[Federal Register Volume 83, Number 98 (Monday, May 21, 2018)]
[Proposed Rules]
[Pages 23534-23569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10559]
Vol. 83
Monday,
No. 98
May 21, 2018
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1926
Cranes and Derricks in Construction: Operator Qualification; Proposed
Rule
Federal Register / Vol. 83 , No. 98 / Monday, May 21, 2018 / Proposed
Rules
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID-OSHA-2007-0066]
RIN 1218-AC96
Cranes and Derricks in Construction: Operator Qualification
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: OSHA proposes to update its standard for cranes and derricks
in construction by permanently extending and clarifying each employer's
duty to ensure the competency of crane operators through required
training, certification or licensing, and evaluation. OSHA is also
proposing to remove an existing provision that requires different
levels of certification based on rated lifting capacity of equipment.
This proposal would clarify that while testing organizations are not
required to issue certifications distinguished by rated capacities,
they are permitted to do so. Finally, it would establish minimum
requirements for determining operator competency. OSHA believes that
this proposal would maintain safety and health protections for workers
while reducing employers' compliance burdens.
DATES:
Comments: Submit comments to this proposed rule, including comments
to the information collection requirements (described under the section
titled "Agency Determinations"), hearing requests, and other
information by June 20, 2018. All submissions must bear a postmark or
provide other evidence of the date submitted.
Informal public hearing: A hearing can be requested by following
the procedures listed under ADDRESSES. If a hearing is requested, OSHA
will announce the hearing on its website, www.osha.gov, and publish a
hearing notice in the Federal Register.
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, the Federal e-Rulemaking Portal. This docket may
include several Federal Register notices for active rulemakings;
therefore it is necessary to select the correct notice, or its ID
number, to submit 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 on the
http://www.regulations.gov homepage.
Facsimile: OSHA allows facsimile transmission of comments that are
ten pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not
require submission of hard copies of these documents. For additional
attachments that supplement comments submitted by facsimile (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Technical Data Center, Room N-3653, 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).
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-
3653, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW,
Washington, DC 20210; telephone: (202) 693-2350, TTY number: (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, 10:00 a.m. to 3:00 p.m., ET.
Information Collection Requirements: OSHA welcomes comments on the
information collection requirements contained in this rule on the same
basis as for any other aspect of the rule. Interested parties may also
submit comments about the information collection requirements directly
to the Office of Information and Regulatory Affairs, Attn: OMB Desk
Officer for DOL-OSHA (RIN 1218-AC96), Office of Management and Budget,
Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395-
6881 (this is not a toll-free number), email:
OIRA_submission@omb.eop.gov. See Paperwork Reduction Act section of
this preamble for particular areas of interest.
Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Cranes and Derricks in Construction: Operator
Qualification), and the docket number (OSHA-2007-0066). Absent
copyright protections or other restrictions, 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, commenters
should not submit statements they do not want made available to the
public, or submit 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
electronic docket, go to http://www.regulations.gov or to the OSHA
Docket Office at the above address. Some information submitted (e.g.,
copyrighted material) is not available publicly to read or download
through this website. All submissions, including copyrighted material,
are available for inspection at the OSHA Docket Office. Contact the
OSHA Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone: (202) 693-1999; email:
Meilinger.Francis2@dol.gov.
Technical inquiries: Mr. Vernon Preston, Directorate of
Construction; 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:
Table of Contents
I. Executive Summary
II. Background
A. Operator Competency Requirements
B. Operator Certification Requirement
C. Certification by Crane Rated Lifting Capacity
D. Post-Rulemaking Concerns
E. Extending the Effective Dates for the Employer Duty and
Certification
F. Discussions With the Construction Industry Stakeholders
G. Consulting ACCSH--Draft Proposal for Crane Operator
Requirements
H. National Consensus Standards
I. The Need for a Rule
J. Significant Risk
III. Summary and Explanation of the Proposed Amendments to Subpart
CC
IV. Agency Determinations
A. Legal Authority
B. Preliminary Economic Analysis and Regulatory Flexibility
Analysis
C. Paperwork Reduction Act
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act
G. Consultation and Coordination With Indian Tribal Governments
H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
I. Executive Summary
OSHA proposes to amend 29 CFR 1926 subpart CC to revise sections
that address crane operator training, certification/licensing,\1\ and
competency. The purposes of these amendments are to: Require
comprehensive training of operators; remove certification by capacity
from certification requirements; clarify and permanently extend the
employer duty to evaluate potential operators for their ability to
safely operate equipment covered by subpart CC; and require
documentation of that evaluation.
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\1\ The term "certification/licensing" covers each of
certification options in the proposed rule (third-party
certification or an audited employer certification program) as well
as state or local operator licensing requirements.
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This proposed rule is based on extensive feedback received from the
construction industry, which can be found in the docket, who informed
OSHA that merely ensuring crane operators are certified does not verify
that certified operators have sufficient crane knowledge and operating
skills to safely perform crane operations at construction sites. OSHA
heard testimony and collected other evidence that indicates an
employer's evaluation of a crane operator's experience and competency
is essential to ensuring the safe operation of cranes on construction
sites. Similarly, this evidence confirmed that employers must continue
to provide operators with comprehensive training, which supplements the
kind of training needed to obtain certification.
OSHA's preliminary economic impact analysis determined that the
most significant costs of the proposal are associated with the
requirements to perform the operator competency evaluation, document
the evaluations, and provide any additional training needed by
operators. OSHA estimates employers impacted by this proposed rule
employ approximately 117,130 crane operators. OSHA accordingly
estimates the annual cost to the industry would be $1,425,133 for the
performance of operator competency evaluations, $59,479 for documenting
those evaluations, and $90,649 for any additional training needed for
operators. OSHA's preliminary estimate of the total annual cost of
compliance is $1,583,169.
OSHA also expects some cost savings from the proposed rule. In
particular, OSHA estimates a large one-time cost savings of $25,560,840
from dropping the requirement that crane operators be certified by
capacity because that change would eliminate the need for a very large
number of operators to get an additional certification. OSHA also
estimates that a small number of ongoing annual certifications due to
an operator moving to a higher capacity crane would also no longer be
needed, producing an additional annual cost savings of $414,172. These
various elements lead, at a 3 percent discount rate over 10 years, to
net annual cost savings of $1,827,513. At a discount rate of 7 percent
there are annual cost savings of $2,468,595.
The Agency has preliminarily concluded that, on average, the impact
of costs on employers would be low, because most employers are
currently providing some degree of operator training and performing
operator competency evaluations to comply with existing 29 CFR
1926.1427(k), and were previously doing so to comply with Sec. Sec.
1926.550, 1926.20(b)(4), and 1926.21(b)(2). Employers who currently
provide insufficient training would incur new costs to comply. Although
OSHA anticipates that a few employers might incur significant new
costs, the Agency has preliminarily concluded that, for purposes of the
Regulatory Flexibility Act, the proposed rule would not have a
significant economic impact on a substantial number of small entities.
The Agency has preliminarily determined that the proposal is
technologically feasible because many employers already comply with all
the provisions of the proposed rule and the proposed rule would not
require any new technology. In addition, since the vast majority of
employers already invest the resources necessary to comply with the
provisions of the proposed standard, the Agency preliminarily concludes
that the proposed standard is economically feasible.
II. Background
Explanation of record citations in this document. References in
parentheses in this preamble are to exhibits or transcripts in the
docket for this rulemaking. Documents from the subpart CC--Cranes and
Derricks in Construction rulemaking record are available under Docket
OSHA-2007-0066 on the Federal eRulemaking Portal at http://www.regulations.gov or in the OSHA Docket Office. The term "ID"
refers to the column labeled "ID" under Docket No. OSHA-2007-0066 on
http://www.regulations.gov. This column lists individual records in the
docket. This notice will identify each of these records only by the
last three digits of the record, such as "ID-0032" for OSHA-2007-
0066-0032. Identification of records from dockets other than records in
OSHA-2007-0066 will be by their full ID number. In addition, the
transcript for the public hearing OSHA held on May 19, 2014, for the
rulemaking that extended the certification deadline by three years, are
identified by the docket under Docket No. OSHA-2007-0066-0521. To aid
readers in locating citations to the transcripts, this notice refers to
these citations using the abbreviation "Tr." and the corresponding
page numbers (e.g., ID-0521, Tr. pp. 10-15).
A. Operator Competency Requirements
OSHA promulgated a new standard for cranes and derricks in
construction, referred to in the Background section as the "new cranes
standard," on November 10, 2010 (75 FR 47905). It was based on a
proposal drafted as the result of negotiated rulemaking and issued on
October 9, 2008 (73 FR 59714). Under the new cranes standard, except
for employees of the U.S. military and the operation of some specified
equipment, employers were required to allow only certified operators to
operate equipment after November 10, 2014.\2\ In lieu of certification,
the rule also allowed operators to operate cranes if licensed by state
or local governments whose programs met certain minimum requirements.
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\2\ The term "equipment" was used in the cranes standard's
regulatory text because the rule covers cranes, derricks and other
types of equipment. When OSHA uses "cranes" in this preamble, it
is meant to apply to all covered equipment.
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The new cranes standard included a four-year, phased-in effective
date for the certification requirements. That phase-in period was
intended to provide time for existing accredited testing organizations
to develop programs that complied with the requirements; for operators
and employers to prepare for certification testing; and for more
testing organizations to become accredited to make certifications
available for the operation of the wide variety of cranes used in
construction. During the phase-in period, employers were required to
continue complying with two broad provisions: To ensure that crane
operators were competent to operate the equipment safely and, if
necessary, to train and evaluate employees who did
not have the required knowledge or ability to operate the equipment
safely (Sec. 1926.1427(k)(2)(i) and (ii)) ("employer duties"). These
employer duties are essentially the same as those required by Sec.
1926.20(b)(4) and Sec. 1926.21(b)(2), which are discussed in more
detail in the "Operator Certification Requirement" section that
follows.
B. Operator Certification Requirement
In 1979, OSHA published 29 CFR 1926.550, which specified
requirements for crane and derrick operation that were adopted from
existing consensus standards. Among these requirements was an
employer's duty to comply with manufacturer specifications and
limitations (Sec. 1926.550(a)(1)). In addition, employers were subject
to general requirements elsewhere in the OSHA construction safety
standards that required employers to permit only those employees
"qualified by training or experience" to operate equipment (Sec.
1926.20(b)(4)) and to "instruct each employee in the recognition and
avoidance of unsafe conditions" (Sec. 1926.21(b)(2)). However, crane
incidents continued to be a significant cause of injuries and
fatalities in the construction industry over the next few decades. In
response, industry stakeholders called on OSHA to update its existing
construction crane standard, including addressing advances in equipment
technology and industry-recognized work practices.
Between 1998 and 2003, OSHA's Advisory Committee for Construction
Safety and Health (ACCSH) tasked a workgroup with studying crane issues
and ultimately recommended that OSHA revise the construction crane
standard through negotiated rulemaking. The ACCSH workgroup reviewed
the requirements of the most recent American Society of Mechanical
Engineers (ASME)/American National Standard Institute (ANSI) B30 series
standards applicable to various types of cranes and recommended that
OSHA include work practices and protections from the ASME/ANSI B30
series standards in the new crane standard to the extent possible. The
workgroup's recommendations included a request that OSHA require
training and qualification provisions specific to crane operators, such
as those of the ANSI B30 series, to supplant and augment the general
provisions under Sec. Sec. 1926.21(b)(2) and 1926.20(b)(4) (see ACCSH
transcript Docket ID OSHA-ACCSH2002-2-2006-0194; pp. 129-135).
In 2003, OSHA commenced rulemaking by establishing a federal
advisory committee, the Cranes and Derricks Negotiated Rulemaking
Advisory Committee (C-DAC), to develop a proposal through consensus
(see OSHA-S030-2006-0663-0639). C-DAC met eleven times between July 30,
2003, and July 9, 2004, and produced a consensus document that OSHA
proposed for comment. Like the ACCSH workgroup, C-DAC acknowledged that
the qualification and training requirements of Sec. Sec. 1926.20(b)(4)
and1926.21(b)(2) were ineffective and it proposed that OSHA require
written and practical testing of crane operators (73 FR 59810). C-DAC
also concluded that significant advances in crane/derrick safety would
not be achieved without operator testing verified by accredited, third-
party testing. Therefore, per C-DAC's recommendation, OSHA's proposal
included a requirement for operator certification by "type and
capacity" of the equipment in lieu of the previous general requirement
that employers ensure their operators were competent to operate the
machinery. However, OSHA proposed to retain the general employer duty
during a four-year phase-in period for the operator certification (see
2008 proposal at Sec. 1926.1427(k)).
On October 12, 2006, ACCSH supported the C-DAC consensus document
and recommended that OSHA use it as the basis of a proposed rule (see
Docket ID OSHA-ACCSH2006-1-2006-0198-003).
On October 17, 2006, the Small Business Advocacy Review Panel
(SBAR) submitted its final report on OSHA's draft proposal (OSHA-S030A-
2006-0664-0019). The SBAR recommendations included a suggestion that
OSHA solicit comment on whether "equipment capacity and type" needed
clarification, which OSHA did (see 73 FR 59725). Regarding operator
training, many Small Entity Representatives (SERs) thought the C-DAC's
training requirements were too broad and should be focused on the
equipment the operator will use and the operations to be performed. Two
SERs recommended OSHA's powered industrial truck standard as a model
for crane operator training requirements.
OSHA published its proposal on October 9, 2008 (73 FR 59714) and
received over 350 public comments. The comments discussed a wide range
of topics addressed by the crane standard. In response to requests from
several public commenters, OSHA conducted a public hearing in March
2009. None of the commenters or hearing participants asked OSHA to
remove the requirement that operators be certified by equipment
capacity in addition to type. There were a few stakeholders who
expressed some concern about the proposal to phase-out the employer
duty and replace it with the requirement for employers to ensure
operator competence through third-party testing (see Docket IDs OSHA-
2007-0066-0341--March 19, 2009, page 41 and OSHA-2007-0066-0445).
However, most stakeholders overwhelmingly supported the certification
requirements in the rule as proposed.
On November 8, 2010, the final rule for cranes and derricks in
construction became effective, and it includes four "options" for
crane operator certification. Unless excluded from the requirements of
29 CFR 1926.1427, all operators must obtain at least one of the
following: A state or local license to operate cranes within a state or
local jurisdiction with acceptable requirements; a certification issued
by an accredited, third-party testing organization that meets OSHA
certification requirements; a qualification issued under an audited
employer program that meets OSHA's certification requirements; or a
qualification issued by the U.S. Military (see 29 CFR 1926.1427(b)
through (e)).
C. Certification by Crane Rated Lifting Capacity
The final rule for cranes and derricks in construction required
operators to become certified and permitted four options for doing so,
one of which was certification by a third-party organization. A third-
party certification could be portable (a new employer could rely on
it), but in relying upon a third-party certification alone as
confirmation of an operator's knowledge and operating skills, all
employers must know to what kind of equipment the certification applies
when making determinations about which equipment an operator can
operate at the worksite. Therefore, C-DAC proposed the requirement,
which was included in the final rule, that third-party certification
must indicate the equipment types and the rated capacities that an
individual is certified to operate. The other certification options,
which are not portable, do not require certification by capacity.
To address the concerns of testing organizations that were not
specifying the rated lifting capacities on certifications they issued,
OSHA added subparagraph Sec. 1926.1427(b)(2) to clarify that an
employer could comply with the capacity requirement if the
certification stated the type and rated lifting capacity of the crane
in which the operator was tested. For purposes of complying with the
new crane standard, the operator would be "deemed
qualified" to operate cranes of the same type, that have equal or
lower rated lifting capacity of the crane in which they were tested.
D. Post-Rulemaking Concerns
In OSHA outreach sessions following the publication of the final
rule, two accredited testing organizations that did not offer
certifications by capacity questioned the need for specifying rated
lifting capacities of equipment on their certifications to comply with
the new crane standard. They expressed that meeting the capacity
requirement would require significant changes from their existing
certification practices without resulting in any real safety benefit.
They asserted that employers will still take steps to ensure that
certified operators are capable of safely operating the cranes at their
worksites, regardless of the rated lifting capacities of those cranes.
Thus, these testing organizations expressed the view that the
certification by capacity requirement is unnecessary.
Those two testing organizations and many other stakeholders also
expressed surprise and concern that on November 10, 2014, when OSHA's
operator certification requirements were to take effect, the temporary
requirements of Sec. 1926.1427(k)(2)--the employer duty to ensure that
operators are competent--would no longer be in effect.
U.S. Small Business Administration (SBA) Roundtable
SBA's Office of Advocacy held a Small Business Labor Safety (OSHA/
MSHA) Roundtable discussion about the type and capacity issues of
OSHA's crane standard on November 16, 2012. At this meeting, major
stakeholders, including a labor union, construction trade associations,
crane manufacturers, and safety professionals, warned of the negative
impact on the regulated community that would occur if OSHA did not
continue to require employers to ensure the competency of crane
operators, as well as recognize certifications acquired by operators
from testing organizations that do not issue certifications by rated
lifting capacity. Though they had not made such comments in the
rulemaking, industry representatives, who were still in support of
requiring operator certification, likened operator certification to a
learner's permit to drive a car, suggesting that passage of the
certification test meant an individual could operate a crane, but was
not necessarily competent to perform the specific tasks required by an
employer. They cautioned that an employer should weigh factors in
addition to whether an employee has an operator certification before
allowing an employee to operate a crane.
November 29, 2012, ACCSH Meeting and Subsequent Actions
At a November 29, 2012, ACCSH meeting, a representative from one of
the organizations not providing certifications by capacity said that
his organization had issued most of the operator certifications
acquired by operators in construction (hundreds of thousands) and
warned OSHA of an imminent disruption of construction projects should
OSHA consider that organization's certifications to be noncompliant
(OSHA-2012-0011-0087). In addition, individual employers wished to
ensure that their operators' certifications would be recognized as
valid by OSHA as they approached the November 10, 2014, effective date
for certification/qualification requirements. In response, OSHA engaged
in detailed discussions with a variety of stakeholders about their
experience using certifications and the relevance of equipment rated
lifting capacities to operator competency, safety, and certification
testing.
OSHA also continued to engage in conversations with the four
accredited testing organizations and two industry-recognized
accrediting agencies to assist them in their efforts to meet the
criteria specified by the new crane standard. OSHA clarified that these
organizations need only specify the rated lifting capacity of the crane
in which an operator was tested to meet OSHA certification
requirements. The rated lifting capacity on the certification would
specify the maximum rated capacity for which the operator was certified
and, in combination with the rule, allow operators certified at one
capacity to also operate cranes with lower capacities. Nevertheless,
construction employers contacted OSHA to express frustration about
receiving conflicting information from various outside groups about
whether existing certifications would meet the new crane standard's
requirements.
Stakeholder Meetings (April 2013)
In response to mounting frustrations of many in the construction
industry, OSHA conducted three stakeholder meetings on April 2-3, 2013,
to gather additional information about the issues of operator
qualification and the "type and capacity" requirement for
certification, in particular. Participants included representatives of
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 are available in the docket for this
rulemaking (see ID-0539). The two testing organizations that did not
certify by capacity and some stakeholders in the crane industry again
questioned the purpose of C-DAC's recommendation requiring different
levels of certification be made available by rated lifting capacity and
requested that OSHA remove the requirement.
In addition, various parties informed OSHA that, in their opinion,
the operator certification option would not adequately ensure that
crane operators could safely operate their equipment to perform work at
a construction site. They stated that, for an employer to ensure
operator competence, additional training, experience, and evaluation
would be needed that goes well beyond the level of training and
experience needed to obtain a certification. Most of the meeting
participants agreed that an operator's certification by an accredited
testing organization does not mean that the operator is competent or
has enough experience to operate a crane to do construction work.
OSHA heard from many stakeholders that the employer should play a
direct role in ensuring that their operators are competent because a
standardized test cannot replicate all of the conditions that operators
will face on the jobsite. They indicated that the employer is typically
in a better position than a certifying organization to ensure that an
operator has the skills, knowledge, and judgment required for a
particular assignment on a particular crane. Again, many stakeholders
likened operator certification to a learner's permit to drive a car.
They cautioned that certification should be one of several factors to
be weighed by an employer before allowing an employee to operate a
crane. Most participants said that the operator's employer should
always be made responsible for ensuring that an operator is competent
to safely operate a particular crane to do construction work. Others
indicated that employers will confirm operator competence regardless of
OSHA requirements because the risk is too great and other influences
like contracts and insurance premiums drive them to do so. Overall
though, all stakeholders reiterated that operator certification is
beneficial in establishing a minimum threshold of operator knowledge
and familiarity with very basic crane operation.
May 24, 2013, ACCSH Meeting
ACCSH met on May 24, 2013 (OSHA-2013-0006-0025). OSHA presented the
issues surrounding operator competency
and certification to the committee, and the committee heard comments
from stakeholders and the public. At this meeting, representatives from
two accredited testing organizations provided conflicting public
comments regarding the capacity-certification requirement. One of the
two testing organizations that does not certify by capacity again
warned of the potential impact on the industry should OSHA enforce the
crane certification requirements as published in the final rule. On the
other hand, a testing organization that offers certification by
capacity noted that certifications by type and capacity were already
available to employers and operators, confirming that it is feasible to
meet the capacity requirement. Other public stakeholders expressed
concerns about the potential impact on crane safety in construction
should OSHA not enforce the crane certification requirements when
scheduled to come into effect on November 10, 2014, but asked that OSHA
quickly resolve the "type and capacity" issue.
ACCSH considered a proposal that OSHA suspend the certification
requirements of the crane standard indefinitely until a new rule could
be proposed. One ACCSH member representing a major trade association
explained that many employers were not sure whether it was wise to
invest in the certification of their operators to meet OSHA
requirements that may change as result of the pending rulemaking (see
OSHA-2013-0006-0025, p. 16). A suspension of the requirements, it was
argued, would end confusion among employers about what certification
requirements had to be met by a new effective date. The proposal also
suggested that OSHA remove the certification/qualification requirements
altogether. Until OSHA adopted a revised certification requirement,
however, the proposal would require employers to train, evaluate, and
ensure the operating competency of their operators in accordance with
the transitional requirements in current Sec. 1926.1427(k). Following
the ACCSH meeting, OSHA announced that it would initiate a rulemaking
to explore extending the certification deadline and the "phase-out"
of the employer duty to ensure operator competency and the deadline for
operator certification (see ID-0671 or https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24090).
E. Extending the Effective Dates for the Employer Duty and
Certification
As noted above, OSHA received significant stakeholder feedback
between 2010 and 2013 indicating that employers should not be able to
rely solely on certification as the means of ensuring operator
competency, primarily because the certification programs only examine a
basic level of general crane operation knowledge and skills without
assessing an operator's ability to operate the equipment they will
actually use or the various types of operations that they will need to
perform on a particular jobsite. In response, OSHA completed a follow-
up rulemaking to extend the deadline for operator certification by
three years until November 10, 2017, and also to extend for the same
time period the existing employer duties (see 79 FR 57785 (September
26, 2014)). OSHA subsequently extended both the deadline and the
employer duties by a further year to November 10, 2018 (see 82 FR 51986
(November 9, 2017)). The main reason for these extensions was to
provide OSHA with additional time to determine whether it would be
necessary to undergo additional rulemaking regarding crane operator
competency requirements. This rulemaking reflects OSHA's decision to do
so.
F. Discussions With the Construction Industry Stakeholders
Discussions With Companies, Unions, and Organizations Who Train,
Assess, and/or Contract Crane Operators
In order to gather factual information, OSHA conducted more than 40
site visits, conference calls, and meetings with stakeholders between
June 6, 2013 to March 27, 2015, regarding their experiences with
training, evaluating, and ensuring the competency of crane operators.
Among these stakeholders were:
3 crane rental companies [1 large (more than 100 cranes), 1
medium (more than 20 cranes), 1 small (less than 20 cranes)]
10 construction companies that own/operate cranes
[homebuilders, tank builders, propane delivery, steel erector]
3 large construction/operator training companies
5 crane manufacturers
3 construction labor unions
2 safety consultants/trainers
4 state agencies
British Columbia's qualification program
1 sole proprietor/owner operator homebuilding company
3 crane insurers
certification testing bodies and accrediting entities
During discussions with stakeholders, OSHA personnel took notes
that were consolidated into draft reports, which were provided to the
employer or organization for their corrections or comment before the
reports were finalized. Twenty-eight of the discussions were drafted
into written reports. The other conversations were not documented
because they were either informal or the organization's representatives
did not want their comments to be cited in the rulemaking record other
than being referenced anecdotally. The twenty-eight reports, as well as
a detailed summary of the reports, are in the docket for this
rulemaking (ID-0673). Overall, the stakeholders described their
business models for bringing cranes to construction sites, operator
competency programs, methods for ensuring that cranes brought to the
worksite are safely run by competent operators, and views on the use of
operator certification in their operator competency programs.
