ironworker, was installing a
structural steel bracing and painting structural steel beams in the
ceiling of a manufacturing plant addition. Employee #1 was working
alone from a boom-supported aerial work platform that was borrowed
from another employer. At approximately 11:15 a.m., an electrician
walked into the area and found the aerial work platform elevated
with Employee #1 slumped over the controls. Employee #1 was crushed
between the work platform and one of the ceiling beams. Other
tradesmen at the worksite used the ground controls to lower Employee
#1 to the floor. Employee #1 died from the injuries. Employee #1 had
been trained in operating a boom-supported aerial work platform by
his employer, but was not trained in the differences between those
aerial work platforms that were owned by the employer and the
borrowed lift being used the morning of the incident. The drive
controls on the borrowed aerial work platform may have been reversed
from the actual direction that they would operate.
The abstract does not include enough information to be certain as
to whether the ``boom-supported aerial work platform'' was equipment
that would be covered by the crane standard (it could be a simple
aerial lift not covered by the standard, or a boom crane or multi-
purpose machine configured to support the work platform in a manner
that would be within the scope of the standard). Nevertheless, the
incident illustrates the potentially fatal consequence of requiring an
employee to operate new equipment without ensuring that the employee
can account for differences in control locations and functions. Like
the previous cases, the employee received training for certain crane
equipment but lacked the skills necessary to operate the borrowed
machinery used on the day of the accident. Had the employee been
evaluated by his employer before using the equipment, the employee's
unfamiliarity with the equipment could have been identified earlier and
the fatality might have been prevented.
OSHA presented the same analysis of benefits, including these IMIS
summaries, in the NPRM and received no comment challenging OSHA's
analysis of the benefits of the rule or of the IMIS summaries provided.
As discussed in the Summary and Explanation, most commenters agreed
with OSHA's conclusion that evaluation improves safety, even if the
effect could not readily be quantified. While there were many
suggestions as to the best approach to the requirements for employer
evaluation, there was virtually no opposition to the basic concept of
requiring employers to evaluate their operators.
C. Paperwork Reduction Act
Overview
The final ``Cranes and Derricks in Construction: Operator
Qualification'' rule contains information collection (paperwork)
requirements that are subject to review by OMB. The Paperwork Reduction
Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing
regulations, 5 CFR part 1320, require that the Department consider the
impact of paperwork and other information collection burdens imposed on
the public. A Federal agency generally cannot conduct or sponsor a
collection of information, and the public is generally not required to
[[Page 56242]]
respond to an information collection, unless it is approved by OMB
under the PRA and displays a currently valid OMB Control Number. In
addition, notwithstanding any other provisions of law, no person may
generally be subject to penalty for failing to comply with a collection
of information that does not display a valid OMB Control Number. See 5
CFR 1320.5(a) and 1320.6.
Solicitation of Comments
OSHA published two separate Federal Register notices that allowed
the public an opportunity to comment on the proposed Information
Collection Request (ICR) containing the information collection
requirements in the proposed rule for 60 days, as required by 44 U.S.C.
3507). The NPRM provided an initial 30 days for the public to comment
on the ICR corresponding to the general comment period for the
rulemaking (83 FR 23534), and OSHA published a second companion notice
to the NPRM on July 30, 2018 (83 FR 36507), allowing the public an
additional 30 days to comment on the information collection
requirements contained in the proposal. Concurrent with the proposed
rule, OSHA submitted the ICR to OMB for review (ICR Reference Number
201710-1218-002) in accordance with 44 U.S.C. 3507(d).
On July 31, 2018, OMB issued a Notice of Action (NOA) assigning the
proposal's ICR a new control number, 1218-0270, to be used in future
ICR submissions. OMB noted that this action had no effect on any
current approvals. OMB also noted that the NOA is not an approval to
conduct or sponsor the information collection contained in the
proposal. Finally, OMB requested that, ``Prior to publication of the
final rule, the agency should provide a summary of any comments related
to the information collection and their response, including any changes
made to the ICR as a result of comments. In addition, the agency must
enter the correct burden estimates.''
