auditors, they will become available during that time frame.
    An operator certification company recommended eliminating Option
(2) because, in the commenter's view, it lacks sufficient safeguards to
ensure the integrity of the qualification process. (ID-0330.1.) The
commenter views this Option as a form of self-certification that is
generally inconsistent with the rule's principle of third-party
verification. It suggests that this Option presents an inherent
conflict of interest based on the incentive that employers have to pass
their employee-operators and that the conflict is not cured by an
auditor's oversight of the program. OSHA disagrees. Under this option,
the auditor must be independent of the employer and certified by an
accredited testing organization. In OSHA's view, these requirements
provide adequate assurance that a testing program approved by the
auditor is of high quality and reliability.
Paragraph (d) Option (3): Qualification by the U.S. Military
    Proposed Sec.  1926.1427(d) provided that an operator who is an
employee of the United States military would be deemed qualified if he/
she had a current qualification issued by the U. S. military. The
criteria for qualification under Option (3) would be left to the
military to determine, including the length of time such a
qualification would be valid. Qualification under this option would not
be portable unless it meets the requirements of Option (1) of this
section.
    Unlike Options (1) and (2), Option (3) is available, in accordance
with the requirements of paragraph (d), whether or not the equipment is
operated within the jurisdiction of a State or local government that
has its own operating licensing requirement. The Agency notes that in
its comments requesting mandatory compliance with State licensing
requirements, New York State noted that it did not intend to supplant
Option (3). (ID-0171.1.) There is nothing in the record to indicate
that employees of the U.S. military who are authorized by the U.S.
military to operate equipment covered by this subpart are currently
required to comply with State or local licensing requirements.
    In the proposed rule, OSHA noted that OSHA standards did not apply
to uniformed military personnel and to civilian employees of the
military who are engaged in uniquely military equipment, systems, and
operations. Accordingly, Option (3) would apply only to civilian
employees of the Defense Department and Armed Forces who are engaged in
work that is not uniquely military. It does not apply to employees of
private contractors who are working under contract to the military. In
the proposed rule, OSHA noted that the C-DAC document did not clearly
exclude such employees even though that was C-DAC's intent.
    To make this point clear, OSHA is adding the following
clarification to Sec.  1926.1427(d)(1): 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. This
clarification was originally proposed in Sec.  1926.1427(m), which is
removed from the final rule. Two commenters supported the clarification
proposed by OSHA. (ID-0205.1; -0211.1.) Another said the provision
should be clarified but did not express an opinion on whether OSHA's
proposed clarification should be adopted. (ID-0122.) In the absence of
any reasons presented in opposition to the proposed clarification, OSHA
is retaining the clarification.
    Paragraph (d)(2) specifies that qualification under Option (3) is
not portable. Because this option is designed specifically to
accommodate civilian employees of the U.S. military, and therefore is
not based on the same criteria and independent third-party
verification. However, if a U.S. military entity meets the requirements
of Option (1), OSHA would consider the operator certification provided
by that entity to be portable.
Paragraph (e) Option (4): Licensing by a Government Entity
    Paragraph (e) of this section of the final rule addresses
government licensing departments/offices that issue operating licenses
for equipment covered by this standard. Paragraph (e)(1) makes it clear
that OSHA is only requiring compliance with State or local operating
licensing requirements when those licensing programs meet the
requirements specified in paragraphs (e)(2). These requirements are
commonly referred to as a ``Federal floor,'' meaning that they are the
minimum criteria necessary to trigger

employer compliance with those licensing requirement under this
standard. OSHA is including this ``Federal floor'' because it
determines, as did C-DAC, that some, but potentially not all, State/
local governments will have effective, reliable licensing procedures.
If OSHA determines that a State or local licensing department/office,
or its testing, does not satisfy the minimum requirements set out in
paragraphs (e) and (j), then employers would not be required by OSHA to
comply with the licensing requirements of that government entity. In
such cases, the employer would satisfy the requirements of this section
by ensuring that their operators are certified or qualified in
accordance with the options provided in paragraphs (b) through (d).
    The requirement for the government licensing department/office to
meet the criteria in Sec.  1926.1427(e)(2) ensures that operators who
qualify under Option (4) have the requisite knowledge and skills to
operate safely. Paragraph (e)(2)(i) requires that the criteria used by
the licensing department/office address the knowledge and skill
requirements listed in Sec.  1926.1427(j). Section 1926.1427(e)(2)(ii)
requires that the government entity follow the same test content, test
administration and related criteria as required under Option (1).
Section 1926.427(e)(2)(iii) requires that the office with authority
over the licensing department/office assess the tests and procedures
used by the licensing office/department and determine that the
requirements of Sec. Sec.  1926.1427(e)(2)(ii) and 1926.1427(e)(2)(iii)
have been met. Also, the government licensing office must have re-
certification procedures in place as discussed in Sec. Sec.
1926.1427(b)(1)(iv) and 1926.427(c)(4).
    Under Sec.  1926.1427(e)(3)(i), a qualification under Option (4) is
valid only within the geographic jurisdiction of the licensing entity.
However, if the qualifications of Option (1) in Sec.  1926.1427(b) are
met, OSHA would consider the operator certification provided by that
entity to be portable. Under paragraph (e)(3)(ii), the qualification is
valid for the time period specified by the licensing entity, but for no
longer than five years.
    Several commenters expressed the concern that OSHA's new standard
would preempt existing State or local laws, particularly those relating
to licensing of crane operators. Others encouraged the Agency to
expressly preempt those laws. The preemption issue is discussed in full
at the end of this preamble within section V.D addressing federalism.
Other Recommended Options
    Commenters recommended that OSHA offer employers two additional
options for qualifying or certifying operators. One is to allow
employers to self-certify operators based on their own evaluation of
the operator's ability. For the reasons discussed in the introduction
to this section, OSHA rejects that suggestion.
    A number of commenters recommended that OSHA expand the range of
options by allowing an accredited educational institution to certify
operators. (ID-0105.1; -0147.1; -0151.1; -0187.1; -0193.1.) At the
public hearing, a witness for a trade association further recommended
an option whereby operators could be trained and qualified through an
employer program developed by an accredited educational institution.
(ID-0343.)
    Some commenters believed that additional options were needed
because they believed that Option (1) was the only viable option for
many employers and that an insufficient number of accredited testing
organizations existed to meet the demand that an OSHA rule would
create. (ID-0165.1; -0187.1; -0193.1.)
    OSHA notes that an educational institution, like any other testing
organization, may become an accredited testing organization under
Option (1) by becoming accredited by a nationally recognized
accrediting agency based on the criteria listed under that option and
complying with the ``firewall'' requirements of Sec.  1926.1427(g).
However, OSHA determines the comments favoring this concept were
addressing OSHA's request for comment on whether to allow an
educational institution to certify operators based solely on its
accreditation by an organization recognized by the Department of
Education (DoE) without the need to be accredited under Option (1) (see
73 FR 59812, Oct. 9, 2008).
    OSHA concludes that accreditation of an educational institution
under DoE criteria is insufficient to ensure that a certification
issued by the institution would reliably demonstrate that the crane
operator has the knowledge and skills needed for safe operation. The
fundamental reason is that the accreditation process for educational
institutions does not include an assessment of an institution's ability
to assess personnel competency.
    A representative from a consensus standard organization addressed
this issue at the public hearing. The representative had experience
both in accrediting educational institutions and personnel
certification organizations. (ID-0344.) He testified that the
accreditation of an educational institution under the DoE system is
designed to assess the quality of the education an institution offers
but does not determine whether the individuals who have attended that
institution possess the specific skills or competencies required for
particular jobs. Unlike an educational institution, which focuses on
the number of graduates, attrition rates, and the percentage pass rate
on any national certification or State licensure examinations, a
personnel certification program is designed to address competency for
job performance. Among the concerns cited by the representative were
that the accreditation for an educational program does not assess
competency, and that the tests administered by an educational program
are not held to the same psychometric standards as those administered
by an accredited personnel certification program. The commenter said
higher education accreditation is concerned with the quality of
education. Personnel certification accreditation, on the other hand,
evaluates the quality of assessments to measure the acquisition and
ongoing maintenance of valid job competencies. (ID-0344.) In addition,
personnel certification is time-limited and certifying entities retain
the ability to withdraw certification if the individual subsequently
demonstrates a lack of competency. (ID-0344.) Institutions of higher
education cannot revoke or repossess diplomas.
    The representative explained that a key difference between
educational accreditation and personnel accreditation is surveillance
of the test administration process by the accrediting body to ensure
that an individual's score is not tainted by prior knowledge of the
examination or by lack of security during the test itself. Using the
ANSI accreditation process as an example, he explained that a
certification entity seeking accreditation will undergo annual
surveillance--onsite during the first and third years, which can
encompass multiple sites if the certification entity's structure merits
such review. ANSI examines the controls over test items and the
development of test items, to ensure that these items are not released
to the public. ANSI also looks to ensure that the organizational
structure of the certifying entity is reflective of the population it
is intended to serve, and that the administration is fair and equitable
among all the applicants.

These criteria are not required elements of accreditation for higher
education institutions, according to both the representative and
Department of Education materials (see 34 CFR part 602).
    There is another reason why certification by an educational
institution would, in most cases, not be suitable for crane operators:
The need for personnel testing to be independent of the training that
precedes the testing. As discussed below, Sec.  1926.1427(g) of this
rule is designed to ensure that training is separate from testing to
prevent an organization that offers both services from defeating the
validity of the test by ``teaching to the test.'' OSHA acknowledges
that it might be possible for an educational institution to provide the
necessary ``firewalls'' between its training and testing, and obtain
the separate accreditation required under this section, such that it
could comply with Sec.  1926.1427(g). However, educational institutions
typically both teach and test, and may do so within their educational
accreditation without any requirement that the testing process be
insulated from the teaching process.
    The purpose of a personnel certification test is different from a
test offered by an educational institution, which is to determine
whether the individual has mastered the material that was taught. As a
labor representative stated at the hearing, personnel certification
tests examine a random sampling of information that individuals must
know to perform the function being tested. (ID-0341.) The labor
representative pointed out that if the individual is tested only on the
material he or she has been taught, the individual learns only the
information needed to pass the test and the test is not a reliable
measure of the person's depth of knowledge on the subject. Therefore,
allowing educational institutions to certify crane operators based
solely on their DoE accreditation would be inconsistent with the
principle that testing for certification purposes should be independent
of any training that the individual has received and would severely
compromise the reliability of the certification process.
    In sum, the DoE accreditation system for educational institutions
is not designed to assess the capabilities that are needed for
developing or administering personnel competency tests.\117\
---------------------------------------------------------------------------

    \117\ At least one other Federal agency has also taken this view
of certification. The Department of Defense requires the
certification of certain personnel performing Information Assurance
functions within that organization. Appendix 2 to DoD 8570.01-M, the
directive addressing such certifications, requires that the
certifications must be accredited, and maintain accreditation, under
ISO 17024. (ID-0346.1.)
---------------------------------------------------------------------------