During conversations with stakeholders, OSHA confirmed that most
industry representatives did not understand that the crane standard
requires employers only to ensure that their operators are certified
and does not require further evaluation of a certified operator's
competency. Several industry representatives said that regardless of
what OSHA's crane standard requires, construction and insurance
industry influences would prevent many employers of crane operators
from relying solely on certification to verify the competence of their
crane operators. Furthermore, all of the company representatives stated
that they would not let an operator run any of their cranes based
solely on his/her possession of an operator's certification. And
although most general contractors require their subcontractors to
verify that operators are certified, they intervene when there are
indications that the actions of a crane operator could compromise the
safety of a worksite. OSHA confirmed from these discussions that,
regardless of whether an operator has a certification, all of the
employers contacted evaluate their operators to ensure competency.
Most employers stated that they value third-party certification,
but do not treat it as sufficient, by itself, to establish competency.
Many employers expect operators to get certified early in their
competency programs as a gauge for confirming whether an operator has
the skills and abilities to obtain and use knowledge that is essential
to safely operate cranes. One company explained that it uses
certification as more of an administrative tool and only sends
employees who have been trained and demonstrate, through closely
monitoring on job performance, the knowledge and ability to operate a
crane to earn a third-party certification. Most stakeholders viewed
certification only as a verification of an operator's basic operating
skills and crane knowledge such as:
Reading load charts,
recognizing basic crane hazards,
inspecting the equipment,
knowledge of applicable regulations, and
familiarity with basic crane functions to control the boom
and load line.
In addition, insurers explained they award reduced rates to
employers whose operator competency programs include operator
certifications.
In sum, many in the industry have concluded that the degree of
training and operating experience needed to successfully pass
certification testing may help to increase the baseline crane safety on
construction sites. They often referenced their successes in states or
localities that require similar certifications. But all stakeholders
said it is essential that the operator's employer determine whether the
operator is competent to safely operate a crane for a particular
construction activity.
While operator competency programs vary based on business model,
equipment used, and work performed, there are strong similarities in
the programs identified by the stakeholders as effective. Typical
operator competency programs for operators-in-training (employees who
have not been certified/licensed and evaluated to operate assigned
equipment) begin with classroom training and dialogue to gauge what
additional training and experience is needed. At some point, the
operator-in-training demonstrates that he or she is ready to begin
training-related operation of the equipment, which may eventually
include, for example, practice in the cab at storage yards or in open
areas at job sites where equipment is already set up. For more
experienced operators-in-training, the types of knowledge and
operations for which they are asked to demonstrate proficiency
typically include doing crane-related inspections, reading load charts,
calculating loads, and smoothly operating the crane to handle loads.
Typically, novice operators-in-training start out on smaller cranes/
shorter boom lengths and their assigned practice/work eventually
includes the performance of simple, low-priority jobs and lifts where
they have plenty of time to practice and ask questions of the trainer
or more experienced operators as needed.
Most stakeholders explained that their evaluation of each operator
is ongoing from the time they begin checking the operator-in-training's
credentials and references until they confirm the operator's experience
by observing them operate construction cranes. The evaluation is also
based on the often daily informal evaluations of an operator's
performance by the employer and other people that work around a crane
operated by the operator-in-training. Several stakeholders explained
that operator competency programs are often supplemented by the
operator's completion of union apprenticeships (about one-half of the
employers who operated cranes described that they employ union
operators).
A few employers explained how they verified operator competency
based on their prior experiences with the operator or references from
organizations for which the operator has previously completed crane
work. Every employer with whom OSHA spoke stated that the employer's
role in ensuring the competency of crane operators should be allowed to
continue.
Through these conversations, OSHA also gained a better
understanding of the many ways in which cranes and operators are
brought to construction work sites. Cranes may be owned or leased;
operators may be long-term employees, hired from a crane rental
company, or hired out of a labor organization's hiring hall for a few
days. To minimize the cost of crane use, construction employers may
rent a crane with an operator provided by the rental company, rent only
the equipment because the employer already has an operator on staff, or
hire a short-term employee or a contractor separately to operate the
crane.
G. Consulting ACCSH--Draft Proposal for Crane Operator Requirements
OSHA presented draft revisions to the Cranes and Derricks in
Construction standard to the Advisory Committee for Construction Safety
and Health (ACCSH) at a special meeting conducted March 31 and April 1,
2015, in Washington, DC. The draft revisions included proposals to
remove the capacity requirements for operator certification and to
retain permanently an employer duty to ensure operator competency.
ACCSH heard public comment on the draft proposed rule at the meeting
before it considered any recommendations (OSHA-2015-0002-0036).
OSHA's draft included substantive requirements that employers would
be required to follow to ensure operator competency. Operators would
not have been permitted to operate a crane independently until the
employer qualified them as competent. It also re-organized the
provisions of Sec. 1926.1427 to clarify its requirements by re-
ordering and re-grouping a number of the certification/licensing
requirements. The draft also included new provisions designed to
eliminate employee exposures to the hazards presented by cranes
operated by unqualified crane operators on multi-employer worksites.
Several ACCSH members and some public commenters expressed strong
concerns about OSHA making any changes to the crane standard beyond
those necessary to extend permanently the employer duty to determine
operator competency and to eliminate the requirement that
certifications be by capacity. Many of these ACCSH members and public
commenters were concerned that additional provisions would slow down
the process, and that the draft documentation provisions for employer
evaluations of operators were too extensive and restrictive. After
considering the public comments, ACCSH expressed confidence that OSHA
would address those concerns before proposing a rule. In addition,
ACCSH made the following recommendations that OSHA:
Move forward with certification by the means in the
existing standard and pursue employer qualification of crane operators.
Clarify the requirement for certification so that
certification can be by type, or by type and capacity.
Reconsider the language in the proposed text that appeared
to require the employer to observe the operator operate the crane in
each and every configuration to determine whether the operator was
competent.
Use the text submitted by William Smith (Exhibit 12) as a
substitute for the draft language on evaluation in the proposed
text.\3\
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\3\ William Smith, commenting as a private citizen, presented
revisions to 29 CFR 1926.1427(a) by the Coalition for Crane Operator
Safety (OSHA-2015-0002-0051). The document recommended revising
Sec. 1926.1427(a) by adding provisions that an operator must meet
OSHA's qualified person standard and mandating training if an
operator cannot safely operate the equipment. In 1427(b), he
recommended removing the language that an operator will be deemed
qualified if he or she is certified. Throughout Sec. 1926.1427, he
recommended removing references to capacity.
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Delete the annual re-evaluation provision in the proposed
rule, and instead consider employer re-evaluations that coincide with
the re-certification period.
Consider adding a provision that if the operator operates
the equipment in
an unsafe manner, the operator must be re-evaluated by the employer.
H. National Consensus Standards
In adopting a standard, the Occupational Safety and Health (OSH)
Act requires OSHA to consider national consensus standards, and where
the agency decides to depart from the requirements of a national
consensus standard, it must explain why the departure better
effectuates the purposes of the Act. OSH Act 6(b)(8). As OSHA explained
when adopting the updated crane rule in 2010, the ASME B30 Standard is
a series of voluntary consensus standards that apply to most of the
types of equipment, including cranes and derricks, covered by subpart
CC as a whole (75 FR 48129-48130). The B30 standards each have chapters
that address the operation of the equipment, which typically include a
section on crane operator qualification and crane operator
responsibilities. OSHA considered these provisions in drafting this
proposed rule. Similarly, OSHA considered the general requirements of
ANSI/American Society of Safety Engineers (ASSE) Z490.1, which
generally addresses the requirements of occupational safety and health
training.
This proposal takes many of the underlying concepts regarding
operator qualification that are consistent across the B30 standards and
ANSI/ASSE Z490.1, and it places them in one standard. This move will
allow employers and crane operators to look to one place for OSHA
requirements for operator competence and safety, rather than throughout
fourteen relevant B30 standards. The proposal rewrites the standards as
enforceable employer duties, as the OSH Act requires, rather than as
employee responsibilities or non-mandatory suggestions. The proposal
also expands on operator training requirements, which are not discussed
at length in the B30 standards and ANSI/ASSE Z490, and third-party
certification/license requirements, which are not required by the B30
standards or ANSI/ASSE Z490.
OSHA believes this proposal will better effectuate the purposes of
the OSH Act than any applicable national consensus standard because it
will retain certification, training, and operator qualification
requirements in a manner that OSHA can enforce under the Act and
consolidate all crane operator qualification requirements for ease of
reference. OSHA requests comment on whether this proposal will better
effectuate the purposes of the OSH Act than any applicable national
consensus standard.
I. The Need for a Rule
Based on the information collected from stakeholders and the
recommendations of ACCSH, OSHA proposes to amend 29 CFR 1926 subpart CC
by revising sections that address crane operator training,
certification/licensing, and competency. The purposes of the amendments
are to clarify training requirements for operators; to remove
certification-by-capacity from certification requirements; to clarify
and permanently extend an employer's duty to evaluate potential
operators for their ability to safely operate assigned equipment
covered by subpart CC; and to require that employers document the
evaluation. Because these revisions required some re-working of the
crane standard, OSHA also took the opportunity to reorganize and
clarify the operator certification requirements in Sec. 1926.1427.
Employer's Duty To Evaluate Its Operators
OSHA is proposing to revise the crane rule to add a permanent
employer evaluation duty based primarily on the extensive feedback
received from the construction industry, which warned that
certification does not establish that operators have sufficient crane
knowledge and operating skills to safely perform crane operations at
construction sites in all circumstances going forward. As previously
explained in more detail in the background section, industry
representatives stated that to ensure crane safety on construction
sites, it is necessary for employers to continue to evaluate the
operating competency of potential operators and provide training beyond
that which is merely sufficient for those individuals to obtain
certifications.
The key difference between this proposal and the existing standard
is that the proposal would permanently maintain the employer's duty to
evaluate its operators, and provide greater specificity as to what that
duty entails in order to provide a clear and enforceable standard.
Under the existing standard, operator certification becomes de facto
qualification once the employer duty to ensure operator competence
(Sec. 1926.1427(k)(2)(i)) ends in November 2018. There are no other
requirements for operator safety qualifications beyond certification
after that date. Under the proposed rule, the employer's evaluation is
established as a critical step to ensure safe equipment operations on
construction work sites. While certification (or licensing in states or
localities with acceptable licensing schemes) and training may occur
under different, prior employers, the proposal would require that every
employer evaluate an employee first as an operator-in-training before
permitting him or her to operate equipment without oversight. The
process of the evaluation is performance-oriented and discussed in more
detail in the explanation for proposed paragraph 1427(f).
An employer's evaluation would assess different operator skills
than the existing certification tests. IUOE has pointed to a number of
activities that require specific skills that are not evaluated during
the certification practical exam: Inspecting the equipment; assessing
unstable loads; hoisting loads of irregular size; operation from a
barge; personnel hoisting; rigging the load; leveling the crane;
hoisting in tight spaces where there is greater opportunity for
damaging parts of the crane other than the load line; making judgments
about wind speed and other environmental factors that can impact the
performance of the equipment; performing multiple crane lifts;
traveling with or without a load; operating near power lines; hoisting
light loads; and hoisting blind picks where the operator cannot see the
load (Docket ID 0527, p. 3). IUOE has also noted that different skills
are required to operate equipment with different attachments and
identified in particular the unique skills required to operate with
clam bucket or drag line attachments (Id.). By way of contrast, the
IUOE stated, the operator certification practical test covers only
basic operation functions (hoisting and lowering a load and guiding it
through a course), and "does not test on the breadth of activities
that are involved in the operation of cranes" (Id.). Without the
proposed employer duty to evaluate operators, an employer could permit
a certified operator to operate tower cranes and other large equipment
in any configuration with any number of attachments without determining
if the operator possesses the requisite knowledge and skills necessary
to address the issues identified by IUOE and others.
Some employers describe certification as a "learner's permit"
(Stakeholder Notes, Reports #15, 26 of ID-0673), and a number of
employers with whom OSHA spoke stated that they would not allow a
certified operator to use their equipment without first also evaluating
the operator to verify competence (Reports #1, 6, 18, 20, 22 of ID-
0673). A training company for crane operators stated that "only a
fool" would rely on certification alone as an assessment of
an operator's ability to safely operate a crane at the worksite (Report
20 of ID-0673). Boh Bros. Construction Co., commented during the 2014
rulemaking that "a certification is only an indication of basic
skills. . . . Certification is good, but does not equal
qualification." [ID-0464]. Another training company representative
stated that operators with very little experience can acquire a
sufficient basis of knowledge of the crane to pass a certification exam
without being truly qualified to operate independently and safely on a
construction work site (Report #21 of ID-0673). Two stakeholders
expressed concern that relying solely on certification could be
dangerous because it would create a false sense of qualification,
leading some contractors to be less vigilant in evaluating the
competence of operators to safely operate equipment for all of their
tasks (Reports #9, 11 of ID-0673).
OSHA heard from many stakeholders that the employer should play a
direct role in ensuring that their operators are competent (Stakeholder
Notes, Reports #1, 2, 3, 4, 6, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20,
21, 22, 25, 26 of ID-0673). Because a standardized test cannot
replicate all of the conditions that operators will face on the
jobsite, the employer is typically in a better position than a
certifying organization to fully evaluate an operator to ensure that he
or she has the skills, knowledge, and judgment required for a
particular assignment on a particular crane.
Many stakeholders indicated that in their experience operator
competency needed to be crane-specific (Reports #1, 2, 3, 4, 6, 16, 19,
21 of ID-0673). Some of the stakeholders raised concerns about the
importance of these different crane characteristics in discussing
whether OSHA should require certification to be by type and capacity or
just by type. For example, one employer told OSHA that certification
could be by type alone, provided the employer was responsible for
evaluating operator competency on assigned equipment (Report #1 of ID-
0673). A crane operator training company that OSHA interviewed noted
that no one certification test could ever capture all of the types,
configurations, and capacities of cranes and the activities they may be
used to perform at the jobsite. Therefore, it is important that the
employer typically verify the operator's skill level through an
experienced assessor (Report #20 of ID-0673).
An extensive analysis of crane accidents published by HAAG
Engineering in 2014 concluded that crane incidents are more likely to
be reduced if a company ensures that an operator possess equipment-
specific skills and knowledge in addition to certification:
The certification process ensures that an operator has
demonstrated a core knowledge set of the principles of cranes and
crane operations, OSHA regulations, and ASME standards requirements
. . . has successfully demonstrated both knowledge and the physical
skill set to operate a type of crane. . . .
Comparing responsibility failure trends between crane types
gives strong evidence that crane model-specific training is an
overwhelmingly good idea. . . . In order for the industry to
theoretically provide a quality certification for each model crane,
the process would take decades just to develop certifications for
existing model cranes, and with new models coming out every year,
that development process would also be never-ending. Each time a new
model crane was released, its use would be prohibited until a
qualified certification process was developed if model-specific
certification was required. Model specific qualification is an issue
that cannot and should not be done by the certification process, but
should be done through training and examination by the individual
company and corresponding operator in addition to earning type-
specific certifications which ensure the knowledge and skill sets
discussed above.
Understanding of crane principles, general crane
characteristics, individual responsibilities, and national standard
guidelines is the basis for certification; however, an operator's
familiarity with the particular unit is invaluable in the goal to
reduce operator associated incidents.\4\
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\4\ Wiethron, Jim D., Crane Accidents: A Study of Causes &
Trends to Create a Safer Work Environment, 1983-2013, pp. 105-106
(HAAG Engineering, 2014).
The proposed evaluation requirement is a mechanism to help ensure
that operators possess the skill to account for the variations within
even a single type of crane; without the evaluation requirement there
would be no distinction between the competency required to operate the
smallest, simplest mobile crane and the largest, most complex mobile
crane. It is our intent with this proposal to avoid a repeat of a
tragedy like the Deep South collapse, in which an operator was assigned
to a crane of a type for which he was certified, but the controls and
operations were substantially different from those with which he was
familiar (see Deep S. Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-
0240, 2012), aff'd Deep S. Crane & Rigging Co. v. Harris, 535 F. App'x
386, 390 (5th Cir. 2013)).
Most concerns expressed about the evaluation requirement focused on
the specifics of the requirement, not the proposition that an employer
should have a duty to ensure operator competency. Indeed, only one
employer stated that it does not believe a formal evaluation
requirement should be part of the rule, expressing concern that it
might be something compliance officers cite when there are not obvious
violations, and even that employer acknowledged that the employer's
role in ensuring operator competency is important. (Interview #15). But
unless OSHA includes the evaluation duty in the regulatory text,
employers would have no enforceable duty to conduct any assessment of
their operators. Other employers questioned the practicality of a
formal evaluation requirement, but OSHA believes that requirement to be
necessary for effective enforcement of an employer's duty to conduct
any assessment of their operators. Finally, one employer told OSHA that
a formal rating system or checklist for evaluating a new operator's
competency would be impractical (Report #1 of ID-0673), while another
employer told OSHA that one cannot write a procedure to qualify someone
because it is all knowledge and experience (Report #6 of ID-0673).
OSHA appreciates the concerns that inflexible procedural
requirements would cause unnecessary interference with existing work
practices. For this reason, as discussed more fully in the preamble for
paragraph 1427(f) of the proposed rule, OSHA has addressed these
concerns by carefully tailoring its proposed evaluation requirements to
provide significant flexibility for the employers. But it is also
important to note that OSHA is not proposing to create a totally new
duty. All employers were required to assess their operators prior to
the 2010 rulemaking, continue to have such a duty under existing Sec.
1926.1427(k), and OSHA is not aware of any significant difficulties
complying with those requirements. This rulemaking would simply clarify
what that evaluation involves, and would make the duty permanent.
Generally, stakeholders supported making permanent an employer's
duty to verify operator competency. During its testimony in support of
retaining an employer duty to assess operators, the IUOE stated that
removal of that duty would endanger operators and workers in the
vicinity of cranes, "[c]rane operators would be in a far worse
position than they were before issuance of the final rule in August
2010." (ID-0486). William Smith of Nations Builders Insurance Services
(NCCCO board member and C-DAC member) agreed, commenting that
"[l]eaving the rule as written [with certification but without a
continued employer duty after November, 2014] would take us back in
time not forward in protecting lives" [ID-0474]. A U.S. crane
manufacturer stated that the lack of employer evaluation of an operator
would be a problem, and certification is a foundation, but should not
be a substitute for an employer competency evaluation. (Report #4 of
ID-0673). Similarly, a training company representative stated that
certification plays a vital role in the operator competency process,
but sufficient training and months to years of actual operating
experience are needed to ensure the operator's competency (Report #20
of ID-0673).
Other employers agreed that, depending on a number of factors,
determining the competency of a new, inexperienced operator to become
an independent, safe, and efficient operator is a process that can vary
in time depending in part on the employer needing a new operator,
having a crane available, and demand for the crane services (e.g.,
Reports #2, 11 of ID-0673). This competency process is often informal
and integrated in day-to-day work, with operators-in-training working
closely with experienced operators in on-the-job training who mentor
them and show them how to use equipment (Reports #1, 2, 3, 6, 11, 15,
16, 18, 19, 23 of ID-0673). Operators receive experience not only in
the cab, but also in many tasks or operations related to hoisting, such
as rigging, assembly/disassembly or set-up, or inspections.
A crane insurance representative suggested that the industry is
moving away from assigning two employees to work on a crane, where the
less experienced employee is mentored by the other, and expressed
concern that this shift may impact the availability of sufficiently
qualified operators and the safety of the industry (Report #25 of ID-
0673). If true, such a trend would increase the importance of an
employer evaluation requirement because the informal monitoring would
be less frequent. Requiring certification by crane type and retaining
the existing employer duty to evaluate operators should ensure that
crane operators have sufficient training to maintain safety, even if
the industry is moving away from assigning two employees to work on a
crane. The existing certification requirement ensures baseline
knowledge and skills to operate a crane, while retaining the employer
duty to evaluate operators provides some assurance that the operator
can handle the specifics of operating particular equipment and
performing more challenging tasks. Many industry stakeholders told the
agency that this combination is necessary to fully ensure that
operators are truly qualified to operate the equipment for their
assigned tasks.
Based on all of the reasons in the foregoing discussion, OSHA is
proposing to clarify and make permanent the requirement for employers
to evaluate their operators and operators-in-training in addition to
ensuring that they are certified in accordance with the existing
standard. The specific evaluation requirements are set out in proposed
paragraph Sec. 1926.1427(f) and are explained later in this document
in the preamble discussion of that paragraph. OSHA requests comment on
this proposal to retain the evaluation requirement in addition to
certification. Are there more effective ways of ensuring that operators
are fully qualified to use cranes for the specific activities that the
operator will be required to complete, such as independent third-party
evaluations?
Elimination of the Requirement To Certify Based on Capacity of Crane
As discussed above, OSHA's research suggests that while
certification by type of crane establishes that an operator has a basic
level of skill and knowledge about the operation of that type of crane,
it is the employer's evaluation that best ensures the operator has the
skill and knowledge necessary to operate a crane in a particular
configuration. While testing organizations differed over whether a
certification by capacity provided any useful information to an
employer, most agreed that capacity is just one factor to be considered
in the employer's overall evaluation of the operator's ability. OSHA is
unaware of any direct evidence establishing a safety benefit for
requiring certification by capacity. For these reasons, OSHA has
preliminarily determined that, if the employer duty becomes a permanent
requirement, employee certification by capacity of crane should no
longer be required; rather, it should merely be an option for those
employers who wish to use it.
OSHA requests comment on its proposal to eliminate the requirement
that crane operators be certified by capacity in addition to type of
crane. Do you or your employer currently require certification by both
type and capacity? If so, how do you use the certification on capacity
in determining whether an employee may operate a particular crane or
conduct a particular lift? Please provide any other information of
which you are aware showing safety benefits from certification by
capacity.
J. Significant Risk
Section 3(8) of the OSH Act requires that OSHA standards be
"reasonably necessary or appropriate to provide safe or healthful
employment" (29 U.S.C. 652(8)), which the Supreme Court has
interpreted as requiring OSHA to show that "significant risks are
present and can be eliminated or lessened by a change in practices"
(Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642
(1980) (plurality opinion) ("Benzene")). The Court clarified that
OSHA has considerable latitude in defining significant risk and in
determining the significance of any particular risk, noting that "[i]t
is the Agency's responsibility to determine, in the first instance,
what it considers to be a `significant' risk" (Benzene, 448 U.S. at
655).
Although OSHA makes significant risk findings for both health and
safety standards, the methodology used to evaluate risk in safety
rulemakings is more straightforward. Unlike the risks related to health
hazards, which "may not be evident until a worker has been exposed for
long periods of time to particular substances," the risks associated
with safety hazards such as crane tipovers, electrocution, and striking
or crushing workers with a hoisted load, "are generally immediate and
obvious." Benzene, 448 U.S. at 649, n.54. OSHA's 2010 Cranes and
Derricks in Construction standard was accompanied by an extensive
analysis in which the Agency examined fatality and injury data
available in 2008 and concluded that employees working in or around
cranes and derricks face a significant risk of death or serious injury
(see 75 FR 48093).
When, as here, OSHA has previously determined that its standard
substantially reduces a significant risk, it is unnecessary for the
Agency to make additional findings on risk for every provision of that
standard (see, e.g., Public Citizen Health Research Group v. Tyson, 796
F.2d 1479, 1502 n. 16 (D.C. Cir. 1986) (rejecting the argument that
OSHA must "find that each and every aspect of its standard eliminates
a significant risk"). Rather, once OSHA makes a general significant
risk finding in support of a standard, the next question is whether a
particular requirement is reasonably related to the purpose of the
standard as a whole. (Asbestos Information Ass'n/N. Am. v. Reich, 117
F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Secretary of
Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (D.C. Cir. 1980)).
As explained elsewhere in this preamble, the proposal meets this
test. OSHA previously concluded that the standard would substantially
reduce risk through a combination of mandatory operator certification
and other requirements, but OSHA did not claim that the standard would
eliminate the significant risk entirely. The employer evaluation is
reasonably related to the reduction of significant risk because it
reduces employee exposure to the previously identified hazards. It
reflects current industry best practices and helps to ensure the
employee has the skills and knowledge to operate the crane safely
during the lifts to which he or she is assigned.\5\
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\5\ The proposed removal of the requirement for certification by
crane lifting capacity is not implicated in this significant risk
discussion because it removes a requirement and does not impose any
new duties.
