[Federal Register Volume 79, Number 187 (Friday, September 26, 2014)][Rules and Regulations]
[Pages 57785-57798]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22816]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID-OSHA-2007-0066]
RIN 1218-AC86
Cranes and Derricks in Construction: Operator Certification
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is extending its November 10, 2014, deadline for
employers to ensure that crane operators are certified by three years,
until November 10, 2017. OSHA is also extending its employer duty to
ensure that crane operators are competent to operate a crane safely for
the same three-year period.
DATES: This final rule will become effective November 9, 2014.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency
designates Ann Rosenthal, 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.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
1999; email: Meilinger.Francis2@dol.gov.
Technical inquiries: Mr. Vernon Preston, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-2020; fax: (202) 693-1689;
email: Preston.Vernon@dol.gov.
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:
I. Background
A. Introduction
OSHA is publishing this final rule to extend for three years the
employer duty to ensure crane operator competency for construction
work, from November 10, 2014, to November 10, 2017. OSHA also is
extending the enforcement date for crane operator certification for
three years from November 10, 2014, to November 10, 2017. After
publishing the final rule for cranes and derricks in construction,
several entities informed OSHA that crane operator certification was
insufficient for determining whether an operator could operate their
equipment safely on a construction site. After hosting several public
meetings addressing this issue, OSHA decided the extension is necessary
in order to allow the Agency to examine and determine how to address
this issue systematically.
B. Summary of Economic Impact
This final rule is not economically significant. OSHA is revising
29 CFR 1926.1427(k) (competency assessment and training) to extend the
deadline for compliance with the operator-certification requirement in
its construction standard for cranes and derricks for three years, and
to extend the existing employer duties for the same period. OSHA's
final economic analysis shows that extending the date for operator
certification and employers' assessment of crane operators, rather than
following the current rule, will result in a net cost savings for the
affected industries. Extending the compliance date for operator
certification results in estimated cost savings that exceed the
estimated new costs for employers to continue to assess crane operators
to ensure their competent operation of the equipment in accordance with
1926.1427(k). The detailed final economic analysis is in the "Agency
Determinations" section of this preamble.
C. Regulatory Background
1. Operator Certification Options
On August 9, 2010, OSHA published the final rule for cranes and
derricks in construction (29 CFR subpart CC, referred to as "the
cranes standard" hereafter) (75 FR 47905). OSHA developed the cranes
standard through a negotiated rulemaking process. The Agency
established a Federal advisory committee, the Cranes and Derricks
Negotiated Rulemaking Advisory Committee (C-DAC), to develop a draft
proposed rule. C-DAC met in 2003 and 2004 and developed a draft
proposed rule that it provided to OSHA. The rule that OSHA subsequently
proposed closely followed C-DAC's draft proposal (73 FR 59718).
The Agency initiated a Small Business Advocacy Review Panel in
2006. The Agency published the proposed rule for cranes in construction
in 2008, received public comment on the proposal, and conducted a
public hearing. OSHA's final rule incorporated, with minor changes, the
four-option scheme C-DAC recommended and the Agency proposed.
Accordingly, in Sec. 1926.1427, OSHA requires employers to ensure that
their crane operators are certified under at least one of four options
by November 10, 2014. The four options are:
Option 1. Certification by an independent testing organization
accredited by a nationally recognized accrediting organization;
Option 2. Qualification by an employer's independently audited
program;
Option 3. Qualification by the U.S. military; or
Option 4. Compliance with qualifying state or local licensing
requirements.
The third-party certification option in Sec. 1926.1427(b)--Option
1--is the only certification option that is "portable," meaning that
any employer who employs an operator may rely on that operator's
certification as evidence of compliance with the cranes standard's
operator certification requirement. This certification option also is
the only one that is available to all employers; it is the option that
OSHA, and the parties that participated in the rulemaking, believed
would be the one most widely used. In this regard, OSHA is not aware of
an audited employer qualification program among construction industry
employers (Option 2), and the cranes standard limits the U.S. military
crane operator certification programs (Option 3) to Federal employees
of the Department of Defense or the armed services. While state and
local governments certify some crane operators (Option 4), the vast
majority of operators who become certified do so through Option 1--by
third-party testing organizations accredited by a nationally recognized
accrediting organization.
Under Option 1, a third party performs testing. Before a testing
organization can issue operator certifications, paragraph 1427(b)(1) of
the cranes standard provides that a nationally recognized accrediting
organization must accredit the testing organizations. To accredit a
testing organization, the accrediting agency must determine that the
testing organization meets industry-recognized criteria for written
testing materials, practical examinations, test administration,
grading, facilities and equipment, and personnel. The testing
organization must administer written and practical tests that:
Assess the operator's knowledge and skills regarding
subjects specified in the cranes standard;
provide different levels of certification based on
equipment capacity and type;
have procedures to retest applicants who fail; and
have testing procedures for recertification.
Paragraph 1427(b)(2) of the cranes standard also specifies that,
for the purposes of compliance with the cranes standard, an operator is
deemed qualified to operate a particular piece of equipment only if the
operator is certified for that type and capacity of equipment or for
higher-capacity equipment of that type. It further provides that, if no
testing organization offers certification examinations for a particular
equipment type and/or capacity, the operator is deemed qualified to
operate that equipment if the operator is certified for the type/
capacity of equipment that is most similar to that equipment, and for
which a certification examination is available.
2. Overview of Sec. 1926.1427(k) (Phase-In Provision)
The final cranes standard replaced provisions in 29 CFR 1926
subpart N--Cranes, Derricks, Hoists, Elevators, and Conveyors, of the
construction safety standards. Provisions for employers to ensure that
operators of equipment, including cranes, are trained and qualified to
safely operate that equipment are available elsewhere in the
construction safety standards (see, for example, Sec. 1926.20(b)(4)
and (f)(2)).
OSHA delayed the effective date of the operator certification
requirement for four years, until November 10, 2014 (see Sec.
1926.1427(k)(1)). The Agency also wanted to ensure the final cranes
standard maintained an employer duty during that four-year "phase-in"
period to ensure that crane operators could safely operate equipment
(see Sec. 1926.1727(k), Phase-in). Thus, pursuant to Sec.
1926.1427(k)(2)(i), OSHA required employers to "ensure that operators
of equipment covered by this
standard are competent to operate the equipment safely." Under Sec.
1926.1427(k)(2)(ii), employers must train and evaluate the operator
when the operator "assigned to operate machinery does not have the
required knowledge or ability to operate the equipment safely."
3. Post-Final Rule Developments
After OSHA issued the cranes standard, it continued to receive
feedback from members of the regulated community and conducted
stakeholder meetings on April 2 and 3, 2013, to give interested members
of the public the opportunity to express their views. Participants
included construction contractors, labor unions, crane manufacturers,
crane rental companies, accredited testing organizations, one of the
accrediting bodies, insurance companies, crane operator trainers, and
military employers. Detailed notes of participants' comments are
available at http://www.osha.gov/cranes-derricks/stakeholders.html and
OSHA-2013-0024-0001. Various parties informed OSHA that, in their
opinion, the operator certification option would not adequately ensure
that crane operators could operate their equipment safely at a
construction site. They said that a certified operator would need
additional training, experience, and evaluation, beyond the training
and evaluation required to obtain certification, to ensure that he or
she could operate a crane safely.
OSHA also received information that two (of a total of four)
accredited testing organizations have been issuing certifications only
by "type" of crane, rather than offering different certifications by
"type and capacity" of crane, as the cranes standard requires. The
two organizations later confirmed this (Tr. p. 109 and 246). As a
result, those certifications do not meet the standard's requirements
and operators who obtained certifications only from those organizations
cannot, under OSHA's cranes standard, operate cranes on construction
sites after November 10, 2014. Some stakeholders in the crane industry
requested that OSHA remove the capacity requirement.
Most of the participants in the stakeholder meetings expressed the
opinion that an operator's certification by an accredited testing
organization did not mean that the operator was fully competent or
experienced to operate a crane safely on a construction work site. The
participants likened operator certification to a new driver's license,
or a beginner's permit, to drive a car. Most participants said that the
operator's employer should retain the responsibility to ensure that the
operator was qualified for the particular crane work assigned. Some
participants wanted certification to be, or viewed to be, sufficient to
operate a crane safely. Stakeholders noted that operator certification
was beneficial in establishing a minimum threshold of operator
knowledge and familiarity with cranes.
D. The Proposed Extension of the Operator Certification and Employer
Assessment Duties
The effective dates of the operator certification requirement and
the other "phase-in" employer duties are in 29 CFR 1926.1427(k)(1).
By a notice of proposed rulemaking (NPRM) published February 10, 2014
(79 FR 7611), OSHA proposed to revise Sec. 1926.1427(k)(1) to extend
the deadline for operator certification by three years from November
10, 2014, to November 10, 2017, to provide additional time for the
Agency to consider potential rulemaking options in light of the
information it had gathered since it issued the cranes standard. The
Agency also proposed to extend the current employer duties in Sec.
1926.1427(k)(2)(i) and (ii) to ensure that there is no reduction in
worker protection during this three-year period. OSHA noted that when
it included these employer duties in the final cranes standard in 2010,
these duties were to be a "phase in" to certification (75 FR 48027).
By extending the date as proposed, the requirements would continue to
serve that purpose and preserve the status quo.