    Moreover, concerns about inadequate availability of certifying
entities are unfounded. At the time of the proposed rule, two testing
organizations, NCCCO and the Southern California Crane & Hoisting
Association, had been accredited (see 73 FR 59812, Oct. 9, 2008). By
the time of the hearing, four additional testing organizations had been
accredited: The Operating Engineers Certification Program, Union
Pacific Railroad, National Center for Construction Education and
Research, and Crane Institute Certification. (ID-0343.) Although some
of these are not available to all employers or crane operators, it does
not appear that there will be a lack of availability of testing
services under Option (1), particularly with the four-year phase-in
period for Sec.  1926.1427.
    In addition, the record shows that testing organizations arrange
for testing to be available at convenient locations. For example, NCCCO
offers the written test anywhere in the country where it receives
adequate notice and an appropriate testing room is available. (ID-
0343.) NCCCO also sends examiners to an employer's worksite to
administer the practical tests. (ID-0343.) OSHA therefore concludes
that the current four options afford crane operators and their
employers sufficient opportunity to obtain qualification/certification
and that additional options are not needed to make such services
readily available.
    Two building trade associations recommended that OSHA add an option
that combines aspects of Option (2) of this section with tests
developed by an accredited educational institution. (ID-0218.1; -
0232.1.) Under their recommendation, the educational institution would
develop written and practical tests, and the tests would be approved by
an auditor who is certified by an accredited educational institution as
qualified to evaluate such tests. The actual operator certification
would be issued by the accredited educational institution.
    OSHA determines that this recommended program is, in practical
effect, not significantly different than the general recommendation for
OSHA to allow certification by an accredited educational institution.
First, it is likely that educational institutions would be
administering tests to individuals who have taken their training
courses without ``firewall'' separation between those functions,
thereby giving rise to the problem addressed above that testing would
not be independent of training and would therefore be of reduced
reliability. Second, although the commenters would not permit the
auditor to be employed by the employer, there is no prohibition against
the auditor being employed by the accredited educational institution
who certifies him/her. In OSHA's view, this creates the potential for a
conflict of interest because the auditor would not be independent of
the institution whose tests he or she is reviewing. OSHA finds that the
recommendation by the commenters does not contain sufficient safeguards
to ensure that the tests provide an indicator of operator competence
that is comparable to the other options permitted under this rule.
    One commenter asked OSHA to prohibit different organizations from
administering the written and practical testing. (ID-0199.1.) The
commenter stated that it is necessary for one organization to maintain
oversight of the entire test process. The commenter did not provide any
support for this assertion, nor has OSHA identified any other evidence
in the record to support it. OSHA does not find the request persuasive
and is instead relying on the accreditation requirements to ensure that
the certifying entity administers all testing appropriately.
Paragraph (f) Pre-Qualification/Certification Training Period
    Section 1926.1427(f) establishes a process by which operators who
are not certified or qualified can get experience operating the
equipment to help prepare for obtaining a certification/qualification.
Section 1926.1427(f) allows employees who are not yet qualified or
certified to operate cranes provided that they qualify as ``operators-
in-training'' in accordance with Sec. Sec.  1926.1427(f)(1) through
(5), which require appropriate monitoring of such operators-in-training
to ensure worksite safety and places limitations on the tasks they can
perform. OSHA revised proposed Sec.  1926.1427(f) to clarify that
employees who do meet the requirements of an ``operator-in-training,''
and who are not otherwise certified or qualified under this section,
are prohibited from operating equipment (except for maintenance, as
provided in Sec.  1926.1429 of this subpart). OSHA has removed the text
that was in proposed paragraph (f)(2) as redundant,\118\ and has
renumbered paragraph (f) of this section.
---------------------------------------------------------------------------

    \118\ Proposed paragraph (f)(1) of this section had provided
that ``[a]n employee who is not qualified or certified under this
section is permitted to operate equipment'' by satisfying the
requirements of proposed paragraph (f).'' Proposed paragraph (f)(2),
and an alternative also included in the proposed rule, had granted
the same permission to any employee who had not passed the written
exam or practical tests required under Sec.  1926.1427. While OSHA
still intends that employees who have passed either the written exam
or practical test be eligible to serve as an ``operator-in-
training,'' it is not including this text in the regulation because
these employees are already addressed by the language that was in
proposed paragraph (f)(1) (``an employee who is not qualified or
certified under this section'') and is included in the final rule as
the introductory text for paragraph (f).

---------------------------------------------------------------------------

    The proposed rule used the phrase ``trainee/apprentice'' to
describe an operator-in-training, the word ``supervisor'' to describe
the individual responsible for monitoring the operator-in-training, and
the word ``supervise'' to describe that individual's oversight of the
operator-in-training. Several commenters suggested that the terms
``trainee,'' ``apprentice,'' and ``supervisor'' could be construed to
have labor/management consequences under the National Labor Relations
Act (NLRA). (ID-0182.1; -0199.1; -0341.0.) OSHA did not intend for
these terms to be construed as they are used under the NLRA, and, to
avoid any possible confusion on the subject, has changed ``supervisor''
to ``trainer,'' ``trainee/apprentice'' to ``operator-in-training,'' and
``supervise'' to ``monitor'' in the final rule.
    Paragraph (f)(1) requires that the operator-in-training be provided
with sufficient training prior to operating the equipment to enable
him/her to operate it safely under the limitations listed in this
section and any additional limitations established by the employer.
This ensures that, before beginning to operate the equipment at the
site, the operator-in-training would have attained sufficient knowledge
and skills to operate the equipment safely within the limitations and
with the monitoring required by the remainder of Sec.  1926.1427.
    Paragraph (f)(2) restricts the operator-in-training operation of
the equipment to those tasks currently within his/her ability. As the
operator-in-training gains experience and demonstrates increased skill,
this provision allows him/her to perform progressively more complex
tasks.
    Paragraph (f)(3) sets forth the requirements that an employee would
have to meet to be permitted to monitor the operator-in-training's
operation of the crane. During the training period, the operator-in-
training must be closely monitored to ensure that he/she is operating
in accordance with the training he/she has received and is adhering to
the limitation in paragraph (f)(2) that he/she only performs tasks
currently within his/her ability.
    Under paragraph (f)(3)(i) the operator-in-training's trainer has to
be an employee or agent of the operator-in-training's employer. This
ensures that the trainer has the authority to direct the actions of the
operator-in-training.
    Paragraph (f)(3)(ii) requires that the operator-in-training's
trainer must be either a qualified/certified operator (in accordance
with Sec.  1926.1427), or to have passed the written portion of a
qualification/certification test under one of the Options in Sec.
1926.1427. In addition, the trainer must be familiar with the proper
use of the equipment's controls. This provision is designed to ensure
that the trainer has sufficient knowledge about the equipment to enable
him/her to effectively oversee the safe operation of the crane.
    Paragraph (f)(3)(iii) requires that the trainer perform no tasks
that would detract from his/her ability to monitor the operator-in-
training. This provision ensures that the trainer is able to devote
sufficient attention what the operator-in-training is doing so that he/
she can intervene to prevent the operator-in-training from doing
anything unsafe.
    Under paragraph (f)(3)(iv), for equipment other than tower cranes,
the trainer and the operator-in-training must be in direct line of
sight of each other and are required to communicate either verbally or
by hand signals. This provision ensures that the trainer monitor can
rapidly and effectively give instructions to the operator-in-training,
especially for purposes of correcting anything that the operator-in-
training may be doing incorrectly.
    With respect to tower cranes, the height of the operator's station
will often make it infeasible to maintain direct line of sight between
the trainer and the operator-in-training. For the same reason, use of
hand signals is also often not feasible. Therefore, the provision
instead requires that they be in direct communication with each other.
For example, direct communication could be achieved by radio or other
instant electronic voice communication system.
    Section 1926.1427(f)(4) permits the operator-in-training to
continue operating the crane in the absence of the trainer for short
breaks under criteria designed to result in safe operation. This
provision recognizes that monitoring 100 percent of the time is neither
practical nor is it necessary for safe operation if appropriate
limitations are imposed. Those limitations are listed in paragraphs
(f)(4)(i)-(iii):
    Under paragraph (f)(4)(i), the break would be restricted to no more
than 15 minutes, with no more than one break per hour.
    Under paragraph (f)(4)(ii), immediately prior to the break, the
trainer must inform the operator-in-training of the specific tasks that
the operator-in-training is authorized to perform and the limitations
that he/she must adhere to during the break.
    Under paragraph (f)(4)(iii), the specific tasks that the operator-
in-training would perform during the break must be within the operator-
in-training's ability.
    Proposed paragraph (f)(2)(v) \119\ stated that a ``* * * trainee/
apprentice shall not operate the equipment in any of the following
circumstances.'' This paragraph was followed by paragraphs
(f)(2)(v)(A)-(E). Of these, paragraphs (f)(2)(v)(A)-(D) contained
absolute prohibitions while paragraph (f)(2)(v)(E) contained a
conditional prohibition. To avoid inconsistency between paragraph
(f)(2)(v) and the paragraphs that followed, the paragraph, which is now
at Sec.  1926.1427(f)(5) has been modified to make clear that there is
an exception at (f)(5)(v).
---------------------------------------------------------------------------

    \119\ This requirement is now located at Sec.  1926.1427(f)(5).
---------------------------------------------------------------------------

    Paragraph (f)(5) recognizes that certain tasks are too complex or
present such heightened risks that it would be unreasonably dangerous
if a less than fully qualified operator were to operate the equipment.
For the circumstances listed in Sec. Sec.  1926.1427(f)(5)(i)-(v), the
operator-in-training is prohibited from operating the equipment in all
cases. With respect to operations involving multiple-lift rigging, the
Committee determined that the difficulty and/or risk involved is not at
the same level as the operations listed in Sec. Sec.
1926.1427(f)(5)(i)-(iv). Consequently, while Sec.  1926.1427(f)(5)
contains a general prohibition against an operator-in-training
operating the equipment during multiple-lift rigging operations, an
exception would apply where the trainer determined that the operator-
in-training's skills are sufficient for this high-skill work.
    A utility company objected to the requirement in proposed Sec.
1926.1427(f)(2)(v)(A) that operators-in-training who are performing
subpart V work (construction and improvement of power lines) maintain
at least a 20-foot distance from energized power lines, asking that
operators-in-training only be required to maintain the same clearance
from power lines (those listed in Table V-1 of subpart V) as certified
operators. (ID-0144.1.) This commenter claimed that the prohibition
would limit the ability of electric utility owners and operators to
provide operators-in-training with hands on training.