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The Agency notes that there is ample evidence in the record that
workers could continue to be exposed to the hazards that OSHA sought to
reduce through the cranes standard. OSHA relied on fatality data
available in 2008 when it promulgated the crane standard, but
unfortunately crane-related fatalities have continued to occur.
According to the Census of Fatal Occupational Injuries, 47 crane
operators were killed between 2011 and 2014 (this does not include
accidents with non-fatal injuries or crane incidents causing fatalities
or injuries to workers other than the crane operator).\6\
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\6\ Bureau of Labor Statistics, Census of Fatal Occupational
Injuries (2011 forward), Fatalities to Crane and Tower Operators,
series ID FWU50X53702X8PN00, available at http://www.bls.gov/iif/data.htm.
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Another useful data source is a report by an engineering forensics
firm, HAAG Engineering, of a large dataset of crane accidents that it
has investigated over a period of 30 years (Wiethorn, 2014, the "HAAG
Report") (ID-0674). The final dataset has 507 incidents, covering all
types of cranes and accidents. This dataset is likely biased towards
larger accidents since these are more likely to warrant significant
investigation for insurance and litigation issues. But while it cannot
be said to be a representative sample of all crane accidents, it is a
large sample and hence suggestive of more general trends. The HAAG
report states that of 147 fatalities among its reported crane
incidents, 28 were operators, meaning there were over 4 times more non-
operator employees killed than operators from crane accidents in this
sample ((147-28)/28 = 4.3).\7\ Similarly for injuries, out of 281
injuries, 29 were to operators, so that there were 8.7 non-operator
injuries for every operator injury ((281-29)/29 = 8.7).\8\ Of course
these two categories are not mutually exclusive (there will often be
injuries when there is a fatality).
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\7\ The HAAG report, p. 31.
\8\ Id.
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As noted in more detail in the Benefits section of the Preliminary
Economic Analysis for this rule, three recent fatalities in particular
illustrate the dangers from improper equipment operation that OSHA
posits could be prevented by the evaluations included in this proposed
amendment to the standard. In one instance, the crane operator was not
familiar with the controls of the equipment. In another incident, an
operator hoisting pipes longer than he had previously hoisted used an
improper boom angle, indicating that he did not possess adequate
knowledge and skills to address the additional challenges of the task
he was required to perform. In the third incident, a fatality occurred
when an employee operated a new, unfamiliar machine with controls in
different locations than the machines with which the operator was
accustomed. While the employee's use of that equipment arose from
unexpected circumstances, the result nonetheless demonstrates the risk
inherent with operating a crane without a method to ensure the operator
knows how to use the particular crane to which he or she is assigned.
As explained in the Background and Need for Rulemaking sections of
the preamble, stakeholders have raised serious concerns that the
current level of risk will increase if OSHA does not make permanent the
employer duty to ensure operator competency on the actual equipment
they operate. The nearly unanimous message to OSHA is that crane
operator certification is designed to ensure a basic level of general
operating competency, but is not by itself sufficient to ensure that
operators have the necessarily skills and knowledge to operate all
assigned equipment or to perform all assigned tasks safely.
III. Summary and Explanation of the Proposed Amendments to Subpart CC
Discussion of the Proposed Rule's Organization and General Terms Used
in Its Summary and Explanation
The following discussion summarizes and explains each new or
revised provision in the proposal and the substantive differences
between the proposal and OSHA's current crane operator requirements in
subpart CC of 29 CFR 1926. In general, OSHA proposes to reorganize this
section of the current rule to improve comprehension of the
requirements. In the Background section of this notice, OSHA summarizes
revisions to the current rule that would clarify crane operator
requirements and address concerns raised by stakeholders and through
enforcement activity. OSHA asks for public comment on the potential
impact and necessity of those revisions and for alternatives to these
revisions that should be considered.
OSHA applies the term "qualification" within the proposed
regulatory text for operators working for the U.S. military. This has
been carried over from the existing provisions. OSHA has retitled Sec.
1926.1427 as "Operator training, certification, and evaluation." When
OSHA uses "qualification" or "qualified operator" in this preamble,
it means an individual who is fully trained, certified, and passed an
evaluation by the employer, or the process of completing all three of
those steps.
Paragraph (a)--Duty To Train, Certify or License, and Evaluate
Operators
Proposed paragraph (a) sets out the employer's responsibility to
ensure that each operator completes three steps before the employer
permits him or her to operate equipment covered by subpart CC without
continuous supervision. Each operator must be trained to do the
construction activity that will be performed, be certified/licensed in
accordance with subpart CC, and be evaluated on his or her competence
to safely operate the equipment that will be used. In addition,
paragraph (a) sets out exceptions to these requirements for certain
equipment, as well as continuing to note that qualifications issued by
the U.S. Military to its non-uniformed employees satisfy OSHA's crane
standard. The proposed new approach provides a clearer structure than
the existing standard, which was not designed to accommodate both
certification and evaluation.
In addition, the proposal makes clear that post-certification
training is required.
OSHA acknowledges that the existing standard could be clearer
regarding ongoing training requirements for certified operators. OSHA
anticipated, and the existing rule reflects the notion, that
certification would supplant the employer's evaluation, and that
employers would train their operators on the equipment for which they
were certified, so therefore the employer would have met the training
requirements specified under Sec. Sec. 1926.1427(f) and
1926.1430(c)(2) at or around the time the operator was
certified. Therefore, OSHA did not spell out the ongoing training
necessary for certified operators to learn to operate new equipment or
perform new tasks. The proposed rule contemplates operators still
needing additional training after they are certified, such as training
to operate a new type of crane, perform new tasks, or handle new
controls in a new model of crane.
The training components in the proposed and existing standards are
similar. The proposed standard differs from the existing standard in
that it clarifies that the employer would be obligated to train
employees, as necessary, even after they are certified, until the
employer has evaluated them in accordance with proposed paragraph (f).
As under the existing standard, (see current Sec. 1926.1430(g)(2)),
refresher training would also be required when indicated by
deficiencies in the employee's demonstrations of crane knowledge and
equipment operation.
The current certification/licensing requirement, which is the
centerpiece of the existing operator requirements, would remain largely
unchanged under this proposal, with the exception that different
certifications for different capacities of cranes would no longer be
required. The reference to "certified/licensed" is intended to
encompass each of the certification options in the standard (third-
party certification or an audited employer certification program) as
well as state or local operator licensing requirements.
The third element in the introductory text of proposed paragraph
(a) refers to the employer's duty to assess the operator to ensure that
an operator has the skills, knowledge, and judgment to safely operate
equipment. The proposed duty to evaluate operators is similar to the
duty in the existing standard at Sec. 1926.1427(k)(2)(i), which
specifies interim duties that are required until they are scheduled to
be phased out once operator certification requirements become effective
on November 10, 2018. OSHA is proposing to maintain this employer duty
permanently but re-locate it to paragraph (a) to clarify the standard's
requirements. In addition to the existing requirements in Sec.
1926.1427(k)(2)(i), the proposal has requirements for the individual
who performs the evaluation and requirements for documenting the
evaluation. The proposal retains the existing standard's duty for
employers to re-evaluate operators when necessary (see current Sec.
1926.1430(g)(2)), but moves it to the evaluation section to clarify the
requirements (see full discussion of proposed paragraph (f)--Evaluation
below.)
Proposed paragraphs (a)(1)-(3) provide limited exceptions to the
general requirement in paragraph (a) that operators must be trained,
certified, and evaluated before operating equipment.
Proposed paragraph (a)(1) would permit an employee to operate
equipment as an "operator-in-training" prior to being certified and
evaluated, provided that he or she is supervised and operates the
equipment in accordance with the training requirements in paragraph
(b). This is the only means by which an individual may operate
equipment prior to being trained, certified, and evaluated as competent
to do so. This exception is substantively similar to the requirement in
the existing crane standard at Sec. 1926.1427(a), which permits
uncertified operators to operate equipment only when the employer
complies with the requirements specified under existing Sec.
1926.1427(f)--Pre-qualification/certification training period. But it
would also permit certified/licensed operators to operate equipment as
operators-in-training before successfully completing an evaluation. For
example, this provision would allow experienced and certified operators
to become accustomed to performing new crane operations or operating
somewhat different equipment while being evaluated by the employer for
that purpose, or to allow a newly hired operator to run the equipment
while a new employer gauges the operator's crane knowledge, operating
skills, and training needs. In addition, experienced operators who are
not certified could operate the equipment when all operator-in-training
requirements are met.
The proposal recognizes that on-the-job training is an important
component of gaining the practical operating experience necessary to
safely operate a crane and to pass a competency evaluation. Moreover,
based on the stakeholder discussions noted above, many employers who
train new operators require them to complete operator certification at
the beginning or in the middle of their training program, while
employer evaluation of competency is generally a later step in the
process and may occur many times over an operator's career. Therefore,
OSHA believes that permitting an operator-in-training to operate
equipment under the conditions specified in paragraph (b) is
appropriate and necessary to ensure the safety of operators-in-training
while they train for competency evaluations by employers.
In addition, proposed paragraph (a)(1) expressly states that an
operator-in-training may only operate equipment under supervision to
ensure that employers understand that supervision is a mandatory
component of operating in accordance with proposed paragraph (b), and
therefore under this exception. Because the existing crane standard
also requires operators-in-training to be supervised, including the
supervision requirement in proposed paragraph (a) as well as proposed
paragraph (b) is a non-substantive, clarifying amendment (see paragraph
(b) for a more thorough discussion of on-the-job and general training
requirements).
Proposed paragraph (a)(2) retains the exemptions for derricks,
sideboom cranes, and equipment with a maximum manufacturer-rated
hoisting/lifting capacity of 2,000 pounds or less from the training and
supervision requirements in proposed paragraph (b) and the
certification/licensing requirements in proposed paragraphs (c)-(d).
OSHA considered, but has declined to include in this proposal, other
requests for certification exemptions for operators of other types of
equipment, including cranes with a rated maximum lifting capacity in
the 5,000-35,000 pound range and cranes that are typically used for
repetitive lifts, or are only used intermittently. In adopting the
existing rule, OSHA considered exempting such equipment and concluded
that "many of the same hazards presented by larger cranes are present
for cranes in [the 5,000-35,000 lb.] capacity range" (75 FR 48016).
Similarly, OSHA concluded that the underlying causes of crane
fatalities and injuries did not necessarily decrease for cranes used
for duty cycle work (Id.).
Proposed paragraph (a)(3) would preserve an existing provision that
states that non-uniformed personnel employed and qualified as operators
by the U.S. military meet the licensing/certification requirements of
Sec. 1926.1427. OSHA moved this provision from the other
certification/qualifications options because it operates as an
exception: It specifies that no certification/licensing or training
obligation for construction employers is needed beyond verifying that
the employee is employed by, and qualified by, the military. For the
purpose of confirming that a military operator has the basic crane
knowledge and operating skills required through licensing and
certification, OSHA defers to the operator qualification process of the
U.S. military as the employer. However, the military qualification is
not portable: An operator must comply with all of the provisions of the
crane
standard whenever he or she operates equipment for an employer other
than the U.S. military. OSHA requests comment on this proposed
paragraph regarding whether the relocation of this provision is
appropriate and if it is clear that this is an exclusion from all
qualification and training requirements of this standard, not just
certification.
Paragraph (b) Operator Training
The requirement for employers to train and evaluate operators
before permitting them to operate equipment is contained in paragraph
(a) of the proposal. Proposed paragraph (b) would set forth minimum
requirements for training, specify requirements for trainers, and
establish limitations on the scope of activities for operators-in-
training. This proposed paragraph would specify the conditions under
which an individual may operate a crane prior to acquiring
certification or successfully completing an employer evaluation. These
training provisions are intended to provide a safe avenue for employees
to gain experience operating cranes.
The proposed training requirements of paragraph (b) would clarify
that employers must continue to address operator training needs after
the operator has been certified and demonstrated competency through
employer evaluation on specific equipment. Proposed paragraph (b)
differs from the training requirements in the existing standard because
the proposal would clarify that the employer's training duty is both
equipment-specific and task-specific, and extends until the employer
has satisfactorily evaluated the operator-in-training in accordance
with proposed paragraph (f)--Evaluation, or if any retraining or
subsequent training is required to perform the assigned tasks. The
proposal recognizes that even a certified and evaluated operator may
need additional training to safely operate new equipment or perform
significantly different types of lifts. Therefore, the employer's duty
to train remains an ongoing responsibility that must be met as the
operator's operating experiences expand. In contrast, the existing
standard is not as clear (except when an individual's deficient
operating performance or crane knowledge triggers re-training) that the
employer's duty to train extends beyond when the individual is
certified and evaluated. This proposal clarifies that the employer's
duty to train is aimed at ensuring that the employee can safely use the
equipment that will be operated.
Existing training requirements are distributed between two
sections. First, Sec. 1926.1427(f)--Pre-qualification/certification
training period, sets forth the limited conditions under which an
operator-in-training can safely operate equipment before being
certified. Secondly, Sec. 1926.1430--Training Requirements,
centralizes the triggers for operator training requirements, including
those for re-training. As discussed in the explanation for this
section, OSHA is proposing to remove the substantive operator training
requirements from Sec. 1926.1430 and replace them with a cross-
reference to proposed Sec. 1926.1427(b) so that the substance of the
training requirements for operators, as well as all operator-in-
training requirements, would be under one section. Relocating the
requirements of Sec. 1926.1427(f) would also ensure that the
organization of the crane operator requirements corresponds with the
order of a typical operator competency program--i.e. initial training
generally precedes certification and an operator being determined
competent by employer evaluation.
The introductory text in proposed paragraph (b) would require the
employer to provide operators-in-training with sufficient training to
ensure that they develop the skills, knowledge, and judgment necessary
to safely operate equipment to perform work. In addition, this proposed
requirement would specify that training must include a combination of
formal and practical instruction.
OSHA notes that this paragraph (b) does not mean that employers
must provide novice-level or redundant training when they hire an
experienced operator as a new employee. Employers must determine what
level of practical and formal training an operator-in-training would
need under proposed paragraph (b). Ultimately, the methods chosen must
be effective and responsive to each operator's training needs.
OSHA is proposing to remove the introductory text in existing
paragraph (f). The existing introductory paragraph contains the
requirement that a non-certified employee may only operate as an
operator-in-training within the limitations of paragraph (f), which
would be supplanted by the language in proposed paragraphs Sec.
1926.1427(a)(1) and (b).
Most of the specific training requirements in proposed paragraph
(b) would be identical or similar to the existing training
requirements. Proposed paragraph (b)(1) requires the employer to
provide the operator-in-training with instruction on the subjects in
paragraph (j). This requirement is identical to the requirement in
existing Sec. 1926.1430(c)(1)--Operators-in-Training for equipment
where certification or qualification is required by this subpart,
although under the proposed standard this duty continues after the
operator-in-training is determined competent by employer evaluation
when the operator operates new equipment or performs tasks that require
new skills or knowledge. An individual may be a fully certified and
evaluated operator with respect to one piece of equipment such that he
or she is allowed to operate that equipment independently, but
simultaneously be an operator-in-training (and thus subject to the
operating restrictions in the standard) with respect to different
equipment or tasks that require significantly different skills or
knowledge.
Current section 1926.1427(j)--Certification criteria specifies the
mandatory subject matter for third-party licensing and certification,
as recommended by C-DAC. It requires a written and a practical test.
Subparagraph (j)(1)(i) specifies areas of information that must be
covered by the written certification test for the type of crane that an
individual will operate, such as controls, operational/performance
characteristics, load calculations, and ground conditions. This
subparagraph also references a more comprehensive list of areas of
technical knowledge in Appendix C--Operator Certification: Written
Examination: Technical Knowledge Criteria. Subparagraph (j)(2)
identifies the operating skill areas that must be covered by the
practical certification test.
OSHA preliminarily concludes that operators-in-training should
continue to receive training in the subject matter identified in this
section as recommended by C-DAC. However, OSHA is proposing to relocate
the requirement in Sec. 1926.1430(c)(1) to proposed Sec. 1926.1427(f)
so that the requirements for operators-in-training may all be found in
one place. New language in proposed Sec. 1926.1430--Training,
discussed separately below in this preamble, would reference proposed
paragraph Sec. 1926.1427(a) and (b) rather than repeat the same
requirement.
Proposed paragraph (b)(2) requires the employer to ensure that a
trainer continuously monitors operators-in-training during all crane
operation. This requirement is identical to the existing requirement
for continuous monitoring under existing paragraph (f)(3).
Proposed paragraph (b)(3) requires the employer to assign the
operator-in-training only tasks that are within his or her ability.
This requirement is
substantively identical to the requirement under current paragraph
(f)(2). OSHA is proposing minor changes to the language of this
requirement to clarify that it is the employer's duty to assign tasks
to the operator-in-training. OSHA is also proposing to relocate the
requirements of existing paragraph (f)(1). The existing paragraph
requires the employer to provide each operator-in-training with
training sufficient to operate safely under the limitations of existing
paragraph (f). Its requirements are retained in proposed paragraphs
(b)(1) and (b)(3), which state that the operator-in-training must be
trained on the subject matter specified in paragraph (j) of this
section and may only perform tasks that are within his or her
abilities.
Proposed paragraph (b)(3) retains the limitations specified in
existing paragraph (f)(5), which preclude operators-in-training from
operating equipment next to energized power lines; from hoisting
personnel; or from performing multiple-equipment lifts, multi-lift
rigging operations, or lifts over shafts, cofferdams or in a tank farm.
OSHA previously determined in the 2010 final rule that these equipment
operations and worksite conditions are too complex, or present such
heightened risks, that it would be unreasonably dangerous if an
operator-in-training were to operate the equipment in these
circumstances (75 FR 48024). However, OSHA is considering revising
these limitations because they may have the effect of preventing
operators from gaining the experience necessary to conduct these lifts.
It appears that even certified operators may lack the experience to
perform crane operations listed in Sec. 1926.1427(b)(3), particularly
if the operator is subject to the operator-in-training prohibitions
until he or she is evaluated for competence at that skill. OSHA
requests public comment on whether such restrictions are still
appropriate or whether they unduly restrict the employer's discretion
to allow experienced but uncertified, or certified but unevaluated
operators, the opportunity to participate in even monitored, on-the-job
training for those activities. The agency is particularly interested in
comments addressing how employers have identified and evaluated
operators for these tasks, both before and after the 2010 rule took
effect.
Proposed paragraph (b)(4) prescribes minimum requirements for
monitored training of operators-in-training and trainers who monitor
operators-in-training. Proposed (b)(4)(i) specifies requirements for
the required trainer which are similar to requirements in paragraph
(f)(3) of the existing standard. Proposed paragraph (b)(4)(i)(A), which
requires the trainer to be the employee or agent of the operator-in-
training's employer, is identical to existing subparagraph (f)(3)(i).
Proposed paragraph (b)(4)(i)(B) requires that the trainer must
"have the knowledge, training, and experience necessary to direct the
operator-in-training on the equipment in use." This requirement is
different from the requirements of existing paragraph Sec.
1926.1427(f)(3), which requires a trainer to either be a certified
operator or to have passed the written part of a certification test and
have familiarity with the equipment's controls. This proposal
recognizes that some trainers without certification may be competent to
teach or monitor the equipment operations of an operator-in-training.
OSHA is proposing this change for three reasons. First, OSHA has
preliminarily concluded that merely requiring the trainer to have
passed the written part of a certification test is insufficient to
confirm a trainer's ability to train other operators. Existing
paragraph (f)(3) presumes that all certified operators or individuals
who passed only written certification tests have the skills to monitor
an operator-in-training, but as explained above, OSHA now believes that
certification alone is insufficient to ensure that operators are
competent to safely operate a crane. Under this proposed rule, even
after the basic crane knowledge and operating skills of operators have
been confirmed through certification testing, employers must still
determine through evaluation if operator training already provided is
sufficient or if more is necessary, based on the complexity of
equipment that will be used and activity that will be performed. Thus,
requiring an individual to pass a written certification exam appears to
be likewise insufficient as the sole criterion for confirming a
trainer's ability to monitor and train an operator-in-training.
Second, OSHA has preliminarily concluded that, using certification
as the sole criterion could actually impose barriers to proper training
to the extent it excludes individuals who have extensive operating
experience and familiarity with the controls of particular equipment
operated but may not possess a certification for it. The careers of
experienced operators may naturally progress to training other
operators as their physical abilities begin to diminish. Under the
existing trainer requirements, an experienced but uncertified operator
may have to be monitored by less experienced but certified individual
or one that has merely passed the written certification exam. For these
reasons, allowing only certified operators in these training roles, on
its face, appears to be inconsistent with an industry practice of
pairing inexperienced operators with experienced trainers who monitor
the safety and professional development of the inexperienced operator.
Third, OSHA concluded that passing a written certification test is
not a definitive indicator of safe training practices in the industry
and requiring certification of all trainers could significantly alter
many existing work practices in the industry. Stakeholder feedback
suggests that many different employees or agents of an employer fill
the role of a trainer under certain circumstances. Some formal training
might be administered by someone with extensive knowledge of a
particular make and model of crane. For example, some crane
manufacturers offer technical training to their customers regarding the
operation, maintenance, and troubleshooting of cranes they sell (see
Reports #4, 5, 13 of ID-0673). On-the-job training, by contrast, is
often administered by a seasoned crane operator with years of
experience (see Reports #1, 2, 19, 23, 28 of ID-0673) or in some cases
by a retired operator (see Report #26 of ID-0673). In addition, an
employer might employ an experienced safety manager, foreman, or site
manager to monitor some work activities, or an experienced small
business owner might fill the role of trainer in some cases (see
Reports #1, 2, 15, 26 of ID-0673). And OSHA spoke with three companies
that offer other employers private training from experienced operators
who are also qualified instructors (see Reports #20, 21, 22 of ID-
0673). In sum, stakeholders reported that some individuals who have the
necessary knowledge, training, and experience to direct the operator-
in-training do not possess a certification and possibly could not pass
formal testing for a variety of reasons.
Thus, although some public commenters at the March 31-April 1, 2015
ACCSH meeting supported requiring trainers to possess a certification,
OSHA proposes to adopt language similar to the requirement in ASME
B30.5 (2014) at 5-3.1.2(e) that training be performed by a "designated
person who, by experience and training, fulfills the requirements of a
qualified person." Under the proposed language, employers would have
some flexibility in determining the level of knowledge and experience
that the trainer must possess based on the skill level of the operator-
in-training and the nature of
the activity performed. OSHA expects that in many cases, the trainer
will possess a certification. However, the proposal leaves open the
possibility that the trainer's experience with the task and equipment
used could be sufficient for experienced personnel to provide training
even absent a certification. For example, an uncertified person who has
significant experience operating the particular equipment used during
the training may have more insight into the function of its controls
and the nuances of its operation than someone who is certified for that
type of equipment but has never operated that particular equipment.
OSHA concludes that this performance-based language, which is similar
to the qualified person definition that is familiar to the construction
industry, could give employers the flexibility to select and assign
trainers who are appropriate to the skills and needs of their
operators-in-training, while ensuring that these trainers possess an
ability to train operators-in-training that goes beyond mere
certification.
OSHA requests comment on this proposed revision of existing trainer
requirements. Should OSHA retain the requirement that trainers possess
a certification or at least pass the written certification exam while
adding a new additional requirement that the trainer possess the
knowledge, training, and experience to direct the operator-in-training?
Should trainers also be evaluated under proposed paragraph (f)? Should
certification alone be considered sufficient evidence that an
individual has the knowledge, experience, and training to be a trainer?
Why or why not? If certification is not sufficient, please provide
specific recommendations for additional qualifications. For example, if
the assertion is that a trainer should have previous experience
operating equipment, it would be helpful to specify what kind of
experience and how much: Should a specific number of seat hours be
required? Should experience with the same type of equipment be
sufficient, or should the trainer have previously operated that
particular equipment (and if so, for how long)?
Proposed paragraph (b)(4)(ii) prohibits the trainer from performing
any task that detracts from his or her ability to monitor the operator-
in-training. It is identical to existing paragraph (f)(3)(iii).
