[Federal Register Volume 82, Number 167 (Wednesday, August 30, 2017)]
[Proposed Rules]
[Pages 41184-41193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18441]
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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
Extension
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Under OSHA's standard for cranes and derricks used in
construction work, crane operators are to be certified by November 10,
2017. Until that date, employers also have duties under the standard to
ensure that crane operators are trained and competent to operate the
crane safely. The Agency delayed the deadline for operator
certification by three years to November 10, 2017, and extended the
existing employer duties for the same period. The Agency is proposing
to delay the deadline and extend the existing employer duty to ensure
that operators of equipment covered by this standard are competent to
operate the equipment safely for one year to November 17, 2018.
DATES: Submit comments to this proposed rule, including comments to the
information collection (paperwork) determination (described under the
section titled ``Agency Determinations''), hearing requests, and other
information by September 29, 2017. All submissions must bear a postmark
or provide other evidence of the submission date.
ADDRESSES: Submit comments, hearing requests, and other material,
identified by Docket No. OSHA-2007-0066, using any of the following
methods:
Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for submitting comments. Note that this docket
may include several different Federal Register notices involving active
rulemakings, so it is extremely important to select the correct notice
or its ID number when submitting comments for this rulemaking. After
accessing the docket (OSHA-2007-0066), check the ``proposed rule'' box
in the column headed ``Document Type,'' find the document posted on the
date of publication of this document, and click the ``Submit a
Comment'' link. Additional instructions for submitting comments are
available from the regulations.gov homepage.
Facsimile: OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not
require hard copies of these documents. Instead of transmitting
facsimile copies of attachments that supplement these documents (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S.
Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210.
These attachments must clearly identify the sender's name, the date,
subject, and the docket number (OSHA-2007-0066) so that the Docket
Office can attach them to the appropriate document.
Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, RIN No. 1218-AC86, Technical Data Center, Room N-
3508, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is
(877) 889-5627). Contact the OSHA Docket Office for information about
security procedures concerning delivery of materials by express
delivery, hand delivery, and messenger service. The Docket Office will
accept deliveries (express delivery, hand delivery, messenger service)
during the Docket Office's normal business hours, 8:15 a.m. to 4:45
p.m., e.s.t.
Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Cranes and Derricks in Construction: Operator
Certification Extension), and the docket number (i.e., OSHA Docket No.
OSHA-2007-0066). OSHA will place comments and other material, including
any personal information, in the public docket without revision, and
the comments and other material will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting statements they do not want made available to the public, or
submitting comments that contain personal information (either about
themselves or others) such as Social Security numbers, birth dates, and
medical data.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the above address. The electronic docket for this proposed rule
established at http://www.regulations.gov contains most of the
documents in the docket. However, some information (e.g., copyrighted
material) is not available publicly to read or download through this
Web site. All submissions, including copyrighted material, are
available for inspection at the OSHA Docket Office. Contact the OSHA
Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
Technical inquiries: Mr. Vernon Preston; 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. Summary and Explanation of the Proposed Amendments to the Standard
A. Introduction
OSHA is publishing this Notice of Proposed Rulemaking to extend for
one year the employer duty to ensure crane operator competency for
construction work, from November 10, 2017, to November 10, 2018. OSHA
also is proposing to delay the enforcement date for crane operator
certification for one year from November 10, 2017, to November 10,
2018. This would be the second delay of the enforcement date, which
OSHA needs to address stakeholder concerns over the operator
certification requirements in the 2010 cranes and derricks in
construction standard.
B. Summary of Economic Impact
This proposed rule is not economically significant. OSHA proposes
to revise 29 CFR 1926.1427(k) (competency assessment and training) to
delay the deadline for compliance with the operator certification
requirement in its construction standard for cranes and derricks, and
to extend the existing employer duties for the same period. OSHA's
preliminary economic analysis shows that delaying the date for operator
certification and employers' assessment of crane operators, rather than
allowing both provisions to expire on November 10, 2017, will result in
a net cost savings for the affected industries. Delaying 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 preliminary economic analysis is in the
``Agency Determinations'' section of this preamble.