    Based on the record as a whole, OSHA is convinced that the risk of
injury from contact with an energized power line is so great that it
warrants extra precautions, particularly with respect to operators who
are still learning how to operate their equipment. OSHA notes that the
other electric utilities and representatives who submitted comments and
appeared at the hearing did not voice a similar concern, nor did the
industry's representatives on C-DAC. OSHA also notes that the exclusion
of digger derricks from the scope of this subpart for pole work should
largely alleviate this commenter's concern. Accordingly, OSHA is
retaining paragraph (f)(5)(i) in the final rule.
Paragraph (g)
    Paragraph (g) of this section provides 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.'' This
paragraph serves two purposes. First, it makes clear that an entity
providing qualification/certification testing may also provide training
to the individuals it tests, as well as others. Second, it establishes
a condition such entities must satisfy: the testing agency must meet
the criteria of its accrediting agency for an organization providing
both services.
    For example, an industry consensus standard, the International
Organization for Standardization (``ISO'') 17024, requires that a
certifying entity only offer training if it can demonstrate that the
training is independent of both evaluation and certification. This is
intended to prevent the entity's training arm from ``teaching to the
test,'' which would detract from the test's ability to determine the
individual's true knowledge of the subject matter needed for safe
operation. It is also necessary to protect the integrity of the
testing. Therefore, with respect to those accrediting agencies that
apply the ISO standard, a testing entity may also conduct training as
long as an adequate ``firewall'' exists between the two functions.
Paragraph (h)
    Paragraph (h) of this section addresses C-DAC's concern that some
competent crane operators may be hindered in obtaining qualification or
certification under this section because they have difficulty with
taking written tests even though they possess sufficient literacy for
reading and understanding safety-related material such as the crane's
operating manual and load chart. To avoid disqualifying individuals
solely because they have this type of difficulty, paragraph (h) permits
written tests under this section to be administered verbally, with
answers given verbally, where the operator candidate (1) passes a
written demonstration of literacy relevant to the work; and (2)
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. These would typically include, for
example, the load chart and operator's manual for the crane the
candidate would be operating. Thus, paragraph (h) only permits tests to
be administered verbally where the individual demonstrates the literacy
needed to read and understand written material needed for safe
operation.
    As explained in the proposed rule, neither of the demonstrations in
paragraphs (h)(1) or (h)(2) would have to be made in English (see 73 FR
59816, Oct. 9, 2008). As an example, under these provisions, an
employer could obtain a Spanish-language version of the load charts and
operator's manual, and arrange to have the literacy test administered
in Spanish. An operator able to meet the requirements of Sec.
1926.1427(h) using these Spanish language materials would have
demonstrated adequate literacy under the rule.
    A trade association supported the provision allowing examinations
to be administered verbally. (ID-0151.1.) A testing organization
opposed the provision, believing it adds an unnecessary and potentially
harmful step in the qualification process. (ID-0343.) The testing
organization was concerned that the rule does not identify standards or
protocols by which the written demonstration of literacy relevant to
the work and the ability to use written manufacturer procedures are to
be made.
    OSHA recognizes the testing organization's concern but concludes
that the rule must allow sufficient flexibility in the testing process
to enable individuals who have sufficient literacy skills and are
demonstrably competent to operate a crane, but are deficient in written
test-taking ability, to obtain qualification/certification under this
rule. Accordingly, OSHA is retaining the provision allowing tests to be
administered verbally if the specified demonstrations of literacy are
made.
    OSHA requested comment on several issues arising under paragraph
(h), including (1) Whether, if an operator complies with paragraph (h)
by demonstrating proficiency in a language other than English, the
qualification/certification should be limited to the use of equipment
that is equipped with materials in the operator's language; (2) whether
the rule needs to incorporate safeguards to ensure that a translation
of manufacturer-supplied materials conveys the same information as the
original; (3) whether employers should be permitted to use manuals that
have been re-written in simplified language to accommodate individuals
whose literacy level does not permit them to understand the
manufacturer-supplied materials.
    One trade association commented that, in many regions of the United
States, employers rely on non-English speakers to operate cranes and
stated that OSHA should require testing organizations to offer crane
operator certification in languages other than English. (ID-0231.1.)
OSHA's longstanding position is that workers must be trained and
provided with information in a language that they can understand. That
is particularly important for crane operators, who will be in control
of large pieces of equipment, with the potential to inflict major
damage and injury.
    It was C-DAC's intent in the proposed rule, and it is OSHA's intent
in this final rule, that non-English speaking operators will have the
ability to become certified using languages other than English.
Paragraph (h)(2) of the rule, therefore, authorizes testing
organizations to administer tests in any language that the operator
candidate understands. Paragraph (h)(2) is intended to ensure that
crane operators are certified in a language that they comprehend, and
that the cranes they operate are equipped with the requisite materials
in that language. OSHA intends to work with certifying organizations to
ensure that examinations in appropriate languages are available within
the four-year phase-in period under this section.
    OSHA expects employers who perform their own testing under
paragraph (c) to test candidates in the languages understood by their
workers. OSHA concludes that accredited testing organizations providing
certifications under paragraph (b) should likewise provide testing in
major languages understood by the relevant worker population of the
regions in which they do business. Doing so will maximize an
organization's share of the testing market. Moreover, OSHA expects that
employers who rely on testing organizations will demand testing in the
languages understood by their workforces.

Paragraph (i) [Reserved.]
Paragraph (j) Certification Criteria
    Paragraph (j) of this section sets out the qualification and
certification criteria applicable to Options (1), (2), and (4) of this
section. These criteria address the knowledge and skills that are
fundamental to safe crane operation. As stated in the introductory
language in Sec.  1926.1427(j), these would constitute ``minimum''
criteria; the accredited testing organizations, employers, or local or
State licensing offices would not be precluded from adding additional
requirements to their certification or qualification programs.
    Paragraph (j)(1) describes the criteria that must be covered by the
written examination portion of a qualification/certification program.
As stated above in the discussion of examination administration, the
written portion of the examination may be administered orally, so long
as the candidate has demonstrated sufficient literacy relevant to the
work (e.g., load charts and equipment manual).
    Paragraph (j)(1)(i) states that the individual seeking
qualification or certification must know ``the information necessary
for safe operation of the specific type of equipment the individual
will operate * * *'' Paragraph (j)(1)(i) goes on to list specific types
of information the individual must know.
    Paragraph (j)(1)(i)(A) requires that the written examination
address the candidate's knowledge of the equipment controls and
operational/performance characteristics of the specific type of
equipment. Operational/performance characteristics would include, for
example, the deflection characteristics of the boom, including how
deflection affects the positioning of the load and the extent to which
deflection varies with boom angle and length as well as load weight.
Also, equipment with lattice/cable supported booms has different
deflection characteristics than equipment with non-lattice booms (that
is, hydraulic ram extensible booms).
    Paragraph (j)(1)(i)(B) requires the candidate to know the use of,
and be able to calculate (manually or with the use of a calculator),
load/capacity information on a variety of configurations of the
equipment. Such information is typically contained in load charts and
manuals. This provision ensures that the operator is able to accurately
determine, independently, the capacity of the equipment in each
situation that he/she might encounter and thereby avoid overloading the
equipment.
    Paragraph (j)(1)(i)(C) requires the candidate to know procedures
for preventing and responding to power line contact. As discussed above
in relation to Sec. Sec.  1926.1407-1926.1411, electrical contact with
power lines is one of the principal causes of crane-related fatalities
and injuries, and those sections contain detailed requirements for
preventing such contact and for reducing the likelihood of death or
injury should such contact occur.\120\ Knowing how to prevent and
respond to power line contact is therefore critical knowledge for any
crane operator.
---------------------------------------------------------------------------

    \120\ As provided in Sec.  1926.1408(g)(1)(i)(A) on power line
safety, operators must be aware of the danger of electrocution if
they simultaneously touch energized equipment and the ground. They
must also, pursuant to Sec.  1926.1408(g)(1)(i)(B), be trained to
understand that when the equipment makes electrical contact with a
power line, the operator's safety requires him or her to remain
inside the cab except where there is an imminent danger of fire,
explosion, or other emergency that necessitates their leaving the
cab.
---------------------------------------------------------------------------

    Paragraph (j)(1)(i)(D) addresses the need for crane operators to
have technical knowledge similar to the subject matter listed in
Appendix C applicable to the specific type of equipment the individual
will operate. These criteria were selected by C-DAC because, in the
experience of the committee's members, they are critical knowledge and
skill areas for equipment operators. OSHA defers to C-DAC's experience
on this issue and notes that the Agency did not receive any comments
suggesting that a particular item be removed from this list. While
testing based on the specific list provided in Appendix C is not the
means of satisfying the requirements of Sec.  1926.1427(j)(1)(i)(D),
alternative criteria must be ``similar to'' that of Appendix C. The
appendix also serves as a ``safe harbor,'' meaning that testing on all
of the criteria provided in Appendix C would satisfy the requirements
of Sec.  1926.1427(j)(1)(i)(D).
    In addition to the technical knowledge that is required under Sec.
1926.1427(j)(1)(i)(D), technical knowledge applicable to three specific
subjects is required under Sec.  1926.1427(j)(1)(i)(E). Paragraph
(j)(1)(i)(E)(1) requires that an operator have technical knowledge
about the suitability of the supporting ground and surface to handle
expected loads. Paragraph (j)(1)(i)(E)(2) requires operators to possess
technical knowledge applicable to site hazards, such as hazards posed
by excavations or vehicular traffic. Paragraph (j)(1)(i)(E)(3) requires
operators to have technical knowledge about site access so that the
operator can evaluate whether conditions at the point of access to the
site enable the equipment to travel safely onto or off of the site. For
example, where equipment must descend or ascend a dirt ramp, the
operator needs to be able to assess the effect of the ramp's steepness
and to detect signs of instability.
    Paragraph (j)(1)(i)(F) requires operators to demonstrate a thorough
knowledge of this subpart, including incorporated materials. Operators
play a key role in the application of these requirements, and it is
therefore essential that they understand them. Paragraph (j)(1)(ii)
provides that 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. As
discussed above in relation to paragraph (h), the written materials to
which this paragraph refers must be in a language that the individual
can read and in which the individual is tested.
    Paragraph (j)(2) requires that the qualification/certification
examination include a determination through a practical test that the
individual has the skills necessary for the safe operation of the
equipment. It also states criteria for such a test. Paragraph (j)(2)(i)
requires that an individual demonstrate the ability to recognize, from
visual and auditory observation, the items listed in proposed Sec.
1926.1412(d), which sets criteria for shift inspections. Paragraph
(j)(2)(ii) requires the operator to demonstrate operational and
maneuvering skills. Paragraph (j)(2)(iii) requires that the operator
demonstrate the ability to apply load chart information. Paragraph
(j)(2)(iv) requires that an operator be able to apply safe shut-down
and securing procedures.
    One commenter suggested incorporating standard verbal operation
signals into the certification criteria. (ID-0110.1.) A different
commenter asked OSHA to require knowledge of the ``dynamics of boom
flex'' in its criteria for certification. (ID-0125.) To the extent that
knowledge of such signals and the dynamics of boom flex are required
for the safe operation of the type of equipment the individual will
operate, they would be covered under Sec.  1926.1427(j)(1)(i). The
examples of the types of information that would be required for
certification are not all inclusive. OSHA defers to C-DAC's experience
with respect to the determination of which examples should be
highlighted in paragraph (j).
    No other comments were received on Sec.  1926.1427(j); it is
promulgated as proposed, except that OSHA has corrected ``audible
observations'' to read