Proposed paragraph (b)(4)(iii) requires the operator's trainer and
the operator-in-training to be in each other's direct line of sight,
and that they communicate verbally or with hand signals. This
requirement is substantively the same as existing paragraph (f)(3)(iv),
with minor simplifying language changes. The proposal relocates this
provision to an independent subparagraph to clarify that the employer
has the ultimate responsibility for ensuring compliance with this
requirement. This proposed paragraph also provides an exception for
tower cranes; the trainer and operator-in-training must be in direct
communication with each other, but are not required to maintain a
direct line of sight because the height of the operator's station may
make it infeasible. (See also, the discussion of existing paragraph
(f)(3)(iv) in the preamble to the final cranes standard at 75 FR
48024). This exclusion is also substantively the same as existing
paragraph (f)(3)(iv), with minor simplifying language changes.
Proposed paragraph (b)(4)(iv) requires that an operator-in-training
be monitored while operating the equipment at all times except for
short breaks and retains the conditions specified under existing
paragraph (f)(4) for that monitoring. Proposed paragraph (b)(4)(iv)(A)
requires that a break can last no longer than 15 minutes and can occur
no more than once per hour. Proposed paragraph (b)(4)(iv)(B) requires
the employer to ensure that the trainer and operator-in-training
communicate about the tasks, if any, that can and cannot be performed
in the trainer's absence while on break. Proposed paragraph
(b)(4)(iv)(C) limits tasks performed during the trainer's break to only
those that are within the abilities of the operator-in-training.
Proposed paragraph (b)(5) requires the employer to provide
retraining when, based on the performance of the operator or an
assessment of the operator's knowledge, there is an indication that
retraining is necessary. This language is identical to the requirement
in existing Sec. 1926.1430(g)(2) but would be included in proposed
paragraph (b) to consolidate all substantive training requirements to
the extent practical for operators covered under Sec. 1926.1427.
Because the requirements of Sec. 1926.1430(g) apply more broadly to
all employees covered by this standard, however, OSHA is not proposing
to delete that requirement from Sec. 1926.1430(g). Thus, identical
language will appear in two different paragraphs of the proposed
standard. This retraining requirement is consistent with the retraining
described as already implemented by employers who spoke with OSHA
during interviews and site visits (see Reports #1, 2, 3, 15, 18, 19,
22, 26 of ID-0673). Note that the need for retraining under proposed
paragraph (b)(5) would also trigger the requirement for reevaluation
under proposed paragraph (f)(5) (see also preamble discussion below of
paragraph (f)--Evaluation).
Paragraph (c) Operator Certification and Licensing
At the ACCSH meeting on March 31-April 1, 2015, ACCSH members
unanimously recommended that OSHA move forward with a rulemaking that
retained certification while permanently extending the employer's duty
to ensure the competency of operators. Proposed paragraph (c) retains
the certification and licensing structure of the existing standard with
only a few minor modifications intended to improve comprehension of
certification/licensing requirements.
First, OSHA proposes to move the military qualification provisions
of existing Sec. 1926.1427(e)(4) to the proposed exception in
paragraph (a), as noted earlier.
Second, OSHA proposes to remove the somewhat misleading reference
to an "option" with respect to mandatory compliance with existing
state and local licensing requirements. When a state or local
government issues operator licenses for equipment covered under subpart
CC, and that government licensing program meets the requirements
specified in the standard, then employers must ensure that equipment
operators are properly licensed when working in the state or local
jurisdiction, even if the operator is also certified by a nationally
accredited certification organization.
The content of proposed paragraph (c)(1) is virtually identical to
provisions in existing Sec. 1926.1427(e)(2), with one exception:
Proposed (c)(1)(v). For a more detailed explanation for the other
provisions in this paragraph, see the preamble to the final subpart CC
rule for Sec. 1926.1427(e)(2) at 75 FR 48021-23 (August 9, 2010).
Proposed Sec. 1926.1427(c)(1)(v) states that licensing must
specify the "type, or type and capacity" of equipment for which the
certification is applicable. OSHA is proposing this specification that
state and local licenses specify the type of crane in order to clarify
the obligation under the existing standard and facilitate enforcement.
In existing Sec. 1926.1427(e)(2)(i), OSHA requires a licensing program
to include at minimum, an assessment of the knowledge and skills listed
in paragraph (j). Paragraph (j)(1)(i) requires an individual to know
the information necessary for safe operation of the specific type of
equipment the individual will operate. If the license does not identify
a specific type of
equipment, it is more difficult to determine whether the operator
possesses the knowledge required under (j)(1). OSHA solicits comments
on whether compliance with this requirement would necessitate a
significant change to any state or local licensing program.
The "type, or type and capacity" language was requested by Crane
Institute Certification and recommended by ACCSH. The language was
proposed to make clear that while all certifying bodies must certify by
type of crane in order for their certifications to meet OSHA's
requirements, they may also choose to specify different levels of crane
capacity for their certifications.
Although OSHA is proposing this language as requested, it invites
comment on whether the language "or type and capacity" should be
removed in the final rule. OSHA would recognize a certification that
lists the type of crane on which an operator has been certified,
whether or not it also lists a capacity, as a compliant certification
(assuming that the certification also meets the requirement of this
standard). For example, if a crane operator certification showed that
an operator was certified to operate a tower crane, the certification
would be valid because it lists the type of crane on which the operator
was certified. Whether the capacity of the crane was also listed would
not affect whether OSHA would consider the certification compliant.
OSHA invites comment in particular on whether including "capacity" in
this provision could confuse the industry as to whether capacity is
required for a state or local license to be valid under Sec.
1926.1427, particularly in light of the fact that one purpose of this
proposal is to remove the capacity requirement from certification (see
the Need for a Rule section above).
In the existing standard, OSHA frames the state/local licensing
process through a structure parallel to the model in which third-party
certification organizations are accredited by a nationally recognized
accrediting body. In the proposed rule, OSHA's approach would be
simpler: Proposed paragraph (c)(1) would directly require states or
localities to meet certain criteria in order for their operator
licenses to be enforceable by OSHA. If these minimum "federal floor"
criteria are not met, then OSHA would deem those licenses insufficient
and would not require employers to comply with those licenses.
The remainder of the requirements of proposed paragraph (c)(1) are
substantively the same as those in Sec. Sec. 1926.1427(a)(1), (a)(2),
and (e) of the existing rule, except that OSHA combined the
requirements of those three paragraphs into one paragraph and clarified
some of the language to facilitate better comprehension of state or
local government entity requirements.
Proposed paragraph (c)(2) specifies the certification requirements
for two remaining situations: The construction occurs in a state or
local jurisdiction that does not require licensing of equipment
operators, or the construction occurs in a state or local jurisdiction
where the licensing program does not meet the "federal floor" of
requirements established in this standard. In each of those situations,
the operator would have to be certified in accordance with proposed
paragraph (d) (third-party certification) or (e) (audited employer
program) of this section. Proposed paragraph (c)(2) is identical to
existing Sec. 1926.1427(a)(2), except that it references only the
paragraphs containing criteria for certification by an accredited
testing organization and an audited employer program--and not the
option for qualification by the U.S. military which would be addressed
as a scope exclusion in proposed paragraph (a)(3). Proposed paragraphs
(d) and (e), discussed later, correspond to existing paragraphs Sec.
1926.1427(b) and (c), respectively.
Proposed Paragraph (c)(3)--Employer Payment for Certification and
Licensing
Proposed paragraph (c)(3) would require employers to provide the
required certification or licensing at no cost to employees. This
proposed requirement is almost identical to that of Sec.
1926.1427(a)(4) of the existing rule, except that it has been revised
to clarify that it applies to all operators certified or licensed after
the effective date of the new standard, not just those operators who
were "employed by the employer on November 8, 2010," as existing
Sec. 1926.1427(a)(4) states.\9\ This proposed requirement would then
be in line with, and be enforced similarly to, other OSHA provisions
that require employers to provide personal protective equipment,
medical examinations, or other functions at no cost to the employees.
The requirement would also be consistent with the way in which OSHA
assessed costs in the 2010 economic analysis. In the final economic
analysis of subpart CC, OSHA modeled all of the costs for compliance
with the existing certification requirements as if all employers always
paid for the certifications they provide for operators. Note, however,
that this provision would not mandate an employer to maintain its
employment of an employee/operator who cannot pass certification
testing or who is not a good operator candidate. Furthermore, an
employee who does not possess a certification may still be allowed by
the employer to operate a crane indefinitely, but only as an operator-
in-training and through the employer's compliance with all requirements
of proposed paragraph (b) of this section.
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\9\ Existing Sec. 1926.1427(a)(4) requires employers to provide
"the qualification or certification" at no cost to the employees.
Because existing Sec. 1926.1427(a)(1) mandates that employers
ensure that all operators are "qualified or certified to operate
the equipment in accordance with the following," the required state
or local licensing must constitute a form of qualification or
certification. Thus, employers are currently required to pay for
state or local licensing of their operators when those licenses are
required by OSHA.
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Proposed Paragraph (c)(4)--Single Entity Permitted To Provide Training
and Testing
Proposed paragraph (c)(4) would retain, without change, the content
of existing Sec. 1926.1427(g), which states that a testing entity is
permitted to provide training as well as testing services as long as
the criteria of the applicable accrediting agency (in the option
selected) for an organization providing both services are met.
Paragraph (d) Certification by an Accredited Crane Operator Testing
Organization
As noted above, proposed paragraph (c)(2) provides two options for
certification: Compliance with proposed paragraph (d) (third-party
certification) or proposed paragraph (e) (audited employer program).
Compliance with the requirements of proposed paragraph (d) is the
option that OSHA expects the vast majority of employers to use.
Proposed paragraph (d) retains, with some non-substantive language
clarification and two exceptions discussed below, the requirements of
existing paragraph Sec. 1926.1427(b).
First, the most significant change is that the proposal replaces
the references to certification by "type and capacity" that appear in
existing sub-paragraph (b)(1)(ii)(B) and (b)(2) with "type, or type
and capacity" as recommended by ACCSH (see OSHA-2015-0002-0037 pg.
71). The need for this change is explained in the "Need for a Rule"
section of this preamble. This proposed revision will remove the
requirement to obtain a certification for a designated crane capacity,
but also clarify in regulatory text that OSHA considers testing
organizations whose programs provide certifications that specify "type
and capacity" equally acceptable. One testing organization expressed
concerns that the clarification is needed to prevent confusion about
this particular certification requirement. OSHA's concerns about adding
this language are noted above in the preamble discussion for paragraph
(c)(1), and the Agency seeks comment on whether to include the language
"type, or type and capacity" in this standard.
Second, the proposal does not include the reference in existing
Sec. 1427(b)(2) to an employee being "deemed qualified" to operate
equipment under certain conditions if no accredited testing
organization offers certification examinations for a specific type of
equipment. Instead, the proposal states that the operator would be
"deemed certified." The latter proposed change would help to avoid
the misconception that an operator could be considered competent to
safely operate equipment without also being evaluated and determined
competent by the operator's employer.\10\ All other provisions in
proposed paragraph (d) are unchanged from existing paragraph (b), and
discussion and justification of these provisions can be found in the
preamble to the final cranes standard (75 FR 48017). OSHA solicits
comment on the proposed changes encompassed in proposed paragraph Sec.
1926.1427(d).
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\10\ OSHA had included the "deemed qualified" language simply
as a means of clarifying that an operator would be considered
qualified to operate a crane of the same capacity or less than the
one on which the operator was tested. The use of "qualified"
instead of "certified" at that time was mean to reflect the
varying paths to compliance with the standard: Certification through
a third party or employer-audited program, or other qualification
through a state or licensing program or meeting the requirements
specified by the U.S. military. In this proposed rule, OSHA has
simplified the language of the standard to refer to certification,
so "deemed certified" now conveys the same meaning.
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OSHA is considering deleting the requirement for operator
recertification every five years and solicits public comments about
whether this requirement is necessary, or alternatively, whether
compliance with proposed Sec. Sec. 1926.1427(b)(5)--Retraining, and
1926.1427(f)(5)--Re-evaluation, would be sufficient to ensure operators
continue to operate cranes safely after being certified, trained, and
evaluated. During its many conversations with stakeholders about crane
operator mentoring and periodic assessment, OSHA heard that frequent
monitoring, employer feedback, and assessment of an operator's
proficiency on the job are industry-recognized work practices (see site
visit discussion in Background section). Similarly, most employers who
spoke with OSHA explained that their operator competency programs
provide their operators with updates regarding any new information
about equipment and changes to federal, state, and local government
regulations as well as any changes in company policies. None of these
employers expressed concerns about operators losing their basic
knowledge and operating skills after periods of inactivity.
Paragraph (e) Audited Employer Program
The substantive content of proposed paragraph (e) is the same as
existing Sec. 1926.1427(c). It sets out the parameters for a
nonportable certification program administered by the employer and
audited by a third party. The proposed changes to the regulatory text
for the audited employer program are to remove the word
"qualification" and to replace three cross references with updated
references to their new locations in the proposed rule.
OSHA's proposal to remove the reference to "qualification" from
the heading of the paragraph changes the product of the employer
program from a "qualification" of the operator to a "certification"
of the operator. OSHA is removing the reference to "qualification"
because of the misconception by some that it signaled full competency,
rather than its intended meaning as an equivalent to certification. The
employer audited program would continue to be an alternative to
certification by an independent third party.
Three cross references would be changed. First, the reference in
existing Sec. 1926.1427(c)(1)(i) to "paragraph (b)" will be revised
to "paragraph (d)" in the proposed rule. Second, the reference in
existing Sec. 1926.1427(c)(1)(ii)(A) to "paragraph (b)" will be
revised to "paragraph (d)." Finally, the reference in existing Sec.
1926.1427(c)(4) to "paragraphs (c)(1) and (2)" will be revised to
"paragraphs (e)(1) and (2)."
OSHA solicits comment on the proposed variations from the existing
Sec. 1926.1427(c).
Paragraph (f) Evaluation
Proposed paragraph (f) sets out specific requirements that
employers must follow to conduct an operator evaluation, including
evaluation criteria, minimum qualifications for the person conducting
the evaluation, documentation, and re-evaluation requirements.
The rationale for proposing the evaluation requirement is explained
earlier in the "Need for a Rule" section of this preamble; the
discussion here focuses on OSHA's rationale for when and how the
evaluations would be conducted. OSHA's goal in proposed paragraph (f)
is to give employers flexibility to conduct evaluations in the course
of normal business, but at the same time to provide enough specificity
to ensure that an evaluation satisfies the minimum criteria necessary
to ensure safe operators. OSHA requests comment on the proposed process
for crane operator evaluation, and, as explained in more detail below,
any of the specific requirements of this proposed paragraph.
Proposed paragraph (f)(1) requires employers to evaluate their
operators and specifies the two goals of the evaluation: Ensure that
the operator has (i) the necessary skills, knowledge, and judgment to
safely operate the actual equipment that will be used, and (2) the
ability to safely perform the assigned work. These performance-based
evaluations are intended to be more directly focused on the operator's
actual work than the general knowledge and skills tested during the
certification process.
In developing the performance-based evaluation criteria, OSHA
considered the training requirements in the powered industrial truck
operator training standard at subpart O--Motor Vehicles, etc., Sec.
1926.600, which incorporates the requirements of Sec. 1910.178(l).
That standard requires the employer to evaluate a powered industrial
truck operator's performance as it relates to several topics at least
once every three years. Powered industrial trucks share many of the
same operating hazards as cranes, such as those related to ground
conditions, load limits, and hazards in the area surrounding the
equipment. But powered industrial trucks are generally far less
complex, smaller, and less hazardous pieces of equipment in terms of
the extent to which they expose other employees to their risks.
OSHA considered, but has preliminarily decided against specifying
particular operator skills that the employer must evaluate because
those skills could vary significantly based on the complexity of the
equipment and work to be performed. Almost all employers OSHA spoke to
said that when they observe operators handling loads at construction
work sites they can tell whether the operators appear competent. At
worksites, most employers are accustomed to assessing operator skills
because having competent operators that can safely and productively
handle loads quickly, smoothly, and without corrections, eliminates
injuries and reduces costs.
Operators who move the load too quickly or repeatedly make sharp,
corrective steps may not have full control over the load at all times,
which can lead to worker injuries and increased costs. But OSHA's
analysis of the ACCSH public comments confirmed that it would be
difficult to capture in a regulatory scheme all criteria necessary to
determine an operator's ability to safely operate a type of crane for
all possible conditions on a construction site.
For these reasons, the proposed rule retains the performance-based
character of the existing evaluation requirements in Sec.
1926.1427(k)(2)(i), but makes clear that the operator must possess the
necessary skills, knowledge, and judgment to operate "the equipment"
safely. The skills, knowledge, and judgment must be relevant to the
actual crane or other covered equipment to be used. Employers must
ensure that the operator demonstrates his or her knowledge of essential
crane-related information and applies it to operate that crane safely.
This information consists of facts and characteristics of equipment and
operations, which can be learned in a classroom setting, and hands-on
knowledge of equipment operation and hoisting techniques, learned at
work sites. For example, the operator must not only know what each
control does and where it is located, but also how and when to use
particular controls or operational aids. Much of the subject matter on
which the operators must be evaluated is specified in the testing
criteria listed in paragraph (j), but it is critical to ensuring safety
that the employer evaluation is equipment and task-specific. For
example, an experienced and certified operator may have previously
demonstrated the ability to lift a crate of materials onto a roof using
one crane, but if the company gets a new crane that has different
controls the employer would need to evaluate the operator's knowledge
and skill at using the new controls in the new crane (note that the
employer would not need to re-evaluate the operator's general knowledge
about crane operations). If a less-experienced operator has already
been evaluated for operation of a new model of crane, but has only used
that equipment to hoist packaged materials, the employer would likely
need to evaluate the operator's ability to control a wrecking ball
attachment before allowing that operator to use the wrecking ball in a
demolition project (note that the employer would not need to re-
evaluate that operator's knowledge of the controls or general operation
of the crane).
Stakeholders who spoke with OSHA said that most employers are
already able to determine the subject matter and crane knowledge that
their operators need to safely perform hoisting activities with their
cranes. Although operator competency evaluations conducted by many
employers may already exceed that of certification testing, compliance
with this proposed provision would ensure that all operator evaluations
cover subject matter that is specific to the equipment used and the
construction activities performed. OSHA's proposed requirement for
work-specific skills, knowledge, and judgment should help to encourage
consistency throughout the industry in confirming the basic knowledge
and operating skills of all operators in construction work. As
explained in the Background section, certification tests conducted by
accredited testing organizations are not designed to function as the
evaluations required by this proposed section and the certification
subject matter would most likely not cover all that is needed to assure
safe crane operations on specific construction sites. For example, a
certification test may examine a potential operator's knowledge of
ground conditions suitable for a particular type of crane, but not
examine whether an operator can assemble the specific type of crane
that will be operated on those ground conditions.
Proposed (f)(1)(i) also requires employers to evaluate the
operator's judgment. An equipment operator, as a designated competent
person, must frequently make determinations regarding the safety of
crane operation. The term "judgment" used in this proposed provision
refers to not only an operator's ability to apply the knowledge and
skill that he or she possess, but also an operator's ability to
recognize risky or unusual conditions that call for additional action
such as re-evaluating a lift plan, stopping work, or asking for the
help of another competent and/or qualified person. The term
"judgment" connotes the "successfully demonstrated ability" of a
"qualified person," as defined by OSHA's standards in Sec.
1926.1401, "to solve/resolve problems relating to the subject matter,
the work, or the project" and the capability of a "competent person"
to identify "existing and predictable hazards."
OSHA solicits public comments about the decision not to provide
more specific objective criteria for evaluation of crane operators. If
specific criteria should be specified, what should be required for all
operators that would cover the majority of crane operations but not be
duplicative of the subject matter tested during the operator
certification process? OSHA also, requests comments regarding whether
"judgment" should be included as a quality of an operator that should
be considered when employers evaluate operator competency. Is there a
better concept or term that captures that aspect of an operator's
ability to apply his or her knowledge and skills to make determinations
related to the overall safety of crane operations?
Proposed subparagraph (f)(1)(i) also specifies that the operator's
knowledge, skills, and judgment must be "specific to the safety
devices, operational aids, software, and the size and configuration of
the equipment." This list of equipment characteristics, which
stakeholders identified as critical for safe operation, is not
comprehensive, but would provide employers guidance about some basic
characteristics of equipment that might require different levels of
knowledge and operating skills. For example, the employer must verify
that the operator knows enough about how the safety devices,
operational aides, and software work on a particular crane. The
operator must be able to apply that knowledge to recognize when the
particular characteristics of the equipment may contribute to
potentially unsafe conditions or operations and use good judgment to
determine how to safely proceed. Such a determination might include
using operating skills to safely land or maintain a suspended load, or
simply refusing to hoist the load until the safety issue is addressed.
OSHA is including equipment software in this list because many
stakeholders noted that operators must have the skills to use a
computerized operating system if the crane has one (Reports #2, 4, 18,
21 of ID-0673) and that specific operating systems (Reports #4, 9, 13,
18, 19, 21, 22, 24 of ID-0673) or cranes by different manufacturers
(Reports #4, 6, 13, 16, 18, 21, 24 of ID-0673) can require different
skills or knowledge. Indeed, newer cranes often have integrated
computer systems to protect workers and the crane. Operators must
understand how these systems prevent damage to the crane, especially if
the crane can be operated with the system turned off. That is not the
only issue with newer cranes that may require evaluation. One
construction company that also provides crane operator training noted
that the materials used to make some new cranes can be more
"brittle," meaning that they have reduced safety factors and allow
for less room for error
(Report #21 of ID-0673). Exceeding these operating tolerances can lead
to structural equipment failure such as a crane collapse or tipover, so
evaluating operators to ensure that they understand how to avoid
exceeding specified tolerances is critical.
OSHA is including boom length in the list of characteristics
because longer booms may require specialized depth perception skills or
may be harder to control (Reports #2, 3, 22 of ID-0673). OSHA notes
that at least one certification testing organization uses different
boom lengths as a proxy for changing the capacity of the crane because
the boom length can have a significant impact on the performance of the
crane (see OSHA-2007-0066-0521, p. 268-69).
The stakeholders OSHA interviewed also identified crane
configurations (Reports #4, 6, 11, 18, 19, 20, 21, 22, 25 of ID-0673);
the use of attachments (Reports #6, 18, 19, 20 of ID-0673); and the use
specific safety devices and operational aids such as those listed in
Sec. 1926.1416 Operational aids (Report #21 of ID-0673) as important
crane characteristics that can require unique skills, knowledge, or
judgment. An operator's ability to handle the equipment's particular
size and configuration, which include lifting capacity, boom length,
attachments, use of a luffing jib, and counterweight set up is
essential to crane safety at worksites. For example, one crane rental
company employer noted that sorting cranes by capacity alone is
challenging because configurations, such as whether the crane has a
basic boom, a specialized boom for heavy lifts, or a luffing jib,
affects the skills needed to run the crane (Report #6 of ID-0673). For
these reasons, OSHA is including examples of crane configurations for
employers to consider as factors for operator competency evaluations.
Although OSHA has preliminarily determined, for the reasons above,
not to require certification by capacity, employers must consider crane
lifting capacity as part of its evaluation of an operator's knowledge,
skills, and judgment with respect to the size and configuration of the
equipment. Most of the stakeholders who spoke with OSHA agreed that
important differences in individual cranes go beyond the type of crane,
and that different cranes will often require different skills or
familiarity to operate, even if they are the same type (Reports #1, 2,
3, 4, 5, 6, 9, 11, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26 of
ID-0673). In particular, a number of stakeholder comments indicated
that the same type of crane could have different safety-critical
characteristics that vary according to a number of factors that can
(but not always) correspond to a different "capacity," including boom
length, attachments, use of a luffing jib, and counterweight set up, as
explained above. Equipment "capacity" accordingly could impact an
operator's ability to safely control the load at a worksite because
variations in capacity can significantly change operation of the crane.
Thus, while employers need not have their operators certified by
capacity under the proposal, they must account for differences in crane
capacity when evaluating their operators.
Employers must consider still other differences with respect to
operating the equipment. An operator who previously demonstrated
competence in operating a small crane to hoist materials to and off of
buildings being demolished does not necessarily have the knowledge and
operating skills needed to safely swing a wrecking ball to demolish the
same building. The physics of swinging a wrecking ball into a building,
which can lead to equipment failure due to side loading or shock
loading the boom, are different from smoothly controlling a load, which
does not present these hazards. Similarly, an operator who has operated
a crane in support of pile driving work, using pile driving
attachments, does not necessarily have the skills necessary to smoothly
control and place steel members suspended by multi-lift rigging or to
safely control a suspended personnel platform.