The proposed rule invited the public to submit comments to OMB, in
addition to OSHA, on the proposed information collection requirements
with regard to the following:
Whether the proposed information collection requirements
are necessary for the proper performance of the agency's functions,
including whether the information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the information collection requirements, including the
validity of the methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
OSHA received three public comments \38\ on the proposed ICR that
are addressed in the agency's final ICR analysis. In addition, OSHA
received a number of comments in response to the proposed rule,
described earlier in this preamble, that also addressed several
information collection requirements (primarily the requirement to
document evaluations) and contained information relevant to the burden
hour and costs analysis in the ICR. Responses to these comments are
found above in Section III, Summary and Explanation of the Proposed
Amendments to Subpart CC. OSHA considered them when it developed the
revised ICR associated with the final rule.
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\38\ See www.Regulations.gov, docket numbers: OSHA-2018-0009-
0003; OSHA-2018-0009-0004; and OSHA-2018-0009-0005.
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Concurrent with publication of this final rule, the Department of
Labor submitted the final ICR, containing the full analysis and
description of the burden hours and costs associated with the final
rule, to OMB for approval. A copy of this ICR is available at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201809-1218-001 (this link
will become active on the day following publication of the final rule).
OSHA will publish a separate notice in the Federal Register that will
announce the results of OMB's review. That notice will also include a
list of OMB-approved information collection requirements and total
burden hours and costs imposed by the new standard. The Agency will
also codify the OMB control number for the standard into Sec.
[thinsp]1926.5, which is the central section in which OSHA displays its
approved collection under the Paperwork Reduction Act.
Summary of Information Collection Requirements
This final rule establishes new information collection
requirements. It also modifies a small number of information collection
requirements in the Cranes and Derricks in Construction Standard (29
CFR part 1926, Subpart CC) Information Collection (IC) previously
approved by OMB. If the new information collection requirements are
approved by OMB, OSHA will request a second OMB approval to amend the
comprehensive Cranes and Derricks in Construction Information
Collection (OMB control number 1218-0261) to incorporate the ICR
analysis associated with the final Cranes and Derricks in Construction
Standard: Operator Qualification and to discontinue the new control
number (1218-0270).
Below is a summary of the major differences in the information
collection requirements contained in the revised rule from the
information collection requirements previously approved in the ICR.
Also, the summary includes a brief description of the significant
changes between the proposal and the final rule's information
collection requirements. These differences are discussed in more
specific detail in Section III: Summary and Explanation of the
Amendments to Subpart CC. The impact on information collection
requirements is also discussed in more detail in Item 8 of the ICR.
Some of these adopted revisions resulted in changes to the previous
burden hour and/or cost estimates associated with the current OMB-
approved information collection requirements contained in the Cranes
and Derricks in Construction Standard Information Collection. Others
did not change burden hour or cost estimates, but would substantively
modify language contained in the currently OMB-approved ICR. Still
others revised previous standard provisions that are not information
collection requirements. This summary addresses the first two
categories to ensure that the ICR reflects the updated regulatory text,
but does not address the last category of revisions. In addition, this
summary does not address the provisions that are substantively
unchanged from the current, OMB-approved information collection
requirements. Discussion and justification of these provisions can be
found in the preamble to the final 2010 crane rule (75 FR 48017) and
also in the Supporting Statements for this final rule, as well as in
the approved Information Collection.
Section 1926.1427(a)--Operator Training, Certification, and Evaluation
The introductory text in paragraph (a) sets out the employer's
responsibility to ensure that each operator is certified/licensed in
accordance with subpart CC, and is evaluated on his or her competence
to safely operate the equipment that will be used, before the employer
permits him or her to operate equipment covered by subpart CC without
continuous monitoring. The revised approach provides a clearer
structure than the previous standard, which was not designed to
[[Page 56243]]
accommodate both certification and evaluation.
Section 1926.1427(c)--Operator Certification and Licensing
Under paragraph (c), the employer must ensure that each operator is
certified or licensed to operate the equipment. Paragraph (c) retains
the certification and licensing structure of the previous standard with
only a few minor modifications intended to improve comprehension of
certification/licensing requirements. For example, OSHA removed the
reference to an ``option'' with respect to mandatory compliance with
existing state and local licensing requirements that meet the minimum
requirements under federal law.
Section 1926.1427(d)--Certification by an Accredited Crane Operator
Testing Organization
Revised paragraph (d) retains the requirements of previous
paragraph Sec. 1926.1427(b), except that the revision removes the
requirement for certification by capacity of crane, as required in
previous paragraphs (b)(1)(ii)(B) and (b)(2). The need for this change
is explained in the ``Need for a Rule'' section of the preamble. The
revised rule also makes some non-substantive language clarifications.