C. Background
1. Operator Certification Options
OSHA developed the final rule for cranes and derricks in
construction (29 CFR subpart CC, referred to as ``the crane standard''
hereafter) through a negotiated rulemaking process. OSHA 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
(which included the provisions concerning crane operator certification
at issue in this rulemaking) that it provided to OSHA. The rule 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. Among many other provisions, OSHA's final rule
incorporated, with minor changes, the four-option certification scheme
that C-DAC had recommended and the Agency had proposed. Accordingly, in
Sec. 1926.1427, as originally promulgated, OSHA required employers to
ensure that their crane operators are certified under at least one of
four options by November 10, 2014:
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;
Option 4. Compliance with qualifying state or local licensing
requirements (where mandatory).
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 crane 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 crane 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 crane 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 crane 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 final crane standard also specifies
that, for the purposes of compliance with the crane 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 crane 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.
1427(k)(1)). To make sure that crane operators knew how to operate
equipment safely during this phase-in period, the Agency required
employers to ``ensure that operators of equipment covered by this
standard are competent to operate the equipment safely'' (Sec.
1926.1427(k)(2)(i)). When the operator ``assigned to operate machinery
does not have the required knowledge or ability to operate the
equipment safely,'' the standard requires employers to train and
evaluate the operator (Sec. 1926.1427(k)(2)(ii)).
3. Post-Final Rule Developments
After OSHA issued the final rule, 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 OSHA-2007-0066-0539. Various parties informed OSHA that,
in their opinion, the operator certification option would not
adequately ensure that crane operators could operate their equipment
safely. They said 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 by the ``type and capacity'' of
crane, as the crane standard requires. As a result, those
certifications do not meet the standard's requirements and operators
who obtained certifications from only those organizations cannot, under
OSHA's crane standard, operate cranes on construction sites after the
new requirements become effective. 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 learner'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. Three-Year Extension
In order to address the issues raised by industry stakeholders
after publication of the final rule, OSHA proposed a rule delaying the
compliance date for the operator certification requirements of the
crane standard, and extending the employer duty to ensure that the
operator was qualified for the particular crane work assigned, by three
years until November 10, 2014, (79 FR 7611). Subsequently, OSHA
conducted a hearing on the rulemaking on May 19, 2014, gathering more
comments on the proposed extension (OSHA-2007-0066-0521).
On September 26, 2014, OSHA issued a final rule delaying the
compliance date for operator certification for three years until
November 10, 2017, (79 FR 57785). After publication of the final rule,
OSHA began conducting site visits with a variety of stakeholders and
the Agency drafted regulatory text with the purpose of addressing the
capacity issue and the employer duty concerns.
On March 31 and April 1, 2015, OSHA convened a special meeting of
Advisory Committee on Construction Safety and Health in which both
ACCSH members and non-member industry stakeholders provided feedback on
the draft regulatory text.\1\ Prior to the meeting, OSHA made available
the draft regulatory text,\2\ an overview of the draft regulatory
text,\3\ and a summary of the site visits with stakeholders.\4\ OSHA
received many comments and suggestions for revising the regulatory text
at the ACCSH meeting. Since that meeting, the Agency has worked to re-
draft the regulatory text and preamble for the proposed rule. To ensure
the Agency has enough time to propose and finalize the rulemaking, OSHA
is proposing this one-year extension of the certification requirement
compliance date. Just as with the previous extension, OSHA is also
proposing an extension of the existing employer assessment duty for the
same time period.
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\1\ Transcript for March 31: https://www.osha.gov/doc/accsh/transcripts/accsh_20150331.pdf; transcript for April 1: https://www.osha.gov/doc/accsh/transcripts/accsh_20150401.pdf.
\2\ https://www.osha.gov/doc/accsh/accshcrane.pdf.
\3\ https://www.osha.gov/doc/accsh/proposed_crane.html.
\4\ https://www.osha.gov/doc/accsh/summary_crane.html.