Based on the information collected to date, it would be very
difficult, if not impossible, to specify in regulatory text a
definitive list of minimum equipment characteristics that an operator
competency evaluation must cover to ensure operators are competent to
safely operate equipment in all of its possible configurations. In
addition, many public commenters at the 2015 ACCSH meeting explained
that it would be very burdensome and costly for them to make available
and set-up equipment to watch an employee safely operate the equipment
for all possible crane configurations and worksite activities.
Therefore, the proposed requirement enables employers to focus on the
equipment used and the tasks to be performed, and allows employers some
flexibility in determining which characteristics require separate
evaluation. For example, once an employer has successfully evaluated an
experienced operator using a hydraulic truck crane with a clamshell
attachment to scoop dirt, the employer could conduct a very limited
evaluation when the operator is to perform a similar task using a truck
crane manufactured by a different company that has the controls in
different places but is otherwise the same. The employer's evaluation
could focus exclusively on the operator's familiarity with the controls
in their different locations.
OSHA requests public comments on the decision to include, and the
appropriateness of listing examples of, factors that can affect an
operator's ability to safely operate a crane. Are there examples of
other factors, safety devices, or configurations that should be
included in the regulatory text or noted in the explanation of the
rule? Instead of the examples provided in proposed Sec.
1926.1427(f)(1), is there a definitive list of characteristics of
equipment that should be minimally required for competency evaluations
of all operators that would cover the majority of crane operations
typically performed by operators?
Several stakeholders who spoke with OSHA recognized other skills
that they believe are important to crane operator safety. These
included mastery of set-up or building and dismantling the equipment
(Reports #3, 4, 5, 15, 16, 17, 18 of ID-0673), rigging (Reports #2, 6,
15, 17, 18 of ID-0673), signaling (Reports #2, 6, 15, 14, 18 of ID-
0673), inspections (Reports #5, 13, 15, 17 of ID-0673), and lift
planning (Report #18 of ID-0673). Some employers also emphasized the
importance of driving skills for mobile cranes (Reports #2, 3, 6, 9 of
ID-0673). OSHA considered requiring the evaluation to cover these
crane-related skills, but ultimately did not include them in the
proposed requirements for several reasons. To some degree they are
broadly applicable knowledge requirements that are not necessarily
equipment-specific and are therefore already appropriately addressed as
formal or classroom learning requirements for certification testing
subject areas in paragraph (j) and non-mandatory Appendix C. In
addition, there are requirements for ground conditions, assembly and
disassembly, signaling, rigging, inspections, and power line work in
other sections of subpart CC. Operators may not be assigned to perform
these activities unless they are trained to safely perform activities
in accordance with the applicable sections of subpart CC. Similarly,
over the road driving is regulated by federal and state transportation
authorities. OSHA requests comment on whether these crane-related
activities should also be included in proposed paragraph (f)(1) as
examples of activities that might need to be covered in the required
evaluation of crane operators? Please provide your
rationale and any information or data you have to support your
position.
Proposed subparagraph (f)(1)(ii) requires the employer to evaluate
the operator's ability to perform hoisting activities required for
assigned work, including, if applicable, special skills needed for
activities like blind lifts, personnel hoisting, or lifts involving
more than one crane. This list of activities is not exclusive, but
rather provides examples of lifts for which an employer must evaluate
the operator's ability. The words "if applicable" are used to
indicate that employers must evaluate operators only for the types of
lifts they will perform and not all possible variants of hoisting
procedures.
As noted earlier, OSHA considered the training requirements of the
powered industrial truck standard (Sec. 1910.178(l)) as a model when
developing the evaluation requirements in this proposed standard. That
standard requires that employers evaluate an operator's ability to
perform job-specific tasks that include "workplace-related topics,"
and refresher training when there are changes in a workplace condition
that could affect safe operation of the truck (Sec. 1910.178(l)).
Proposed paragraph (f)(1)(ii) similarly requires the evaluation of an
operator to cover the workplace aspects of the operator's job,
including the specific hoisting activities that he or she will perform.
Stakeholders who spoke with OSHA asserted that the performance of
different types of work sometimes requires different skill sets. Many
employers currently evaluate their operators based not only on their
knowledge and skills regarding specific characteristics of the
equipment, but also on their operators' ability to perform specific
tasks with the equipment (Reports #1, 2, 3, 4, 6, 9, 10, 13, 15, 16,
18, 19, 20, 21, 22, 23, 26 of ID-0673). Several of those stakeholders
noted specific examples of operational challenges that may require
additional operator skills to ensure safe operations. One crane rental
company stated that if an operator who spends a year on a large project
with repetitive work is then moved to a different job that involves
different lifts and set-ups every day, that individual may not be
competent to do some of that kind of work (Report #6 of ID-0673). A
residential construction employer stated that residential jobs can be
especially challenging to crane operators because lifts must be
performed on previously disturbed soil, which can cause the cranes to
lose stability and may necessitate special preparations and operations
under some worksite conditions. However, this employer also said that
residential construction crane operators might not gain necessary
experience performing blind lifts or lifting heavy/unstable loads that
may be typical to operating a crane on commercial projects (Report #16
of ID-0673). A larger construction employer stated that it includes
job-specific components in its evaluation of operators to ensure that
operators have the ability to work on/around underground utilities and
power lines (Report #18 of ID-0673). Finally, a crane operator training
company noted that operators may require significant practice to
develop the ability to control a dragline or performing operations with
a clamshell or bucket attachment (Report #20 of ID-0673).
OSHA requests comment on all aspects of proposed paragraph (f)(1).
Are the components for evaluating an operator's ability in
subparagraphs (f)(1)(i) and (ii) sufficiently clear? Does this
requirement afford the employer sufficient flexibility to evaluate
operators in the course of day-to-day work? Why or why not? Please
provide any information or data you have to support your position.
Proposed paragraph (f)(2) establishes minimum criteria for the
person who performs the required evaluation of an operator-in-training.
The evaluation must be conducted by an individual who possesses the
knowledge, training, and experience necessary to assess operators. This
standard affords some flexibility to employers. An evaluator could be,
for example, a current or former operator who is also trained to assess
equipment operators. The key, however, much like the criteria for the
person performing training and evaluation of operators under the
powered industrial truck operator training standard (Sec.
1910.178(1)(2)(iii)), is that the evaluator possess the requisite
knowledge, training, and experience for assessing an operator's
knowledge, skill, judgment, and ability. Such knowledge, training, and
experience is not necessarily the same as the knowledge, training, and
experience to perform the particular construction operations or
processes oneself.
Stakeholders spoke with OSHA at site visits and meetings about how
they comply with the existing duty described in Sec.
1926.1427(k)(2)(i). Several of those companies specifically employ
individuals to assess operators (Reports #18, 22 of ID-0673). A large
construction company with a very robust and formal evaluation process
has "Authorized Examiners" who perform evaluations of operator
applicants for the company. These are personnel with significant
experience and training, including completion of crane operator
certification and rigger courses (Report #18 of ID-0673). In many other
cases, the evaluations are performed by other personnel such as
experienced riggers, maintenance personnel, signal personnel, or
tradesmen who have the necessary experience or training to conduct this
assessment (Reports #1, 2, 3, 6, 15, 16, 20, 23 of ID-0673). Day-to-day
assessment of an operator's performance may be conducted by a qualified
person who is often a manager or foreman that is at the job site.
(Reports #1, 3, 6, 18 of ID-0673). A seasoned operator who has been
designated by the employer to mentor an operator-in-training may also
make determinations about when an operator-in-training is ready to
perform certain tasks, and may weigh in on the evaluation or confirm
that an individual is ready to operate without monitoring (see, e.g.,
Report #2 of ID-0673).
Stakeholders who spoke with OSHA offered competing recommendations
about whether OSHA should require evaluators to be certified as
operators. Several employers who spoke with OSHA stated that an
individual may have the ability to evaluate an operator without being a
certified operator (Reports #1, 6, 18, 20, 26 of ID-0673). They
indicated that evaluators may be safety managers or other senior
employees with significant experience working around cranes, but who
might not currently be certified (see, e.g., Reports #1, 6, 18, 26 of
ID-0673). Others may be specifically trained to evaluate operators. But
at the May 2015 ACCSH meeting, several representatives from the crane
industry asserted that evaluators should be certified (OSHA-2015-0002-
0036).
Based on information obtained from the stakeholders, OSHA
preliminarily concludes that it is not necessary to prohibit all non-
operators or non-certified personnel from conducting evaluations of
operators. OSHA prefers to maintain employer flexibility in choosing
who may perform the required evaluation as long as those evaluators
have, or develop, the requisite assessment knowledge and experience.
OSHA notes that the national consensus standard for cranes (ASME B30.5-
2014 Mobile and Locomotive Cranes, Chapter 5-3) does not require or
recommend that evaluators of operators must be certified by third party
testing entities; a "designated" person who qualifies operators must
be a qualified person by experience and training but need not be
certified (B30.5, section 5-3.1.2(e)). Similarly, existing Sec.
1926.1427(f)(3)(ii)
requires that the trainer of an operator-in-training must have passed
at least the written part of a certification test, but does not require
the trainer to be an operator or be certified. Additionally, employers
who spoke with OSHA and publicly commented at the May 2015 ACCSH
meeting expressed the view that passing certification testing does not
alone verify that an operator is competent to safely operate a crane at
the worksite (see discussion in Background section). And passing the
written portion of a certification test does alone not mean an
individual has the ability to effectively evaluate the competency of an
operator. But along with other crane-related experiences, passing the
written portion of certification testing should be weighed as evidence
that a person may have the crane knowledge necessary to evaluate crane
operating competency.
OSHA requests public comments on whether the proposed criteria are
appropriate and sufficiently clear for the person who must perform the
required evaluation. For example, are there other criteria that the
evaluator should satisfy? Should OSHA require that the evaluator be an
operator, have been an operator, or at least pass the written portion
of certification testing? Why or why not? OSHA is interested in public
comments on whether an individual can effectively evaluate an operator
without having previously operated the same or similar equipment.
The flexibility provided by the proposal should address the
concerns that it might be difficult for very small employers to
evaluate their own operators. (see Reports #17, 22 of ID-0673).
Proposed paragraph (f)(2) would allow employers the flexibility to
contract with a third-party agent to conduct evaluations if the
employer does not maintain the expertise on staff, or to identify
existing staff who may not have operator experience but are capable of
conducting an evaluation. OSHA wants to allow employers to continue to
use effective and safe solutions that they have already identified and
are in use. For example, OSHA spoke with an employer that took steps to
qualify its first operator without having an experienced mentor-
operator on staff. This was accomplished by enrolling the operator-in-
training in several classes, including a crane manufacturer's training
and training with the local union, and then arranging for an
experienced union operator to mentor the operator-in-training. Later,
when the employer hired additional operators-in-training, the first
operator, now experienced, was able to serve as the trainer and
evaluator (Report #16 of ID-0673).
A sole proprietor OSHA spoke with followed a similar path when he
first started operating cranes for a former employer, seeking out
mentorship of an experienced operator before beginning to operate
independently. When the company later hired other operators, this
individual trained new operators and supervised them for at least a
month before evaluating them (Report #23 of ID-0673).
OSHA requests public comments on employers' experiences evaluating
operators who have been trained and made available through a third
party, such as a labor organization or temporary staffing agency, and
whether this business practice presents any challenges for such
employers. In order for the evaluation requirement to be enforceable,
OSHA must ensure that the evaluation duty always remains with the
employer. OSHA therefore seeks comment on what additional conditions or
restrictions, if any, should apply if a temporary staffing
representative or a labor representative evaluates an operator on
behalf of the employer. Besides the example of the temporary staffing
agencies and labor organizations, are there other people or entities
who are not employees of the operator's employer who might evaluate
operators on behalf of an employer?
Proposed paragraph (f)(3) permits the employer to allow an operator
to operate equipment other than the specific equipment on which the
operator was evaluated, as long as the employer can demonstrate that
the new equipment does not require substantially different skills,
knowledge, or judgment to operate. An additional evaluation would be
required before an operator would be allowed operate equipment that
requires substantially different skills, knowledge, or judgment to
operate.
OSHA believes this approach would address the concerns of some
stakeholders about unnecessary competency evaluations while ensuring
appropriate evaluations of operators. Many stakeholders warned that
unnecessary competency evaluations could be very time consuming and
burdensome without providing any real benefit. Many employers who spoke
with OSHA during meetings and site visits explained, for example, that
they assign operators to run the same crane every day, or to operate a
crane from a specific group of the company's cranes that are all very
similar (Reports #1, 2, 3, 6, 13, 16, 19 of ID-0673). Others said that
they permit their operators to run similar cranes interchangeably (see
Report #15 of ID-0673). As previously explained, OSHA does not intend
to require the additional evaluation of operators when it is not
necessary, such as when there are minor differences between equipment
models of the same type that do not necessitate substantially different
skills, knowledge, or judgment to operate the crane safely. Therefore,
OSHA proposes evaluation requirements that would provide employers some
flexibility when determining whether an additional evaluation is
required.
This flexibility is necessarily cabined, however, by the employer's
duty to ensure that its operator's skills, knowledge, and judgment are
sufficient for safe operation of the jobsite. Some employers explained
to OSHA that they often need operators to operate very different sizes
and configurations of the type of equipment (or equipment of a
different type) on which they evaluated the operator, to perform
various tasks. (see Reports #2, 4, 6, and 22 of ID-0673). Even an
experienced operator, when assigned to operate a different crane, may
need time operating the equipment under supervision to become familiar
with how to safely operate it. One owner/operator stated that when he
used different cranes in the past, even if they were all boom trucks
built by the same manufacturer, he found significant differences
requiring a substantial amount of time familiarizing himself with the
equipment before he had the skills, knowledge, and judgment necessary
to safely operate that equipment (Report #23 of ID-0673). OSHA
concludes that it is reasonable that the employer may need to conduct
an additional evaluation of the operator before determining that the
operator is competent to safely run a different piece of equipment
alone (Reports #3, 6, 16, 22 of ID-0673).
OSHA does not expect that the evaluation requirement will be overly
burdensome for employers, particularly with the flexibility provided in
proposed paragraph (f)(3). One large construction company, for example,
requires its operators to go through a formal evaluation for any
different equipment that the operators are assigned to run, even if the
operators have already demonstrated competency, through an evaluation,
to operate other equipment (Report #11 of ID-0673). Another large
national construction firm provides supplemental testing for different
crane configurations (Report #18 of ID-0673). And one stakeholder at
the March 2015 ACCSH meeting explained that it requires a "seat
check," an evaluation that may take a day or two, "every time that
operator goes to a new machine . . . [w]e want
to do the walk around inspection. We want to test him on what he's
absorbed when we walked around . . . includ[ing] safety checks,
prestart and post-start" (see OSHA-2015-0002-0036, pg. 232-239).
Although OSHA heard concerns from several public commenters that
OSHA would require that an operator must be evaluated on every crane
that their companies might use, or in every possible configuration (see
public comments OSHA-2015-0002-0036), OSHA has not proposed such a
rule. Furthermore, these commenters appear to have mistakenly assumed
that OSHA would require each evaluation to be in the form of a time-
consuming formal test rather than a much simpler observation of the
operator performing construction operations using the crane. The
required supplemental re-evaluation of a previously evaluated operator
can focus on the operator's abilities to handle the differences between
the new equipment and the one previously assigned; it would not require
a complete evaluation of all of the operator's skills, knowledge, and
abilities. For example, an employer may evaluate an operator and
determine that he or she has demonstrated the ability to safely operate
a large, high capacity crane of a relatively complex configuration. If
the employer determines that the operator has the skills, knowledge,
and judgment necessary to safely operate a lower capacity crane of the
same type and operating system, in a simpler configuration with a
shorter boom, then the operator would not need to be re-evaluated
(assuming that the tasks are similar). Conversely, although the size of
the crane alone may not be a definitive reason to make such a
determination (Reports #1, 2 of ID-0673), an employer would usually
need to evaluate an operator before allowing the operation of a larger
crane if the operator has only demonstrated competency on smaller crane
of the same type.
OSHA requests comment on how employers currently handle re-
evaluation of operators, to comply with existing Sec. 1926.1427(k)(2),
when the operator uses new equipment. Please provide OSHA with examples
of equipment that commenters believe are sufficiently similar or not
for the purposes of compliance with proposed paragraph (f), and what
makes them similar or not and why. OSHA is also interested in obtaining
examples of equipment or configurations that should require an
additional, if limited, evaluation of the operator and why the
additional evaluation would be needed.
OSHA is also interested in public comments regarding whether the
performance-based language of proposed paragraph (f)(3) is sufficiently
flexible. Is there a more effective provision that should be considered
for this purpose?
Proposed paragraph (f)(4) requires the employer to document the
evaluation of each operator and to ensure that the documentation is
available at the worksite. This documentation requirement is similar to
documentation requirements in other OSHA standards that require
competency evaluations, such as OSHA's powered industrial truck
operator training requirements (Sec. 1910.178). Such documentation
would need to include: The operator's name, the evaluator's name, the
date of the evaluation, and the make, model, and configuration of the
equipment on which the operator was evaluated. But the documentation
would not need to be in any particular format. Rather, employers would
have the flexibility to capture this information using their own
existing systems or create documentation that best meets the needs of
their workplace. For example, employers could issue operator cards that
include this information, keep records electronically in a database
accessible at the worksite, develop logs for each piece of equipment,
or use any other method that memorializes the mandatory information.
The documentation requirement is intended to ensure accountability
and to direct the employer's attention to the critical aspects of
operating the assigned equipment that must be considered during the
evaluation. The documentation of the evaluation would record key
baseline information that an employer could use to help make subsequent
determinations about whether the operator is competent to operate
particular equipment. It would also provide a quick reference for site
supervisors, lift directors, and any employee, such as a hoist crew
member, whose safety is affected by crane operations. And it could help
prevent misunderstandings about, or mischaracterization of, an
individual operator's established competency, as in the Deep South
fatal incident. There, an operator was assigned to operate a crane of a
type for which he was certified, but the controls and operations were
substantially different from those with which he was familiar. Had the
employer conducted an evaluation and documented it rather than relying
on certification, this incident could have been prevented.
The Agency believes that information about operators is typically
collected and available, even if it has not previously been maintained
specifically for regulatory compliance. Many employers who spoke with
OSHA during meetings and site visits explained that they maintain a log
or record to track operator experiences, certifications, and
performance evaluations. For example, at least two employers reported
that they issue cards to evaluated and competent operators with
information about those operators' qualifications. (Reports #11, 18 of
ID-0673). Others use written records to track operators' performance,
training, or other criteria. (Reports #1, 2, 3, 4 of ID-0673). And
employers who own cranes and have long-term operators must provide
lengthy and detailed operator information to their insurance providers.
Subcontractors, too, are accustomed to maintaining a written record
of their operators' experience and evaluations. Employers reported to
OSHA that, on multi-employer construction sites, subcontractors are
often asked by general contractors, insurers, or other employers on the
site to provide documented information about their operators, such as
certifications and verifications of training and "qualification" for
the cranes operated. One crane rental company noted that it keeps
records for each operator, and that this kind of information is often
requested or required by customers. (Report #6 of ID-0673). Another
company told OSHA that it frequently provides written information about
its operators to contractors, even when not requested. (Report #26 of
ID-0673). A contractor that sometimes works with subcontractors'
operators noted that it maintains an in-house database of those
operators, site supervisors, and directors that it has encountered on
projects, with evaluations and notes about their performance. (Report
#22 of ID-0673). Another company that employs operators as
subcontractors keeps records of near misses involving its
subcontractors, as well as documentation of operators that the company
feels may not be qualified to operate equipment. (Report #14 of ID-
0673). Finally, OSHA notes that it is a common practice within the
construction industry for operators to carry certification cards
provided by the testing entities as proof of certification. This
documentation may be useful in communicating operator competency for
employers who must consider crane safety on multi-employer worksites.
As previously discussed, proposed paragraph (f) permits the
employer to evaluate the operator on one crane and then make a
determination that the
operator is also competent to safely run other equipment that requires
the same level of skills, knowledge, and judgment. OSHA's proposal
allows employers to document these determinations collectively. For
example, if an employer with five cranes, possibly configured in
slightly different ways, determines that an operator's evaluation on
Crane #2 also demonstrates the operator's competency with respect to
the other four cranes, the employer could use a single document to
record the operator's competence to operate all five cranes. In fact,
the documentation for the original evaluation could simply be amended
to state that it is also applicable to equipment that does not require
substantially different skills, knowledge, or judgment. However, when
the operation of a crane requires a level of operating skills,
knowledge, and judgment that is significantly different from the crane
on which the operator was evaluated, a new evaluation must be
documented. Varying the facts in the earlier example, if two of that
employer's cranes include computer software to control safety devices
and the three other cranes do not have such software but are otherwise
similar, then an operator already evaluated on a crane without the
software would need to be evaluated separately on the use of that
software, with that evaluation also documented.
OSHA requests public comments on how, or if, employers currently
document their evaluations of operators and how they use the
documentation. Should OSHA require employers to document evaluations?
Please explain why or why not. If not, how would other employers and
employees know that an operator has been evaluated and demonstrated
competency to his or her own employer on the equipment operated? OSHA
is interested in public comments describing how employers currently
track their operators to comply with the requirements of existing Sec.
1926.1427(k)(2)(i).
Proposed paragraph (f)(5) requires the employer to re-evaluate an
operator whenever the employer is required to retrain the operator
under Sec. 1926.1427(b)(5). Paragraph 1926.1427(b)(5) requires
retraining if the operator's performance or an evaluation of the
operator's knowledge indicate that retraining is necessary. OSHA is
proposing this requirement to ensure that when an employer becomes
aware that an operator is not competent in a necessary aspect of safe
crane operation, the employer provides additional training to the
operator and re-evaluates the operator. Re-evaluation is needed to
ensure that the operator is competent in the area of the observed
deficiency.
Triggers for retraining under paragraph (b)(5) and re-evaluation
under proposed paragraph (f)(5) might include a wide variety of
feedback, such as (but not limited to) information from an on-site
supervisor or safety manager, contractor, or other person that the
operator was operating equipment unsafely, OSHA citations, a crane near
miss, or other incidents that indicate unsafe operation of the crane.
The re-evaluation may target the skills, knowledge, or judgment
deficiency that triggered the retraining. Re-evaluations would need to
be conducted by a person who meets the requirements of paragraph
(f)(2).
OSHA does not view this proposed re-evaluation as a significant
departure from typical practices in the industry. As discussed
previously, many stakeholders who spoke with OSHA at meetings and site
visits emphasized that observation and re-evaluation take place on an
ongoing, daily basis (see the Background and Need for a rule sections).
For example, several stakeholders told OSHA that they would re-evaluate
an operator if there was a crane near-miss or incident, or if they
received negative feedback about that operator's performance from the
controlling contractor or another party on a jobsite. (Reports #1, 2,
3, 18, 19, 22, 26 of ID-0673). Some employers conduct random worksite
audits. (Reports #2, 3, 15, 18, 19 of ID-0673). One large construction
company stated that it conducts over 100 safety audits of job sites
each year to ensure operators are properly qualified. (Report #15 of
ID-0673). Four companies that hire crane rental companies (crane rental
with operators) noted that they raise any observed issues with the
employer of the crane operator or the union from which the operator was
selected. (Reports #12, 14, 15, 16 of ID-0673).
The requirements for re-evaluation are also in line with the
powered industrial truck operator training standard, in which OSHA
requires re-evaluation if there is reason to believe that the operator
is operating unsafely, if there is a near-miss or other incident, if
the nature of the work to be performed changes, or if other factors
indicate a deficiency. (Sec. 1910.178(l)(4)).
OSHA requests comment about all aspects of proposed paragraph
(f)(5). Is the need for re-training an appropriate trigger for re-
evaluation, or are there triggers other than re-training that OSHA
should consider? Also, should OSHA add additional specification
regarding how in depth re-evaluations should be or whether there should
be additional components of the re-evaluation? Should OSHA require re-
evaluations to be documented in accordance with proposed paragraph
(f)(4)? Why or why not?
As noted previously, OSHA also considered and presented to ACCSH
two additional requirements for re-evaluation: An annual re-evaluation
requirement and a re-evaluation for operators who have not operated the
equipment in six months. OSHA received comments from several
participants that such requirements would be too burdensome for
employers and unnecessary due to the continuous or ongoing nature of
evaluation by employers. But at least three entities reported that they
re-evaluate operators periodically, even absent any evidence that re-
training or re-evaluation is necessary. (Reports #11, 18, 19 of ID-
0673). Another employer noted that it meets with each operator to
review performance twice annually. (Report #1 of ID-0673). And a crane
rental company told OSHA that if employees experience changes in
health, vision, or other medical issue, they are monitored to ensure
that their skills remain sharp and continue to be safe operators.