OSHA asked for comment on the proposal, and it specifically asked
for comment on whether the extension of time should be for an
indefinite period rather than for three years as proposed. OSHA
received 66 comments in response to the NPRM, one requesting a hearing
to further discuss the rulemaking. On May 19, 2014, OSHA held an
informal public hearing on the rulemaking. OSHA also received 6
additional comments during the post-hearing comment period, which
closed June 18, 2014.
II. Summary and Explanation of the Rule
Commenters in their written remarks and oral testimony focused on
three issues arising from the Agency's proposed changes: (1) Whether to
extend the date for crane operators to be certified (commenters
indicated that the third-party certification option is the only one
being used); (2) whether to extend the employer duty to ensure crane
operators are competent and safe; and (3) the length of time of an
extension (if any). This section examines these issues--in the order
above--by first summarizing the comments and then explaining the
Agency's decisions and determinations based on the record as a whole.
A. Extension of Operator Certification Deadline
Many commenters supported the Agency's proposed extension of the
date for crane operators to have certification in their written
comments [ID 0448, 0458-61, 0462, 0464, 0466, 0469, 0471, 0476-9, 0481-
3, 0485-8, 0490-4, and 0497], in oral testimony [Tr. pp. 22, 100, 119,
212, 222], and in post-hearing written comments [ID-0531, 0533].\1\
Their reasons for supporting the three-year extension were several. The
most frequently mentioned reason was that while operator certification
offered safety benefits, most current certifications lack the required
capacity factor and would therefore not comply with the final cranes
standard. The commenters concluded that the industry's confusion about
the validity of current certifications and the difficulty, or even
impossibility, of most construction crane operators getting a valid
certification by November, 2014, warrants an extension of the operator
certification deadline so that OSHA has additional time to remove the
capacity requirement from the rule. The Associated Builders and
Contractors, Inc. stated:
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\1\ Exhibits are posted on http://regulations.gov and are
accessible at OSHA's Docket Office, U.S. Department of Labor, 200
Constitution Avenue NW., Room N2625, Washington, DC 20210; telephone
(202) 693-2350. (OSHA's TTY number is (877) 889-5627.) OSHA Docket
Office hours of operation are 8:15 a.m. to 4:45 p.m., E.T.
Throughout this document, exhibit numbers from the OSHA-2007-
0066 docket are referred to in the form "ID-XXXX" where XXXX are
the last four digits of the full document ID number on http://regulations.gov.
The document ID number for exhibits from other
dockets will be listed completely.
Comments from the May 19, 2014, informal public hearing
transcript will be designated by "Tr. p..". The document
ID number for the transcript is OSHA-2007-0066-0521.
Without an extension . . . the construction industry will face a
crane operator shortage in the coming years, as there will not be
enough time for . . . employers to certify their operators in time.
For the industry to continue performing work without disruption, it
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is crucial for an extension to be granted. [Tr. pp. 174-175].
The general manager of a large crane rental company stated that
"[i]t is imperative for the good of the industry & the safety of those
men & women working in construction that we get the correct language &
understanding of
what the certification should actually encompass" [ID-0456]. Another
commenter stated: "I support waiting until a realistic, workable
solution can be agreed upon because to launch this version of an un-
workable, unrealistic requirement due to a deadline is much worse than
waiting long enough to get it right. We all have to live with it for
years to come" [ID-0466]. Another added "[a]lthough the delay in
crane operator certification requirements is not ideal, it is
preferrable [sic] to having the wrong solutions made into law." [ID-
0467].
Other commenters supported an extension of the certification
deadline even if OSHA did not ultimately change the substantive
requirements in the standard. One stated that the extension makes
"good sense" because "[t]here are thousands of operators nationwide
in the positions that will need to be certified once this rule goes
into effect, but have for one reason of [sic] another had difficulty
getting their certification completed. . . ." [ID-0460]. Another
commenter also supported the extension on the grounds that the limited
availability of certification opportunities in languages other than
English remains a barrier for otherwise qualified operators to pass the
certification test, noting that at least one of the certification
organizations, the National Commission for the Certification of
Operators (NCCCO), was experimenting with a pilot program that might
make the certification available to more potential operators if OSHA
delayed the certification date [ID-0452]. NCCCO acknowledged that it is
conducting a pilot program, but suggested that there might not be a
high a demand for the program [Tr. pp. 111-112].
The commenter who had requested the hearing initially opposed any
extension, but then changed its position at the public hearing to
support a limited extension [ID-0495, Tr. p. 58]. In its prehearing
comment, the Crane Institute Certification (CIC) argued against any
extension because requiring crane operator certification sooner would
provide greater construction safety as certification results in better
trained and tested operators [ID-0495]. CIC pointed to the safety
benefits OSHA identified in support of the 2010 cranes standard and
concluded that the Agency's proposal to delay the deadline for all
construction crane operators to be certified would result in greater
risk on construction sites using cranes, more accidents, and therefore
more injuries and fatalities to construction employees.\2\ At the
hearing, however, CIC supported a limited extension, acknowledging that
"a delay of crane operator certification is necessary in order to
allow OSHA time to address the clarification of employer
responsibility" [Tr. p. 58]. Other hearing participants who did not
submit comments to the NPRM agreed with CIC's new position [Tr. pp. 85,
184-85, 201-202, 262].
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\2\ Contrary to the assertions by several commenters [ID-0433,
0444, 0453, 0473, 0489, 0495], OSHA did not identify individual
components of the standard, but rather calculated the benefits of
the entire cranes standard as a whole. OSHA did not separately
itemize benefits accruing from the operator certification
requirements.
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The remaining group of commenters submitted pre-hearing comments
suggesting that OSHA not extend the operator certification deadline,
but did not participate in the public hearing [ID-0433; -0435; -0439-
42; -0444; -0446; -0450; -0451; -0453; -0473; -0489]. They cited the
safety benefits of the cranes standard--incorrectly attributing all
safety benefits of the cranes standard solely to operator
certification--and stated that a three-year delay is unnecessary
because certification bodies, employers, and crane operators have had
four years to prepare for the operator certification requirements to
become effective. Several of these objections appeared to be based on
arguments that the delay would cause economic inequity for some
employers or certification companies [ID-0441; -0442; -0444; -0446] or
that the delay would necessarily leave a regulatory gap during which
operators would not be subject to any scrutiny [ID-0473, 0489].
One commenter in this group stated that "[m]any current crane
operators have a complete lack of knowledge of how to set up, use, and
inspect a crane. . . . If not for certification, this would continue"
[ID-0440]. Another commenter in this group objected on the grounds that
the extension will allow employers to go "another" three years
"without training and qualifying their crane operators" [ID-0435]. It
appears from these statements that the commenters did not understand
that existing Sec. 1926.1427(k)(2), which OSHA proposed to stay in
effect for the entire three-year extension, requires employers to
assess their crane operators and re-train them as necessary.
Three commenters apparently equated the certification requirement
with a training requirement [ID-0435, -0439; -0451]. One was opposed to
the extension because construction work requires "completely trained
operators" [ID-0439] and another explained that "people die at
construction sites daily because of Crane accidents which probably
could have been prevented with proper training" [ID-0451]. However,
the certification requirements that OSHA proposed to delay by this
rulemaking, appearing in Sec. 1926.1427(a)(2) and (f), do not include
any specific training requirement. The training provisions are located
elsewhere and are not changed by an extension of the operator
certification deadline. OSHA proposed to extend the re-training
requirement in Sec. 1926.1427(k), which was set to expire in November.
A number of commenters addressed in their written comments the
issue of certification by "type and capacity" of the crane. However,
resolving that issue is outside the scope of this rulemaking, which
only addresses whether to extend the deadlines of operator
certification and the existing employer duty. As the Agency previously
made clear in the notice of proposed rulemaking, it will consider the
issue of type and capacity and the role of operator certification as it
determines whether to engage in additional rulemaking during the three-
year extension and will not alter the requirements about the nature of
certification required in this rulemaking.
B. Extension of the Existing Employer Duty
Commenters were nearly unanimous in supporting an extension of the
existing employer duty to ensure that their operators are competent to
operate cranes: All but one of the comments addressing the extension of
that duty supported it. The commenter who did not offer support
indicated that he did not have any opinion about the issue, but noted
his understanding that "the employer needs to verify an individual's
abilities" [Tr. p. 273]. The International Union of Operating
Engineers (IUOE) provided an extensive Power Point presentation
highlighting the different skills operators must have, only some of
which are tested during operator certification examinations, and the
additional challenges operators may face [ID-0527]. IUOE asserted that
it is crucial that employers continue to ensure that their operators
are capable of meeting these challenges:
An extension of the enforcement date for certification without
continuation of employer duties would endanger the safety and health
of operators and those employees working in the vicinity of crane
operators. OSHA would have no standard for employer assessment of
compliance if the k(2)(i) and (ii) are not extended. . . . Crane
operators would be in a far worse position than they
were before issuance of the final rule in August 2010 if employer
duties in k(2)(i) and (ii) are not extended. . . . [ID-0486]
William Smith of Nations Builders Insurance Services and NCCCO
board member agreed, commenting that "[l]eaving the rule as written
[with certification but without a continued employer duty after
November, 2014] would take us back in time not forward in protecting
lives" [ID-0474]. The Specialty Crane & Rigging Association stated
that "It is the employer's responsibility to ensure their operators
are certified and qualified for any specific crane they will operate"
in supporting the extension of time for both provisions [ID-0493].