Compliance with the requirements of revised paragraph (d) is the option
that OSHA expects the vast majority of employers to use.
Section 1926.1427(e)--Audited Employer Program
The substantive content of revised paragraph (e) is the same as
previous Sec. 1926.1427(c). It sets out the parameters for a
nonportable certification program administered by the employer and
audited by a third party. The changes to the regulatory text for the
audited employer program are to remove the word ``qualification'' and
to replace three cross references with updated references to their new
locations in the final rule.
Section 1926.1427(f)--Evaluation
Paragraph (f) sets out new specific requirements that employers
must follow to conduct an operator evaluation and re-evaluation,
including documentation requirements. Paragraph (f)(6) requires the
employer to document the evaluation of each operator and to ensure that
the documentation is available at the worksite while the operator is
employed by the employer. OSHA is adding language to this final rule
that states explicitly the documentation must be maintained while the
operator is employed by the employer. This paragraph also specifies the
information that the documentation needs to include: The operator's
name, the evaluator's name and signature, the date of the evaluation,
and the make, model and configuration of the equipment used in the
evaluation. However, the documentation would not need to be in any
particular format. The employer must make the document available at the
worksite for the duration of the operator's employment.
The final rule also permits the employer to rely on its previous
assessments of an operator employed by that employer prior to December
10, 2018, in lieu of conducting a new evaluation of that operator's
existing knowledge and skills. Thus, for those operators assessed under
this provision of the final rule, the evaluation documentation must
reflect the date of the employer's determination of the operator's
abilities and the make, model and configuration of equipment on which
the operator has previously demonstrated competency. The proposed rule
did not include the provisions permitting employers to rely on previous
assessments of current employees in lieu of conducting new evaluations
and the associated documentation.
Section 1926.1427(h)--Language and Literacy
Previous paragraph Sec. 1926.1427(h) allowed operators to be
certified in a language other than English, provided that the operator
understands that language. Paragraph (h) in the final rule is nearly
identical to previous paragraph (h) with the exception that it removes
the reference to the previous qualification language in paragraph
(b)(2), which has been replaced.
Title of Collection: Cranes and Derricks in Construction: Operator
Qualification.
OMB Control Number: 1218-0270.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 119,904 (117,130 employers
of operators and 2,774 employers of propane field technician officers).
Total Estimated Number of Responses: 102,144.
Total Estimated Annual Time Burden Hours: 7,173.
Total Estimated Annual Other Costs (capital, operation and
maintenance) Burden: $84.
D. Federalism
OSHA reviewed the revisions to the cranes standard in accordance
with the Executive Order on Federalism (Executive Order 13132, 64 FR
43255, August 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
and statutory 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, Congress expressly provides that
States and U.S. territories may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such States and territories 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
(29 U.S.C. 667).
OSHA previously concluded from its analysis for the 2010 final rule
that promulgation of subpart CC complies with Executive Order 13132
(see 75 FR 48128-29). The amendments in this final rule do not change
that conclusion. In States without an OSHA-approved State Plan, this
revised rule will limit state policy options in the same manner as
every standard promulgated by OSHA. But the revised rule also requires
compliance with State and local crane operator licensing programs that
meet certain minimum standards. Section 18 of the OSH Act, as noted in
the previous paragraph, permits State-Plan States to develop and
enforce their own cranes standards provided these requirements are at
least as effective in providing safe and healthful employment and
places of employment as the requirements specified in this final rule.
E. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must either amend their
standards to be identical or ``at least as effective as'' the new
standard or amendment, or show that an existing State standard covering
this area is already ``at least as effective'' as the new Federal
standard or amendment (29 CFR 1953.5(a)). State Plan adoption must be
completed within six months of the promulgation date of the final
Federal rule. When OSHA promulgates a new standard or amendment that
does not
[[Page 56244]]
impose additional or more stringent requirements than an existing
standard, State Plans do not have to amend their standards, although
OSHA may encourage them to do so. The 28 OSHA-approved State Plans are:
Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana,
Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nevada, New
Mexico, New Jersey, New York, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands,
Washington, and Wyoming. Connecticut, Illinois, New Jersey, New York,
Maine, and the Virgin Islands have OSHA-approved State Plans that apply
to State and local government employees only.