``auditory observations (observations through the use of the ear).
Paragraph (k) Phase-In
    As discussed above, a number of commenters believe that Option (1)
of this section (certification by an accredited testing organization)
is the only viable option for many employers and expressed concern
about the availability of sufficient accredited testing organizations
to meet the demand that this rule would create. Therefore, in the final
rule, OSHA has provided a four-year phase-in period for compliance with
paragraph (a)(2), which requires employers to have their operators
certified or qualified under Option (1) (independent certifying
organization), Option (2) (audited employer certification), or Option
(3) (U.S. military employees). Paragraph (k)(1) of this section of the
final rule sets out different effective dates for the different
provisions of Sec.  1926.1427: all provisions except paragraphs (a)(2)
and (f) of this section are enforceable as of the effective date of new
subpart CC, whereas the certification required under paragraph (a)(2)
will not be required until the end of the phase-in period, which is
four years after the effective date of subpart CC.
    The phase-in period does not apply to compliance with licensing
requirements of government entities. Those government entities already
require compliance with their own licensing requirements, and OSHA sees
no rationale for delaying compliance with existing law. Employers would
be required to comply with State or local government entity licensing
requirements only to the extent that State or local government entity
licenses comply with the ``Federal floor'' established in paragraphs
(e)(2) and (j) of this section. The options available under Sec.
1926.1427(a)(2) would remain available, and the four-year phase-in
period would apply.
    As already discussed, C-DAC determined that the market would
respond to a qualification/certification requirement, and the increase
in the number of accredited testing organizations since C-DAC completed
its consensus document validates that view (OSHA notes that several
more testing organizations have become accredited since the proposed
rule was issued). There is no evidence in the record that the available
testing organizations will be unable to meet the demand even if almost
all employers choose that option. The four year period will provide
time for additional testing organizations to become accredited for
purposes of Option (1).
    A labor organization suggested that the four-year phase-in period
be reduced to two years. (ID-0409.1.) The commenter stated that C-DAC
agreed to the four-year period when it issued its report in 2004 to
allow sufficient time for additional certification services to become
available. It noted that several additional testing organizations had
become accredited since 2004 to meet the demand for certification under
various State laws and suggested that the number of accredited testing
organizations was now sufficient to meet the demand under this rule
within two years. Another commenter also suggested that the phase-in
period could be reduced to two or three years if sufficient certifying
organizations are available when the final rule is issued. (ID-0104.1.)
    OSHA concludes that the rulemaking record supports the proposed
four-year phase-in period. While the availability of certification
services has increased since C-DAC issued its report, four years is a
reasonable amount of time to ensure that the supply of certification
services will be sufficient to meet demand. It will also provide time
for those operators who need additional training to pass qualification/
certification tests to complete that training, and for accredited
testing organizations to develop tests in languages other than English
to accommodate crane operators for whom English is not their first
language.
    The four year period will also provide time for the market to also
respond to demand for certification programs for certified auditors as
described under Option (2) of this section (and for employers who so
choose to develop audited programs for use under Option (2)). Some
State and local government entities now offer licenses and, if those
licensing organizations do not already meet the criteria under Option
(4) of this section, the four-year phase-in period gives them time to
do so if they so choose. C-DAC's determination that four years is a
reasonable phase-in period was not based solely on the availability of
testing services under Option (1) of this section, and OSHA continues
to agree that period is appropriate.
    Under paragraph (k)(1), during this four year period, Sec. Sec.
1926.1427(k)(1)(i) and (ii) address the qualifications and training an
operator must have before becoming qualified or certified under one of
the four options. Section 1926.1427(k)(1)(i) requires that operators be
competent for the purposes of operating the equipment safely. This
means that the operator must have the requisite knowledge and skill to
identify, anticipate, and avoid actions which could result in hazardous
conditions related to the equipment and job site.
    Paragraph (k)(1)(ii) requires that employers ensure that operators
who do not already have sufficient knowledge or skill to operate the
equipment safely undergo training prior to engaging in operations. In
addition, the employer is required to ensure that the operator is
evaluated to confirm that he/she understands the information provided
in the training.
    The interim measures in paragraph (k)(1) are not significantly
different from requirements that were effective under subpart N of this
part at former Sec.  1926.550, Sec.  1926.20(b)(4) (``the employer
shall permit only those employees qualified by training or experience
to operate equipment and machinery''), and Sec.  1926.21(b)(2)(``the
employer shall instruct each employee in the recognition and avoidance
of unsafe conditions . . .''). However, they are included in this final
rule to ensure that there will not be a gap with respect to operator
qualifications between the termination of the requirements under
subpart N of this part at former Sec.  1926.550 and the effective date
of Sec. Sec.  1926.1427(a) through (j) and (m).
Paragraph (l) [Reserved.]
Definitions
    The proposed rule contained definitions of ``portable'' and ``not
portable'' in proposed Sec.  1926.1427(m). In addition, OSHA stated
that it was considering adding a definition of ``employee of the U.S.
military'' to paragraph (m). As noted above, OSHA has moved the
definitions of ``portable'' and ``not portable'' to the provisions
where those terms are used, and has added a definition of ``employee of
the U.S. military'' to paragraph (d). As a result, proposed paragraph
(m) is not needed and is removed.
Physical Qualifications and Substance Abuse Testing
Physical Qualifications
    C-DAC considered whether to include in this standard provisions
that would require equipment operators to meet particular physical
qualifications. After considering various possible approaches,
including those in industry consensus standards, the Committee decided
that it would be very difficult, and likely unnecessary, to identify
minimum physical requirements that would be appropriate.
    First, the physical demands of equipment covered by this rule vary
significantly depending on the type and,

in some cases, age of the equipment. For example, some equipment is
operated largely by electronic controls. In contrast, older ``friction
cranes'' have pedal controls that can require significant strength and
stamina to operate. Some equipment is air conditioned whereas other
equipment is not. Tower cranes can require very long climbs to the
operator station; small mobile hydraulic cranes typically have an
operator's station that is much more easily accessible. A requirement
regarding physical qualifications would have to account for these types
of differences.
    Second, establishing physical qualifications that would
appropriately account for the effect of medical conditions would be a
complex undertaking. The Committee ultimately determined that, in light
of its members' experience that accidents caused by problems associated
with the operator's physical/medical condition are rare, the issue of
physical qualifications did not need to be addressed by this standard.
    Several commenters suggested that OSHA should require operators to
undergo and pass medical examinations. (ID-0104.1; -0143.1; -0151.1; -
0152.1; -0187.1.) A trade association suggested that medical testing of
vision, hearing, and potential for seizures, epilepsy, emotional
instability, high blood pressure, and other physical impairments should
be part of requirements for safe crane operation. (ID-0187.1.) A safety
consultant stated that establishing physical qualifications that would
appropriately account for the effects of medical conditions would not
be a complex undertaking. (ID-0152.1.) This commenter suggested that a
doctor who performs an operator's physical and medical examination
could determine if an operator was medically qualified to operate a
crane.
    OSHA is not persuaded by these comments. First, OSHA concludes that
it would not be reasonable to rely on the unguided discretion of
examining physicians to determine whether an operator is medically
qualified to operate a crane. Doing so would likely lead to a wide
variation in the medical conditions that different physicians believe
are either necessary or unnecessary for crane operation. Moreover,
individual physicians are unlikely to be aware of the variety of
conditions that may influence an individual's ability to operate a
crane safely, such as the variation in strength needed to operate the
controls on different types of cranes. Although physicians are able to
determine if an individual has a particular medical condition, they are
not well situated to determine if that condition should preclude the
individual from operating a crane.
    OSHA also finds the comment by the trade association to be
unpersuasive. First, this commenter nominated a C-DAC member, who did
not dissent on this issue. The commenter did not explain why it is
deviating from the position its nominee took on C-DAC, and for that
reason OSHA gives reduced weight to its comment. Moreover, OSHA notes
that some of the criteria suggested by the commenter, particularly the
phrase ``other physical impairments,'' are of questionable value in
determining the physical qualifications of crane operators. Indeed,
OSHA determines that the commenter's inclusion of such a catchall
phrase highlights the difficulty of trying to list the medical
conditions that should preclude a person from operating a crane.
    In short, OSHA has not been given any persuasive reason to deviate
from the considered judgment of C-DAC that this standard should not
address the issue of physical qualifications of equipment operators.
Substance Abuse Testing
    As explained in the proposed rule, C-DAC considered whether to
include mandatory substance abuse testing for equipment operators and
others, such as signal persons, whose jobs affect safety. It decided
against doing so because of the procedural limitations such a
requirement would impose on employers who have voluntarily instituted
substance abuse programs; a government mandate for substance abuse
testing would have to meet constitutional safeguards.\121\ For example,
under a government-mandated testing program, an employer likely would
not be permitted to ``stand down'' an operator based on an unconfirmed
test result but would need to wait until a positive result is verified
by a medical review officer. The Committee did not want to restrict an
employer's ability to suspend an operator who tested positive pending
confirmation of the result.
---------------------------------------------------------------------------

    \121\ See Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602 (1989); International Brotherhood of Teamsters v. Department of
Transportation, 932 F.2d 1292 (9th Cir. 1991).
---------------------------------------------------------------------------

    In short, the Committee balanced the potential benefits from a
requirement for substance abuse testing that would have more
restrictive procedures against the fact that many employers already
have their own programs in place that, in C-DAC's view, may be more
protective than what could be enacted as an OSHA requirement. C-DAC
concluded that it would be better not to include a substance abuse
requirement.
    Several commenters recommended that OSHA include substance abuse
testing in the final rule. (ID-0104.1; -0105.1; -0151.1; -0152.1; -
0187.1.) These commenters did not, however, address C-DAC's conclusion
that an OSHA mandate for such testing could have the adverse
consequence of limiting employers' ability to enforce their own
substance abuse testing programs and could thereby detract from
worksite safety. OSHA therefore defers to C-DAC's judgment and declines
to include a substance abuse testing requirement in the final rule.
Section 1926.1428 Signal Person Qualifications
    As discussed under Sec.  1926.1419, Signals--general requirements,
the safety of equipment operations depends in many situations on
signals given to the operator. It is critical that the operator
understand the signals given, and the signal person must therefore be
able to give clear, accurate and appropriate signals that unambiguously
convey the needed information. The Committee, which included a number
of members with significant experience with signal persons, was
concerned that some signal persons are not able to recognize the
hazards involved with certain crane operations, do not, in some cases,
understand what it is that the crane needs to do to accomplish the
task, and do not know how to give the appropriate signals. This poses
hazards, such as struck-by and crushed-by hazards, due to either
miscommunication or the communication of instructions that are
inappropriate.
    An example of the type of accident that can be caused by
miscommunication from not knowing the appropriate signals is as
follows: The signal person intends to indicate to the operator to hoist
up, since the load needs to be raised straight up. However, the signal
person uses the standard signal for booming up in the mistaken belief
that this signal is for hoisting up. A struck-by or crushed-by incident
could result because, when booming up, the load will move laterally as
well as vertically.
    A failure to understand what it is that the crane needs to do to
accomplish a task can also lead to struck-by or crushed-by incidents.
For example, as a crane booms down, boom deflection tends to increase,
which has the effect of lowering the load more than if there were no
boom deflection. If the signal person is unfamiliar with this boom
characteristic, he or she may fail to