Testimony during the public hearing on May 19, 2014 also supported
continuing the employer duty to qualify crane operators [Tr. pp. 29,
134, 217]. The IUOE stated:
The one thing we wanted to be very clear on is that if you extend
the date of enforcement for certification, that without extending
the other [employer duty], there would be essentially nothing there,
and there would be no protection at all, except for the people's
voluntary compliance with certification. But that would be,
obviously, inadequate. [Tr. p. 250]
Larry Hopkins of the Operating Engineers Certification Program
added that "it's absolutely imperative that we put the onus of
qualification on a particular employer" [Tr. p. 217]. A commenter
employed in the crane rental industry for 35 years stated that he would
never let an operator control a crane just because he or she has
received a third-party certification; rather, an operator would have to
demonstrate competence on various cranes to the employer [ID-0456]. Boh
Bros. Construction Co. commented that "a certification is only an
indication of basic skills. . . . Certification is good, but does not
equal qualification" [ID-0464]. These comments to the proposal echo
the information the Agency heard at its stakeholder meetings in April,
2013 [OSHA-2013-0024-0001]. While not prejudging the issue of whether
employers should still have a duty to assess operators even once a
certification requirement takes effect (a subject the Agency will
consider during this extension), OSHA notes that these comments also
support a requirement that the employer duty be maintained before the
certification requirement takes effect.
C. Conclusions Regarding Whether the Extensions Are Appropriate
OSHA finds that the stakeholder concerns surrounding operator
certification and employer assessment and training warrant a more
thorough examination, and OSHA will consider whether to commence a new
rulemaking proceeding to make changes to the operator qualification
requirements in Sec. 1926.1427. By this final rule, OSHA is extending
the operator certification deadline to allow the Agency time to make
this decision and complete a subsequent rulemaking if necessary. OSHA
acknowledges the equity concerns raised by businesses and employers who
have invested in certification with the expectation of a 2014 deadline
[See ID-0441; -0442; -0444; -0446], but notes that the extension will
not affect other benefits of certification such as access to restricted
employment opportunities [Tr. pp. 149-150] and insurance discounts [Tr.
p. 151]. Moreover, OSHA recognizes that it would generate confusion and
general disregard for the standard if OSHA began to enforce compliance
with the November 2014 deadline at the same time it announced that it
was considering changes to the standard. Those concerns would be
compounded if OSHA did subsequently change the standard a year or two
later so that operators who had just completed the certification
process were required to re-certify. OSHA concludes that it is
preferable to extend the certification deadline rather than to require
employers to devote additional resources to comply with requirements as
OSHA considers changing them.
In addition, OSHA has concluded that extending the employer duties
in Sec. 1926.1472(k)(2) during the certification extension is
necessary to ensure there is no reduction in worker protection. While
OSHA is not now determining whether it should retain or alter the
existing employer duties through a permanent change to the cranes
standard, the record provides support for a temporary requirement for
employer assessment and training to help ensure that crane operators
know how to operate their crane safely [See, e.g., ID-0474, -0486, -
0493, Tr. pp. 29, 134, 217, 250].\3\ Without an extension of the
employer duty, the standard would have no requirement to ensure that
crane operators knew how to operate the crane safely during the
operator certification extension.\4\ Therefore it is important that the
Agency extend the employer duty while it considers rulemaking options.
The Agency concludes that it would be inappropriate to disturb the
status quo until it completes that examination and has the necessary
information to determine whether changes are needed.
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\3\ Several commenters suggested that OSHA should, as part of
this rulemaking, make permanent the existing employer duties [ID-
0495, 0522; Tr. pp. 59-60, 88-89, 185, 208, 262]. OSHA had not
proposed to do so in the NPRM; rather, the point of the instant
rulemaking is to give the Agency the time it needs to consider
whether to do so.
\4\ A commenter suggested in its pre-hearing comment that OSHA
could simply remove the employer's existing duty to assess operators
and retrain them as necessary, and instead rely on the "general
duty clause" in section 5(a)(1) of the OSH Act to enforce those
responsibilities [ID-0495]. OSHA decided against this approach
because it would give employers less certainty about the specifics
of its duty to ensure their crane operators know how to operator
cranes safely, and because it would make it more difficult for OSHA
to enforce such a duty due to the nature of the Agency's burden of
proof. Moreover, a court might find the cranes standard precludes
such a general duty case even if OSHA removed the employee training
requirement.
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As discussed above, other commenters supported the extension
because they thought stakeholders needed more time to complete
certification [e.g., ID-0460]. OSHA does not find these arguments
convincing. While OSHA rejects the argument that intentional lack of
compliance with an existing requirement in a standard is by itself
grounds for OSHA to delay a compliance date, it is adopting an
extension to consider the potential safety consequences of allowing the
existing employer duty to expire or the new concerns expressed after
the 2010 cranes rulemaking that some of the existing operator
certification requirements might be unnecessary and costly.
D. Length of the Extensions
Having determined that it is appropriate to extend both the
certification deadline and the employer duty to ensure operator
competence, the remaining issue is the length of the extensions. In the
NPRM, OSHA proposed extending the operator certification deadline and
the existing employer duty for three years, until November 10, 2017. As
an alternative, the Advisory Committee on Construction Safety and
Health (ACCSH) recommended an indefinite extension of the operator
certification deadline and the existing employer duty pending further
rulemaking on the issue [OSHA 2013-0006-0024]. OSHA requested comment
on both the three-year extension and ACCSH's recommendation of an
indefinite extension, and invited comment on alternative periods.
One group of commenters proposed an extension of just one year,
others supported the proposed three-year extension, one commenter
suggested a five-year extension, and three commenters indicated their
support for
the indefinite extension suggested by ACCSH.
The commenters supporting the one-year extension generally urged
OSHA to act quickly so as not to unnecessarily delay the safety
benefits that could be achieved by completion of the final crane
rulemaking [Tr. pp. 58-60, 183-184, 206-207, 264-266]. In addition, the
Crane Institute of America called for clarity as soon as possible,
warning that "[u]ncertainty over what the requirements of the rule
will finally be will retard employer participation in getting operators
certified" [ID-0489].
At the informal public hearing, CIC suggested a one-year extension
of the operator certification deadline and the existing employer duty
as "sufficient time to allow OSHA to make this change to the
regulation and to the industry to recover and resume pursuit of
accredited operator certification" [Tr. p. 60]. CIC stated that the
Agency's announcement at the May 2013 ACCSH meeting that the Agency
intended to propose a delay of the crane operator certification
deadline resulted in a decline both in training and certification
activity that had resulted in a year of confusion in the industry"
[Tr. p. 66]. Industrial Training International, a training provider,
referred to the period of lower activity as "the year we've lost"
[Tr. p. 209].
CIC suggested that OSHA could complete the rulemaking process in
one year if it "fast tracked" the rulemaking, citing OSHA's
activities with respect to diacetyl as an example of this process and
of how quickly OSHA can act to address a safety and health concern [Tr.
p. 60-62]. Other hearing participants (Crane Training Group, Caldwell
Tanks, Industrial Training International, and Crane Industry Services)
supported this proposition, and suggested that OSHA could meet this
deadline because it has the capacity to "fast track" rulemaking [Tr.
pp. 82, 185, 201, 262].
OSHA has concluded that it could not complete the necessary tasks
in the one year period proposed by CIC, particularly if the Agency does
decide to proceed with a second rulemaking and would need to consider
and implement all possible rulemaking options. The commenters who
suggested OSHA "fast track" rulemaking as the Agency did with the
diacetyl rulemaking appear to have been misinformed: OSHA did not
complete a rulemaking on diacetyl in one year; indeed the Agency has
not yet published an NPRM on this issue. OSHA is not certain what the
commenters' intended by their reference to a "fast track" rulemaking
process.
In response to the NPRM, OSHA received many comments supporting the
three-year extension of the operator certification deadline and the
employer duty [ID-0434, 0449, 0452, 0454-62, 0464, 0466-69, 0472, 0474,
0475-79, 0481, 0482-88, 0490, 0491, 0493, 0496-98; Tr. pp. 22, 22, 100,
119, 210-211, 222]. In the NPRM, OSHA stated that it considered a
three-year extension "to give it sufficient time to complete a
rulemaking should it choose to do so" [79 FR 7613]. Even if the Agency
chose to conduct a subsequent rulemaking, OSHA explained that three
years would be enough time because "this issue is critical to
construction safety" and "a subsequent rulemaking would focus on a
limited number of discrete issues" [79 FR 7613]. OSHA also notes that
several participants in the public hearing, including some of the
commenters advocating the one-year extension, cautioned OSHA against
setting a deadline that it is not certain it can achieve [Tr. pp. 139,
196-197, 208, 272]. Industrial Training International explained, "when
the target is constantly moving, we never hit it" [Tr. p. 208].
Specialized Carriers & Riggers Association added "OSHA knows how long
it's going to take, and we would say give yourself adequate time. Don't
limit yourself to a year and then have us all back in the room again
next year requesting an extension again" [Tr. p. 139].
A few commenters urged the Agency to delay the operator
certification deadline, and extend the existing employer duty, for a
longer period such as five years, or to follow the ACCSH's
recommendation that the Agency extend both indefinitely until OSHA
completes a new rulemaking on operator certification [see ID-0447; -
0471; -0480; -0492; -0494; -0530]. These commenters asserted that three
years would be insufficient to complete an additional rulemaking.