The amendments to OSHA's cranes standard in this final rule require
employers to permanently implement evaluations of crane operators,
whereas the previous evaluation duty had been temporary with a fixed
end date. These evaluations must be documented and include more
specificity than the previous temporary employer duty to assess and
train operators under Sec. 1926.1427(k)(2). Accordingly, State Plans
are required to adopt an ``at least as effective'' change to their
standard.
OSHA is also removing the previous requirement for crane operators
to be certified by crane capacity as well as crane type. Because this
change removes a requirement rather than imposing one, State Plans are
not be required to make this change, but may do so if they so choose.
F. Unfunded Mandates Reform Act
When OSHA issued the final Cranes and Derricks in Construction rule
in 2010 (75 FR 47906), it reviewed the rule according to the Unfunded
Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (56 FR 58093). OSHA concluded that the final rule did not
meet the definition of a ``Federal intergovernmental mandate'' under
the UMRA because OSHA standards do not apply to State or local
governments except in States that voluntarily adopt State Plans. OSHA
further noted that the 2010 rule imposed costs of over $100 million per
year on the private sector and, therefore, required review under the
UMRA for those costs, but concluded that its 2010 final economic
analysis met that requirement.
As discussed above in Section III.A (Final Economic Analysis and
Regulatory Flexibility Analysis) of this preamble, this final rule has
cost savings of approximately $1.8 million per year. Therefore, for the
purposes of the UMRA, OSHA certifies that this final rule would 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.
G. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it will not have ``tribal
implications'' as defined in that order. The final rule will 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.
H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
Consistent with E.O. 13771 (82 FR 9339, January 30, 2017), OSHA has
estimated at a 3 percent discount rate, there are net annual cost
savings of $1,752,000, and at a discount rate of 7 percent there is an
annual cost savings of $2,388,000. This rule is an E.O. 13771
deregulatory action. Details on the estimated costs and cost savings
estimates for this rule can be found in the final rule's economic
analysis.
List of Subjects in 29 CFR Part 1926
Certification, Construction industry, Cranes, Derricks,
Occupational safety and health, Qualification, Safety, Training.
Signed at Washington, DC, on November 5, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble of this final rule, OSHA is
amending 29 CFR part 1926 as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart CC--Cranes and Derricks in Construction
0
1. The authority citation for subpart CC continues to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657;
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
0
2. Revise Sec. 1926.1427 to read as follows:
Sec. 1926.1427 Operator training, certification, and evaluation.
(a) General requirements for operators. The employer must ensure
that each operator is trained, certified/licensed, and evaluated in
accordance with this section before operating any equipment covered
under subpart CC, except for the equipment listed in paragraph (a)(2)
of this section.
(1) Operation during training. An employee who has not been
certified/licensed and evaluated to operate assigned equipment in
accordance with this section may only operate the equipment as an
operator-in-training under supervision in accordance with the
requirements of paragraph (b) of this section.
(2) Exceptions. Operators of derricks (see Sec.
[thinsp]1926.1436), sideboom cranes (see Sec. [thinsp]1926.1440), or
equipment with a maximum manufacturer-rated hoisting/lifting capacity
of 2,000 pounds or less (see Sec. [thinsp]1926.1441) are not required
to comply with Sec. 1926.1427. Note: The training requirements in
those other sections continue to apply (for the training requirement
for operators of sideboom cranes, follow section 1926.1430(c)).
(3) Qualification by the U.S. military. (i) For purposes of this
section, an operator who is an employee of the U.S. military meets the
requirements of this section if he/she has a current operator
qualification issued by the U.S. military for operation of the
equipment. An employee of the U.S. military is a Federal employee of
the Department of Defense or Armed Forces and does not include
employees of private contractors.
(ii) A qualification under this paragraph is:
(A) Not portable: Such a qualification meets the requirements of
paragraph (a) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
qualification.
(B) Valid for the period of time stipulated by the issuing entity.
(b) Operator training. The employer must provide each operator-in-
training with sufficient training, through a combination of formal and
practical instruction, to ensure that the operator-in-training develops
the skills, knowledge, and ability to recognize and avert risk
necessary to operate the equipment safely for assigned work.