signal in time for the load to stop at the correct point or may cause
the load to descend too quickly.
    The Committee concluded that to prevent such accidents it is
necessary to establish qualification criteria that would have to be met
for an individual to serve as a signal person (that criteria is set out
in proposed Sec.  1926.1428(c), discussed below). The employer would
have the option of using one of two methods for ensuring that these
criteria were met. Under Option (1) of this section (Sec.
1926.1428(a)(1)), the signal person would have documentation from an
independent ``qualified evaluator (third party),'' as defined in Sec.
1926.1401, showing that the evaluator had determined that the signal
person meets the requirements of Sec.  1926.1428(c).
    This qualification would be portable, that is, any employer could
rely on such documentation to show that a signal person meets the
criteria. C-DAC determined that such portability would be appropriate
because of the independence and expertise of the third-party evaluator.
    Under Option (2) of this section (Sec.  1926.1428(a)(2)), an
employer's own qualified evaluator (not a third party) would determine
that a signal person meets the qualification requirements. Since such a
determination would not be done by an independent entity, other
employers would not have a basis to assume that the assessment had been
done correctly. Therefore, a qualification under this option would not
be portable; other employers would not be permitted to rely upon it to
show that the signal person meets these requirements.
    One commenter argued for the deletion of Option (2) of this section
(the employer option) altogether to ensure that an independent
evaluator trains signalpersons according to the established best
practices of the industry. (ID-0156.1.) The commenter did not explain
why employer evaluations were less effective. To the contrary, the
Agency notes that C-DAC experience indicated that employer evaluations
of signal persons were effective. The employer evaluation may in some
cases be even more effective and efficient than independent
evaluations, such as for the evaluation of employer specific signals.
Sections 1926.1428(a)(1) and (2) (Options (1) and (2)) are promulgated
as proposed.
    The term ``qualified evaluator'' used in proposed Sec.
1926.1428(a)(2) was defined in proposed Sec.  1926.1401 as ``a person
employed by the signal person's employer who has demonstrated that he/
she is competent in accurately assessing whether individuals meet the
Qualification Requirements in this subpart for a signal person.'' In
reviewing the C-DAC document, the Agency realized that the Committee
had not provided a definition for the term ``third party qualified
evaluator,'' which was used in proposed Sec.  1926.1428(a)(1). OSHA
therefore added to the proposed rule a definition for this term.
    The Agency requested public comment about whether this definition
is appropriate, and two commenters indicated support for the
definition. (ID-0187.1; -0205.1.) One commenter requested that, in the
phrase, ``due to its independence and expertise,'' the Agency add
``history in providing training'' as an additional criterion and
include labor-management joint apprenticeship training programs as an
example of an entity that meets this definition. (ID-0191.1; -0194.1.)
    The role of the third-party qualified evaluator in Sec.
1926.1428(a)(2) is to assess the individual's competence. The expertise
needed for training is not the same as the expertise needed for
evaluating competence (see the explanation of the distinction between
training expertise and competence evaluation in the discussion of Sec.
1926.1427). Therefore, it would be inappropriate to require training
expertise as a prerequisite for being considered a third-party
qualified evaluator.\122\ Similarly, while labor-management joint
apprenticeship training programs that train and assess signal persons
would typically meet the definition for a third-party qualified
evaluator, OSHA concludes that including them as an example in the
definition could incorrectly imply that training expertise (as opposed
to assessment expertise) is a prerequisite.
---------------------------------------------------------------------------

    \122\ A third party evaluator that did not have signal person
training expertise would nonetheless have to have substantive
expertise in signaling and the other subjects referred to in Sec.
1926.1428, as well as expertise in assessment, to meet the
``expertise'' criterion in the definition.
---------------------------------------------------------------------------

    Several other commenters expressed general support for the
definition of a third-party qualified evaluator but requested
clarifications. Two of these commenters proposed changing the
definition to specify that an ``individual'' could also qualify as a
third-party qualified evaluator. (ID-0205.1; -0222.1.) This is
unnecessary because the word ``entity'' already encompasses an
individual. The other commenters recommended that OSHA further clarify
the definition by requiring an evaluating entity to ``demonstrate'' its
competence through an independent body's audit, certification, or
accreditation. (ID-0169.1; -0211.1.) OSHA agrees with C-DAC that
competence can be demonstrated in a variety of ways and is not
establishing an accreditation requirement as for evaluators of crane
operators. The assessment of a signal person's qualifications is
inherently less complex than the assessment of a crane operator's
qualifications because the range of signals and their applications are
more finite than the wide assortment of scenarios and skills for which
a crane operator must be tested. As such, the need for independent
assessment of the evaluator is diminished. Therefore, the Agency has
not made the suggested changes; the definition is promulgated as
proposed except that the defined term is ``qualified evaluator (not a
third party)'' in the final rule.
    Another commenter at the hearing, citing the availability of
experienced, trained signal persons in his organization, requested a
``grandfather'' clause for signal persons so that previous training and
proof of hands-on practical experience would qualify signal persons
under this rule, citing the availability of experienced, trained signal
persons in that organization. (ID-0345.17.) OSHA does not agree that a
``grandfather'' clause is necessary or appropriate. The experienced,
trained workers to which the commenter refers should be able to pass
the required assessment with little additional training.\123\
---------------------------------------------------------------------------

    \123\ In many cases the only additional training that likely
will be needed for those experienced and trained workers will be to
become familiar with the relevant requirements of Sec. Sec.
1926.1419-1926.1422, and Sec.  1926.1428 (knowledge of that
information is required under Sec.  1926.1428(c)(4)).
---------------------------------------------------------------------------

    OSHA concurs with the C-DAC Committee's determination that it is
important for employers to make the documentation of signal person
qualifications readily available to employees and others who need to
rely on those qualifications, such as crane operators who rely on
signal persons provided by a different employer, or OSHA for compliance
purposes. In proposed Sec.  1926.1428(a)(3), OSHA included C-DAC's
language requiring that the documentation be ``available,'' rather than
``available at the site,'' but noted that C-DAC intended that the
documentation be available at the site by, for example, the
documentation being physically present at the site or through use of an
on-site computer. OSHA asked for public comment on changing the term
``available'' to ``available at the site.''
    Two commenters objected to the proposed change, indicating that it
is not necessary to have the documentation on site so long as it can be
readily produced. (ID-0205.1; -0222.1.) The commenters did not,

however, provide further explanation or cite any examples of how the
documentation would be ``readily produced'' quickly through means other
than via computer. Moreover, the commenter's suggestion that documents
be ``readily produced'' is vague and could encompass documents that
might be ``produced'' offsite quickly but not transmitted in a timely
manner to the work site. OSHA has decided to modify the language used
in the proposed rule and require in the final rule that the
documentation be available at the site, and is also adding language to
make it clear that the employer is responsible for making that
documentation available at the worksite.
    In the proposed rule preamble, the Agency noted that the C-DAC
draft of Option (2) of this section did not explicitly state that
documentation of the signal person's qualification by this method is
required. However, proposed Sec.  1926.1428(a)(3) stated that ``the
documentation for whichever Option is used shall be available. * * *''
It was not clear to the Agency if C-DAC intended to require
documentation under Option (2) of this section as it did for Option
(1), or if it only intended that any documentation the employer chose
to create under Option (2) would have to be made available.
    One reason to require documentation under Option (2) of this
section is the Committee's concern that, at present, the operator's
employer has no ready means of determining if the signal person (who is
typically a different employer's employee) has the necessary knowledge
and skill for signaling until after hoisting operations have begun. In
other words, a problem with the signal person's ability may not become
evident to an operator until a hazardous situation has already arisen.
Requiring documentation enables this determination to be made before
hoisting operations begin.
    Requiring documentation under Option (2) of this section addresses
C-DAC's concern. Therefore, in the proposed rule, OSHA expanded the
first sentence of the C-DAC version of Sec.  1926.1428(a)(2) to clarify
that documentation is required under Option (2). The only comment
received on OSHA's inclusion of an explicit requirement for
documentation under Option (2) was from SC&RA, which supported its
inclusion. (ID-0205.1.) Therefore, in the final rule, documentation is
required under Option (2).
    The Agency concludes that the rationale for including an explicit
requirement for documentation under Option (2) of this section--the
need for other affected employers at the site, such as the operator's
employer, to have a ready means of determining if the signal person has
the necessary knowledge and skill before beginning hoisting
operations--also necessitates that the documentation be available at
the site. OSHA is concerned that if it is not available at the site
(either in paper form or electronically), it is less likely that the
documentation will serve its intended purpose. Therefore, in the final
rule, the documentation required under both Option (1) and Option (2)
of this section must be available at the site.
    OSHA is also adding a requirement in paragraph (a)(3) of this
section of the final rule that the documentation must specify each type
of signaling for which the signalperson has been tested and meets the
requirements of Sec.  1926.1428(c). This requirement parallels the
requirement in Sec.  1926.1427(b)(2) in which operator certification
documents must specify the type and capacity of the equipment for which
an operator is certified. This new provision fills a potential
communication gap that would have existed in the implementation of the
rule as proposed. As explained above, one of the main reasons that OSHA
is requiring the documentation to be available at the site is so that
the operator, or any person on the job site, who is unfamiliar with a
signal person may review that documentation to ensure that the signal
person is sufficiently qualified to provide the signals required for
that job. Because many of the qualifications that must be tested under
paragraph (c) of this section are conditional (e.g., if hand signals
are to be used, the signal person must understand the Standard Method
hand signals), and the proposed rule did not specify any content for
the documentation, the documentation provided by a third-party
qualified evaluator under Option (1) of this section might simply have
generally noted the satisfactory completion of testing in accordance
with Sec.  1926.1428(c). In that case, under the proposed rule, an
operator preparing for a job requiring the use of hand signals would
not have been able to use that documentation as intended to determine
whether the signalperson knew and understood the Standard Method for
hand signals. Under the final rule, the operator will be able to make
that determination quickly because the documentation must specify
whether the signalperson was examined on hand signals. This requirement
is not intended to require significant detail, such as specifying that
the signalperson knows the hand signals for ``hoist'' or ``stop.''
Rather, it is intended to identify satisfactory completion of testing
on different categories of signals, such as hand signals, radio
signals, or flag signals.
    Paragraph (b) of this section addresses circumstances in which a
signal person who had been qualified under Sec.  1926.1428(a)
subsequently acts in a manner that indicates that he or she may not
meet the qualification requirements. Such an indication would result,
for example, where the use of Standard Method signals have been agreed
to but the signal person does not give a Standard Method signal.
Another example would be where the signal person gives inappropriate
signals (such as indicating to the operator to boom up when the action
that is needed is to hoist up).
    In such circumstances the employer is prohibited from allowing the
individual to continue working as a signal person until he or she is
re-trained and has been requalified in accordance with Sec.
1926.1428(a). No comments were received on this provision; it is
promulgated as proposed.
    Paragraph (c) of this section sets forth the qualification
requirements for signal persons. Paragraph (c)(1) requires that the
signal person know and understand whatever signal method will be used
for that particular job site.
    In addition, if hand signals are used, the signal person must know
and understand the Standard Method for hand signals. Hand signals are
widely used in this industry. As discussed above with respect to Sec.
1926.1419(c), C-DAC determined that accidents due to miscommunication
could be reduced if there were more widespread use of standardized hand
signals. C-DAC concluded that this provision will promote greater use
of standardized hand signals through the use of the Standard
Method.\124\ No comments were received on this provision; it is
promulgated as proposed.
---------------------------------------------------------------------------

    \124\ As discussed above with respect to Sec.  1926.1419(c),
there are circumstances when it would be permissible to use hand
signals other than the Standard Method signals. Also, under Sec.
1926.1419, signals other than hand signals can be used.
---------------------------------------------------------------------------