NAHB asked OSHA to extend the operator certification deadline and
the existing employer duty requirements indefinitely or "at a minimum
five years to allow the Agency sufficient time to implement an improved
rule" [ID-0480]. Subsequently at the informal public hearing, NAHB
explained that it took more than five years to finalize the cranes
standard, and acknowledged that its five-year recommendation was
somewhat arbitrary because the organization ultimately "split the
difference" between an indefinite extension and a three year extension
[Tr. p. 53]. It made clear that the underlying purpose of the request
for a longer extension was to conduct an extra round of small-business
review of the third-party certification requirement, which it continues
to oppose, "because we believe that the small businesses really need a
second bite at this apple" [Tr. p. 44]. A different commenter opposed
this "second bite at the apple," suggesting the OSHA should not delay
the safety benefits of the rulemaking to consider exemptions that had
already been considered and rejected [ID-0539].
OSHA need not resolve this issue for the purposes of this
rulemaking, but notes that the scope of the issues it will consider for
subsequent rulemaking will be much narrower than the 2010 cranes
standard. In that regard, these two rulemakings are not comparable for
purposes of determining how long they will take. While five years would
give the Agency more time to consider and undertake any rulemaking
options, the Agency must balance the rationale for this additional
extension against the concerns raised by the other commenters who point
out that any unnecessary delay in the operator certification
requirement could prevent the Agency from obtaining the full safety
benefit of the cranes standard.
As explained in the NPRM, the purpose of the extension is to
provide additional time for the Agency to consider its rulemaking
options. Should it choose to complete a new rulemaking, the Agency is
confident that it can do so within the three-year extension period.
OSHA therefore is not convinced that a five-year extension would
provide any real benefit; instead, it is likely to constitute an
unnecessary delay subject to all of the concerns raised by commenters
who requested a shorter period. A three-year extension, rather than a
five-year extension, provides a better balance between achieving the
full safety benefits of the rule and demonstrating to the industry that
addressing this issue is a priority.
OSHA is likewise not persuaded that an indefinite extension would
be useful. Several commenters emphasized the need for the Agency to
find a solution as soon as possible [Tr. pp. 70, 251], and one
commenter opposed an indefinite extension on the grounds that it would
remove the motivation necessary for OSHA to complete a subsequent
rulemaking quickly [Tr. p. 259]. Moreover, one commenter [ID-0486]
asserted that an indefinite extension would foster complacency among
the regulated community, some of whom may erroneously assume that
operator certification is not important. The Agency agrees with these
comments. Further, one commenter who suggested that extending the
operator certification deadline indefinitely would "alleviate
confusion regarding the current compliance deadline" [Tr. p. 177].
OSHA disagrees. Failing to specify a compliance deadline for operator
certification is likely to result in greater, not less, confusion.
In addition, if OSHA does not designate a fixed period after which
the certification requirements would automatically take effect, the
Agency may face additional legal challenges to reinstating them.
Although a temporary extension is not a reversal of the Agency's
position requiring operator certification, some courts have suggested
that indefinitely postponing a rule's effective date might be
tantamount to repealing a rule. See, e.g., Pub. Citizen v. Steed, 733
F.2d 93, 98 (D.C. Cir. 1984). The Agency has already dedicated a
significant amount of time and resources to implementing the existing
standard, including conducting an extensive negotiated rulemaking
process before requiring that employers ensure their crane operators
are certified. The Agency therefore finds it prudent to avoid any risk
of being forced to proceed as if it had revoked the requirement, which
could mean additional expense for the agency and additional delay in
finalizing any subsequent rulemaking. See, e.g., N. Carolina Growers'
Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 765 (4th Cir. 2012).
OSHA concludes that a three-year extension of the operator
certification deadline and the existing employer duty is the
appropriate amount of time to consider what regulatory approach OSHA
should take regarding operator qualification. Three years is also
enough time to make any potential regulatory changes the Agency
ultimately determines are appropriate. In response to the commenters
who urged OSHA to act as quickly as possible and expressed concern that
the 3-year delay might be unnecessary, OSHA notes that it is not
constrained to using the entire three years to take action on this
issue if the Agency can act sooner. OSHA will address the issue of
operator qualification as quickly as it can, meaning that the Agency
could determine the appropriate regulatory action, if any, and
implement it in less than three years. In that case, the Agency could
impose an earlier deadline through separate rulemaking.
Therefore OSHA has decided to extend the operator certification
deadline for three years, until November 10, 2017, and to extend the
employer duty to ensure that crane operators are competent to operate a
crane safely for the same three-year period, as it proposed. The Agency
received no comment on the text of its proposed revision to Sec.
1926.1427(k), and the final rule adopts the provision as proposed.
In the notice of proposed rulemaking, OSHA also noted that a
parallel training requirement in Sec. 1926.1430(c)(2) reiterates the
training requirement in paragraph 1427(k)(2), specifying that the
training occur during the four-year transition period. OSHA
preliminarily determined that it did not need to amend Sec. 1430(c)(2)
because it believed that amending Sec. 1427(k)(2) was sufficient to
extend the relevant employer training duty for employers. OSHA asked
for comment on this issue, and received none. The Agency continues to
believe that no amendment of Sec. 1430(c)(2) is necessary, and
therefore it has not changed that provision in the final rule.
III. Agency Determinations
A. Final Economic Analysis and Regulatory Flexibility Analysis
When it issued the final cranes rule in 2010, OSHA prepared a final
economic analysis (FEA) as required by the Occupational Safety and
Health Act of 1970 (OSH Act; 29 U.S.C. 651 et seq.) and Executive
Orders 12866 (58 FR 51735) (Sept. 30, 1993) and 13563 (76 FR 3821 (Jan.
21, 2011)). OSHA also published a Final Regulatory Flexibility Analysis
as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). The
preliminary economic analysis (PEA) for this rulemaking relied on some
estimates from those earlier documents, and this FEA is based on
estimates in the PEA along with public comments and testimony and other
documents in the rulemaking record.
Because OSHA estimates that this rule will have a cost savings for
employers of $21.4 million per year for the three years of the
extension, this final rule is not economically significant within the
meaning of Executive Order 12866, or a major rule under the Unfunded
Mandates Reform Act or Section 804 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). In addition,
this rule complies with Executive Order 13563.
This FEA focuses solely on costs, and not on any changes in safety
and benefits resulting from extending the certification deadline and
the employer duties under Sec. 1427(k)(2). OSHA previously provided
its assessment of the benefits of the cranes standard in the FEA of
that standard. As noted elsewhere in this preamble, the primary
rationale for proposing the extension is to provide additional time for
OSHA to consider the potential costs and benefits of possible
adjustments to the operator certification requirements in future
rulemaking.
Extending the employer's requirement to ensure an operator's
competency during this period means continuing measures in existence
since publishing the final crane standard in 2010. As OSHA stated in
the preamble to the 2010 final rule, the interim measures in paragraph
(k) "are not significantly different from requirements that were
effective under subpart N of this part at former Sec. 1926.550, Sec.
1926.20(b)(4) ('the employer shall permit only those employees
qualified by training or experience to operate equipment and
machinery'), and Sec. 1926.21(b)(2) ('the employer shall instruct each
employee in the recognition and avoidance of unsafe conditions . .
.')" (75 FR 48027).
Delaying the operator certification requirement defers a regulatory
requirement and should impose no new costs on employers. There will,
however, be continuing employer costs for extending the requirement to
assess operators under existing Sec. 1926.1427(k)(2); if OSHA had not
extended these requirements, they would have expired in 2014 and
employers would not have incurred these costs after 2014. With the
extension, these continuing employer costs will be offset by a
reduction in expenses that employers would otherwise incur to ensure
that their operators are certified before the existing November 2014
deadline.
Overview
In the following analysis, OSHA examined costs and savings to
determine the net economic effect of the rule. By comparing the
additional assessment costs to the certification cost savings across
two scenarios--a scenario in which there is no extension of the 2014
deadline, and a scenario in which there is an extension until 2017--
OSHA estimates that the extension will produce a net savings for
employers of $21.7 million per year, annualized over the 3-year period
of the extension using a 7% interest rate ($19.8 million per year using
an interest rate of 3%).\5\
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\5\ As explained in the following discussion, OSHA typically
calculates the present value of future costs and benefits using two
interest rate assumptions, 7% and 3%, as recommended by OMB Circular
A-4 of September 17, 2003.
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OSHA's analysis follows the steps below to reach its estimate of an
annual net $21.7 million in savings:
(1) Estimate the annual assessment costs for employers;
(2) Estimate the annual certification costs for employers; and
[[Page 57792]]
(3) Estimate the year-by-year cost differential for extending the
certification deadline to 2017.\6\
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\6\ For convenience, OSHA refers to the annual time period as a
"Certification Year" (CY) in this economic analysis, which OSHA
defines as beginning November 10 of the calendar year; e.g., CY 2013
runs from November 10, 2013, to November 9, 2014. There is some
small variation in both assessment and certification costs across
CYs due to changes in the composition of the operator pool resulting
from turnover (discussed below). In this regard, OSHA presents CY
2013 costs in full, and then presents the minor adjustments needed
for other CYs.
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Table 1 below summarizes these costs and the differentials.
a. Annual Assessment Costs
OSHA estimated the annual assessment costs using the following
three steps: First, determine the unit costs of meeting this
requirement; second, determine the number of assessments that employers
will need to perform in any given year (this determination includes
estimating the affected operator pool as a preliminary step); and
finally, multiply the unit costs of meeting the requirement by the
number of operators who must meet it in any given year to determine the
annual costs.