(1) The employer must provide instruction on the knowledge and
skills listed in paragraphs (j)(1) and (2) of this section to the
operator-in-training.
(2) The operator-in-training must be continuously monitored on site
by a trainer while operating equipment.
[[Page 56245]]
(3) The employer may only assign tasks within the operator-in-
training's ability. However, except as provided in paragraph (b)(3)(v)
of this section, the operator-in-training shall not operate the
equipment in any of the following circumstances unless certified in
accordance with paragraph (c) of this section:
(i) If any part of the equipment, load line, or load (including
rigging and lifting accessories), if operated up to the equipment's
maximum working radius in the work zone (see Sec. 1926.1408(a)(1)),
could get within 20 feet of a power line that is up to 350 kV, or
within 50 feet of a power line that is over 350 kV.
(ii) If the equipment is used to hoist personnel.
(iii) In multiple-equipment lifts.
(iv) If the equipment is used over a shaft, cofferdam, or in a tank
farm.
(v) In multiple-lift rigging operations, except where the
operator's trainer determines that the operator-in-training's skills
are sufficient for this high-skill work.
(4) The employer must ensure that an operator-in-training is
monitored as follows when operating equipment covered by this subpart:
(i) While operating the equipment, the operator-in-training must be
continuously monitored by an individual (``operator's trainer'') who
meets all of the following requirements:
(A) The operator's trainer is an employee or agent of the operator-
in-training's employer.
(B) The operator's trainer has the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use.
(ii) While monitoring the operator-in-training, the operator's
trainer performs no tasks that detract from the trainer's ability to
monitor the operator-in-training.
(iii) For equipment other than tower cranes: The operator's trainer
and the operator-in-training must be in direct line of sight of each
other. In addition, they must communicate verbally or by hand signals.
For tower cranes: The operator's trainer and the operator-in-training
must be in direct communication with each other.
(iv) The operator-in-training must be monitored by the operator's
trainer at all times, except for short breaks where all of the
following are met:
(A) The break lasts no longer than 15 minutes and there is no more
than one break per hour.
(B) Immediately prior to the break the operator's trainer informs
the operator-in-training of the specific tasks that the operator-in-
training is to perform and limitations to which he/she must adhere
during the operator trainer's break.
(C) The specific tasks that the operator-in-training will perform
during the operator trainer's break are within the operator-in-
training's abilities.
(5) Retraining. The employer must provide retraining in relevant
topics for each operator when, based on the performance of the operator
or an evaluation of the operator's knowledge, there is an indication
that retraining is necessary.
(c) Operator certification and licensing. The employer must ensure
that each operator is certified or licensed to operate the equipment as
follows:
(1) Licensing. When a state or local government issues operator
licenses for equipment covered under subpart CC, the equipment operator
must be licensed by that government entity for operation of equipment
within that entity's jurisdiction if that government licensing program
meets the following requirements:
(i) The requirements for obtaining the license include an
assessment, by written and practical tests, of the operator applicant
regarding, at a minimum, the knowledge and skills listed in paragraphs
(j)(1) and (2) of this section.
(ii) The testing meets industry-recognized criteria for written
testing materials, practical examinations, test administration,
grading, facilities/equipment, and personnel.
(iii) The government authority that oversees the licensing
department/office has determined that the requirements in paragraphs
(c)(1)(i) and (ii) of this section have been met.
(iv) The licensing department/office has testing procedures for re-
licensing designed to ensure that the operator continues to meet the
technical knowledge and skills requirements in paragraphs (j)(1) and
(2) of this section.
(v) For the purposes of compliance with this section, a license is
valid for the period of time stipulated by the licensing department/
office, but no longer than 5 years.
(2) Certification. When an operator is not required to be licensed
under paragraph (c)(1) of this section, the operator must be certified
in accordance with paragraph (d) or (e) of this section.
(3) No cost to employees. Whenever operator certification/licensure
is required under this section, the employer must provide the
certification/licensure at no cost to employees.
(4) Provision of testing and training. A testing entity is
permitted to provide training as well as testing services as long as
the criteria of the applicable governmental or accrediting agency (in
the option selected) for an organization providing both services are
met.
(d) Certification by an accredited crane operator testing
organization. (1) For a certification to satisfy the requirements of
this section, the crane operator testing organization providing the
certification must:
(i) Be accredited by a nationally recognized accrediting agency
based on that agency's determination that industry-recognized criteria
for written testing materials, practical examinations, test
administration, grading, facilities/equipment, and personnel have been
met.