    Paragraph (c)(2) of this section will help prevent miscommunication
between the signal person and the crane operator by requiring the
signal person to be competent in the application of whatever signals
are used. No comments were received on this provision; it is
promulgated as proposed.
    Paragraph (c)(3) of this section requires the signal person to have
a basic understanding of crane operation

and limitations, including crane dynamics involved in swinging and
stopping loads and boom deflection from hoisting loads. As explained in
the proposed rule preamble, it is critical that the signal person
understand how the crane and load will move in response to the various
signals he or she gives so that the signal person will give the most
appropriate signals and reduce the occurrence of struck-by, crushed-by
and other hazards (see 73 FR 59823, Oct. 9, 2008). No comments were
received on this provision; it is promulgated as proposed.
    Paragraph (c)(4) of this section specifies that signal persons must
know and understand the relevant requirements in Sec. Sec.  1926.1419-
1926.1422, which address the types of signals that may be used and the
circumstances surrounding their use, and the requirements of Sec.
1926.1428. C-DAC included the phrase ``relevant requirements'' to make
clear that a signal person's qualification could be limited with
regards to the use of a particular type of signal and associated
information.
    For example: A crane operation is going to use Standard Method hand
signals. The signal person knows and understands all aspects of Sec.
1926.1419 that are relevant when using hand signals, as well as Sec.
1926.1422, Signals--hand signal chart. In addition, the signal person
meets the requirements in Sec.  1926.1428(c)(1) and (2) with respect to
the use of Standard Method hand signals. The signal person also has the
knowledge necessary to meet the provision in Sec.  1926.1428(c)(3), and
demonstrates through a verbal or written test, and through a practical
test, that he/she has this knowledge and capabilities. However, the
signal person is unfamiliar with the contents of Sec.  1926.1420,
Signals--radio, telephone or other electronic transmission of signals,
or of Sec.  1926.1421, Signals--voice signals--additional requirements.
    In this example, it would be appropriate for the signal person to
be qualified under either Option (1) or Option (2) of this section (see
1926.1428(a)) so long as that qualification was limited to signaling
with Standard Method hand signals. Since the signal person would be
qualified only for Standard Method signaling, there would be no need
for that person to have the knowledge or capabilities associated with
other types of signaling. In such a situation employers, though, would
be precluded from using such a person if other types of signals were to
be used. No comments were received on this provision; it is promulgated
as proposed.
    Paragraph (c)(5) of this section would require that the signal
person pass knowledge and practical tests to demonstrate that he or she
meets the qualification requirements. The knowledge test may be either
oral or written. C-DAC noted that signal persons normally need not read
or write to perform their jobs effectively. No comments were received
on this provision. Therefore, OSHA agrees with C-DAC that administering
the knowledge test orally, without a separate demonstration of
literacy, should be permitted. The provision is promulgated as
proposed, with one minor grammatical correction.
Section 1926.1429 Qualifications of Maintenance and Repair Workers
    This section addresses the qualifications that the workers who
maintain and repair cranes/derricks must possess. Subpart N of this
part at former Sec.  1926.550 contained no provisions concerning the
qualifications of maintenance and repair workers.
    The Committee had two basic concerns regarding maintenance and
repair work. First, it was aware of accidents that had occurred when
the equipment that was being maintained or repaired was operated
improperly. For example, a maintenance worker who booms down a mobile
hydraulic crane to one side without following the manufacturer's
instructions for deploying outriggers may overturn the equipment. C-DAC
concluded that placing restrictions on equipment operations during such
work would help prevent such accidents.
    Second, the Committee sought to avoid hazards that can result from
maintenance and repair work that is done improperly by ensuring that
maintenance and repair workers are sufficiently qualified to perform
their work. For example, if a load-bearing component is removed for
maintenance or repair and re-installed incorrectly, unintended movement
of the load or even a collapse could occur during operations.
Paragraph (a)
    The Committee was aware that maintenance and repair workers
sometimes need to operate equipment to perform maintenance, inspect the
equipment, or verify the performance of the equipment. This work
typically involves operating the equipment to get access to components,
diagnose problems and check repairs.
    C-DAC did not determine it necessary for maintenance, inspection
and repair personnel to meet the requirements in proposed Sec.
1926.1427, Operator qualification and certification, when operating
equipment for such purposes. The operations involved for these purposes
are almost always done without a load on the hook. The only instance
when there is a load on the hook is if the equipment is load tested.
However, even when load testing, the operation is very limited, since
the load is not moved about as it would be during normal crane
operations.
    While such limited operation does not, in C-DAC's view, necessitate
the maintenance, inspection or repair personnel to meet the proposed
Sec.  1926.1427 requirements, a failure to operate the equipment
properly even in these limited circumstances can result in accidents
from, for example, unintended movement or tip-over. OSHA agrees, and is
therefore permitting maintenance and repair workers to operate
equipment during their work only under specific restrictions designed
to ensure safety.
    Specifically, under paragraph (a)(1) of this section, maintenance
and repair workers are permitted to operate the equipment only to the
extent necessary to perform maintenance, inspect the equipment, or
verify its performance. Under this provision, maintenance and repair
workers are not permitted to operate the equipment during regular
operations.
    Paragraph (a)(2) of this section requires the maintenance and
repair worker who operates equipment to either (i) do so under the
direct supervision of an operator who meets the requirements of Sec.
1926.1427, Operator qualification and certification, or (ii) be
familiar with the operation, limitations, characteristics and hazards
associated with the type of equipment involved.
Paragraph (b)
    In light of the safety hazards that could result from maintenance
and repairs that are performed improperly, C-DAC determined that it was
necessary for maintenance and repair workers to meet the ``qualified
person'' criteria. OSHA agrees. Paragraph (b) of this section therefore
provides that maintenance and repair personnel must meet the definition
of a qualified person with respect to the equipment and maintenance/
repair tasks they perform. As defined in Sec.  1926.1401, a ``qualified
person'' is ``a person who, by possession of a recognized degree,
certificate, or professional standing, or who by extensive knowledge,
training, and experience, successfully demonstrated the ability to
solve/resolve problems relating to the subject matter, the work, or the
project.''

    Two commenters requested that maintenance and repair workers be
certified by a third party. (ID-0061; -0156.1.) As noted in the
preamble to the proposed rule and again here, C-DAC considered the
requirements for maintenance and repair workers and found that the term
``qualified person'' would adequately address these concerns. OSHA
agrees, and is promulgating paragraph (b) without substantive change.
OSHA is substituting the word ``must'' for ``shall'' in the last
sentence of that paragraph to avoid any implication that a maintenance
and repair worker is, by definition, a qualified person.
Section 1926.1430 Training
    With a few exceptions, the requirements in this final rule for this
section are the same as those in the proposed rule (see 73 FR 59939,
Oct. 9, 2008). This section both references training criteria required
by other sections of subpart CC and sets forth additional training
criteria and requirements. Additionally, Sec.  1926.1430(h) requires
employers to evaluate employees' understanding of the training.
    The Agency determined that both training and testing of certain
employees are critical to the safety of crane/derrick use in
construction.\125\ The requirements of this section and subpart with
respect to training do not replace those established by Sec.  1926.21,
Safety training and education, which requires the employer to (1)
``establish and supervise programs for the education and training of
employers and employees in the recognition, avoidance and prevention of
unsafe conditions in employments covered by the [OSH] Act,'' and (2)
``instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to
control or eliminate any hazards or other exposure to illness or
injury.'' Instead, they supplement and clarify the general training
requirements for particular conditions and activities. These specific
provisions ensure that employees have the necessary knowledge and skill
to work safely with and around cranes. Greater specificity highlights
the particular tasks (and the hazards associated with them) for which
certain types of training are necessary.
---------------------------------------------------------------------------

    \125\ With respect to operator testing, as discussed in
connection with Sec.  1926.1427, Operator qualification and
certification, this standard places special emphasis on ensuring
that equipment operators have acquired the knowledge and skills
necessary to operate their equipment safely. This standard also
includes specific assessment requirements for signal persons (see
Sec.  1926.1428(a)).
---------------------------------------------------------------------------

    The Agency is also clarifying in Sec.  1926.1430 that employers
have a duty to train each employee covered by subpart CC, and to
provide that training at no cost to the employee. In the introductory
text to proposed Sec.  1926.1430, the Agency specified that the
employer ``shall provide'' all applicable training, which was included
to indicate that the employer would bear the cost of training. This is
consistent with the Agency's treatment of training costs in the
preliminary economic analysis provided in the preamble for the proposed
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification
training treated as cost to employer).) In the final rule, OSHA is
rewording each of the training requirements to further clarify the
employer's responsibilities with respect to all training requirements
under subpart CC, and is adding new Sec.  1926.1430(g)(3) to expressly
state that employers must provide all training at no cost to the
employee.
    Several commenters recommended that additional training be
required. (ID-0126.1; -0156.1;-0182.1; -0209.1.) One suggested that
maintenance and repair personnel be certified by either the
manufacturer or an independent third party that they are trained in the
maintenance and repair of the crane. (ID-0156.1.) However, under Sec.
1926.1429(b), maintenance and repair employees are required to be
qualified persons. Those employees must be trained on the requirements
of subpart CC as required by Sec.  1926.1430(d) and must have the
education or experience to be considered a qualified person as defined
in Sec.  1926.1401. This commenter has not presented evidence showing
that manufacturer or third party certification would significantly
improve the qualifications of maintenance and repair personnel who meet
the test of ``qualified person.''
    Another commenter felt additional hazard awareness training should
be required for employees. (ID-0182.1.) OSHA determines that the
training requirements of this and other sections of subpart CC, along
with Sec.  1926.21, provide for adequate training of all employees and
allow employers flexibility to provide training as needed for each
employee at various worksites.
    Proposed Sec.  1926.1430(a), Overhead powerlines, stated that
employees listed in Sec.  1926.1408(g) must be trained accordance with
the requirements of that paragraph. As discussed in Sec.  1926.1410,
OSHA has added Sec.  1926.1410(m), which requires that operators and
crew assigned to work with equipment that comes closer to power lines
than the minimum clearance distance permitted under Sec. Sec.
1926.1408 and 1926.1409, must also be trained in accordance with Sec.
1926.1408(g). To accommodate this change, Sec.  1926.1430(a) also
includes a reference to Sec.  1926.1410(m).
    Under paragraph (b) of this section, Signal persons, employees
assigned to work as signal persons and need training to meet the
requirements of Sec.  1926.1428(c) must be trained in the areas
addressed in that paragraph. As discussed in Sec.  1926.1428(c), each
employee who serves as a signal person must pass a verbal or written
test, and a practical test demonstrating the required knowledge and
skills. One commenter believes the training requirement outlined in
this paragraph could be interpreted to mean that only training is
required and the qualification requirements of Sec.  1926.1428 are not
applicable. (ID-0292.1.) This is incorrect. This paragraph requires an
employer to ensure the employee assigned as a signal person receives
training, or re-training if needed, to be a signal person according to
Sec.  1926.1428. This is not a replacement for the qualification
requirements of Sec.  1926.1428. This provision is promulgated as
proposed except for the clarification of the employer's duty to train
each employee.
    Proposed paragraph (c) of this section was entitled Operators, and
set forth training requirements for operators of equipment covered by
this subpart. Proposed Sec.  1926.1430(c)(1) stated that ``operators
who are not qualified or certified under Sec.  1926.1427 shall be
trained in the areas addressed in Sec.  1926.1427(j). * * *''
    Several commenters believed that the language of proposed Sec.
1926.1430(c)(1) indicated that operators who have not been qualified or
certified under Sec.  1926.1427 may nonetheless operate cranes. (ID-
0156.1; -0182.1; -0208.1; -0292.1.) One commenter noted it could be
interpreted to mean that certification was not required, only training.
(ID-0182.1.)
    Such interpretations are contrary to the Agency's intent. OSHA used
the word ``operator'' in the proposed Sec.  1926.1427(c) to refer to
any employee, with the exception of maintenance and repair workers, who
operates equipment, whether or not that employee has completed all
necessary training. It has the same meaning when used in final Sec.
1926.1427(c).
    Proposed paragraph (c)(1) was intended to apply to operator
trainees who must be qualified or certified under Sec.  1926.1427 to
operate equipment, but