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E. Explanation of Proposed Action and Request for Comment
The effective dates of the operator certification requirement and
the other ``phase in'' of employer duties are in 29 CFR
1926.1427(k)(1). The Agency is proposing to revise Sec. 1427(k)(1) to
delay the deadline for operator certification by one year from November
10, 2017, to November 10, 2018, to provide additional time for the
Agency to propose and finalize a rulemaking that addresses
stakeholders' concerns. The Agency also is proposing to extend the
current employer duties in Sec. 1926.1427(k)(2)(i) and (ii) to ensure
there is no reduction in worker protection during this three-year
period. When OSHA included these employer duties in the final crane
standard in 2010, these duties were to be a ``phase in'' to
certification (75 FR 48027). By extending the date to November 10,
2018, as proposed in this notice, the requirements would continue to
serve that purpose and preserve the status quo.
Without an extension, the certification requirements from the crane
standard will prevent operators without certification by crane capacity
from operating cranes, potentially disrupting the construction industry
by creating a large number of crane operators without compliant
certifications. Without the extension, after November 10, 2017, there
would not be any duty for employers to ensure that their operators are
competent to operate the equipment safely. This could diminish the
effectiveness of the final rule which OSHA previously estimated to
prevent 22 fatalities per year (75 FR 47914).
OSHA seeks comment on this approach, including the duration of the
proposed extension of the operator certification deadline and the
existing employer duties. OSHA encourages commenters to include a
rationale for any alternatives that they propose. OSHA also requests
comment on the ``Agency Determinations'' section that follows,
including the preliminary economic analysis, paperwork requirements,
and other regulatory impacts of this rule on the regulated community.
II. Agency Determinations
A. Preliminary Economic Analysis and Regulatory Flexibility Analysis
When it issued the final crane rule in 2010, OSHA prepared a final
economic analysis (2010 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). On
September 26, 2014, the Agency included a separate FEA (2014 FEA) when
it published a final rule delaying until November 10, 2017, the
deadline for all crane operators to become certified, and extending the
employer duty to ensure operator competency for the same period (79 FR
57785). The preliminary economic analysis (PEA) for this rulemaking
relies on the methodology of the 2014 FEA, which in turn is based on
estimates from the 2010 FEA, along with public comments and testimony
and other documents in the 2014 rulemaking record. In this document
OSHA has summarized some of the information from the 2014 FEA and noted
where the current analysis differs from the previous FEA. Additional
background on the analysis in this PEA may be found in the 2014 FEA.
Because OSHA estimates this rule will have a cost savings for
employers of $4.4 million using a discount rate of 3 percent for the
one year 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.).
This PEA 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. 1926.1427(k)(2). OSHA previously
provided its assessment of the benefits of the crane standard in the
2014 FEA of that standard. As noted elsewhere in this preamble, the
primary rationale for this proposal is to maintain the status quo--
including preservation of the employer duty to ensure that crane
operators are competent--while providing OSHA additional time to
conduct rulemaking on the crane
operator requirements in response to stakeholder concerns.
Extending the employer's requirement to ensure an operator's
competency during this period means taking the same approach of the
previous extension: Continuing measures in existence since OSHA
published the 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 produces cost savings for employers. There will,
however, be continuing employer costs for extending the requirement to
assess operators under existing Sec. 1926.1427(k)(2); if OSHA does not
extended these requirements, they will expire on November 10, 2017, and
employers would not incur these costs after 2017. With the extension,
these continuing employer costs will be offset by a reduction in
expenses that employers would otherwise have been required to incur to
ensure that their operators are certified before the existing November
2017 deadline.
Overview
In the following analysis, OSHA examines 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--scenario 1 in which there is no extension of the 2017
deadline, and scenario 2 in which there is an extension until 2018--
OSHA estimates that the extension will produce a net savings for
employers of $4.4 million per year using a discount rate of 3 percent
($5.2 million per year using an interest rate of 7 percent).\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, 3% and 7%, as recommended by OMB Circular
A-4 of September 17, 2003. All dollar amounts unless otherwise
stated are in 2016 dollars.