Unit assessment costs. OSHA's unit cost estimates for assessments
take into account the time needed for the assessment, along with the
wages of both the operator and the specialized operator assessor who
will perform the assessment. OSHA based the time requirements on crane
operator certification exams currently offered by nationally accredited
testing organizations. OSHA determined the time needed for various
certification tests from informal conversations with industry sources
who participated in the public stakeholder meetings.
The Agency estimates separate assessment costs for three types of
affected operators, which together include all affected operators:
those who have a certificate that is in compliance with the existing
cranes standard; those who have a certificate from a nationally
accredited testing organization that is not in compliance with the
existing cranes standard; and those who have no certificate.\7\ OSHA
uses certification status as a proxy of competence in estimating the
amount of assessment time needed for different operators. OSHA expects
that an operator already certified to operate equipment of a particular
type and capacity will require less assessment time than an operator
certified by type but not capacity, who in turn will require less time
than an operator who is not certified. In deriving these estimates,
OSHA determined that operators who have a certificate that is compliant
with the cranes standard would have to complete a test that is the
equivalent of the practical part of the standard crane operator
test.\8\ The Agency estimates that it would take an operator one hour
to complete this test. Operators who have a certificate that is not in
compliance with the cranes standard would have to complete a test that
is equivalent to both a written general test and a practical test of
the standard crane operator test. OSHA estimated that the written
general test would take 1.5 hours to complete, for a total test time of
2.5 hours of testing for each operator (1.5 hours for the written
general test and 1.0 hour for the practical test). Finally, operators
with no certificate would have to complete a test that is equivalent to
the written test on a specific crane type of the standard crane
operator test (also lasting 1.5 hours), as well as the written general
test and the practical test, for a total test time of 4.0 hours (1.5
hours for the test on a specific crane type, 1.5 hours for the written
general test, and 1.0 hour for the practical test).
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\7\ OSHA is not making any determination about whether a
specific certification complies with the requirements of the cranes
standard. For the purposes of this analysis only, OSHA will treat
certificates that do not include a multi-capacity component as not
complying with the cranes standard, and certificates that include
both a type and multi-capacity component as complying with the
cranes standard. For example, during the hearing, a participant
indicated that some certifying organizations offer a single
"unlimited capacity" certification (Tr. p. 246). In this analysis,
OSHA treats such certifications as not complying with the cranes
standard.
\8\ One commenter to the PEA objected that: "Costs associated
with 1 hour of additional practical testing for operators who are
compliant are not necessary" (OSHA-20007-0066-0495). But this
comment overlooks that this cost is for an employer to assess an
operator with compliant certification under the employer duty
clause. The hour taken is an estimate based on the time for a
practical test as being a reasonable proxy for this assessment.
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The wages used for the crane operator and assessor come from the
2010 final cranes rule (75 FR 48102). Accordingly, the operator wage is
$35.62, while the wage of the assessor is estimated to be the same as
the wage of a crane inspector, $41.25. For assessments performed by an
employer of a prospective employee (i.e., a candidate), OSHA used these
same operator and assessor wages and the above testing times to
estimate the cost of assessing prospective employees.
Multiplying the wages of operators, assessors, and candidates by
the time taken for each type of assessment provides the cost for each
type of assessment. Hence, the cost of assessing an operator already
holding a certificate that complies with the standard (both type and
capacity) is one hour of both the operator's and assessor's time:
$76.87 ($35.62 + $41.25). For an operator with a certificate for crane
type only (not crane capacity), the assessment time is 2.5 hours for a
cost of $192.18 (2.5 x ($35.62 + $41.25)). Finally, for an operator
with no certificate, the assessment time is 4.0 hours for a cost of
$307.48 (4.0 x ($35.62 + $41.25)). These estimates are identical to
those in the PEA, and commenters did not object to them except for the
one comment questioning the inclusion of the assessment costs for
operators with compliant certifications, discussed in the above
footnote.
Besides these assessment costs, OSHA notes that Sec.
1427(k)(2)(ii) requires employers to provide training to employees if
they are not already competent to operate their assigned equipment. To
determine whether an operator is competent, the employer must first
perform an assessment. Only if an operator fails the assessment will
the operator require training. However, in determining this cost, OSHA
made a distinction between a nonemployee candidate for an operator
position and an operator who is currently an employee. For an employer
assessing a nonemployee candidate, OSHA assumed, based on common
industry practice, that the employer will not hire a nonemployee
candidate who fails the assessment. In the second situation, an
employee qualified to operate a crane fails a type and/or capacity
assessment for a crane that differs from the crane the employee
currently operates. In this situation, the cost-minimizing action for
the employer is not to assign the employee to that type and/or capacity
crane, thereby avoiding training costs. While the Agency acknowledges
that there will be cases in which the employer will provide this
training, it believes these costs to be minimal and, therefore, is not
taking costs for the training. OSHA made the same determinations in the
PEA and did not receive public comment on them.
Number of assessments and number of affected operators. The number
of assessments is difficult to estimate due to the heterogeneity of the
crane industry. Many operators work continuously for the same employer,
already have their assessment, and do not need reassessment, so the
number of new assessments required by the cranes standard for these
operators will be zero. Some crane companies will rent both a crane and
an operator employed by the rental company to perform crane work, in
which case the rental crane company is the operator's employer and
responsible for operator assessment. In
such cases there is no requirement for the contractor who is renting
the crane service to conduct an additional operator assessment.
Assuming that employers already comply with the assessment and training
requirements of the existing Sec. 1427(k)(2), employers only need to
assess a subset of operators: New hires; employees who will operate
equipment that differs by type and/or capacity from the equipment on
which they received their current assessment; and operators who
indicate that they no longer possess the required knowledge or skill
necessary to operate the equipment.
To calculate the estimated annual number of assessments, OSHA first
estimated the current number of crane operators affected by the cranes
standard. The FEA in the final cranes standard identified a total of
142,630 affected crane operators (75 FR 48108). However, after
publishing the final cranes standard, OSHA made revisions to the cranes
standard that reduced the total number of affected operators. In this
regard, OSHA excluded a significant percentage of digger-derrick use
from the scope of the cranes standard (see Cranes and Derricks in
Construction: Revising the Exemption for Digger Derricks, 78 FR 32110
(May 29, 2013)). Accordingly, for electric power generation and
transmission work covered by the digger-derrick exemption, OSHA found
that the two industries using digger derricks have a total of 25,500
operators of digger derricks; these industries are: Electric Power
Generation, NAICS: 221110; and Electric Power Transmission, NAICS:
221120 (see 78 FR 32114). Subtracting these digger-derrick operators
from the original total leaves the total number of operators affected
by this proposal at 117,130 (i.e., 142,630 - 25,500).
For the purpose of determining the number of assessments required
each year under this proposal, OSHA is relying on the original 23%
turnover rate for operators identified in the 2008 PEA for the cranes
rule (73 FR 59895), which includes all types of operators who would
require assessment: operators moving between employers; operators
moving between different types and/or capacities of equipment; and
operators entering the occupation. OSHA estimated that 26,940
assessments occur each year based on turnover (i.e., 117,130 operators
x 0.23 turnover rate). This number includes assessments performed by an
employer on current employees assigned to a new type and/or capacity
crane. In addition, OSHA in the 2008 PEA assumed that 15% of operators
involved in assessments related to turnover would fail the first test
administration and need reassessment (73 FR 59895). Therefore, in the
PEA for the current rulemaking, OSHA added 4,041 reassessments (i.e.,
26,940 operators x 0.15) to the number of reassessments resulting from
turnover, for a total of 30,981 yearly assessments resulting from
turnover and test failure (i.e., 26,940 + 4,041) (79 FR 7615). OSHA did
not receive comment on this estimate, so it is unchanged in this FEA.
Annual assessment costs. Annual assessment costs will vary by year
depending on several factors; the following section addresses year-by-
year variations. However, OSHA must first determine the annual base
amount from which to account for the variations, and must do so for the
two scenarios: (1) Retaining the original 2014 deadline specified by
the existing cranes standard (status quo); and (2) extending the
deadline to 2017 (final rule).
The first part of the calculation is the same under both scenarios.
Because the annual assessment costs vary by the different levels of
assessment required (depending on the operator's existing level of
certification), OSHA grouped the 117,130 operators subject to the
cranes standard into three classifications: Operators with a
certificate that complies with the standard; operators with a
certificate only for crane type; and operators with no certification.
In the PEA, from discussions with members of the crane industry, OSHA
estimated that 15,000 crane operators currently have a certificate that
complies with the existing cranes standard, and another 60,000 have a
certificate for crane type only (but not capacity) (79 FR 7616).
Subsequent to the PEA, OSHA has received further information, both from
post-PEA public comments and statements made at the public hearing. One
certification organization, the National Commission for the
Certification of Crane Operators (NCCO), stated that OSHA's estimates
"significantly understate the number of crane operators considered by
OSHA to be out of compliance," and that "the number of compliant
certifications appears overstated" [ID-0488]. A different
certification organization, Crane Institute Certification (CIC),
reached the opposite conclusion, stating that the number of operators
with compliant certificates "is actually much higher" than OSHA's
estimate of 15,000 [ID-0495]. During the hearing NCCCO stated that
"65,000 or more" operators were currently certified under their
program [Tr. p. 94], which is by type only [Tr. p. 109]. The
International Union of Operating Engineers (IUOE) at the hearing stated
that currently it has "just a little over 6,700 operators" certified
under its associated OECP program, which does not break out
certification by capacity [Tr. p. 246]. OSHA invited each of these
three organizations to provide additional information in their post-
hearing submissions about the number of operators certified, but none
of the organizations provided additional information on this subject or
provided additional information challenging OSHA's underlying estimate
that the total number of operators covered by the cranes standard is
117,130.