(ii) Administer written and practical tests that:
(A) Assess the operator applicant regarding, at a minimum, the
knowledge and skills listed in paragraphs (j)(1) and (2) of this
section.
(B) Provide certification based on equipment type, or type and
capacity.
(iii) Have procedures for operators to re-apply and be re-tested in
the event an operator applicant fails a test or is decertified.
(iv) Have testing procedures for re-certification designed to
ensure that the operator continues to meet the technical knowledge and
skills requirements in paragraphs (j)(1) and (2) of this section.
(v) Have its accreditation reviewed by the nationally recognized
accrediting agency at least every 3 years.
(2) If no accredited testing agency offers certification
examinations for a particular type of equipment, an operator will be
deemed to have complied with the certification requirements of this
section for that equipment if the operator has been certified for the
type that is most similar to that equipment and for which a
certification examination is available. The operator's certificate must
state the type of equipment for which the operator is certified.
(3) A certification issued under this option is portable among
employers who are required to have operators certified under this
option.
(4) A certification issued under this paragraph is valid for 5
years.
(e) Audited employer program. The employer's certification of its
employee must meet the following requirements:
(1) Testing. The written and practical tests must be either:
(i) Developed by an accredited crane operator testing organization
(see paragraph (d) of this section); or
(ii) Approved by an auditor in accordance with the following
requirements:
(A) The auditor is certified to evaluate such tests by an
accredited crane
[[Page 56246]]
operator testing organization (see paragraph (d) of this section).
(B) The auditor is not an employee of the employer.
(C) The approval must be based on the auditor's determination that
the written and practical tests meet nationally recognized test
development criteria and are valid and reliable in assessing the
operator applicants regarding, at a minimum, the knowledge and skills
listed in paragraphs (j)(1) and (2) of this section.
(D) The audit must be conducted in accordance with nationally
recognized auditing standards.
(2) Administration of tests. (i) The written and practical tests
must be administered under circumstances approved by the auditor as
meeting nationally recognized test administration standards.
(ii) The auditor must be certified to evaluate the administration
of the written and practical tests by an accredited crane operator
testing organization (see paragraph (d) of this section).
(iii) The auditor must not be an employee of the employer.
(iv) The audit must be conducted in accordance with nationally
recognized auditing standards.
(3) Timing of audit. The employer program must be audited within 3
months of the beginning of the program and at least every 3 years
thereafter.
(4) Requalification. The employer program must have testing
procedures for re-qualification designed to ensure that the operator
continues to meet the technical knowledge and skills requirements in
paragraphs (j)(1) and (2) of this section. The re-qualification
procedures must be audited in accordance with paragraphs (e)(1) and (2)
of this section.
(5) Deficiencies. If the auditor determines that there is a
significant deficiency (``deficiency'') in the program, the employer
must ensure that:
(i) No operator is qualified until the auditor confirms that the
deficiency has been corrected.
(ii) The program is audited again within 180 days of the
confirmation that the deficiency was corrected.
(iii) The auditor files a documented report of the deficiency to
the appropriate Regional Office of the Occupational Safety and Health
Administration within 15 days of the auditor's determination that there
is a deficiency.
(iv) Records of the audits of the employer's program are maintained
by the auditor for 3 years and are made available by the auditor to the
Secretary of Labor or the Secretary's designated representative upon
request.
(6) Audited-program certificates. A certification under this
paragraph is:
(i) Not portable: Such a certification meets the requirements of
paragraph (c) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
certification.
(ii) Valid for 5 years.
(f) Evaluation. (1) Through an evaluation, the employer must ensure
that each operator is qualified by a demonstration of:
(i) The skills and knowledge, as well as the ability to recognize
and avert risk, necessary to operate the equipment safely, including
those specific to the safety devices, operational aids, software, and
the size and configuration of the equipment. Size and configuration
includes, but is not limited to, lifting capacity, boom length,
attachments, luffing jib, and counterweight set-up.
(ii) The ability to perform the hoisting activities required for
assigned work, including, if applicable, blind lifts, personnel
hoisting, and multi-crane lifts.
(2) For operators employed prior to December 10, 2018, the employer
may rely on its previous assessments of the operator in lieu of
conducting a new evaluation of that operator's existing knowledge and
skills.