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OSHA's analysis follows the steps below to reach its estimate of an
annual net $4.4 million in savings:
(1) Estimate the annual assessment costs for employers;
(2) Estimate the annual certification costs for employers; and
(3) Estimate the year-by-year cost differential for extending the
certification deadline to 2018.\6\
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\6\ Though this is a single year extension, the analysis needs
to extend over several future years. For convenience, OSHA refers to
the annual time period as a ``Certification Year'' (CY) in this
economic analysis, which OSHA defines as ending November 10 of the
calendar year; e.g., CY 2017 runs from November 10, 2016, to
November 9, 2017.
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The methodology used here is substantially the same as used in the
2014 extension FEA. Table 1 below summarizes these costs and the
differentials across the two scenarios. The major differences are
updated wages and a revised forecast of the composition of the operator
pool across certification levels. The 2014 FEA analysis addressed a 3-
year extension, so it gradually increased the number of operators
without any certification during that period. The model in this PEA
addresses an extension of just a single year, so it holds the number of
operators with each certification level constant. The latter
significantly simplifies the analysis versus that presented in the 2014
FEA extension.
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.
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 personnel 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 the 2014 extension, drawing primarily from the
public stakeholder meetings.
The Agency estimates separate assessment costs for three types of
affected operators, which together comprise all affected operators:
Those who have a certificate that is in compliance with the existing
crane standard; those who have a certificate that is not in compliance
with the existing crane standard; and those who have no certificate.\7\
As it did in the previous extension, 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 crane
standard would have to complete a test that is the equivalent of the
practical part of the standard crane operator test. 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 crane 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 standard written test
for a specific crane type (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 crane
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 crane standard, and certificates that include
both a type and multi-capacity component as complying with the crane
standard.
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The wages used for the crane operator and assessor come from the
BLS Occupational Employment Survey for May 2016 (BLS 2017a), which is
an updated version of the same source used in the 2014 extension. From
this survey a crane operator's (Standard Occupational Classification
(SOC) 53-7021 Crane and Tower Operators) average hourly wage is $26.58.
The full cost to the employer includes all benefits as well as the
wage. From the BLS Employer Costs For Employee Compensation for
December 2016 (BLS 2017b) the average percentage of benefits in total
for the construction sector is 30.2%, giving a markup of the wage to
the total compensation of 1.43
(1/(1-0.302)). Hence the ``loaded'' total hourly cost of an operator is
$38.08 (1.43 x $26.58), including a markup for benefits.\8\ Relying on
the same sources, the wage of the assessor is estimated to be the same
as the average wage of a construction supervisor (53-1031 First-Line
Supervisors of Transportation and Material-Moving Machine and Vehicle
Operators) of $28.75, while the total hourly cost is $41.19 (1.43 x
$28.75). Below these total hourly costs will be referred to as the
respective occupation's ``wage.'' For assessments performed by an
employer of a prospective employee (i.e., a candidate), OSHA uses these
same operator and assessor wages and the above testing times to
estimate the cost of assessing prospective employees.
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\8\ Calculations in the text may not exactly match due to
rounding for presentation purposes. All final costs are exact, with
no rounding.
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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:
$79.27 ($38.08 + $41.19). For an operator with a certificate for crane
type only (not crane capacity), the assessment time is 2.5 hours for a
cost of $198.17 (2.5 x ($38.08 + $41.19)). Finally, for an operator
with no certificate, the assessment time is 4.0 hours for a cost of
$317.48 (4.0 x ($38.08 + $41.19)).
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 must
the employer provide additional operator training required by Sec.
1427(k)(2)(ii).
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 estimating costs for the training. OSHA
made the same determinations in the 2014 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 had their assessment, and do not need reassessment, so the
number of new assessments required by the crane standard for these
operators will be zero. Some companies will rent both a crane and an
operator employed by the crane 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 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 crane
standard. The 2014 FEA estimated 117,130 operators and this PEA also
uses this estimate. The Agency solicits comment and additional data on
this estimate.