Based on this record, OSHA estimates that there are 71,700 (65,000
+ 6,700) operators with certification for type only, while 15,000
operators have compliant certification.\9\ Therefore, 30,430 crane
operators have no crane certification (i.e., 117,130 total operators -
(15,000 operators with compliant certification + 71,700 operators with
certification for type only)).
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\9\ In light of the disagreement between the commenters about
the number of operators with compliant certifications, and no other
information in the record, the Agency elected to stay with the
original number of 15,000. As a sensitivity analysis check, OSHA
redid the analysis with both 10,000 and 20,000 operators with
compliant certification. This had a miniscule effect, changing the
$21.7m per year cost savings, at a 7% discount rate, by $53k per
year, either $53k higher (for 20,000 certified), or $53k lower (for
10,000 certified.) This is only 0.25% of a change.
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Assuming the turnover rate of 23% and the failure rate of 15% for
turnover-related assessments are distributed proportionally across the
three types of operators, then the number of assessments for operators
with compliant certification is 3,968 (i.e., (0.23 + (0.23 x 0.15)) x
15,000), the number of assessments for operators with type-only
certification is 18,965 (i.e., (0.23 + (0.23 x 0.15)) x 71,700), and
the number of assessments for operators with no certification is 8,049
(i.e., (0.23 + (0.23 x 0.15)) x 30,430). Under scenario 2 (employer-
assessment requirement extended to 2017), OSHA estimated the CY 2013
costs by multiplying the assessment numbers for each type of operator
by the unit costs, resulting in a cost of $6,424,338 (i.e., ($76.87 x
3,968) + ($192.18 x 18,965) + ($307.48 x 8,049)). Under scenario 1,
employers would be certifying operators throughout CY 2013, whereas
under scenario 2 employers would be deferring the certifications until
CY 2016; as a result, the CY 2013 assessment costs for scenario 1 would
decrease from $6,424,338 to $4,402,920 because a percentage of the
operators under scenario 1 will obtain a compliant certificate before
they are assessed,
thereby reducing the estimated time and cost needed for the assessment
(see discussion of year-by-year cost differential in section c below
for more details about this determination).
b. Annual Certification Costs
OSHA estimated the annual certification costs using the three steps
used for estimating annual assessment costs: First, determine the unit
costs of meeting this requirement; second, determine the number of
affected operators; and, finally, multiply the unit costs of meeting
the requirement by the number of operators who must meet them. In the
PEA, OSHA estimated that almost all certification will occur in the
year prior to the deadline, noting that although the November 2014
deadline was roughly a year away, the vast majority of operators had
not yet received certification that is in compliance with the existing
standard. None of the commenters disagreed. Based upon this evidence,
if OSHA extends the existing requirements to November 2017, OSHA
estimates that the vast majority of employers will again wait until the
year before the deadline (i.e., CY 2016) to certify all operators. As
in the annual assessment-cost analysis described above, OSHA provides
the calculations for CY 2013 under the original 2014 deadline (scenario
1), and then presents the certification costs for CY 2016 that would
apply if OSHA extends the certification requirement to November 2017
(scenario 2).
Unit certification costs. The unit certification costs are the same
as those proposed in the PEA. Unit certification costs vary across the
three different types of operators in the operator pool (operators with
compliant certification; operators with type-only certification; and
operators with no certification). Among operators without certification
there is a further distinction with different unit certification costs:
experienced operators without certification and operators who have only
limited experience. Therefore, there are different unit certification
costs for four different types of operators. There also are ongoing
certification costs due to the following three conditions: the five-
year limit on operator certification; the need for some certified
operators to obtain additional certification to operate a crane that
differs by type and/or capacity from the crane on which they received
their current certification; and a yearly 5% turnover rate (i.e., 5%
new crane operators entering the occupation to replace operators
leaving the occupation).
OSHA estimated these different unit certification costs using
substantially the same unit-cost assumptions used in the FEA for the
2010 cranes standard. In that FEA, 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 (i.e., $1,500 + (18
hours x $35.62)) (see 75 FR 48096-48097).\10\ OSHA continues to use a
cost of $250 for the tests taken without any training (a constant fixed
fee irrespective of the number of tests (75 FR 48096)), and the same
number of hours used for each test that it used in the assessment
calculations provided above (which the Agency based on certification
test times). Accordingly, OSHA estimated the cost of a certificate
compliant with the standard for an operator who has a type-only
certificate to be $339.05 (i.e., 1 type/capacity-specific written test
at 1.5 hours and 1 practical test at 1.0 hours (2.5 hours total), plus
the fixed $250 fee for the tests (i.e., (2.5 hours x $35.62) + $250)).
For an experienced operator with no certificate, the cost is $392.48
(i.e., the same as the cost for an operator with a type-only
certificate plus the cost of an added general written test of 1.5 hours
(i.e., (4.0 hours x $35.62) + $250).\11\
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\10\ One commenter in the instant rulemaking stated that the
operator certification costs taken in the 2010 FEA were understated,
but did not provide any support for an alternative. That commenter
mistakenly claimed without citation that OSHA, presumably in the
2010 FEA, "took into consideration that the cost to certify an
operator based on the programs available at the time would range
from $500 to $1600 depending on the test and the training required"
but "took the lowest cost" of $500 for its estimate [ID-0475]. In
fact, OSHA used $1,500 as the unit cost for operator certification,
both in the 2010 FEA and in the PEA for this rulemaking [75 FR
48097].
\11\ There are no certification costs for operators who already
have a certificate that complies with the cranes standard.
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For Scenario 1, Sec. 1926.1427(b)(4) specifies that a certificate
is valid for five years. OSHA estimates the recertification unit cost
would be the same as the assessment for an operator with compliant
certification (i.e., $76.87).
Finally, there will be certified operators who must obtain
certification when assigned to a crane that differs by type and/or
capacity from the crane on which they received their current
certification. This situation requires additional training, but less
training than required for a "new" operator with only limited
experience. Accordingly, OSHA estimated the cost for these operators as
one half of the cost of training and certifying a new operator, or
$1,070.58 (i.e., $2,141.16 / 2).
Number of certifications. After establishing the unit certification
costs, OSHA had to determine how many certifications are necessary to
ensure compliance with OSHA's standard. In doing so, the Agency uses
the 5% new-hire estimate from the FEA discussed above to calculate the
number of new operators; therefore, of the 117,130 operators affected
by the standard, 5,857 (i.e., 0.05 x 117,130) would be new operators
who would require two days for training and certification each year. As
discussed earlier, OSHA estimated that 71,700 operators have type-only
certification, and 15,000 operators have certification that complies
with the existing cranes standard. The remaining 24,574 operators
(i.e., 117,130 - (71,700 + 15,000 + 5,857)) are experienced operators
without certification.
After all operators attain certification by November 2017, there
will still be ongoing certification costs each year. OSHA estimated
that 5% of all operators each year, or 5,857 (i.e., .05 x 117,130), are
new operators with no experience or certification and, therefore, will
need an initial certification. Consequently, with a constant total
number of operators, the same number of operators (5,857) will be
leaving the profession each year and will not require recertification
when their current 5-year certification ends. This leaves 111,274
operators (i.e., 117,130 - 5,857) who will need such periodic
recertification. If we approximate the timing of requirements for
recertification as distributed proportionally across years, then 20% of
all operators with a 5-year certificate (i.e., 22,255 operators (.20 x
111,274)) would require recertification each year.
A final category of unit certification costs involves the
continuing need for certified operators to obtain further certification
when assigned to a crane that differs by type and/or capacity from the
crane on which they received their current certification. This
situation arises for both operators working for a single employer and
operators switching employers.
Two commenters pointed to the 2010 FEA and suggested that OSHA had
significantly underestimated the number of certifications that most
operators would need to obtain to operate cranes of different
capacities [ID-0475 and Tr. p. 142] These commenters do not appear to
be aware that under Sec. 1926.1427(b)(2), an operator need only obtain
a certification for the highest capacity of the type of crane that he
or she will operate; there
is no requirement to obtain separate certification for lower capacity
cranes of the same type. Moreover, the 23% turnover rate (originally
from the 2008 cranes PEA) used in this FEA covers not only the pre-
deadline situations in which an operator needs an assessment, but also
situations in the post-deadline period in which an operator needs
multiple certifications. The operators requiring assessments in the
pre-deadline period who will not need additional certification in the
post-deadline period are operators with certification who move to a new
employer and operate a crane with the same type and capacity as the
crane on which they received certification from their previous
employer. These operators will not need reassessment because of the
portability of an operator certificate across employers as specified by
the cranes standard (see Sec. 1427(b)(3)). For an employer looking to
hire an operator for a specific crane, this option will minimize cost,
and OSHA assumes employers will choose this option when possible.
After the certification deadline, OSHA estimates that each year 23%
of the 117,130 operators (26,940, i.e., 0.23 x 117,130) will enter the
workforce, change employers, or take on new positions that require one
or more additional certifications to operate different types and/or
capacities of cranes. Of these 26,940 operators, OSHA estimates that 5%
of that turnover, or 5,857 ((i.e., 0.05 x 117,130), will result from
new operators entering the occupation each year; 9%, or 10,542 (i.e.,
0.09 x 117,130), will result from operators switching employers but
operating a crane of the same type and capacity as the crane they
operated previously (i.e., no certification needed because
certification is portable in this case); and the remaining 9%, or
10,542, changing jobs or positions and requiring one or more additional
certification to operate a crane that differs by type and/or capacity
from the crane they operated previously.