are not yet qualified or certified. Also in this category are employees
who need training to become re-qualified or re-certified, or who failed
to pass a qualification or certification test and need additional
training. Such employees are only permitted to operate cranes under the
conditions specified in Sec.  1926.1427(f), and the proposed rule
required them to be trained in the operator certification/qualification
criteria provided in Sec.  1926.1427(j).
    Because the certification and qualification requirements of Sec.
1926.1427 will not be phased in until four years after the effective
date of the standard, see Sec.  1926.1427(k), OSHA specified in the
preamble to proposed paragraph (c)(1) that operator training during
this phase-in period would likewise be required to address the criteria
in Sec.  1926.1427(j) (see 73 FR 59826, Oct. 9, 2008).
    To clarify its intent in the final rule OSHA has split proposed
paragraph (c)(1) of this section into three separate paragraphs, (c)(1)
through (3), and renumbered proposed (c)(2) as (c)(4). Revised
paragraph (c)(1) is intended to apply after the four-year phase in
period to employees who must be certified, or qualified, under Sec.
1926.1427 and are training to do so for the first time, and to
employees who are training for re-certification/re-qualification. These
employees, who will only be permitted to operate the equipment as
``operators in training'' and subject to several conditions, must be
trained in the areas addressed in Sec.  1926.1427(j) (criteria for
operator certification testing).
    Paragraph (c)(1) also requires employers to provide the necessary
additional training if the operator-in-training does not pass a
qualification or certification test. C-DAC determined, and OSHA agrees,
that it is important for an employer to provide the training necessary
for its operators to be qualified or certified as required by this
subpart.
    C-DAC selected the criteria in Sec.  1926.1427(j) as the minimum
knowledge and skill requirements necessary for safe operation of
equipment. OSHA is therefore requiring training in the same areas to
ensure consistency with the certification/qualification process and to
develop the trainee's knowledge and skills in the areas that the record
reflects are critical to the safe operation of equipment.
    New paragraph (c)(2) addresses training during the 4-year phase-in
period in the same way for the same people as in paragraph (c)(1): Each
must be trained in the areas addressed in Sec.  1926.1427(j). Although
the certification/qualification requirements do not apply until four
years after the effective date of this standard, OSHA concludes that it
makes sense for two reasons to train employees in the same areas that
they will need to master to pass the certification/qualification
examinations: (1) It will facilitate their preparation for the
examination, and (2) these areas have been identified in the record as
the minimum knowledge and skill sets that all operators should possess.
    Paragraph (c)(3) applies to operators of equipment covered by this
subpart but are expressly excepted from the certification and
qualification requirements of Sec.  1926.1427. This includes those
operators for whom the qualification or certification requirements of
Sec.  1926.1427 do not apply based on the type of equipment being
operated. Section 1926.1427(a) provides: ``Exceptions: Operator
qualification or certification under this section is not required for
operators of derricks (see Sec.  1926.1436), sideboom cranes (see Sec.
1926.1440), and equipment with a maximum manufacturer-rated hoisting/
lifting capacity of 2,000 pounds or less (see Sec.  1926.1441).'' For
the same reasons that the Agency has concluded that the operator
certification/qualification criteria in Sec.  1926.1427 are not
appropriate for these operators, the Agency concludes that training on
the same Sec.  1926.1427(j) criteria would also not be necessary.
Instead, these operators, must be trained in the safe operation of the
type of equipment they will be operating.
    Proposed paragraph (c)(2) has been renumbered in the final rule as
paragraph (c)(4). Final rule paragraph (c)(4) applies to all persons
operating equipment under subpart CC, regardless of whether that person
must be certified or qualified under Sec.  1926.1427, and regardless of
whether it is during or after the four-year phase-in period, and
requires operators to be trained in two practices that C-DAC deemed
worthy of specific emphasis for the safe operation of any equipment.
Paragraph (c)(4)(i) requires training in the testing of the boom hoist
brake on friction equipment prior to moving a boom off a support to
determine whether the brake requires adjustment or repair. The purpose
of this procedure is to ensure that the brake is sufficient before the
boom is at too great an angle or height. Using this procedure, if the
brake is deficient, the boom will fall only a short distance. This
provides an additional safety measure related to the hazards resulting
from an uncontrolled boom. Moving the boom when the brake is not
working properly can result in uncontrolled lowering of the boom, which
can endanger workers in the proximity of the hoisting equipment.
Paragraph (c)(4)(i) also requires similar training for testing the
brake on all other equipment with a boom. Again, this procedure
provides an additional safety measure related to the hazards resulting
from an uncontrolled boom. For clarity, the Agency has added a
reference to Sec. Sec.  1926.1417(f) and (j) for additional
requirements related to tag-out procedures and communication for any
necessary repairs. See discussion of these requirements above at
Sec. Sec.  1926.1417(f) and (j).
    Paragraph (c)(4)(ii) requires the operator to be trained in the
manufacturer's emergency procedures, when available, for stopping
unintended equipment movement. This provides another level of
protection to minimize employee injury resulting from unintended
equipment movement. OSHA recognizes that manufacturer's emergency
procedures for halting unintended equipment movement may not always be
available and therefore this training is required only when the
procedures are available.
    One commenter requested that more specialized training, such as
model-specific training, should be required for newly hired operators
or operators assigned to new or different models of equipment. (ID-
0199.1.) OSHA determines that the rule addresses this commenter's
concern. An operator qualified or certified under Sec.  1926.1427 has
shown that he/she is qualified to operate any type of equipment covered
by the qualification/certification. Others must be trained in the type
of equipment they are operating under paragraph (c) of this section.
    Paragraph (d) of this section, Competent persons and qualified
persons, requires competent persons and qualified persons to be trained
regarding the requirements of this subpart applicable to their
respective roles.
    A person assigned by an employer to be a ``competent person'' or
``qualified person'' under this rule must already have had a certain
level of training (or, in the case of a competent person, either
training or experience) to meet the criteria applicable to such a
designation. This paragraph does not address such training--it does not
require the employer to provide the training needed for an employee to
meet the criteria to become a competent or qualified person. The sole
purpose of this paragraph is to require the employer to ensure that
both competent persons and qualified persons are trained on the
requirements of this subpart applicable to the person's role and
responsibility. For example,

under Sec.  1926.1430(d), a ``competent person'' assigned to conduct
shift inspections required in Sec.  1926.1412(d) must be trained in the
required elements of a shift inspection. This training is necessary to
ensure that the competent person or qualified person is aware of his/
her role under this subpart regarding finding/correcting hazardous
conditions.
    Another example is maintenance and repair personnel, who may
operate equipment under limited conditions necessary to perform the
maintenance or repair (see Sec.  1926.1429(a)). Such an employee must
be a ``qualified person,'' Sec.  1926.1429(b), and must be trained in
accordance with Sec.  1926.1430(d) to operate the equipment as
necessary to perform the maintenance or repair. The Agency notes,
however, that maintenance and repair workers are not considered
``operators'' for the purposes of paragraph (c) of this section and are
therefore not required to be trained in all of the areas addressed in
Sec.  1926.1427(j), or as required under Sec.  1926.1427(c)(3).
    No comments were received on this paragraph; it is promulgated
without change from the proposed rule except for the clarification of
the employer's duty to train each employee.
    Paragraph (e) of this section, Crush/pinch points, provides that
employees who work with equipment covered by this subpart must be
instructed to stay clear of holes, crush/pinch points and the hazards
that are addressed in Sec.  1926.1424, Work area control. See the
discussion above of hazards and requirements addressed by Sec.
1926.1424. No comments were received on this provision, and it is
promulgated as proposed except for the clarification of the employer's
duty to train each employee.
    Paragraph (f) of this section, Tag-out, states that operators and
other employees authorized to start or energize equipment or operate
equipment controls (such as maintenance and repair workers) must be
trained according to the tag-out and start-up procedures in Sec.
1926.1417(f) and (g). See the discussion above of these procedures in
Sec.  1926.1417.
    On review of this paragraph, OSHA determines that a reference to
the start-up procedures was inadvertently omitted in the text of the
proposed rule since these employees are ``authorized to start/energize
equipment.'' OSHA has corrected this omission in the final rule by
adding a reference to start-up procedures in Sec.  1926.1417(g) in the
regulatory text.
    Paragraph (g) of this section requires employers to ensure that
employees understand the required training and provide refresher
training when necessary. Specifically, Sec.  1926.1430(g)(1) requires
the employee to be evaluated to verify that he/she understands the
information provided in training required by this subpart. The Agency
determined that, to ensure that the training is effective, some means
of assessment for understanding is needed.
    One commenter believed this requirement was unclear and did not
understand how an employer would determine if training was effective.
(ID-0232.1.) This commenter also indicated that it could be interpreted
that a test would always be required to determine whether training had
been effective.
    The Agency purposely does not use the term ``test'' in this
paragraph. ``Test'' may be interpreted to mean a standardized written
or a structured oral exam, which may not be appropriate for all
situations. OSHA determines the method of evaluating an employee's
training for effectiveness will vary by the subject matter of the
training and the employee, and the Agency has therefore drafted this
paragraph to provide sufficient flexibility for the employer to
determine the most appropriate method of evaluation. Any number of
methods could be used to determine if an employee has understood the
training provided. For example, during assembly/disassembly a certain
method of blocking may be needed. The supervisor trains and instructs
the employee on the proper method. The supervisor can then evaluate the
employee's comprehension of training in a number of ways. One way could
be simply to ask the employee to orally describe how he/she would do
this task, or to have the employee physically emulate the blocking
method. Another would be to provide blocking to the employee and ask
the employee to arrange the blocking in the proper manner. Either
method can give the supervisor the necessary information to determine
if the employee understood the proper method or if additional training
is required.
    Another commenter recommended the incorporation by reference of
ANSI/ASSE Z490.1-2001 for how to test trainees. (ID-0178.1.) Much of
sec. 6.2 of that standard reflects the same concepts referred to above
and may be useful to employers. However, a ``Note'' to sec. E6.2.2
suggests that self-evaluations may be adequate. OSHA does not conclude
that a self-evaluation is appropriate to meet the requirements of Sec.
1926.1430(g)(1). While other aspects of the ANSI/ASSE standard may be
useful as a guide to employers, it is not drafted in a way that is
suitable for enforcement of this provision. For these reasons, OSHA
declines to incorporate it by reference as a requirement.
    Paragraph (g)(2) of this section requires the employer to provide
refresher training for an employee when, based on evaluation or
employee conduct, it is indicated that retraining is needed.
    One commenter recommended a requirement for a minimum number of
continuing education courses each year for employees. (ID-0209.1.)
Another commenter recommended that refresher training be done every 3
years or earlier when based on evaluation of employee conduct. (ID-
0182.1.)
    The Agency finds these comments to be unpersuasive. As proposed,
the employer is required to retrain an employee based on the
individual's conduct. OSHA determines this promotes a more effective
retraining requirement than one based on time or type of coursework.
    Therefore, paragraphs (g)(1) and (2) of this section are
promulgated as set forth in the proposed rule. As noted above, the
Agency is adding new paragraph (g)(3) to clarify that employers are
responsible to provide the training required under subpart CC at no
cost to employees.
    The following chart summarizes the location of the training
requirements in the final rule:

------------------------------------------------------------------------
                Section                        Training requirement
------------------------------------------------------------------------
Sec.  Sec.   1926.1408(g) and            Power line safety.
 1926.1410(m).
Sec.   1926.1424(a)(2).................  Swing radius hazards.
Sec.   1926.1437(c)(2)(ii).............  Swing radius hazards (floating
                                          cranes & land cranes on
                                          barges).
Sec.   1926.1430(e)....................  Crush/pinch points (Work Area
                                          Control).
Sec.   1926.1430(f)....................  Tag-out.
Sec.   1926.1430(f)....................  Start-up.
Sec.   1926.1430(d)....................  Competent and Qualified
                                          Persons.
Sec.   1926.1430(g)(2).................  Refresher training (general).