For the purpose of determining the number of assessments required
each year under this proposal, OSHA is relying on the 23% turnover rate
for operators originally identified in the 2008 PEA for the crane rule
and used most recently in the extension 2014 FEA (79 FR 57793). This
turnover rate 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
newly 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). In addition, just as it did with the previous
extension, OSHA assumed that 15% of operators involved in assessments
related to turnover would fail the first test administration and need
reassessment (79 FR 57793). Therefore, OSHA added 4,041 reassessments
(26,940 assessments x 0.15) to the number of reassessments resulting
from turnover, for an annual total of 30,981 assessments resulting from
turnover and test failure (26,940 + 4,041).
Annual assessment costs. OSHA must determine the annual base amount
for the two scenarios: (1) Retaining the original 2017 deadline (status
quo); and (2) extending the deadline to 2018 (NPRM).
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 crane
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 order to simplify the
estimation for this one-year extension (the 2014 extension was for 3
years) and reflect the last hard data point the Agency has, the Agency
is using a static crane operator pool and the composition of the base
operator population used in the 2014 deadline extension: 15,000 Crane
operators currently have a certificate that complies with the existing
crane standard, 71,700 have a certificate for crane type only (but not
capacity), leaving 30,430 crane operators with no crane certification
(117,130 total operators--(15,000 operators with compliant
certification + 71,700 operators with certification for type only)).
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 ((0.23 + (0.23 x 0.15)) x
15,000), the number of assessments for operators with type-only
certification is 18,965 ((0.23 + (0.23 x 0.15)) x 71,700), and the
number of assessments for operators with no certification is 8,049
((0.23 + (0.23 x 0.15)) x 30,430).
Under scenario 2 there is an extension and employers would not
certify all of their operators during CY 2017. OSHA estimated the CY
2017 assessment costs for scenario 2 by multiplying the assessment
numbers for each type of
operator by the unit costs, resulting in a cost of $6,624,861 (($79.27
x 3,968) + ($198.17 x 18,965) + ($317.08 x 8,049)). Under scenario 1,
the employer-assessment requirement will be in effect for all of CY
2017, while employers would be gradually certifying all of their
operators during CY 2017. As a result, the CY 2017 assessment costs
identified for scenario 2 would decrease to $4,540,348 from $6,624,861
in scenario 1. This is because, as compared to scenario 2, there will
be more operators who will have a compliant certificate, and therefore
under the approach described above the employer assessment will require
less time. This reduction in the estimated time, and therefore unit
cost, lowers the overall assessment cost (see discussion in the 2014
deadline extension FEA for more details about this methodology).
Under both scenarios, once the 2010 rule comes into effect the
employer duty to assess the crane operator no longer is in effect and
so assessment costs are zero. Thus, in CY 2018, the assessment costs
under scenario 1 would be zero. Under scenario 2, the assessment costs
for CY 2018 would be the same as those under scenario 1 for CY 2017,
because employers would be gradually certifying operators over the
course of that year.
b. Annual Certification Costs
OSHA estimated the annual certification costs using the three
steps: 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 this PEA, following the same
methodology as in the 2014 FEA, OSHA estimates that all certifications
occur in the year prior to the deadline, hence in CY 2017 in scenario
1, while in CY2018 for the one-year extension in scenario 2. As in the
annual assessment-cost analysis described above, OSHA provides the
calculations for CY 2017 under the existing 2017 deadline (scenario 1),
and then presents the certification costs for CY 2018 that would apply
if OSHA extends the certification requirement to November 2018
(scenario 2).
Unit certification costs. 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 two conditions: The
requirement for re-certification every five years and 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.
OSHA estimated these different unit certification costs using
substantially the same unit-cost assumptions used in the FEA for the
2010 crane standard (and exactly the same as the FEA of the 2014
deadline extension.) In those previous FEAs, 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 $2,185.44
($1,500 + (18 hours x $38.08)) (see 75 FR 48096-48097). 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 estimates the cost of a
certificate compliant with the standard for an operator who has a type-
only certificate to be $345.20 (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 (2.5 hours x $38.08) + $250). For
an experienced operator with no certificate, the cost is $402.32 (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 (4.0 hours x
$38.08) + $250)).\9\
---------------------------------------------------------------------------
\9\ There are no certification costs for operators who already
have a certificate that complies with the crane standard.