Annual certification costs. As with the assessment costs,
certification costs will vary by year depending on several factors
addressed in the following section. However, OSHA still needs to
determine the annual base amount from which to account for the
variations, and must do so for the same two scenarios: (1) Retaining
the original 2014 deadline specified by the existing cranes standard
(status quo); and (2) extending the deadline to 2017 (proposed rule).
To estimate the annual base cost for the first scenario, OSHA
calculates the certification costs for CY 2013 because that is the
remaining period before the original deadline. The total cost for
certifying all operators in CY 2013 in accordance with the existing
cranes standard using the above unit-cost estimates and numbers of
operators is $46,494,196 (i.e., (71,700 operators with type-only
certification x $339.05) + (24,574 experienced operators without
certification x $392.48) + (5,857 operators with no experience or
certification x $2,141.16)). The Agency, following the FEA (75 FR
48096), annualized this cost for the five-year period during which
operator certification remains effective, resulting in an annualized
cost of $8,281,185. In section c below, OSHA uses this amount in
calculating the annual certification costs under scenario 1.
To determine the annual amount used in calculations for the second
scenario (the extension to 2017), OSHA examines the costs in CY 2016
because that is the first year with certification costs (as noted
earlier, OSHA determined that, under the three-year extension,
employers will postpone certification costs until CY 2016, so there
will not be any new certification costs for CY 2013-2015). Using the
same methodology used to calculate the CY 2013 certification costs, the
total cost for having all crane operators certified in CY 2016 is
$47,880,244 (in 2016 dollars). The annualized cost over the five-year
period during which certification remains effective is $8,619,229. In
the following section, OSHA uses this amount in calculating the annual
certification costs under scenario 2.
c. Year-By-Year Cost Differential for Extending the Certification
Deadline to 2017 and Preserving the Employer Assessment Duty Over That
Same Period
The ultimate goal of this analysis is to determine the annual cost
differential between scenario 1 (the status quo) and scenario 2 (the
extensions of the certification date and the employer assessment duty),
so the final part of this FEA compares the yearly assessment and
certification costs employers will incur for the two scenarios. Because
the assessment and certification costs change each year under each
scenario, OSHA must compare the cost differential in each year
separately to determine the annual cost savings for each year
attributable to scenario 2. OSHA calculated the present value of each
year's differential, which provides a consistent basis for comparing
the cost differentials over the extended compliance period. OSHA then
annualized the present value of each differential to identify an annual
amount that accounts for the discounted costs over this period. Table 1
below summarizes these calculations.
Table 1 shows that assessment and certification costs vary each
year under scenario 2. There are several factors that cause these costs
to vary: (1) The five-year limit on operator certification causes some
operators to require recertification during this period; (2) the need
for some certified operators to obtain additional certification to
operate a crane that differs by type and/or capacity from the crane on
which they received their current certification; and (3) the yearly 5%
turnover that results in new crane operators entering the occupation.
In addition, the composition of the operator pool will shift in the
year before the deadline because a higher share of all operators will
have certification. This shift will decrease the need to perform a
longer and more costly assessment, thereby reducing the high costs
associated with operators who do not have certification (i.e.,
employers would take less time assessing operators with compliant
certification in this certification year compared to years in which
there is no deadline). To account for this effect, OSHA adjusted
assessment costs in the year directly preceding the deadline in each
scenario (i.e., CY 2013 for scenario 1 and CY 2016 for scenario 2).
Accordingly, OSHA determined that assessment costs for CY 2013
under the first scenario would decrease from $6,424,338 under scenario
2 to $4,402,920 under scenario 1 because of the increasing
certification effect that occurs near the deadline.\12\ A similar
calculation for CY 2016 (the year prior to the proposed certification
deadline in 2017) lowers the estimated assessment costs from $6.9
million (in the absence of the deadline and accompanying
certification) to $4.6 million under scenario 2.
---------------------------------------------------------------------------
\12\ OSHA estimates that operators will obtain their compliant
certification at a uniform rate throughout the certification year
immediately preceding the deadline, which implies that certification
costs can be estimated by using a weighted average of the unit costs
if no operators become compliant certified, and the unit costs if
all operators are so certified, with equal weight attributed to each
condition (i.e., each condition (no operators and all operators)
contributing one half to the estimate). The Agency then values
assessment unit costs as if none of the operators had certification,
which would result in maximum assessment times, with unit costs
determined by total costs divided by total assessments, which is
$207.36 (i.e., $6,424,338 total assessment cost / 30,981 total
yearly assessments). OSHA next values unit assessment costs as if
all operators had compliant certification, which would require the
shortest assessment time of 1 hour, and a cost of $76.87. The ratio
of the second unit assessment cost to the first unit assessment cost
is .37 ($76.87 / $207.36). Therefore, the resulting assessment cost
in CY 2013 using the weighted average formula is $4,402,920 (i.e.,
(0.5 x $6,424,338) + (0.5 x 0.37 cost ratio x $6,424,338).
---------------------------------------------------------------------------
One-time costs for certifying operators with non-compliant
certification ($24,309,885) and certifying experienced operators with
no certification ($9,644,607) account for much of the rise in
certification costs in CY 2013 under scenario 1. OSHA annualized these
one-time operator certification costs across CY 2013-2017 (matching the
5-year duration of the certifications received in the last year before
the deadline), resulting in an annualized cost of $8,281,185 for each
year of this five-year period under scenario 1.\13\ Under scenario 2,
the corresponding annualized certification costs for CY 2016-2020
(again matching the 5-year duration of the certifications received in
the last year before the deadline) would be $8,619,229. The
certification costs vary in the other (pre-deadline) years depending on
factors identified earlier in this FEA.
---------------------------------------------------------------------------
\13\ Under scenario 1, therefore, the total certification costs
of $33,817,340 for each year over CY2014-2017 consist of the
annualized cost of $8,281,185 for the one-time operator
certification costs and $25,536,156 for fixed costs involving
recertification of compliant operators, additional certifications
for operators changing type or capacity of crane, and certification
of new operators.
---------------------------------------------------------------------------
As noted earlier, OSHA estimated the overall cost differential
between these two scenarios by calculating the difference in total
(assessment and certification) costs each year across the two
scenarios. The net employer cost savings in current dollars
attributable to adopting the second scenario are, for each
certification year: 2013, $18.8 million; 2014, $27.2 million; 2015,
$27.1 million; 2016, $8.0 million; 2017, -$0.3 million; 2018, -$8.6
million; 2019, -$8.6 million; and 2020, -$8.6 million.\14\
---------------------------------------------------------------------------
\14\ A positive cost differential indicates net savings and a
negative cost differential indicates net costs. Savings in earlier
years results largely from the extension of the certification
deadline. The cost differential then turns negative in later years
largely because employers complete certification under the first
scenario while they are just beginning certification under the
second scenario.
By 2017, under both scenarios all existing operators will have
compliant certification. However, under the second scenario, the
five-year annualization of when certification costs are incurred
would continue until 2020. Hence, 2021 is the first year when, under
both scenarios, employer costs would consist solely of ongoing
certification costs, and the cost differential between the two
scenarios would be zero. The ongoing certification costs consist of:
the yearly cost resulting from new operators (5% of all operators)
entering the operator pool; the proportion of the pool that must
receive recertification each year resulting from expiration of the
five-year certification; and the annual additional certifications
that occur.
Table 1--Year-by-Year Cost Differential if OSHA Extends the Certification Deadline to 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017 2018 2019 2020 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operator Pool
Scenario 1 (no deadline extension):
Operators with non-compliant 71,700 0 0 0 0 0 0 0 0
certification..................
Operators with compliant 15,000 111,274 111,274 111,274 111,274 111,274 111,274 111,274 111,274
certification..................
Operators with no certification. 24,574 0 0 0 0 0 0 0 0
New operators................... 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857
Scenario 2 (deadline extension):
Operators with non-compliant 71,700 68,115 64,709 61,474 0 0 0 0 0
certification..................
Operators with compliant 15,000 14,250 13,538 12,861 111,274 111,274 111,274 111,274 111,274
certification..................