(Report #2 of ID-0673). Moreover, both the powered industrial truck
operator training standard at Sec. 1910.178(l)(4) and the qualified
electrical workers standard at Sec. 1910.269(a)(2) require periodic
re-evaluation. Section Sec. 1910.178(l)(4) requires reevaluation every
three years, while Sec. 1910.269(a)(2) requires annual re-evaluation
of electrical workers on tasks they did not perform in the past year.
These requirements might help employers identify when operators need
updated information on a variety of topics such as the equipment,
operating procedures, and relevant regulations that were not available
at the time of his or her last evaluation. But ACCSH recommended that
OSHA not move forward with these requirements, and they are accordingly
not in this proposal.
OSHA requests comment on whether more routine re-evaluation
requirements, such as those in the powered industrial truck training
and qualified electrical workers standards or any other periodic
requirements, should be included in this standard. Why or why not? If a
periodic re-evaluation is necessary, then how frequently should this
review be conducted, and why?
OSHA considered several alternative approaches to the proposed
provisions in proposed paragraph (f)--Evaluation. OSHA has summarized
them in the following paragraphs. For the reasons detailed below, OSHA
has preliminarily concluded that these alternatives would
not be as effective as the proposal in ensuring crane operator
competency.
Approach 1--Remove the Phase-Out of the Employer Duty Without Providing
Further Guidance or Criteria
OSHA considered simply proposing to remove the phase-out date for
existing Sec. 1926.1427(k)(2)(i), which requires employers to ensure
the competence of their operators. That requirement differs little from
the Agency's requirements for operator training or duties in Sec.
1926.20(b)(4), which previously applied to equipment covered under
former subpart N--Cranes, Derricks, Hoists, Elevators, and Conveyors,
and permits "employees qualified by training or experience to operate
equipment." But OSHA replaced that general employer duty in 2010, in
part because OSHA concluded that the measures being used to ensure
operator competency were inconsistent between employers. C-DAC, too,
had concluded that "human error resulting from insufficient operator
knowledge and capability is a significant cause of fatal crane/derrick
accidents" (73 FR 59810). In sum, OSHA believes that evaluations of
operator competency are critical to safe crane operations (see earlier
discussion) and that proposing a general requirement for this purpose,
without providing additional criteria, would be inadequate.
Approach 2--Coalition for Crane Operator Safety's Language
OSHA also considered the ACCSH committee recommendation that OSHA
adopt an operator competency requirement developed by a coalition of
representatives from the crane industry. (ACCSH transcript OSHA-2015-
0002-0036, and Exhibit 12, OSHA-2015-0002-0051). This approach would
require employers to ensure that operators "meet the definition of a
qualified person" before operating the equipment. As defined in the
Sec. 1926.1401 of the crane standard, "qualified person" means a
person who has "successfully demonstrated the ability to solve/resolve
problems relating to the subject matter, the work, or the project," by
"possession of a recognized degree, certificate, or professional
standing" or through "extensive knowledge, training and experience."
The coalition also suggested language requiring employers to "ensure
that each operator is evaluated to confirm that he/she understands the
information provided in the training."
OSHA is concerned that this recommendation, like the general duty
under Sec. 1926.21(b)(4), fails to provide sufficient specifics to
ensure operator competence. It does not provide employers with criteria
that an operator must meet to be considered competent. Nor does it
explicitly require the employer to take any specific step to
"qualify" operators (i.e., it can be argued that under the existing
standard an evaluation is only triggered if the employer determines
retraining to be required). Moreover, the ability to "resolve
problems," which is a key component in the definition of a "qualified
person" only captures one aspect of what crane operation entails. And
by relying on the definition of a "qualified person," which can be
met in some cases solely through "possession of a . . . certificate,"
the whole point of having some additional assurance of operator
competency beyond operator certification would be lost: An operator
could still conceivably become both certified and a qualified person
through the completion of a single certification test. For these
reasons, OSHA believes that this proposed rule better establishes the
employer's obligation to ensure crane operator competency.
Approach 3--Canadian Oversight System
OSHA also explored the practicality of modeling a crane operator
evaluation process on that implemented in the provinces of Ontario and
British Columbia, Canada. In those provinces, a quasi-governmental
agency tracks the base level of certification and operating experiences
of the operators in an internet database. The British Columbia system
has at least three different levels of "qualification," and employers
are responsible for observing, evaluating, and ensuring the operators
are competent to perform the work required at each level (ID-0672).
OSHA concluded, however, that this level of oversight would be somewhat
impractical on a national scale in the United States. The resources and
expertise needed to develop and maintain a system that works for the
entire regulated community, and to verify the information in such
system, would be substantial. OSHA does not have the resources needed
to accomplish these functions. However, even after providing
certification for its operators, employers in Canada still have the
obligation to ensure the competency of operators to safely perform
assigned work, which is similar to the operator evaluation requirements
of this proposed rule.
OSHA requests public comment on these alternative regulatory
approaches. OSHA requests comment on how these alternatives would
contribute to crane operator safety and whether they afford greater
protection than proposed paragraph (f). Why or why not? Is there
evidence to support one of these alternatives over the approach that
OSHA is proposing? In addition, are there other approaches to employer
evaluation of operators that OSHA should consider? Are there state or
local government certification or licensing programs that would be more
effective?
Paragraph (g) Reserved
This proposed paragraph is reserved because the current text at
Sec. 1926.1427(g) was moved to proposed paragraph Sec.
1926.1427(c)(4). This provision was moved to improve clarity of
certification program requirements.
Paragraph (h)--Language and Literacy Requirements
Existing paragraph Sec. 1926.1427(h) allows operators to be
certified in a language other than English, provided that the operator
understands that language. Proposed paragraph (h) is nearly identical
to existing paragraph (h) with one exception. The last sentence of
paragraph (h)(2) has been reworded to clarify that an operator is
permitted to operate equipment only when he or she is furnished
materials that are necessary for safe operation of the equipment and
required by subpart CC, such as operations manuals and load charts, in
the language of the operator's certification. The reference to existing
paragraph (b)(2) was not maintained in proposed (h)(2) because it is no
longer needed.
Existing paragraph (h) allows "tests" in languages understood by
the operator, and OSHA is not proposing to change that language. In
proposed paragraph (h), "tests" would encompass both the
certification test and the employer's evaluation of the operator.
Either or both may be in any language understood by the operator. And
the language of the operator's manual or other furnished materials
required by the standard would only need to match the language of the
certification. For example, it would be sufficient for an operator
certified in Spanish to have a Spanish version of the operator's manual
but be evaluated by the employer in English. The operator would not
need to also have an English version of the operator's manual because
the certification in Spanish would establish the operator's ability to
use an operator's manual written in Spanish. OSHA seeks comment on this
proposed interpretation of the language requirement for employer
evaluations.
Paragraph (i)--[Reserved.]
Paragraph (j)--Certification Criteria
Proposed paragraph (j) specifies criteria that must be met by an
accredited testing organization under proposed paragraph (d) and an
audited employer program under proposed paragraph (e). The criteria
specified by proposed paragraph (j) of this section are the same as
those specified under existing Sec. 1926.1427(j). However, the
introductory regulatory text in current Sec. 1926.1427(j) states that
"qualification and certifications" must be based, at a minimum, on
several criteria for the written and practical tests found in Sec.
1926.1427(j)(1) and (2). Proposed paragraph (j) deletes the words
"qualification and" because they are no longer necessary: Under the
proposed rule, a certification issued by an audited employer program is
intended to be equivalent to that of an accredited testing program for
purposes of complying with OSHA's rule, and the proposal removes
references to "qualification" from paragraph (e).
Paragraph (k)--Effective Date
There will not be any need for the phase-in requirements of current
Sec. 1926.1427(k) if OSHA adopts the permanent requirement for
employer evaluations of operators as proposed. Thus, proposed paragraph
(k) would be shortened to retain only the existing effective date of
November 10, 2018. The rest of Subpart CC is already in effect, and the
effective date of any final changes made to the standard would be
established in the Federal Register notice for the final rule, which
includes an effective date for the standard.
OSHA seeks comment on proposed revision to paragraph (k).
Specifically, OSHA seeks comment on whether the effective date of the
certification requirement should be delayed for an additional six
months if the final rule is not issued until after July 2018. Please
share your rationale for why an extension would or would not be
appropriate.
Even if OSHA did extend the effective date of the certification
requirement, the Agency would plan to implement as soon as possible the
new requirement for employers to evaluate their operators, if it is
part of the final rule. This provision adds clarity to the existing
employer duty to assess operators, and there does not appear to be any
reason to delay that clarity for the similar provision. Furthermore,
employer assessment of operators is now a key part of the entire scheme
of proposed Sec. 1926.1427, so it would be difficult to implement the
remaining changes to that paragraph while delaying the effective date
of the employer assessment requirement. Nevertheless, OSHA seeks
comment on whether the effective date of proposed paragraph Sec.
1916.1427(f) should be separate from the effective date of the other
proposed changes to the standard.
Section 1926.1430 (c) Operators
As noted earlier in this preamble, OSHA is proposing to amend only
one paragraph of the training requirements in Sec. 1926.1430:
Paragraph (c). The primary purpose of this revision is to centralize
the training requirements that are specific to operators in proposed
paragraph Sec. 1926.1427(b) of this section. But OSHA proposes to
retain in Sec. 1926.1430 the training requirements that are more
broadly applicable.
Proposed paragraph Sec. 1926.1430(c)(1) requires that the employer
train operators of equipment covered by subpart CC in accordance with
proposed Sec. 1926.1427(a) and (b), which contain all of the
requirements for training under the proposed rule. Operators of
equipment exempted from the training requirements of Sec. 1926.1427--
derricks, sideboom cranes, and cranes with a rated hoisting/lifting
capacity of 2,000 pounds or less--are addressed by proposed paragraph
Sec. 1926.1430(c)(2). Proposed (c)(2), which is substantively the same
as current paragraph (c)(3), provides a general requirement to train
operators on the safe operation of the equipment. Proposed paragraphs
(c)(1) and (c)(2) of this section work together to specify training
requirements and clarify that all operators must be trained, regardless
of whether an operator must be licensed/certified by any entity
(including the U.S. military) to operate equipment.
Existing paragraph Sec. 1926.1430(c)(2), Transitional Period, is
no longer needed because employees need to train all operators under
this proposal. The requirements of existing Sec. 1926.1427(c)(4) have
been moved to proposed paragraph (c)(3) of this section.
Sections 1926.1436(q)--Derricks, 1926.1440(a)--Sideboom Cranes, and
1926.1441(a) Equipment With a Rated Hoisting/Lifting Capacity of 2,000
Pounds or Less
Proposed paragraph Sec. 1926.1427(a)(2) would exempt employers
from the training and certification requirements in that section for
three types of equipment: Derricks, sideboom cranes, and equipment with
a maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds
or less. It would not, however, exempt employers from the requirement
in Sec. 1926.1427(f) to evaluate potential operators to ensure that
they have sufficient knowledge and skills to perform the assigned tasks
with the assigned equipment, nor would it exempt employers using
sideboom cranes from the existing broader duty in Sec. 1926.1430(c)(3)
(which would become proposed (c)(2)) to train their employees to
operate those cranes safely (section Sec. 1926.1436 and Sec.
1926.1441 include separate training requirements for derricks and low-
capacity equipment, respectively). Employers of operators of this
equipment will be required to ensure that their operators are evaluated
in accordance with proposed Sec. 1926.1427(f) and trained in
accordance with proposed Sec. Sec. 1926.1430(c)(2), 1926.1436, and
1926.1441, as applicable.
Although these three types of equipment are exempt from all of
Sec. 1926.1427 in the existing crane standard as the result of
specific exemptions in Sec. Sec. 1926.1436, 1440, and 1441, OSHA
proposes to narrow the exemptions so that the evaluation requirements
of paragraph Sec. 1926.1427(f) would also apply to these types of
equipment. While C-DAC recommended those exemptions apply to
certification/qualification requirements, there is no record that C-DAC
or OSHA considered exempting operators of this equipment from employer
evaluations. In fact, as noted earlier, a number of C-DAC participants
later claimed they were surprised to discover that they had removed the
general requirement for employers to ensure their operators'
competency.
OSHA has preliminarily concluded that, although the certification
requirements in Sec. 1926.1427 may not have been flexible enough to be
appropriate for these categories of equipment, the employer evaluation
under proposed paragraph Sec. 1926.1427(f) is a flexible requirement
suitable for all of the equipment covered by subpart CC. Many of the
hazards caused by an employer's failure to evaluate its operators for
competency, such as equipment collapses and issues controlling the
load, are generally the same for these three types of exempted
equipment as they are for all other equipment covered by subpart CC.
Further, an exemption from the evaluation requirement would be
inconsistent with OSHA's treatment of operators of equipment covered by
other rules. For example, OSHA's requirements for powered industrial
trucks operator training at Sec. 1910.178(l) include evaluation
requirements similar to those in this proposed rule, notwithstanding
that operation of
powered industrial trucks is less complex and of a lower capacity than
most equipment covered by subpart CC.
OSHA therefore proposes to amend paragraphs Sec. Sec.
1926.1436(q), 1926.1440(a), and 1926.1441(a) to require employers to
evaluate operators of derricks in accordance with proposed Sec.
1926.1427(f). Under the current crane standard, employers of operators
of this equipment do not need to comply with Sec. 1926.1427. This
proposal keeps most of those exceptions, but would require compliance
with proposed paragraph Sec. 1926.1427(f).
OSHA solicits comments regarding whether evaluation requirements
should be made applicable to similar provisions for operators of
derricks, sideboom cranes, and equipment with a maximum manufacturer-
rated hoisting/lifting capacity of 2,000 pounds or less. OSHA requests
comment on whether employers of operators of exempted equipment should
continue to be exempted from operator competency requirements of Sec.
1926.1427, or whether advancements in the availability of types of
operator certification make certification appropriate for these types
of equipment? Are there now crane certification opportunities that are
appropriate for operators of these types of equipment?
IV. Agency Determinations
A. Legal Authority
The purpose of the OSH Act, 29 U.S.C. 651 et seq., is "to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources." 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), and 658. A safety or health standard
"requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment." 29 U.S.C. 652(8). A safety standard is reasonably
necessary or appropriate within the meaning of 29 U.S.C. 652(8) if:
It substantially reduces a significant risk of material
harm in the workplace;
It is technologically and economically feasible;
It uses the most cost-effective protective measures;
It is consistent with, or is a justified departure from,
prior Agency action;
It is supported by substantial evidence; and
It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.
(See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II).) In addition, safety standards must be highly
protective. See id. at 669. A standard is technologically feasible if
the protective measures it requires already exist, available technology
can bring these measures into existence, or there is a reasonable
expectation for developing the technology that can produce these
measures. (See, e.g., American Iron and Steel Inst. v. OSHA (Lead II),
939 F.2d 975, 980 (D.C. Cir. 1991) (per curiam).) A standard is
economically feasible when industry can absorb or pass on the costs of
compliance without threatening an industry's long-term profitability or
competitive structure. (See American Textile Mfrs. Inst. v. Donovan,
452 U.S. 490, 530n. 55 (1981); Lead II, 939 F.2d at 980.) A standard is
cost effective if the protective measures it requires are the least
costly of the available alternatives that achieve the same level of
protection. (See, e.g., Lockout/Tagout II, 37 F.3d at 668.)
Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA
explains deviations from relevant consensus standards elsewhere in this
preamble.
B. Preliminary Economic Analysis and Regulatory Flexibility Analysis
When it issued the final crane 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). Both the FEA and Regulatory Flexibility Analysis are in Docket ID
422. On September 26, 2014, the Agency included a separate FEA when it
published a final rule extending until November 10, 2017, both the
deadline for all crane operators to become certified, and the employer
duty to ensure operator competency (79 FR 57785.) OSHA has recently
published another extension for an additional year, until November 10,
2018 (82 FR 51986), which closely tracks the 2014 analysis. For each
rulemaking, OSHA published a preliminary economic analysis and received
public comment on the analysis before publishing the final analysis.
The preliminary economic analysis (PEA) for this rulemaking relies
on some of those earlier estimates, extensive Agency interviews with
industry stakeholders, crane incident data, and other documents in the
rulemaking record. For example, the 2017 FEA for the deadline extension
rule included a cost analysis of the employer evaluation to ensure
operator competency, so the cost estimates in this PEA are based on
that analysis, which in turn is drawn from the 2014 FEA. The current
economic analysis estimates new costs only for elements that have not
previously been analyzed in either the 2010 final rule or accounted for
in the deadline extensions. These are:
Additional evaluations to ensure operator competency
when there are changes not just in the type of crane (accounted for
in the 2017 FEA) but also changes that would require new skills,
knowledge, or judgment necessary to operate the equipment safely,
including those specific to the use of equipment or its safety
devices, operational aids, software, or the size or configuration of
the equipment.
The permanent status of the employer duty to assess
competency. While the cost of employer's duty to assess operator
competency was estimated in the 2017 rule, the duty to assess was
assumed to phase out after the deadline had passed. The proposed
rule would make this duty permanent, so these costs are included in
this PEA.
Documentation by employers. This proposed rule requires
employers to now document the successful completion of operator
evaluations.
Additional training required beyond the training
required for certification.
Certain costs, such as initial cost of operator certification and
recertification every five years, are not re-analyzed in this PEA
because they would be unchanged by this rulemaking. This new rule makes
no changes that would impact the costs of certification by type of
crane; OSHA is simply allowing the existing operator certification
deadline to be instituted as planned. The employer evaluation, which
under the 2010 final crane rule (and the 2014 and 2017 extensions) was
set to be phased out when certification took effect, would remain in
effect and is therefore a cost of this proposed rule. The unit costs of
the employer evaluations were analyzed in the final rule of the
deadline extension FEA, and the
Agency relies on that analysis in calculating the ongoing evaluation
costs in this PEA.
The rule's cost savings are associated with withdrawing the
requirement that crane operator certification be both for type and
capacity of crane in favor of a requirement that certification be
required only for type of crane.
This rule results in cost savings. At a discount rate of 3 percent,
this rule has annualized net cost savings of $1,827,513. At a discount
rate of 7 percent, this rule has annualized net cost savings of
$2,468,595. For either discount rate, this 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
Congressional Review Act (5 U.S.C. 804). In addition, this rule
complies with Executive Order 13563.
For this PEA, OSHA included an overhead rate when estimating the
marginal of labor in its primary cost calculation. Overhead costs are
indirect expenses that cannot be tied to producing a specific product
or service. Common examples include rent, utilities, and office
equipment. Unfortunately, there is no general consensus on the cost
elements that fit this definition, and the lack of a common definition
has led to a wide range of overhead estimates. Consequently, the
treatment of overhead costs needs to be case-specific. OSHA adopted an
overhead rate of 17 percent of base wages.\11\ This is consistent with
the overhead rate used for sensitivity analyses in the 2017 Improved
Tracking FEA and the FEA in support of OSHA's 2016 final standard on
Occupational Exposure to Respirable Crystalline Silica. For example, to
calculate the total labor cost for a crane and tower operator (SOC: 53-
7021), three components are added together: base wage ($26.58) + fringe
benefits ($11.50, slightly more than 43% of $26.58) + applicable
overhead costs ($4.52, 17% of $26.58). This increases the labor cost of
the fully-loaded wage for a crane operator to $42.60.
---------------------------------------------------------------------------
\11\ The methodology was modeled after an approach used by the
Environmental Protection Agency. More information on this approach
can be found at: U.S. Environmental Protection Agency, "Wage Rates
for Economic Analyses of the Toxics Release Inventory Program,"
June 10, 2002. This analysis itself was based on a survey of several
large chemical manufacturing plants: Heiden Associates, Final
Report: A Study of Industry Compliance Costs Under the Final
Comprehensive Assessment Information Rule, Prepared for the Chemical
Manufacturers Association, December 14, 1989.
---------------------------------------------------------------------------
a. Evaluation Costs
As noted in the preamble explanation of this proposed rule, OSHA
has received feedback during stakeholder meetings, site visits, and
interviews that, for a small percentage of employers, the proposed rule
may increase the number of operator evaluations they will conduct. The
increase would result if employers need to conduct additional
equipment-specific or task-specific evaluations.
To estimate the costs for the new evaluations the Agency has taken
the following steps. First it estimated the number of new evaluations
required by the proposed rule. Then it estimated the unit costs for
each evaluation. Finally, the Agency multiplied the number of
evaluations times the unit cost to get the total costs of the proposed
rule due to new evaluation.
OSHA began its estimate of the number of evaluations by looking to
its former rulemakings. In the 2017 deadline extension economic
analysis, OSHA estimated the total number of evaluations needed each
year to be 30,981 evaluations (26,940 successful initial evaluations as
well as 4,041 (15 percent of 26,940) for operators who have to be re-
assessed (82 FR 51993)). In that analysis, OSHA estimated employers'
evaluations due to turnover of crane operators between employers,
operators changing the type of equipment operated for the same
employer, and evaluations of operators new to the occupation. OSHA used
the same estimate of total number of evaluations in the original 2010
crane rule.
OSHA determined, after conducting extensive interviews with crane
industry stakeholders for this rule, that it had overestimated the
number of likely evaluations in these former rulemakings, because OSHA
had assumed that, in the absence of the rule, no employer would conduct
evaluations. In fact, stakeholders report that almost all employers
conduct evaluations of new employees. The Agency has therefore decided
to assume for costing purposes that 50 percent of employers conduct
such evaluations and as a result 15,490 annual evaluations will be
added to the cost analysis for this rule. The Agency believes that even
this estimate will overestimate costs given that most employers conduct
such evaluations. OSHA requests comment on the number of evaluations
that will be conducted as a result of this proposed rule.
OSHA is, however, estimating a small increase in evaluation costs
from the additional specificity in this proposed rule about when
evaluations are required and what an employer must evaluate.
Specifically, proposed Sec. 1427(b) requires evaluation as necessary
to ensure that the operator maintains the "skills, knowledge, and
judgment necessary to operate the equipment safely" and to perform
assigned tasks, including specialty lifts such as blind lifts or multi-
crane lifts.
The stakeholder meetings and extensive OSHA interviews indicate
that this new language would not require many employers to change their
existing operator evaluation practices. Even before its 2010
rulemaking, OSHA required employers engaged in construction to ensure
that their operators were capable of operating their equipment safely
(Sec. 1926.550 and Sec. 1926.20(b)(4) prior to promulgation of the
crane standard on November 10, 2010), so for most employers the
proposal would simply be a requirement to continue their existing
evaluation practices. None of the stakeholders OSHA met with expressed
any concerns about their ability to comply with those requirements.
Additionally, major changes in type or capacity of cranes appear
relatively rare. Based on this, the Agency preliminarily estimates that
this proposed rule will add 15 percent more evaluations, or 2,324 (15%
x 15,490), as a small percentage of employers increase their
evaluations of operators who are switching equipment or performing more
difficult tasks. This represents a very small percentage of the total
costs of evaluations. The Agency invites comment on this estimate.
The second element needed is the unit costs for these evaluations.
OSHA's unit cost estimates for evaluations take into account the time
needed for the evaluation, along with the wages of both the operator
and the specialized operator evaluator who will perform the evaluation.
In its 2017 FEA, OSHA estimated that an initial evaluation of an
experienced operator with a compliant certification would take, on
average, one hour (82 FR 51992). The new evaluations are all for
previously evaluated, experienced operators who are adding a new skill
or new knowledge to an existing skill set, not an initial evaluation
for a brand new operator or an experienced employee new to the firm.
Thus, in many cases any evaluation time will be minimal. The Agency
estimates 25 percent of a standard evaluation for a compliant certified
operator of one hour, or 15 minutes (0.25 of an hour). OSHA welcomes
any comments or additional information available on the time to
complete these evaluations.
The wage of the evaluator is estimated to be the same as the wage
of occupation First-Line Supervisors of Transportation and Material-
Moving Machine and Vehicle Operators (SOC: 53-1031 from the BLS 2016
OES dataset) of $46.08 in 2016 dollars including a markup for fringe
benefits and overhead.12 13 The operator's time is valued at
the wage plus fringe benefits of occupation Crane and Tower Operators
(SOC: 53-7021) plus overhead, at $42.06. Hence the combined hourly cost
for an evaluation or a training episode is $88.68 ($42.60 + $46.08).
With a 15 minute (quarter of an hour) evaluation period, the cost per
evaluation is $22.17 ($88.68 x 0.25).