---------------------------------------------------------------------------
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., $79.27). In the 2014 extension, OSHA assumed that
employers would pay a reduced fee for the recertification testing as
opposed to the cost of a full first-time examination. Because OSHA
lacked data on exactly how much the fee would be reduced, it used the
assessment cost as a proxy for the cost of recertification (79 FR
57794). OSHA did not receive any comment on that approach and is
retaining it for this rulemaking.
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
$1,092.72 ($2,185.44/2).
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 (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, 15,000 operators have certification that complies with
the existing crane standard, and the remaining 24,574 operators
(117,130 - (71,700 + 15,000 + 5,857)) are experienced operators without
certification.
Under scenario 1 (no extension), after all operators attain
certification by November 2017 there will still be ongoing
certification costs each year. 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
(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 (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.
The operators who will not need multiple certifications 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 while with their previous
employer. These operators will not need multiple certifications because
operator certificates are portable across employers, as specified by
the crane 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 = 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 5 of
the total 23%, or 5,857 (0.05 x 117,130), will result from new
operators entering the occupation each year; 9%, or 10,542 (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. These percentages are identical to those in
the 2014 FEA.
Annualized certification costs. To estimate the annual base cost
for the first scenario, OSHA calculates the certification costs for CY
2017 because that is the remaining period before the existing deadline.
The total cost for certifying all operators in CY 2017 in accordance
with the existing crane standard using the above unit-cost estimates
and numbers of operators is $47,436,368 ((71,700 operators with type-
only certification x $345.20) + (24,574 experienced operators without
certification x $402.32) + (5,857 operators with no experience or
certification x $2,185.44)). The Agency, following the previous FEAs
(75 FR 48096 and 79 FR 57795), annualized this cost for the five-year
period during which operator certification remains effective, resulting
in an annualized cost of $7,563,216. 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 2018), OSHA examines the costs in CY 2017
because that is the first year with certification costs. All numbers
are the same, just shifted forward a year, so the total cost for having
all crane operators certified in CY 2018 is $47,436,368 (in 2018
dollars).
c. Year-by-Year Cost Differential for Extending the Certification
Deadline to 2018 and Preserving the Employer Assessment Duty Over That
Same Period
The ultimate goal of this analysis is to determine the annualized
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 PEA compares the yearly assessment and
certification costs employers will incur under the two scenarios.
Because the assessment and certification costs change across years
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 are just
shifted out another year. 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: 2017, $18.2 million; 2018, $8.7 million; 2019-2021,
$0; 2022, - $7.5 million.\10\
---------------------------------------------------------------------------
\10\ A positive cost differential indicates cost savings and a
negative cost differential indicates net costs. Savings in the first
two years are due to the lower cost of assessments versus
certification. Then net costs in year 2022 are due to the last year
of annualized certification costs for scenario 2, while this cost
ends in year 2021 for scenario 1.
Table 1--Year-by-Year Cost Differential if OSHA Extends the Certification Deadline to 2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certification Year 2017 2018 2019 2020 2021 2022 2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operator Pool
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1 (no deadline extension)
--------------------------------------------------------------------------------------------------------------------------------------------------------
operators with non-compliant certification................ 71,700 0 0 0 0 0 0
operators with compliant certification.................... 15,000 111,274 111,274 111,274 111,274 111,274 111,274
operators with no certification........................... 24,574 0 0 0 0 0 0
new operators............................................. 5,857 5,857 5,857 5,857 5,857 5,857 5,857
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 2 (deadline extension)
--------------------------------------------------------------------------------------------------------------------------------------------------------
operators with non-compliant certification................ 71,700 71,700 0 0 0 0 0
operators with compliant certification.................... 15,000 15,000 111,274 111,274 111,274 111,274 111,274
operators with no certification........................... 24,574 24,574 0 0 0 0 0
new operators............................................. 5,857 5,857 5,857 5,857 5,857 5,857 5,857
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1 (no deadline extension)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total assessment costs.................................... 4,540,348 0 0 0 0 0 0
Total certification costs................................. 20,362,269 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 26,082,317
Total costs........................................... 24,902,617 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 26,082,317
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 2 (deadline extension)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total assessment costs.................................... 6,624,861 4,540,348 0 0 0 0 0
Total certification costs................................. 0 20,362,269 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317
Total costs........................................... 6,624,861 24,902,617 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317
Cost Differential (Scenario 2 - Scenario 1)....... (18,277,756) (8,742,916) ........... ........... ........... 7,563,216 ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA Calculations.
