October 1, 2012

Richard Marshall
Safety Director
Richard Goettle, Inc.
12071 Hamilton Avenue
Cincinnati, OH 45231

Dear Mr. Marshall:

Thank you for your January 7, 2011 letter to the Occupational Safety and Health Administration (OSHA) in which you ask for clarification of a requirement of the Construction Cranes and Derricks Standard (Subpart CC of 29 CFR Part 1926). We have paraphrased your questions as follows:

Question #1: If the site is unlevel, wet, soft, and generally unsuited for safe crane operation, is the general contractor required to improve the site?

A: Yes, assuming that the general contractor is the controlling entity or employer described in §1402(d), which would normally be the case.¹ It is ultimately the controlling entity's responsibility to make sure sufficient improvements to ground conditions are made for the crane to be assembled or used within the requirements of section 1926.1402(b). Section 1926.1402(c)(1) requires that the controlling entity must ensure that ground preparations necessary to meet the requirements in paragraph (b) of this section are provided. OSHA requires the controlling entity to be responsible for ground conditions because the controlling entity has the authority to improve ground conditions and is more likely to be able to have the necessary equipment provided. For more discussion of this provision, see the explanation of the final rule at 75 Fed. Reg. 47,931, 47,933 (Aug. 9, 2010).

OSHA's standard provides flexibility to the controlling entity regarding the means by which it assesses ground conditions and remedies deficiencies. The standard defines the controlling entity's responsibility in terms of "ensure" and "are provided" to make clear that the controlling entity does not have to personally determine and prepare the necessary ground conditions. 75 Fed. Reg. 47934. However, the standard makes clear that the ultimate responsibility for ground conditions remains with the controlling entity, and the standard sets up a system of communication to facilitate the fulfillment of that responsibility. For example, section 1926.1402(e) requires employers of crane operators to "have a discussion" with the controlling entity if ground conditions are inadequate under paragraph (b)). See 75 Fed. Reg. 47,933-35.

Question #2: How long in duration is the controlling entity required to ensure that adequate ground conditions are provided in accordance with the requirements of 29 CFR 1926.1402(b)?

A: The crane standard does not include any durational on this duty. Thus, the controlling entity must meet this obligation whenever the crane is set-up or used, and that duty continues for the duration of the construction activity, including set-up needed for assembly and disassembly, as well as for hoisting operations and movement of the crane around the site.² Because construction worksite conditions are always subject to change, section 1926.1412(d)(1)(x) requires a competent person to inspect the ground conditions each shift to ensure proper support of the crane. In addition, section 1926.1402(e) requires that the operator or assembly/disassembly director notify the controlling entity of inadequate ground conditions. Therefore, the controlling entity must provide for preparations whenever they are needed to address changes in ground conditions that would make its support of the crane inadequate, even if the crane has not moved on the site.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. This letter constitutes OSHA's interpretation of the requirements discussed. OSHA requirements are set by statute, standards, and regulations. The Occupational Safety and Health Act requires employers to comply with safety and health standards promulgated by OSHA or by a state with an OSHA-approved state plan. However, this interpretation is not itself a standard or regulation, and it creates no new legal obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,


James G. Maddux, Director
Directorate of Construction

¹ Subpart CC defines a controlling entity as an employer that is a prime contractor, general contractor, construction manager, or any other legal entity which has overall responsibility for the construction of the project- its planning, quality, and completion. Paragraph §1402(d) provides that in the absence of any controlling entity at a worksite, the "employer that has authority at the site to make or arrange for ground preparations needed to meet paragraph (b) of this section" is responsible for the controlling entity ground condition duties specified in §1402. [Back to Letter]

² See Cranes and Derricks in Construction Final Rule: Frequently Asked Questions, #31 (delivery of crane to a worksite may not constitute "construction activity" in certain situations), available at http://www.osha.gov/cranes-derricks/faq.html. [Back to Letter]