Operators with no certification. 24,574 28,909 33,027 36,939 0 0 0 0 0
New operators................... 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857
Costs
Scenario 1 (no deadline extension):
Total assessment costs.......... 4,402,920 0 0 0 0 0 0 0 0
Total certification costs....... 20,820,888 33,817,340 33,817,340 33,817,340 33,817,340 25,536,156 25,536,156 25,536,156 25,536,156
-------------------------------------------------------------------------------------------------------------------
Total....................... 25,223,808 33,817,340 33,817,340 33,817,340 33,817,340 25,536,156 25,536,156 25,536,156 25,536,156
Scenario 2 (deadline extension):
Total assessment costs.......... 6,424,338 6,579,422 6,726,751 4,624,107 0 0 0 0 0
Total certification costs....... 0 0 0 21,158,933 34,155,385 34,155,385 34,155,385 34,155,385 25,536,156
-------------------------------------------------------------------------------------------------------------------
Total....................... 6,424,338 6,579,422 6,726,751 25,783,039 34,155,385 34,155,385 34,155,385 34,155,385 25,536,156
-------------------------------------------------------------------------------------------------------------------
Cost Differential (Scenario 2- (18,799,469) (27,237,919) (27,090,590) (8,034,301) 338,044 8,619,229 8,619,229 8,619,229 0
Scenario 1)........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
OSHA next determined the present value of these cost differentials
between the two scenarios. OSHA calculated the present value of future
costs using two interest rates assumptions, 7% and 3%, which are the
rates OSHA used in the FEA of the cranes standard (75 FR 48080), and
which follow the OMB guidelines specified by Circular A-4 of September
17, 2003. At an interest rate of 7%, the present value of the cost
differentials for CY 2013 onwards results in an estimated savings of
$57.0 million ($56.0 million using the 3% rate). Finally, annualizing
the present value over the three-year extension period results in an
annualized cost differential (i.e., net employer cost savings) of $21.7
million per year ($19.8 million per year using the 3% rate).
d. Certification of No Significant Impact on a Substantial Number of
Small Entities
Because the Agency estimates the cost of any single assessment to
be no higher than $307.48, it believes the economic impact will be
minimal on any employer. Most employers will have savings resulting
from the three-year extension, particularly employers that planned to
pay for operator certification in the year before the original 2014
deadline. The only entities likely to see a net cost will be entities
that planned to hire an operator with compliant certification after
November 10, 2014. Without the three-year extension, these entities
will have no separate assessment duty, but under the three-year
extension they will have the expense involved in assessing operator
competency. As noted above, however, OSHA estimated the cost for such
assessments (for operators with a type and capacity certification) to
be $76.87 per certified operator.
Small businesses will, by definition, have few operators, and OSHA
believes the $76.78 cost will be well below 1% of revenues, and well
below 5% of profits, in any industry sector using cranes. OSHA does not
consider such small amounts to represent a significant impact on small
businesses in any industry sector. Hence, OSHA certifies this final
rule will not have a significant impact on a substantial number of
small entities. OSHA made the same certification in the PEA and did not
receive any comment on either the certification or its underlying
rationale.
B. Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 (PRA-95) requires Federal
agencies to obtain the Office of Management and Budget (OMB) approval
of a collection of information (paperwork) requirement before an Agency
can conduct or sponsor the paperwork requirement; and to display the
OMB control (approval number) (44 U.S.C. 3507(d)). Agencies submit an
Information Collection Request (ICR), with paperwork analysis, to OMB
seeking approval of their paperwork requirements. The Cranes and
Derricks in Construction Standard (29 CFR subpart CC) contains
paperwork requirements that have been approved by OMB, ICR titled
Cranes and Derricks in Construction Standard (29 CFR part 1926, Subpart
CC), under OMB control Number 1218-0261. These paperwork requirements
expire on 02/28/2017.
OSHA notes the public need not respond to a collection of
information requirement unless the agency displays a currently valid
OMB control number, and, notwithstanding any other provision of law, no
person shall be subject to a penalty for failing to comply with a
collection of information requirement if the requirement does not
display a currently valid OMB control number.
Also, the PRA-95 (44 U.S.C. 3506(c)(2)), requires agencies to
solicit public comments on proposed or revised collection of
information requirements; and, requires agencies to submit proposed
rules which contain collection of information requirements to OMB for
review.
In the February 10, 2014 NPRM, OSHA notified the public that the
Agency believed the proposed Cranes and Derricks in Construction:
Operator Certification rule did not contain additional collection of
information, and that OSHA did not believe it was necessary to submit a
new (revised) ICR to OMB. OSHA instructed the public to submit comments
on this determination to OMB and encouraged them to submit their
comments to OSHA.
OSHA has determined this final rule requires no additional
collection of information or any permanent change to the collection
program: it preserves the status quo for an additional short period of
time. OMB's approval of the Cranes and Derricks in Construction ICR
already covers all collections of information required by the temporary
extensions in this final rule, and therefore OSHA did not submit a
revised ICR to OMB as part of this rulemaking. No parties commented on
OSHA's determination that this rule contains no additional paperwork
requirements.
C. Federalism
OSHA reviewed this final rule 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 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 Occupational Safety and Health Act of 1970
(OSH Act; 29 U.S.C. 651 et seq.), 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. Subject to these requirements, State Plan States are
free to develop and enforce under state law their own requirements for
safety and health standards.
OSHA previously concluded from its analysis that promulgation of
subpart CC complies with Executive Order 13132 (75 FR 48128-29). In
states without an OSHA-approved State Plan, this final rule limits
state policy options in the same manner as every standard promulgated
by OSHA. For State Plan States, 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.
D. State Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, State Plan States must amend their
standards to reflect the new standard or amendment, or show OSHA why
such action is unnecessary, e.g., because an existing state standard
covering this area is "at least as effective" as the new Federal
standard or amendment (29 CFR 1953.5(a)). The state standard must be at
least as effective as the final Federal rule. State Plan States must
adopt the Federal standard or complete their own standard within six
months of the promulgation date of the final Federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than an existing standard, State Plan
States do not have to amend their standards, although OSHA may
encourage them to do so. The 21 states and 1 U.S. territory with OSHA-
approved occupational safety and health plans are: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin
Islands have OSHA-approved State Plans that apply to state and local
government employees only.
When OSHA promulgates a new final rule, states and territories with
approved State Plans must adopt comparable amendments to their
standards for cranes and derricks within six months of OSHA's
promulgation of the final rule unless they demonstrate that such a
change is not necessary because their existing standards are already
the same, or at least as effective, as OSHA's new final rule.
The amendments to OSHA's cranes standard in this final rule
preserve the status quo and do not impose any new requirements on
employers. Accordingly, State Plan States would not have to amend their
standards to delay the effective date of their operator certification
requirements, but they may do so if they so choose. However, if they
choose to delay the effective date of their certification requirements,
they also would need to include a corresponding extension of the
employer duty to assess and train operators that is equivalent to Sec.
1427(k)(2).
E. Unfunded Mandates Reform Act
When OSHA issued the final rule for cranes and derricks in
construction, it reviewed the rule according to the Unfunded Mandates
Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order
13132 (64 FR 43255 (Aug. 10, 1999)). 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 rule imposed
costs of over $100 million per year on the private sector and,
therefore, required review under the UMRA for those costs, but that its
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 does
not impose any costs on private-sector employers beyond those costs
already taken into account in the 2010 final rule for cranes and
derricks in construction. Because OSHA reviewed the total costs of the
2010 final rule under the UMRA, no further review of those costs is
necessary. Therefore, for the purposes of the UMRA, OSHA certifies that
this final rule does not mandate that state, local, or tribal
governments adopt new, unfunded regulatory obligations, or increase
expenditures by the private sector of more than $100 million in any
year.
F. 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 does not have "tribal
implications" as defined in that order. The rule does not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.
G. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (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(b), 655(b). A
safety or health standard is a standard "which 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 or places of employment." 29
U.S.C. 652(8). A standard is reasonably necessary or appropriate within
the meaning of Section 652(8) when a significant risk of material harm
exists in the workplace and the standard would substantially reduce or
eliminate that workplace risk. See Industrial Union Department, AFL-CIO
v. American Petroleum Institute, 448 U.S. 607 (1980). In the cranes
rulemaking, OSHA made such a determination with respect to the use of
cranes and derricks in construction (75 FR 47913, 47920-21). This final
rule does not impose any new requirements on employers. Therefore, this
final rule does not require an additional significant risk finding (see
Edison Electric Institute v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988)).
In addition to materially reducing a significant risk, a safety
standard must be technologically feasible. See UAW v. OSHA, 37 F.3d
665, 668 (D.C. Cir. 1994). A standard is technologically feasible when
the protective measures it requires already exist, when available
technology can bring the protective measures into existence, or when
that technology is reasonably likely to develop (see American Textile
Mfrs. Institute v. OSHA, 452 U.S. 490, 513 (1981); American Iron and
Steel Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). In the
2010 Final Economic Analysis for the cranes standard, OSHA found the
standard to be technologically feasible (75 FR 48079). This final rule
is, therefore, technologically feasible as well because it does not
require employers to implement any additional protective measures; it
simply extends the duration of existing requirements.
List of Subjects in 29 CFR Part 1926
Construction industry, Cranes, Derricks, Occupational safety and
health, Safety.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC 20210, authorized the preparation
of this document. OSHA is issuing this rule under the following
authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C. 3701 et seq.; 5 U.S.C.
553; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012);
and 29 CFR part 1911.
Signed at Washington, DC, on September 19, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this final rule, OSHA
amends 29 CFR part 1926 as follows:
PART 1926--[AMENDED]
Subpart CC--Cranes and Derricks in Construction
0
1. The authority citation for subpart CC of 29 CFR part 1926 continues
to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Orders 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
0
2. Amend Sec. 1926.1427 by revising paragraph (k) to read as follows:
Sec. 1926.1427 Operator qualification and certification.
* * * * *
(k) Phase-in. (1) The provisions of this section became applicable
on November 8, 2010, except for paragraphs (a)(2) and (f), which are
applicable November 10, 2017.
(2) When Sec. 1926.1427(a)(1) is not applicable, all of the
requirements in paragraphs (k)(2)(i) and (ii) of this section apply
until November 10, 2017.
(i) The employer must ensure that operators of equipment covered by
this standard are competent to operate the equipment safely.
(ii) When an employee assigned to operate machinery does not have
the required knowledge or ability to operate the equipment safely, the
employer must train that employee prior to operating the equipment. The
employer must ensure that each operator is evaluated to confirm that
he/she understands the information provided in the training.
[FR Doc. 2014-22816 Filed 9-25-14; 8:45 am]
BILLING CODE 4510-26-P