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, 3 percent and 7 percent,
which follow the OMB guidelines specified by Circular A-4. At an
interest rate of 3 percent, the present value of the cost differentials
for CY 2017 onwards results in an estimated savings of $20.2 million
($21.3 million using the 7 percent rate). Finally, annualizing the
present value over five years results in an annualized cost
differential (i.e., net employer cost savings) of $4.4 million per year
($5.2 million per year using the 7 percent rate).
The Agency notes that it did not include an overhead labor cost in
the Preliminary Economic Analysis (PEA) for this rule. It is important
to note that there is not one broadly accepted overhead rate and that
the use of overhead to estimate the marginal costs of labor raises a
number of issues that should be addressed before applying overhead
costs to analyze the costs of any specific regulation. There are
several approaches to look at the cost elements that fit the definition
of overhead and there are a range of overhead estimates currently used
within the federal government--for example, the Environmental
Protection Agency has used 17 percent,\11\ and government contractors
have been reported to use an average of 77 percent.12 13
Some overhead costs, such as advertising and marketing, may be more
closely correlated with output rather than with labor. Other overhead
costs vary with the number of new employees. For example, rent or
payroll processing costs may change little with the addition of 1
employee in a 500-employee firm, but those costs may change
substantially with the addition of 100 employees. If an employer is
able to rearrange current employees' duties to implement a rule, then
the marginal share of overhead costs such as rent, insurance, and major
office equipment (e.g., computers, printers, copiers) would be very
difficult to measure with accuracy (e.g., computer use costs associated
with 2 hours for rule familiarization by an existing employee).
---------------------------------------------------------------------------
\11\ U.S. Environmental Protection Agency, ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002.
\12\ Grant Thornton LLP, 2015 Government Contractor Survey.
(https://www.grantthornton.com/~/media/content-page-files/public-sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx.)
\13\ For a further example of overhead cost estimates, please
see the Employee Benefits Security Administration's guidance at
https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
---------------------------------------------------------------------------
If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and adopted for these purposes an overhead rate of 17
percent on base wages, as was done in a sensitivity analysis in the FEA
in support of OSHA's 2016 final rule on Occupational Exposure to
Respirable Crystalline Silica, the overhead costs would increase cost
savings from $4.4 million to $4.5 million at a discount rate of 3
percent, an increase of 1.8 percent, and would increase cost savings
from $5.2 million to $5.3 million at a discount rate of 7 percent, an
increase of 1.9 percent.
d. Certification of No Significant Impact on a Substantial Number of
Small Entities
Most employers will have savings resulting from the one-year
extension, particularly employers that planned to pay for operator
certification in the year before the existing 2017 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, 2017.
Without the one-year extension, these entities will have no separate
assessment duty, but under the one-year extension they will have the
expense involved in assessing operator competency. As noted above,
however, OSHA estimated the maximum cost for such an assessment (for
operators with no certification) to be $317.08 per certified operator.
Small businesses will, by definition, have few operators, and OSHA
believes the $317.08 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. After providing relatively similar estimates in the 2014 FEA,
OSHA made the same certification in the 2014 FEA and did not receive
any adverse comment on either the certification or its underlying
rationale.
B. Paperwork Reduction Act
When OSHA issued the final rule on August 9, 2010, it submitted an
Information Collection Request (ICR) to the Office of Management and
Budget (OMB) titled Cranes and Derricks in Construction (29 CFR part
1926, subpart CC).\14\ On November 1, 2010, OMB approved the ICR under
OMB Control Number 1218-0261, with an expiration date of November 30,
2013. On April, 25, 2017, OMB's approval of the ICR was extended to
April 30, 2020.