---------------------------------------------------------------------------
\12\ The fringe markup is 1.43, derived from the BLS Employer
Costs for Employee Compensation, Private Industry Total benefits for
Construction industries 4th quarter 2016.
\13\ Throughout this chapter, OSHA presents cost formulas in the
text, usually in parentheses, to help explain the derivation of cost
estimates for individual provisions. Because the values used in the
formulas shown in the text are shown only to the second decimal
place, while the actual spreadsheet formulas used to create final
costs are not limited to two decimal places, the calculation using
the presented formula will sometimes differ slightly from the
presented total in the text, which is the actual and mathematically
correct total as shown in the tables.
---------------------------------------------------------------------------
The total cost for the new evaluations is therefore the product of
multiplying that unit cost by the total number of evaluations: $22.17 x
2,324 new evaluations = $51,511.
In addition to the cost for these new evaluations, OSHA is also
including the ongoing cost for the initial evaluations which it had
estimated previously in the 2017 FEA. These evaluations will continue
to be necessary because of turnover of crane operators between
employers, operators changing the type of equipment operated for the
same employer, and evaluations of operators new to the occupation. The
total cost for these evaluations in this PEA is lower than the total
evaluation cost estimated in the 2017 FEA. This is because the
evaluations cost in the 2017 FEA was for an operator population that
was a mix of operators with a compliant certification (certified by
both the type and capacity of crane), non-compliant certification (by
type but not capacity), and those with no certification. The time for
evaluation, and hence its cost, was linked to operator certification
status and varied for these three types with the least time (one hour)
for an evaluation of an operator with a compliant certification. The
proposed rule would remove the existing requirement for certification
by capacity, meaning there would be no operators in the previously
estimated "non-compliant certification" group. This means that all
operators would receive evaluations for operators with a compliant
certification and hence will have the same unit cost for a one-hour
evaluation of $88.68. Multiplying that unit cost by the 30,981 initial
evaluations estimated in the 2017 FEA, the total annual cost for these
ongoing initial evaluations is $1,373,622 ($88.68 x 15,490).
The total annual cost for evaluations is therefore $1,425,133,
which is the sum of the $1,373,622 in initial evaluations and the
$51,511 for new evaluations. OSHA welcomes any comments on, or any
available data that could help the Agency refine these estimates.
b. Employer Evaluation Documentation Costs
The proposed rule adds a new documentation requirement for a
successful evaluation. OSHA estimated the annual evaluation
documentation costs using the following three steps: It estimated unit
costs of meeting this requirement; estimated the total number of cases
of documentation that employers will need to perform in any given year;
and multiplied unit costs of documentation by the number of cases to
determine the annual costs.
This proposal would require the employer to document information
about the equipment and include the evaluator's signature, so the
Agency estimates the evaluator will complete all recordkeeping. OSHA's
unit cost estimates for evaluation documentation takes into account the
time needed and the wage of the employee who does so. The time needed
for creating and filing the needed information is estimated to be 5
minutes of the evaluator's time. As above, the wage of the evaluator is
estimated to be $46.08. Hence, the cost of documenting a successful
evaluation is $3.84 ((5/60) x $46.08).
There will also be the need in the first year to document previous
evaluations that the employer had not documented. The Agency estimates
that the number of evaluations needing such documentation is 15 percent
of the number of operators, or 17,570 (0.15 x 117,130). This total
extra first year cost is $67,462 ($3.84 x 17,570). Annualized over 10
years at a 3 percent discount rate gives an annualized cost of $7,909.
At a discount rate of 7 percent, this annualized cost is $9,605. OSHA
solicits comment on these estimates and how many previous evaluations
do not now have the documentation required by this proposed rule.
From above, OSHA estimates that ongoing each year there will be
13,470 successful initial evaluations that will need documentation.
Then, additionally, there will be documentation of previous successful
evaluations due to the proposed rule. There are a total of 2,324 new
evaluations, of which 2,020 (2,324/1.15) will be successful. Hence the
total number of documented evaluations is 15,490 (13,470 + 2,020). OSHA
therefore estimates the total annual documentation cost, absent the
first year extra documentation costs, to be $59,479 ($3.84 per
evaluation x 15,490 evaluations).
c. Employer Costs for Operator Training
The proposed rule clarifies the operator training requirements. As
explained in the 2010, 2014, and 2017 rulemakings, employers were
already required to train their operators prior to the 2010 rule, and
OSHA did not estimate additional training costs other than costs of
optional certification preparation training classes in its recent
rulemakings. (see, e.g., 75 FR 48097). The proposed rule clarifies that
the training already required under the existing rule continues to be
required even after an operator is certified, including training
necessary when an operator requires new knowledge or skills because of
a change in equipment or tasks. Although OSHA's site visits and
interviews indicated that most firms are already providing the required
training, including the additional training necessary to ensure that
certified operators have the additional skills and knowledge to operate
new equipment or perform new tasks, OSHA has calculated costs for
additional trainings that may occur as a result of this clarification.
OSHA's calculation of the cost of these additional trainings
requires several steps. First, OSHA estimated the average annual number
of equipment-specific or task-specific trainings as a percentage of the
new evaluations required by the rule, as estimated earlier. OSHA
expects the number of trainings to be a subset of the number of
evaluations because in many cases the operator will already possess the
required skills necessary for a new piece of equipment or a new task
and be able to demonstrate competency after only a cursory explanation
of the differences. For example, an experienced operator conducting a
blind lift for the first time may have sufficient mastery of the
equipment such that she could pass an evaluation after only a very
brief discussion of the signals to be used. The Agency judged that 50%
of these additional evaluations, or 1,162 evaluations (50 percent of
the 2,324 new evaluations), would also require
trainings. OSHA welcomes comments on these estimates.
The second step is to identify an average amount of time that each
training will take. Some trainings are likely to require detailed
instructions about operating particular equipment and discussions of
protocol prior to a lift. Other trainings might involve a very short
period of instruction, such as to familiarize an experienced operator
with the setup of a standard controls in a different crane of the same
type. While OSHA lacks data about the frequency of these different
types of trainings, it estimates that the average time for each
training is one hour. For context, this is the same amount of time that
OSHA previously estimated for an inexperienced operator to take the
practical portion of the standard crane operator test. The Agency
solicits comment on this training estimate.
OSHA expects two employees to be occupied during this hour of
training: the equipment operator and the trainer. Using the same wage
estimates as above, the hourly wage for the operator would be $42.60
and a supervisor's hourly wage of $46.08 for the trainer. However, not
all of the training time will result in a loss of productivity to the
employer. OSHA's site visits and interviews indicate that it is common
for operators to spend at least some of the training time operating the
crane under the instruction of the trainer, performing tasks that
actually are useful for the employer. While all of the trainer's time
is an opportunity cost for the employer, at least part of the
operator's time results in productivity for the employer. OSHA
estimates that, on average, 75 percent of the operator's training time
(45 minutes of the hour) would consist of pure instruction or other
activities that would not be productive for the employer. Based on the
estimated one hour for each training, the unit cost for each training
is therefore the supervisor's wage for one hour ($46.08) plus $31.95 in
operator's wages for the 45 minutes of non-productive time ($31.95 is
three quarters of the operator's hourly wage of $42.60): $78.03 per
training. Thus, the total cost of the training industry-wide would be
$90,649 ($78.03 x 1,162). OSHA requests comments on this estimate and
its components.
d. Cost Savings of Avoiding Additional Certifications
The proposed rule drops the "capacity" requirement for crane
certification, leaving only certification by crane type as the
obligation of the crane standard. Absent this proposal, all crane
operators who are currently certified only by crane type would need to
obtain certification both by type and capacity. To calculate the cost-
savings of additional certifications that would be avoided by the
proposed rule, OSHA estimates the number of crane operators not yet in
compliance with the type-and-capacity certification requirement and
multiples that estimate by the estimated cost of obtaining such
certification.
Based on OSHA's previous rulemakings, OSHA estimates that 71,700
crane operators do not yet possess a type-and-capacity certification.
(82 FR 51993). Although the 2014 FEA estimated a gradual decline over
time of the number of such operators (an estimate of 61,474 in 2016,
see Table 1, 79 FR 57796), the 2017 extension estimated that the 71,700
operators were not yet in compliance and would not be for much of 2017
and 2018 leading up to the new 2018 deadline. (see Table 1, 82 FR
51995). In this PEA, the Agency accordingly estimates the number of
operators certified by crane type only will remain at 71,700 each year.
OSHA has adopted this approach because 71,700 is the last hard data
point the Agency has, and certification has gradually spread as a
requirement in the crane operator job market. It is quite possible the
number of operators possessing a type, but not type-and-capacity
certification, is actually higher today: the largest certification
school gives a certificate which is by type only. The Agency requests
comment and further data on this issue.
OSHA also looked to the 2017 deadline extension rule to estimate
the unit cost of a type and capacity certificate. There, the Agency
estimated that such a test would take 2.5 hours and require a $250
fixed testing fee (82 FR 51994). At the hourly crane operator wage
noted above ($42.06), the total cost for a compliant certification is
$356.50 ($250 + (2.5 x $42.06)). If 71,700 crane operators needed to
take the test the cost would be $25,560,840 (71,700 x $356.50). Because
this rule would remove the requirement for additional certifications by
capacity, that amount becomes a cost saving.
This, of course, is a one-time cost savings, while costs of
continued evaluations and most of the other cost elements of the rule
are ongoing. Using the Agency's standard 10 year horizon, the result is
an annualized cost savings of $2,996,510 at a discount rate of 3
percent, and an annualized cost savings of $3,639,289 at a discount
rate of 7 percent.
The Agency estimates there will also be ongoing cost savings due to
a number of certifications that would only be needed for a change in
capacity and hence no longer will be incurred. More than half of
certified crane operators have been certified by a certifying body
(including state and local governments) that does not issue
certificates by capacity, which indicates that many of these operators
may not need multiple capacity certifications. OSHA conservatively
estimates the value of this cost savings by taking 50 percent of the
2,324 additional evaluations, or 1,162 (0.50 x 2,324) as an additional
number of annual certifications required solely due to changes in
capacity. The unit cost for this certification follows previous
analysis in assigning a $250 flat fee for the certificate, as well as
1.5 hours of the operator's time for the written exam and 1 hour for
the practical exam. This gives a unit cost of $356.50 ($250 + (2.5 x
$42.60)). Finally, the total annual cost savings for these avoided
certifications is $414,172 (1,162 x $356.50). Hence, along with the
one-time cost savings due to omitted certifications, the total cost
savings for these two elements are $3,410,683 ($2,996,510 + $414,172)
at 3%, and total cost savings for these two elements of $4,053,461
($3,639,289 + $414,172) at 7%.
OSHA requests comment on this cost savings and its component
estimates, including the estimate of the total number of operators who
might still require multiple certificates if OSHA removes the
requirement for certification by capacity as proposed.
e. Total Cost of the Proposed Rule
The total annual cost of the proposed rule comprises the cost items
identified above: Evaluations (those previously calculated with offsets
from the proposed removal of the requirements to certify by capacity,
as well as the additional evaluation costs to account for new skills
and tasks), documentation of the evaluations (including the one-time
first year evaluation documentation for old operators without such
documentation), and training costs. The cost savings is due to averting
the need for all operators who currently have a type only certification
to obtain a type-and-capacity certification. Since the last item is
relatively large primarily occurs in the first year while the other
costs are ongoing, the discount rate and discount horizon have a
significant impact on the final total cost. At a discount rate of 3
percent the sum of those parts is a cost savings of $1,827,513
($1,373,622 + $51,511+ $59,479 + $90,649 + $7,909--$2,996,510-
$414,172). For a discount rate of 7 percent there is a cost savings
of $2,468,595 ($1,373,622 + $51,511 + $59,479 + $90,649 + $9,605-
$3,639,289-$414,172).
f. Economic and Technological Feasibility
The Agency has preliminarily determined that the proposal is
technologically feasible because many employers already comply with all
the provisions of the proposed rule and the rule would not require any
new technology. The largest cost element of this proposed rule is a new
evaluation with associated training of $78.03 per training, which
should be a small expense for the businesses covered under this
proposal. The vast majority of employers already invest the resources
necessary to comply with the provisions of the proposed standard. Hence
the Agency preliminarily concludes that the proposed standard is
economically feasible.
g. Certification of No Significant Economic Impact on a Substantial
Number of Small Entities
The largest cost element of this proposed rule is a new evaluation
with associated training of $78.03 per training. Small businesses will,
by definition, have few operators, and the $88.68 cost for each
operator evaluation with training will not be a significant impact for
even the smallest businesses. Hence, OSHA certifies that this proposed
rule would not have a significant economic impact on a substantial
number of small entities.
h. Benefits
OSHA's 2010 Cranes and Derricks in Construction standard included
an extensive analysis of the benefits attributed to preventing crane-
related fatalities and serious injuries. In that analysis, OSHA relied
on IMIS injury data made available in 2008 (see 75 FR 48093), finding
that the standard would prevent 175 injuries and 22 fatalities per year
for a total annual benefit of $209.3 million (75 FR 48079-48080).
As noted in the sections on "Background" and "Need for a Rule,"
OSHA received significant feedback from stakeholders following the 2010
final rule indicating that the standard, to be fully effective, would
need to preserve the employer duty to evaluate operators separately
from the general operator certification requirement. The certifications
are intended to address basic operator knowledge and skills, but do not
assess operators' familiarity with the actual equipment they will
operate or the specific tasks they will perform. The proposed
amendments to the standard would make that employer duty permanent and
add specificity, thereby ensuring that the full benefits of the
standard would be realized.
The safety benefit of the rule is the prevention of injuries or
fatalities resulting when operators certified to operate the type of
crane assigned still lack the knowledge or skill to operate that crane
for the assigned task. As noted earlier, there are many variables in
equipment and controls between different models of the same type of
crane, and there are many crane operations that require additional
knowledge and skill beyond that demonstrated during certification
(e.g., swinging a "headache ball" instead of lifting a load,
performing a blind lift, participating in a multi-crane lift, etc.).
Certification does not address these variables or provide assurance
that the operators are qualified to operate the equipment for the task
assigned, so without these amendments operators could be permitted to
perform equipment operations after November 2018 that they are not
qualified to operate safely. OSHA has already determined that there is
a significant risk of injury when operators are allowed to operate
heavy machinery that they are not qualified to operate.
The 2010 crane rule estimated annual net benefits at $55.2 million
in 2010 dollars (75 FR 47914). Since there are cost savings for this
NPRM, net benefits of the joint 2010 final rule and this NPRM are
vastly greater than zero.
While this proposed rule would attempt to realize the full benefits
already identified in 2010 for the standard, and OSHA need not parse
the benefits of each provision of the standard separately, OSHA
recognizes that the proposal is also likely to generate additional
benefits from the more specific requirement for employers to evaluate
operators on specific equipment for specific tasks. To explore this,
OSHA conducted further analysis of more recent IMIS incident reports in
an effort to illustrate the new benefits of the proposed evaluation
requirements beyond the benefits that would be achieved through the
existing standard with operator certification alone.
OSHA looked at IMIS accident reports for 2009-2013, years
subsequent to the data used for the FEA for the 2010 rulemaking. All
accidents with any of the search terms "boom," "crane," or "pile
driver" in either the event description or in the abstract were
examined, the same keywords as used in the analysis for the 2010 final
rule. OSHA identified incidents where there was an express mention in
the IMIS description that the crane operator was unfamiliar with the
specific crane equipment used during the incident, or with the specific
task. Using this methodology, the Agency has been able to identify
three fatalities that may have been prevented if the proposed
evaluation requirement had been in place at the time. It is true that
there was a general duty to ensure operator competency at the time of
these incidents. (See Sec. Sec. 1926.20(b)(4) and 1427(k)(2)). But, as
explained above, the existing employer duty is stated very generally
and employers might believe that a preliminary general examination of
the operator could satisfy the requirement, without accounting for
evaluation of the operator's ability to operate different models of the
same type or perform new tasks.
OSHA believes that the proposed rule, which makes the evaluation
duty permanent and includes more detailed evaluation documentation
requirements, would make it more likely an employer conducts the
appropriate type of evaluation and therefore more likely that such
incidents would be avoided in the future. By specifying the elements to
be evaluated, OSHA expects the evaluations to be more effective at
preventing injuries by identifying operator limitations in a timely
manner. For example, the employer might have believed it was complying
with the existing general employer duty if it evaluated an operator and
found that the operator was qualified to operate a particular crane to
lift pallets of material, even though the employer did not perform any
additional evaluation before assigning the operator to a lift that
required additional skills, such as a blind lift or lifting poles
instead of pallets. As indicated by the second IMIS example below,
there is greater risk of injury if the operator is not qualified to
perform the new task. OSHA also expects the documentation requirement
to assist employers in complying with the different evaluation elements
of the standard. And OSHA expects that the documentation requirement
will facilitate communication between supervisors and operators and
help avoid assignment of an operator to equipment or tasks for which he
or she is not qualified, thereby reducing the risk of injury from
unqualified operation.
The IMIS summaries are not particularly detailed or uniform, so
many more of these incidents may also have involved similar operator
failures that were not explicitly detailed in the IMIS summary. But the
complete IMIS abstract of each fatal incident follows.
Case One: Operator not competent to use specific equipment:
At approximately 2:50 p.m. on June 16, 2009, an employee was
walking toward a seawall the company was reconstructing when a
section of the boom failed and fell on him. The employee was killed.
The crane had been built in 1964, and was bought by Ray Qualmann
Marine Construction, Inc. on April 29, 2008. The company never
performed an annual inspection of the crane or a monthly one, and
documentation was not available to indicate any maintenance had been
done to the crane. The only documentation available for the crane
was an inspection report dated June 10 2009, made by a crane
operator who worked for the company, which failed to identify that
the crane did not have a boom angle indicator, that several lacings
were bent on it, and that the angles and spacing of the repaired
lacings were uneven. In addition, neither the crane operator who
operated the crane on the day of the accident, nor the foreman, had
ever seen the operator's and maintenance manual for the crane
involved in the accident. The crane operator was not familiar with
the controls of the crane. The operator did not know the weight of
the load, and did not know the length of the boom. The crane was
overloaded when the accident occurred.
The general manager of Ray Qualmann Marine Construction claimed
that the operator had extensive crane experience and had worked for the
company for more than 20 years. OSHA concluded in its investigation,
however, that the company allowed the operator use of the Link-Belt LS-
58 crane with no training for this equipment. The abstract indicates
that the lack of familiarity with the specific equipment used
contributed to the fatality. An evaluation of the operator's competency
on the specific equipment, rather than the general skills and knowledge
tested as part of the third-party certification process, would have
been more likely to identify the problem in this case and avoid the
resulting fatality.
Case Two: Operator not competent to perform specific task:
On November 17, 2009, employees with Moreau's Material Yard were
driving pilings for an oil rig foundation in which a 4,000 lb
hammer, attached to the top of the lead, was used to drive 70 to 75
ft poles into the ground. Employee #1 was working on a crawler crane
platform approximately 20 to 25 ft above the ground. He was wearing
a harness with a lanyard connected to a ladder rung. When the crane
tipped over, Employee #1 attempted to jump from the platform to the
ground below. He was struck by the crane and killed. The crane
operator sustained minor injuries. Other employees indicated that
the employer had never lifted poles of that size and the crane boom
may have been used at an improper angle for the load being carried.
It is clear from the IMIS report that the operator was familiar
with crane equipment but had never lifted poles of that size. While all
of the details of the task are not included in the abstract, the note
about the different pole size and the operator's use of an improper
boom angle suggest that the activity was significantly different from
previous activities such that it would have required different
knowledge or skills. This incident and resulting injuries might have
been prevented if the employer took the time to evaluate the operator
for the specific task assigned.
Case Three: Operator inadequately trained:
On June 23, 2011, Employee #1, an ironworker, was installing a
structural steel bracing and painting structural steel beams in the
ceiling of a manufacturing plant addition. Employee #1 was working
alone from a boom-supported aerial work platform that was borrowed
from another employer. At approximately 11:15 a.m., an electrician
walked into the area and found the aerial work platform elevated
with Employee #1 slumped over the controls. Employee #1 was crushed
between the work platform and one of the ceiling beams. Other
tradesmen at the worksite used the ground controls to lower Employee
#1 to the floor. Employee #1 died from the injuries. Employee #1 had
been trained in operating a boom-supported aerial work platform by
his employer, but was not trained in the differences between those
aerial work platforms that were owned by the employer and the
borrowed lift being used the morning of the incident. The drive
controls on the borrowed aerial work platform may have been reversed
from the actual direction that they would operate.
The abstract does not include enough information to be certain as
to whether the "boom-supported aerial work platform" was equipment
that would be covered by the crane standard (it could be a simple
aerial lift not covered by the standard, or a boom crane or multi-
purpose machine configured to support the work platform in a manner
that would be within the scope of the standard). Nevertheless, the
incident illustrates the potentially fatal consequence of requiring an
employee to operate new equipment without ensuring that the employee
can account for differences in control locations and functions. Like
the previous cases, the employee received training for certain crane
equipment but lacked the skills necessary to operate the borrowed
machinery used on the day of the accident. Had the employee been
evaluated by his employer before using the equipment, the employee's
unfamiliarity with the equipment could have been identified earlier and
the fatality might have been prevented.
C. Paperwork Reduction Act
A. Overview
The purpose of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., includes enhancing the quality and utility of information the
Federal government requires and minimizing the paperwork and reporting
burden on affected entities. The PRA requires certain actions before an
agency can adopt or revise a collection of information (also referred
to as a "paperwork" requirement), including publishing a summary of
the collection of information and a brief description of the need for,
and proposed use of, the information. The PRA defines "collection of
information" as "the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public, of facts or
opinions by or for an agency, regardless of form or format." (44
U.S.C. 3502(3)(A)). Under the PRA, a Federal agency may not conduct or
sponsor a collection of information unless it is approved by the Office
of Management and Budget (OMB) and displays a currently valid OMB
control number, and the public is not required to respond to a
collection of information unless it displays a currently valid OMB
control number (44 U.S.C. 3507). Also, notwithstanding any other
provisions of law, no person shall be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
B. Solicitation of Comments
The "Cranes and Derricks in Construction: Operator Qualification"
proposal would establish new information collection requirements. The
proposal would also modify a small number of information collection
requirements in the existing Cranes and Derricks in Construction
Standard (29 CFR part 1926, subpart CC) Information Collection (IC)
approved by OMB. OSHA has prepared a new Information Collection request
(that modifies the existing Cranes and Derricks in Construction
package) to reflect the NPRM's new or revised collections of
information.
Concurrent with publication of this proposed rule, OSHA submitted
the new Cranes and Derricks in Construction Standard (29 CFR part 1926,
subpart CC): Operator Qualification Information Collection Request
(ICR) to OMB for review with a request for a new control number (ICR
Reference Number 201710-1218-002). When the final rule is published,
OSHA will submit the final ICR for the final Cranes and Derricks in
Construction Standard: Operator Qualification to OMB for approval. If
approved, OSHA will request approval to amend the
comprehensive Cranes and Derricks in Construction Information
Collection (OMB control number 1218-0261) to incorporate the ICR
analysis associated with the final Cranes and Derricks in Construction
Standard: Operator Qualification and to discontinue the new control
number. In addition to commenting to the agency, the PRA provides an
opportunity for members of the public to comment on the information
collection requirements during a 30-day period directly to OMB.
Some of these revisions, if adopted, would result in changes to the
existing burden hour and/or cost estimates associated with the current,
OMB-approved information collection requirements contained in the
Cranes and Derricks in Construction Standard Information Collection.
Others would not change burden hour or cost estimates, but would
substantively modify language contained in the currently OMB-approved
ICR. Still others would revise existing standard provisions that are
not collections of information, will not change burden hour or cost
estimates, and will not modify any language in the ICR. This preamble
summarizes the first two categories to ensure that the ICR reflects the
updated regulatory text, but not the last category of revisions. In
addition, this preamble does not address the proposed provisions that
are substantively unchanged from the current, OMB-approved information
collection requirements. Discussion and justification of these
provisions can be found in the preamble to the final crane standard (75
FR 48017) and also in the Supporting Statements for this proposal as
well as the approved Information Collection.
The Agency and OMB solicit comments on the Cranes and Derricks
Standard information collection requirements as they would be revised
by this rule. Particularly, comments are sought to:
Evaluate whether the proposed information collection
requirements are necessary for the proper performance of the Agency's
functions, including whether the information will have practical
utility;
Evaluate the accuracy of OSHA's estimate of the time and
cost burden of the proposed information collection requirements,
including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the information collection
requirements on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
A copy of the ICR for this proposal, with applicable supporting
documentation; including a description of the likely respondents,
estimated frequency of response, and estimated total burden may be
obtained free of charge from the RegInfo.gov website at: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201710-1218-002 (this link
will only become active on the day following publication of this
notice).