(3) The definition of ``qualified'' in Sec. 1926.32 does not apply
to paragraph (f)(1) of this section: Possession of a certificate or
degree cannot, by itself, cause a person to be qualified for purposes
of paragraph (f)(1).
(4) The evaluation required under paragraph (f)(1) of this section
must be conducted by an individual who has the knowledge, training, and
experience necessary to assess equipment operators.
(5) The evaluator must be an employee or agent of the employer.
Employers that assign evaluations to an agent retain the duty to ensure
that the requirements in paragraph (f) are satisfied. Once the
evaluation is completed successfully, the employer may allow the
operator to operate other equipment that the employer can demonstrate
does not require substantially different skills, knowledge, or ability
to recognize and avert risk to operate.
(6) The employer must document the completion of the evaluation.
This document must provide: The operator's name; the evaluator's name
and signature; the date; and the make, model, and configuration of
equipment used in the evaluation. The employer must make the document
available at the worksite while the operator is employed by the
employer. For operators assessed per paragraph (f)(2) of this section,
the documentation must reflect the date of the employer's determination
of the operator's abilities and the make, model and configuration of
equipment on which the operator has previously demonstrated competency.
(7) When an employer is required to provide an operator with
retraining under paragraph (b)(5) of this section, the employer must
re-evaluate the operator with respect to the subject of the retraining.
(g) [Reserved].
(h) Language and literacy requirements. (1) Tests under this
section may be administered verbally, with answers given verbally,
where the operator candidate:
(i) Passes a written demonstration of literacy relevant to the
work.
(ii) Demonstrates the ability to use the type of written
manufacturer procedures applicable to the class/type of equipment for
which the candidate is seeking certification.
(2) Tests under this section may be administered in any language
the operator candidate understands, and the operator's certification
documentation must note the language in which the test was given. The
operator is only permitted to operate equipment that is furnished with
materials required by this subpart, such as operations manuals and load
charts, that are written in the language of the certification.
(i) [Reserved].
(j) Certification criteria. Certifications must be based on the
following:
(1) A determination through a written test that:
(i) The individual knows the information necessary for safe
operation of the specific type of equipment the individual will
operate, including all of the following:
(A) The controls and operational/performance characteristics.
(B) Use of, and the ability to calculate (manually or with a
calculator), load/capacity information on a variety of configurations
of the equipment.
(C) Procedures for preventing and responding to power line contact.
(D) Technical knowledge of the subject matter criteria listed in
appendix C of this subpart applicable to the specific type of equipment
the individual will operate. Use of the appendix C criteria meets the
requirements of this provision.
(E) Technical knowledge applicable to the suitability of the
supporting ground and surface to handle expected loads, site hazards,
and site access.
[[Page 56247]]
(F) This subpart, including applicable incorporated materials.
(ii) The individual is able to read and locate relevant information
in the equipment manual and other materials containing information
referred to in paragraph (j)(1)(i) of this section.
(2) A determination through a practical test that the individual
has the skills necessary for safe operation of the equipment, including
the following:
(i) Ability to recognize, from visual and auditory observation, the
items listed in Sec. 1926.1412(d) (shift inspection).
(ii) Operational and maneuvering skills.
(iii) Application of load chart information.
(iv) Application of safe shut-down and securing procedures.
(k) Effective dates. (1) Apart from the evaluation and
documentation requirements in paragraphs (a) and (f), this section is
effective on December 10, 2018.
(2) The evaluation and documentation requirements in paragraphs (a)
and (f) are effective on February 7, 2019.
0
3. Amend Sec. 1926.1430 by:
0
a. Revising paragraphs (c)(1) and (2);
0
b. Removing paragraph (c)(3); and
0
c. Redesignating paragraph (c)(4) as paragraph (c)(3).
The revisions read as follows:
Sec. 1926.1430 Training.
* * * * *
(c) * * *
(1) The employer must train each operator in accordance with Sec.
1926.1427(a) and (b), on the safe operation of the equipment the
operator will be using.
(2). The employer must train each operator covered under the
exception of Sec. 1926.1427(a)(2) on the safe operation of the
equipment the operator will be using.
* * * * *
[FR Doc. 2018-24481 Filed 11-7-18; 4:15 pm]
BILLING CODE 4510-26-P