---------------------------------------------------------------------------
\14\ The ICR is available at ID-0425 at http://www.regulations.gov and
at www.reginfo.gov (OMB Control Number 1218-0261).
---------------------------------------------------------------------------
This proposed rule contains no collection of information needing
OMB approval. OSHA welcomes commenters to submit their comments on this
determination to the rulemaking docket (OSHA-2007-0066), along with
their other comments on the proposed rule. For instructions on
submitting these comments to the docket, see the sections of this
Federal Register notice titled DATES and ADDRESSES.
OSHA notes that a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the agency displays
a currently valid OMB control number. 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.
C. Federalism
OSHA reviewed this proposed 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, any standard developed from
this proposed rule would limit 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 crane 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 proposal.
D. State Plans
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, State Plans 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 Plans 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 Plans
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 covering private sector and state
and local government 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,
Maine, New Jersey, New York, and the Virgin Islands have OSHA-approved
State Plans that apply to state and local government employees only.
The proposed amendments to OSHA's crane standard preserve the
status quo and would not impose any new requirements on employers.
Accordingly, State Plans 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 IV.A (Preliminary Economic Analysis
and Regulatory Flexibility Analysis) of this preamble, this proposed
extension does not impose any costs on private-sector employers beyond
those costs already identified in the final rule for cranes and
derricks in construction and the 2014 extension. Because OSHA reviewed
the total costs of this final rule under the UMRA, no further review of
those costs is necessary. Therefore, for the purposes of the UMRA, OSHA
certifies that this proposed 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 proposed rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it does not have ``tribal
implications'' as defined in that order. As proposed, 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. Consultation With the Advisory Committee on Construction Safety and
Health
Under 29 CFR parts 1911 and 1912, OSHA must consult with the
Advisory Committee on Construction Safety and Health (ACCSH or
Committee), established pursuant to Section 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3701 et seq.), in setting
standards for construction work. Specifically, Sec. 1911.10(a)
requires the Assistant Secretary to provide the ACCSH with a draft
proposed rule (along with pertinent factual information) and give the
Committee an opportunity to submit recommendations. See also Sec.
1912.3(a) (``[W]henever occupational safety or health standards for
construction activities are proposed, the Assistant Secretary [for
Occupational Safety and Health] shall consult the Advisory
Committee'').
On June 20, 2017, ACCSH unanimously recommended that OSHA delay,
for one additional year until November 10, 2018, the compliance date
for the crane operator certification and extend the employer duty for
the same period. [Include citation to ACCSH docket, OSHA-2017-0007-
####]
H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
Consistent with EO 13771 (82 FR 9339, February 3, 2017), OSHA has
estimated the annualized cost savings over 10 years for this proposed
rule to range from $4.4 million to $5.2 million, depending on the
discount rate. This proposed rule is expected to be an EO 13771
deregulatory action. Details on the estimated cost savings of this
proposed rule can be found in the rule's economic analysis.
I. 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 crane
rulemaking, OSHA made such a determination with respect to the use of
cranes and derricks in construction (75 FR 47913, 47920-21). This
proposed rule does not impose any new requirements on employers.
Therefore, this proposal 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 crane standard, OSHA found the
standard to be technologically feasible (75 FR 48079). OSHA also found
the previous extension to be technologically feasible (79 FR 57798).
This proposed rule would, therefore, be technologically feasible as
well because it would not require employers to implement any additional
protective measures; it would simply extend the duration of existing
requirements.
List of Subjects in 29 CFR Part 1926
Construction industry, Cranes, Derricks, Occupational safety and
health, Safety.
Signed at Washington, DC, on August 25, 2017.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this proposed rule, OSHA
proposes to amend 29 CFR part 1926 as follows:
PART 1926--[AMENDED]
Subpart CC--Cranes and Derricks in Construction
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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.
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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, 2018.
(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, 2018.
(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. 2017-18441 Filed 8-29-17; 8:45 am]
BILLING CODE 4510-26-P