C. Proposed Revisions to the Information Collection Requirements
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(1), OSHA is
providing the following summary information about the information
collection requirements identified in the proposal.
1. Title: Cranes and Derricks in Construction: Operator
Qualification.
2. Description of the ICR. The proposal creates new information
collection requirements and modifies approved information collection
requirements in the existing "Cranes and Derricks in Construction
Standard" Information Collection. The major differences in the
information collection requirements contained in the proposal from the
information collection requirements currently approved in the ICR are
discussed below and in more specific detail in Section III: Summary and
Explanation of the Proposed Amendments to Subpart CC.
Section 1926.1427(a)--Operator Training, Certification, and Evaluation
The introductory text in proposed paragraph (a) sets out the
employer's responsibility to ensure that each operator is certified/
licensed in accordance with subpart CC, and is evaluated on his or her
competence to safely operate the equipment that will be used, before
the employer permits him or her to operate equipment covered by subpart
CC without continuous monitoring. The proposed new approach provides a
clearer structure than the existing standard, which was not designed to
accommodate both certification and evaluation.
Section 1926.1427(c)--Certification and Licensing
Under paragraph (c), the employer must ensure that each operator is
certified or licensed to operate the equipment. Proposed paragraph (c)
retains the certification and licensing structure of the existing
standard with only a few minor modifications intended to improve
comprehension of certification/licensing requirements. For example,
OSHA proposes to remove the somewhat misleading reference to an
"option" with respect to mandatory compliance with existing state and
local licensing requirements that meet the minimum requirements under
federal law.
Section 1926.1427(d)--Certification by an Accredited Crane Operator
Testing Organization
Proposed paragraph (d) retains the requirements of existing
paragraph Sec. 1926.1427(b), except that the proposal removes the
requirement for certification by capacity of crane, as required in
existing sub-paragraph (b)(1)(ii)(B) and (b)(2). The need for this
change is explained in the "Need for a Rule" section of this
preamble. The proposal also makes some non-substantive language
clarifications. Compliance with the requirements of proposed paragraph
(d) is the option that OSHA expects the vast majority of employers to
use.
Section 1926.1427(f)--Evaluation
Proposed paragraph (f) sets out new specific requirements that
employers must follow to conduct an operator evaluation and
reevaluation, including documentation requirements. Proposed paragraph
(f)(4) requires the employer to document the evaluation of each
operator and to ensure that the documentation is available at the
worksite. This paragraph also specifies the information that the
documentation would need to include: The operator's name, the
evaluator's name, the date of the evaluation, and the make, model and
configuration of the equipment on which the operator was evaluated.
However, the documentation would not need to be in any particular
format.
Under the proposal, not all operators exempted from certification
requirements would also be exempted from the evaluation requirements.
Proposed paragraph Sec. 1926.1427(a)(2) continues the existing
exemption from the training and certification requirements in that
section for operators of three types of equipment: derricks, sideboom
cranes, and equipment with a maximum manufacturer-rated hoisting/
lifting capacity of 2,000 pounds or less. In the current crane
standard, these three types of equipment are exempt from all of the
requirements in Sec. 1926.1427 as the result of language in Sec.
1926.1427(a) and specific exemptions in Sec. Sec. 1926.1436(q),
1440(a), and 1441(a). The proposal
would not, however, exempt employers from the requirements in Sec.
1926.1427(f) to evaluate the potential operators of those types of
equipment to ensure that they have sufficient knowledge and skills to
perform the assigned tasks with the assigned equipment. Accordingly,
OSHA proposes to preserve the evaluation requirements through the
revision of the language in Sec. 1926.1427(a) and corresponding edits
to narrow the exemptions in Sec. Sec. 1926.1436(q), 1440(a), and
1441(a).
Section 1926.1427(h)--Language and Literacy
Existing paragraph Sec. 1926.1427(h) allows operators to be
certified in a language other than English, provided that the operator
understands that language. Proposed paragraph (h) is nearly identical
to existing paragraph (h) with the exception that it removes the
reference to the existing qualification language in paragraph (b)(2),
which has been replaced.
Sections 1926.1436(q)--Derricks, 1926.1440(a)--Sideboom Cranes, and
1926.1441(a)--Equipment With a Rated Hoisting/Lifting Capacity of 2,000
Pounds or Less
As discussed earlier, OSHA proposed to amend paragraphs Sec. Sec.
1926.1436(q) 1926.1440(a), and 1926.1441(a) to ensure that the
evaluation requirements inSec. 1926.1427(f) apply to employers using
derricks, sideboom cranes, and equipment with a rated capacity of 2,000
pounds or less.
Number of respondents: 117,130.
Frequency of responses: Various.
Number of responses: 75,591.
Average time per response: Various.
Estimated total burden hours: 4,773.
Estimated cost (capital-operation and maintenance): $71.
D. Submitting Comments
In addition to submitting comments directly to the Agency, members
of the public who wish to comment on the Agency's information
collection requirements in this proposal may send written comments to
the Office of Information and Regulatory Affairs, Attn: OMB Desk
Officer for the DOL-OSHA (RIN-1218-AC96), Office of Management and
Budget, Room 10235, Washington, DC 20503. You may also submit comments
to OMB by email at: OIRA_submission@omb.eop.gov. Please reference the
ICR Reference Number 201710-1218-002 in order to help ensure proper
consideration. The Agency encourages commenters also to submit their
comments related to the Agency's clarification of the information
collection requirements to the rulemaking docket (Docket Number OSHA-
2007-0066), along with their comments on other parts of the proposed
rule. For instructions on submitting these comments to the rulemaking
docket, see the sections of this Federal Register notice titled DATES
and ADDRESSES.
E. Docket and Inquiries
A copy of the ICR for this proposal, with applicable supporting
documentation; including a description of the likely respondents,
estimated frequency of response, and estimated total burden may be
obtained free of charge from the RegInfo.gov website at: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201710-1218-002 (this link
will only become active on the day following publication of this
notice). Copies of these documents may also be obtained by contacting
Mr. Vernon Preston, Directorate of Construction, OSHA; telephone (202)
693-2020; email Preston.Vernon@dol.gov.
D. 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 and statutory
authority exists and the problem is national in scope. Executive Order
13132 provides for preemption of state law only with the expressed
consent of Congress. Federal agencies must limit any such preemption to
the extent possible.
Under Section 18 of the 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 (see 75 FR 48128-29).
The proposed amendments do not change that conclusion. In states
without an OSHA-approved State Plan, this proposed rule would limit
state policy options in the same manner as every standard promulgated
by OSHA. But the proposed rule also requires compliance with state and
local crane operator licensing programs that meet certain minimum
standards. 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 proposed
rule.
E. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must either amend their
standards to be identical or "at least as effective as" the new
standard or amendment, or show that an existing state standard covering
this area is "at least as effective" as the new Federal standard or
amendment (29 CFR 1953.5(a)). State Plans' adoption must be completed
within six months of the promulgation date of the final Federal rule.
When OSHA promulgates a new standard or amendment that does not 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 amendments to OSHA's cranes standard in this proposed rule
would require employers to implement permanent evaluations of crane
operators. These evaluations must be documented and include more
specificity than the existing temporary employer duty to assess and
train operators under Sec. 1926.1427(k)(2). Accordingly, State Plans
would be required to adopt an "at least as effective" change to their
standard.
OSHA is also removing the existing requirement for crane operators
to be certified by crane capacity as well as crane type. Because this
change removes a requirement rather than imposing one, State Plans
would not be required to make this change, but may do so if they so
choose.
F. Unfunded Mandates Reform Act
When OSHA issued the final Cranes and Derricks in Construction
rule, 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 concluded 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 proposed rule
has cost savings of approximately $1.8m per year. Therefore, for the
purposes of the UMRA, OSHA certifies that this proposed rule would not
mandate that state, local, or tribal governments adopt new, unfunded
regulatory obligations, or increase expenditures by the private sector
of more than $100 million in any year.
G. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this proposed rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it would not have "tribal
implications" as defined in that order. The proposed rule would not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.
H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
Consistent with E.O. 13771 (82 FR 9339, February 3, 2017), OSHA has
estimated at a 3 percent discount rate, there are net annual cost
savings of $1,738,540, and at a discount rate of 7 percent there is an
annual cost savings of $2,230,511. This proposed rule is expected to be
an E.O. 13771 deregulatory action. Details on the estimated costs and
cost savings estimates for this proposed rule can be found in the
rule's economic analysis.
List of Subjects in 29 CFR Part 1926
Certification, Construction industry, Cranes, Derricks,
Occupational safety and health, Qualification, Safety, Training.
Signed at Washington, DC, on May 14, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble of this proposed rule, OSHA
proposes to amend 29 CFR part 1926 as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart CC--Cranes and Derricks in Construction
0
1. The authority citation for subpart CC continues to read as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701); sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 5-2007 (72 FR 31159); and 29
CFR part 1911.
0
2. Revise Sec. 1926.1427 to read as follows:
Sec. 1926.1427 Operator training, certification, and evaluation.
(a) The employer must ensure that each operator is trained,
certified/licensed, and evaluated in accordance with this section
before operating any equipment covered under subpart CC, except for the
equipment listed in paragraph (a)(2) of this section.
(1) An employee who has not been certified/licensed and evaluated
to operate assigned equipment in accordance with this section may only
operate the equipment as an operator-in-training under supervision in
accordance with the requirements of paragraph (b) of this section.
(2) Exceptions. Operator certification/licensing and training under
this section is not required for operators of derricks (see Sec.
1926.1436), sideboom cranes (see Sec. 1926.1440), or equipment with a
maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds or
less (see Sec. 1926.1441). Note: The training requirements in those
other sections continue to apply (for the training requirement for
operators of sideboom cranes, follow section 1926.1430(c)).
(3) Qualification by the U.S. military.
(i) For purposes of this section, an operator who is an employee of
the U.S. military meets the requirements of this section if he/she has
a current operator qualification issued by the U.S. military for
operation of the equipment. An employee of the U.S. military is a
Federal employee of the Department of Defense or Armed Forces and does
not include employees of private contractors.
(ii) A qualification under this paragraph is:
(A) Not portable. Such a qualification meets the requirements of
paragraph (a) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
qualification.
(B) Valid for the period of time stipulated by the issuing entity.
(b) Operator training. The employer must provide each operator-in-
training with sufficient training, through a combination of formal and
practical instruction, to ensure that the operator-in-training develops
the skills, knowledge, and judgment necessary to operate the equipment
safely for assigned work.
(1) The employer must provide instruction on the knowledge and
skills listed in paragraphs (j)(1) and (2) of this section to the
operator-in-training.
(2) The operator-in-training must be continuously monitored on site
by a trainer while operating equipment.
(3) The employer may only assign tasks within the operator-in-
training's ability. However, the operator-in-training shall not operate
the equipment in any of the following circumstances except as provided
in paragraph (b)(3)(v) of this section:
(i) If any part of the equipment, load line or load (including
rigging and lifting accessories), if operated up to the equipment's
maximum working radius in the work zone (see Sec. 1926.1408(a)(1)),
could get within 20 feet of a power line that is up to 350 kV, or
within 50 feet of a power line that is over 350 kV.
(ii) If the equipment is used to hoist personnel.
(iii) In multiple-equipment lifts.
(iv) If the equipment is used over a shaft, cofferdam, or in a tank
farm.
(v) In multiple-lift rigging operations, except where the
operator's trainer determines that the operator-in-training skills are
sufficient for this high-skill work.
(4) Monitored Training. The employer must ensure that an operator-
in-training is monitored as follows when operating equipment covered by
this subpart:
(i) Trainer. While operating the equipment, the operator-in-
training must be continuously monitored by an individual ("operator's
trainer") who meets all of the following requirements:
(A) The operator's trainer is an employee or agent of the operator-
in-training's employer.
(B) Have the knowledge, training, and experience necessary to
direct the operator-in-training on the equipment in use.
(ii) While monitoring the operator-in-training, the operator's
trainer performs no tasks that detract from the trainer's ability to
monitor the operator-in-training.
(iii) For equipment other than tower cranes: The operator's trainer
and the operator-in-training must be in direct line of sight of each
other. In addition, they must communicate verbally or by hand signals.
For tower cranes: The operator's trainer and the operator-in-training
must be in direct communication with each other.
(iv) Continuous monitoring while operating the equipment. The
operator-in-training must be monitored by the operator's trainer at all
times, except for short breaks where all of the following are met:
(A) The break lasts no longer than 15 minutes and there is no more
than one break per hour.
(B) Immediately prior to the break the operator's trainer informs
the operator-in-training of the specific tasks that the operator-in-
training is to perform and limitations to which he/she must adhere
during the operator trainer's break.
(C) The specific tasks that the operator-in-training will perform
during the operator trainer's break are within the operator-in-
training's abilities.
(5) Retraining. The employer must provide refresher training in
relevant topics for each operator when, based on the performance of the
operator or an evaluation of the operator's knowledge, there is an
indication that retraining is necessary.
(c) Operator certification and licensing. The employer must ensure
that each operator is certified or licensed to operate the equipment as
follows:
(1) Licensing. When a state or local government issues operator
licenses for equipment covered under subpart CC, the equipment operator
must be licensed by that government entity for operation of equipment
within that entity's jurisdiction if that government licensing program
meets the following requirements:
(i) The requirements for obtaining the license include an
assessment, by written and practical tests, of the operator applicant
regarding, at a minimum, the knowledge and skills listed in paragraphs
(j)(1) and (2) of this section.
(ii) The testing meets industry-recognized criteria for written
testing materials, practical examinations, test administration,
grading, facilities/equipment, and personnel.
(iii) The government authority that oversees the licensing
department/office has determined that the requirements in paragraphs
(c)(1)(i) and (ii) of this section have been met.
(iv) The licensing department/office has testing procedures for re-
licensing designed to ensure that the operator continues to meet the
technical knowledge and skills requirements in paragraphs (j)(1) and
(2) of this section.
(v) The license must specify the type, or type and capacity, of
equipment for which the individual is licensed.
(vi) For the purposes of compliance with this section, a license is
valid for the period of time stipulated by the licensing department/
office, but no longer than 5 years.
(2) Certification. When an operator is not required to be licensed
under paragraph (c)(1), the operator must be certified in accordance
with paragraph (d) or (e) of this section.
(3) Whenever operator certification/licensure is required under
Sec. 1926.1427, the employer must provide the certification at no cost
to employees.
(4) A testing entity is permitted to provide training as well as
testing services as long as the criteria of the applicable governmental
or accrediting agency (in the option selected) for an organization
providing both services are met.
(d) Certification by an accredited crane operator testing
organization. (1) For a certification to satisfy the requirements of
this section, the crane operator testing organization providing the
certification must:
(i) Be accredited by a nationally recognized accrediting agency
based on that agency's determination that industry-recognized criteria
for written testing materials, practical examinations, test
administration, grading, facilities/equipment, and personnel have been
met.
(ii) Administer written and practical tests that:
(A) Assess the operator applicant regarding, at a minimum, the
knowledge and skills listed in paragraphs (j)(1) and (2) of this
section.
(B) Provide certification based on equipment type, or type and
capacity.
(iii) Have procedures for operators to re-apply and be re-tested in
the event an operator applicant fails a test or is decertified.
(iv) Have testing procedures for re-certification designed to
ensure that the operator continues to meet the technical knowledge and
skills requirements in paragraphs (j)(1) and (2) of this section.
(v) Have its accreditation reviewed by the nationally recognized
accrediting agency at least every 3 years.
(2) If no accredited testing agency offers certification
examinations for a particular type of equipment, an operator will be
deemed certified for that equipment if the operator has been certified
for the type that is most similar to that equipment and for which a
certification examination is available. The operator's certificate must
state the type of equipment for which the operator is certified.
(3) A certification issued under this option is portable among
employers who are required to have operators certified under this
option.
(4) A certification issued under this paragraph is valid for 5
years.
(e) Audited employer program. The employer's certification of its
employee must meet the following requirements:
(1) The written and practical tests must be either:
(i) Developed by an accredited crane operator testing organization
(see paragraph (d) of this section); or
(ii) Approved by an auditor in accordance with the following
requirements:
(A) The auditor is certified to evaluate such tests by an
accredited crane operator testing organization (see paragraph (d) of
this section).
(B) The auditor is not an employee of the employer.
(C) The approval must be based on the auditor's determination that
the written and practical tests meet nationally recognized test
development criteria and are valid and reliable in assessing the
operator applicants regarding, at a minimum, the knowledge and skills
listed in paragraphs (j)(1) and (2) of this section.
(D) The audit must be conducted in accordance with nationally
recognized auditing standards.
(2) Administration of tests. (i) The written and practical tests
must be administered under circumstances approved by the auditor as
meeting nationally recognized test administration standards.
(ii) The auditor must be certified to evaluate the administration
of the written and practical tests by an accredited crane operator
testing organization (see paragraph (d) of this section).
(iii) The auditor must not be an employee of the employer.
(iv) The audit must be conducted in accordance with nationally
recognized auditing standards.
(3) The employer program must be audited within 3 months of the
beginning of the program and at least every 3 years thereafter.
(4) The employer program must have testing procedures for re-
qualification designed to ensure that the operator continues to meet
the technical knowledge and skills requirements in paragraphs (j)(1)
and (2) of this section. The re-qualification procedures must be
audited in accordance with paragraphs (e)(1) and (2) of this section.
(5) Deficiencies. If the auditor determines that there is a
significant deficiency ("deficiency") in the program, the employer
must ensure that:
(i) No operator is qualified until the auditor confirms that the
deficiency has been corrected.
(ii) The program is audited again within 180 days of the
confirmation that the deficiency was corrected.
(iii) The auditor files a documented report of the deficiency to
the appropriate Regional Office of the Occupational Safety and Health
Administration within 15 days of the auditor's determination that there
is a deficiency.
(iv) Records of the audits of the employer's program are maintained
by the auditor for 3 years and are made available by the auditor to the
Secretary of Labor or the Secretary's designated representative upon
request.
(6) A certification under this paragraph is:
(i) Not portable. Such a certification meets the requirements of
paragraph (c) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
qualification.
(ii) Valid for 5 years.
(f) Evaluation. (1) Through an evaluation, the employer must ensure
that each operator demonstrates:
(i) The skills, knowledge, and judgment necessary to operate the
equipment safely, including those specific to the safety devices,
operational aids, software, and the size and configuration of the
equipment. Size and configuration includes, but is not limited to,
lifting capacity, boom length, attachments, luffing jib, and
counterweight set-up.
(ii) The ability to perform the hoisting activities required for
assigned work, including, if applicable, blind lifts, personnel
hoisting, and multi-crane lifts.
(2) The evaluation must be conducted by an individual who has the
knowledge, training, and experience necessary to assess equipment
operators.
(3) Once the evaluation is completed successfully, the employer may
allow the operator to operate other equipment that the employer can
demonstrate does not require substantially different skills, knowledge,
or judgment to operate.
(4) The employer must document the completion of the evaluation.
This document must provide: the operator's name; the evaluator's name
and signature; the date; and the make, model, and configuration of
equipment used in the evaluation. The employer must make the document
available at the worksite.
(5) When an employer is required to provide an operator with
retraining under paragraph (b)(6) of this section, the employer must
re-evaluate the operator with respect to the subject of the retraining.
(g) [Reserved.]
(h) Language and literacy requirements. (1) Tests under this
section may be administered verbally, with answers given verbally,
where the operator candidate:
(i) Passes a written demonstration of literacy relevant to the
work.
(ii) Demonstrates the ability to use the type of written
manufacturer procedures applicable to the class/type of equipment for
which the candidate is seeking certification.
(2) Tests under this section may be administered in any language
the operator candidate understands, and the operator's certification
documentation must note the language in which the test was given. The
operator is only permitted to operate equipment that is furnished with
materials required by this subpart, such as operations manuals and load
charts, that are written in the language of the certification.
(i) [Reserved.]
(j) Certification criteria. Certifications must be based on the
following:
(1) A determination through a written test that:
(i) The individual knows the information necessary for safe
operation of the specific type of equipment the individual will
operate, including all of the following:
(A) The controls and operational/performance characteristics.
(B) Use of, and the ability to calculate (manually or with a
calculator), load/capacity information on a variety of configurations
of the equipment.
(C) Procedures for preventing and responding to power line contact.
(D) Technical knowledge of the subject matter criteria listed in
appendix C of this subpart applicable to the specific type of equipment
the individual will operate. Use of the appendix C criteria meets the
requirements of this provision.
(E) Technical knowledge applicable to the suitability of the
supporting ground and surface to handle expected loads, site hazards,
and site access.
(F) This subpart, including applicable incorporated materials.
(ii) The individual is able to read and locate relevant information
in the equipment manual and other materials containing information
referred to in paragraph (j)(1)(i) of this section.
(2) A determination through a practical test that the individual
has the skills necessary for safe operation of the equipment, including
the following:
(i) Ability to recognize, from visual and auditory observation, the
items listed in Sec. 1926.1412(d) (shift inspection).
(ii) Operational and maneuvering skills.
(iii) Application of load chart information.
(iv) Application of safe shut-down and securing procedures.
(k) Effective date. The certification requirements of this section
are applicable November 10, 2018.
0
3. Amend Sec. 1926.1430 to:
0
a. Revise paragraphs (c)(1) and (c)(2);
0
b. Remove paragraph (c)(3); and
0
c. Redesignate paragraph (c)(4) as (c)(3) to read as follows:
Sec. 1926.1430 Training.
* * * * *
(c) * * *
(1) The employer must train each operator in accordance with Sec.
1926.1427(a) and (b), on the safe operation of the equipment the
operator will be using.
(2) Operators excepted from the requirements of Sec. 1926.1427.
The employer must train each operator covered under the exception of
Sec. 1926.1427(a)(2) on the safe operation of the equipment the
operator will be using.
* * * * *
0
4. Amend Sec. 1926.1436 by revising paragraph (q) to read as follows:
Sec. 1926.1436 Derricks.
* * * * *
(q) Qualification and Training. The employer must train each
operator of a derrick on the safe operation of equipment the individual
will operate. Section 1926.1427 of this subpart (Operator training,
certification, and evaluation) does not apply, except for the
evaluation requirements of Sec. 1926.1427(f).
0
5. Amend Sec. 1926.1440 by revising paragraph (a) to read as follows:
Sec. 1926.1440 Sideboom cranes.
(a) The provisions of this subpart apply, except Sec. 1926.1420
(Ground conditions), Sec. 1926.1415 (Safety
devices), Sec. 1926.1416 (Operational aids), and Sec. 1926.1427
(Operator training, certification, and evaluation) paragraphs (a)-(e)
and (g)-(k). Section 1926.1427(f) (Evaluation) applies.
* * * * *
0
6. Amend Sec. 1926.1441 by revising paragraph (a) to read as follows:
Sec. 1926.1441 Equipment with a rated hoisting/lifting capacity of
2,000 pounds or less.
* * * * *
(a) The employer using this equipment must comply with the
following provisions of this subpart: Sec. 1926.1400 (Scope); Sec.
1926.1401 (Definitions); Sec. 1926.1402 (Ground conditions); Sec.
1926.1403 (Assembly/disassembly--selection of manufacturer or employer
procedures); Sec. 1926.1406 (Assembly/disassembly--employer
procedures); Sec. Sec. 1926.1407 through 1926.1411 (Power line
safety); Sec. 1926.1412(c) (Post-assembly); Sec. Sec. 1926.1413
through 1926.1414 (Wire rope); Sec. 1926.1418 (Authority to stop
operation); Sec. Sec. 1926.1419 through 1926.1422 (Signals); Sec.
1926.1423 (Fall protection); Sec. 1926.1425 (Keeping clear of the
load) (except for Sec. 1926.1425(c)(3) (qualified rigger)); Sec.
1926.1426 (Free fall and controlled load lowering); Sec. 1926.1427(f)
(Evaluation); Sec. 1926.1432 (Multiple crane/derrick lifts--
supplemental requirements); Sec. 1926.1434 (Equipment modifications);
Sec. 1926.1435 (Tower cranes); Sec. 1926.1436 (Derricks); Sec.
1926.1437 (Floating cranes/derricks and land cranes/derricks on
barges); Sec. 1926.1438 (Overhead & gantry cranes).
* * * * *
[FR Doc. 2018-10559 Filed 5-18-18; 8:45 am]
BILLING CODE 4510-26-P