Sec.   1926.1430(b)....................  Signal person training
                                          (equipment with greater than
                                          2,000 pound maximum rated
                                          capacity).
Sec.   1926.1428(b)....................  Signal person re-training.
Sec.   1926.1427(f)....................  Operator-in-training.
Sec.  Sec.   1926.1427(k),               Operator training during
 1926.1430(c)(2) and                      transitional period.
 1926.1430(c)(4).......................
Sec.   1926.1430(c)(3).................  Operator training for equipment
                                          where qualification or
                                          certification is not required
                                          by this subpart.
Sec.   1926.1430(c)(1).................  Operator training for
                                          qualification or
                                          certification.
Sec.   1926.1430(c)(4)(i)..............  Operator training--boom hoist
                                          brake test.
Sec.   1926.1430(c)(4)(ii).............  Operator training--emergency
                                          procedures (halting unintended
                                          movement).
Sec.   1926.1441(e)....................  Operator training (2,000 pound
                                          maximum rated capacity).
Sec.   1926.1441(f)....................  Signal person training (2,000
                                          pound maximum rated capacity).
Sec.   1926.1423(k)....................  Fall protection training.
------------------------------------------------------------------------

Section 1926.1431 Hoisting Personnel
    This section of the final rule sets forth additional requirements
when equipment is used to hoist employees. Because equipment covered by
this subpart is designed to move materials, not personnel, additional
requirements are necessary for employee safety. This section replaces
the requirements of subpart N, former Sec.  1926.550(g). Those
requirements have been effective in reducing accidents and as a result
most of the requirements have been continued in this rule. However,
while continuing most of the hoisting personnel requirements that were
in subpart N, subpart CC clarifies requirements where needed and has
added requirements for certain activities, such as hoisting personnel
in a drill shaft, as discussed below. With a few exceptions, the
requirements in this final rule are the same as those found in the
proposed rule (see 73 FR 59714, 59939-59943, Oct. 9, 2008). The
following discussion will primarily focus on the differences between
the proposed rule and this final rule.
    OSHA stresses the provisions in this section are additional
requirements that must be met when equipment is used to hoist
personnel. During such use, all other applicable requirements of this
subpart must be met.
Paragraph (a)
    This paragraph states that equipment may be used to hoist personnel
only when all other means of reaching the work area present a greater
hazard or is not possible because of the project's structural design or
worksite conditions. It reflects OSHA's longstanding recognition that
using cranes and derricks to lift personnel is inherently hazardous and
should only be done when it is either the least hazardous means or
when, in light of the configuration of the worksite, it is the only
means of performing required work.
    This paragraph does not apply to work covered by 29 CFR part 1926
subpart R, Steel Erection. Subpart R, at Sec.  1926.753(c)(4), allows
the use of equipment to hoist personnel in a platform that complies
with subpart CC without the need for a showing that other means of
reaching the work area would create a greater hazard or is impossible.
OSHA's reasons for including this exception in subpart R are discussed
in detail in the preamble to the steel erection standard (66 FR 5196,
5209, Jan. 18, 2001).
    One commenter asserted that employers engaged in work covered by 29
CFR part 1926 subpart V, Power Transmission and Distribution, should be
allowed to use equipment (with a boom attached platform) to hoist
personnel without showing that other means of reaching the work area
creates a greater hazard or is not possible. (ID-0144.1.) This
commenter bases this assertion on the premise that many manufacturers
offer a platform specifically designed to attach to the tip of the boom
which may include platform mounted controls. The commenter believes
that when using this type of platform, the equipment ``essentially
transforms the crane into a large aerial lift.''
    The Agency finds this comparison unpersuasive. As stated above,
equipment covered by this section is primarily designed for hoisting
materials, not people. C-DAC concluded that it was important to
differentiate between equipment primarily designed for moving
personnel, such as an aerial lift, as compared to equipment that is
primarily designed to lift materials. In the judgment of the Committee,
a personnel platform attached to equipment covered by this section
presented a greater hazard than a machine that is designed for moving
personnel. Therefore, the proposed rule would have required an employer
to show that another means of reaching the work area presents a greater
hazard or is not possible. OSHA agrees, and is retaining the same
substantive requirement in the final rule.
    Upon review of this provision, the Agency realized the use of the
word ``worksite'' in the phrase, ``conventional means of reaching the
worksite'' could be misleading. The Agency has changed the phrase to
``conventional means of reaching the work area.'' The term worksite
could be interpreted to mean the entire construction worksite. This
requirement is about an employee working in a particular area or place
on a larger worksite. OSHA finds the use of the phrase ``work area'' to
provide greater clarity. Therefore, the provision is promulgated as
proposed incorporating this terminology change.
Paragraph (b) Use of Personnel Platform
    Paragraph (b)(1) of this section generally requires the use of a
personnel platform when hoisting employees and requires that criteria
specified in Sec.  1926.1431(e) be met for such platforms. Paragraph
(b)(2), Exceptions, sets forth the construction activities in which
hoisting personnel without using a personnel platform is allowed. These
activities are: hoisting employees into and out of drill shafts 8 feet
and smaller in diameter, pile-driving operations, marine worksites,
storage tanks (steel or concrete), shaft operations and chimney
operations. OSHA considers the use of a personnel platform in these
situations to be generally infeasible or more hazardous than other
means. This section contains specific requirements for hoisting
personnel during these operations at Sec. Sec.  1926.1431(o), (p), (r),
and (s), including alternatives to the use of a personnel platform.
Each of the exceptions is discussed below under the particular
paragraph related to that operation.
    No comments were received on Sec.  1926.1431(b); it is promulgated
as

proposed except that ``must'' replaces ``shall'' to ensure that the
sentence is imperative, not merely descriptive.
Paragraph (c) Equipment Set-Up
    This paragraph sets forth the basic criteria for equipment set-up
for personnel hoisting.
    Paragraph (c)(1) of this section requires the equipment to be on
level, firm and stable footing. A qualified person must determine if
the footing is ``sufficiently firm and stable.'' Stable footing is
essential to minimize the hazard of the equipment tipping while
hoisting personnel. C-DAC determined that the danger of the equipment
potentially tipping when hoisting personnel justifies the need for a
qualified person to examine and approve the equipment's stability. OSHA
agrees.
    Paragraph (c)(2) specifies that each outrigger must be both
extended and locked. The amount of extension must be the same for all
outriggers and also be in accordance with the manufacturer's
specifications. Proper placement and deployment of outriggers, C-DAC
concluded, is essential to prevent the hazard of equipment tipping
while hoisting personnel.
    Equal extension of outriggers eliminates the hazard of the operator
forgetting that one or more outriggers has a shorter extension and
swinging into that area with a load that exceeds the crane's capacity.
The essential factor is to have each outrigger extended equally within
the manufacturer's specifications and procedures, whether it is a full
or partial extension. No comments were received on Sec.  1926.1431(c);
it is promulgated as proposed.
Paragraph (d) Equipment Criteria
    This paragraph sets forth requirements for the equipment used to
hoist personnel.
    Paragraph (d)(1) of this section, Capacity: Use of suspended
personnel platform, limits the total load to 50 percent of the
equipment's rated capacity and specifies that the total load includes
the hook, load line, and rigging. The 50 percent capacity limit does
not apply during equipment proof testing.
    The 50 percent limit reflects C-DAC's conclusion that using this
equipment to hoist personnel requires a greater number of safety
precautions than when lifting materials. The limit provides for an
extra margin of safety to prevent overloading the equipment, which
could cause tip-over or structural collapse.
    One commenter asserted that a specific boom limit of not less than
65 degrees should be added to the requirements of this paragraph. (ID-
0178.1.) The commenter did not provide any rationale for this
recommendation. Therefore, OSHA defers to C-DAC's expertise in this
area and is promulgating this provision as proposed.
    Paragraph (d)(2), Capacity: Use of boom-attached personnel
platforms, establishes the load limit at 50 percent of rated capacity
for platforms that are attached to the boom. It also provides an
exception to the 50 percent capacity limit during equipment proof
testing. The same reasons for the 50 percent limit in Sec.
1926.1431(d)(1) apply here.
    In the proposed rule, OSHA requested public comment on whether
additional requirements (i.e., requirements other than those specified
in the proposed rule for a suspended personnel platform) should apply
when using boom-attached personnel platforms. No comments were received
stating that this type of platform could present an additional hazard
to employees. One commenter stated that this type of platform is safer
than a suspended personnel platform. (ID-0144.1.) Since no comments or
information were received demonstrating that precautions beyond those
already proposed are needed for boom attached personnel platforms, OSHA
has not added any further requirements for this type of platform in the
final rule. Therefore, this paragraph is promulgated as proposed.
    Paragraph (d)(3), Capacity: Hoisting personnel without a personnel
platform, establishes the load limit at 50 percent of rated capacity.
In calculating the load, the weight of the personnel, including the
hook, load line, rigging and any other equipment that imposes a load
must be included. No comments were received on this provision; it is
promulgated as proposed.
    Paragraph (d)(4) requires engaging all the equipment's locking or
braking devices when the platform has reached its stationary work
position. The purpose is to minimize sudden and unintended movement or
tipping of the platform when employees have reached the work area. No
comments were received on this provision; it is promulgated as
proposed.
    The provisions of paragraph (d)(5), Devices, require certain safety
devices for equipment addressed by this section (see 73 FR 59829-59830,
Oct. 9, 2008). OSHA received one comment on Sec.  1926.1431(d)(5)(i),
which stated that a boom angle indicator would not provide useful
information on an articulating crane because such cranes have up to
three boom sections at various angles and numerous combinations of boom
angles will achieve the same lifting capacities. (ID-0206.1.) OSHA
agrees that essential design of the articulating crane precludes the
use of a boom angle indicator. However, to provide some protection
against falling and tipover hazards, OSHA has determined that an
alternative device must be used on articulating cranes when they are
used to hoist personnel. As discussed under Sec.  1926.1400, Scope, the
record indicates that many articulating cranes are equipped with
automatic overload-prevention devices. Such a device provides
protection comparable to that provided by a boom angle indicator, which
helps the operator prevent the crane from becoming overloaded by
providing the boom angle information needed to apply the crane's load
chart. Because overload protection is particularly vital when equipment
is used to hoist personnel, OSHA is addressing the comment about
articulating cranes by adding Sec.  1926.1431(d)(5)(ii), which
specifies that articulating cranes must be equipped with a properly
functioning automatic overload protection device.
    No comments were received on the remaining provisions of paragraph
(d)(5); they are promulgated as proposed, except that Sec. Sec.
1926.1431(d)(5)(ii)-(vi) have been renumbered as Sec. Sec.
1926.1431(d)(5)(iii)-(vii) because of the addition of new Sec.
1926.1431(d)(5)(ii). Additionally, with respect to paragraph
(d)(5)(vii), the following has been added: ``(See Sec.  1926.1417 for
tag-out and related requirements.)'' This sentence has been added to
ensure the reader is aware of the applicable tag-out and related
requirements of Sec.  1926.1417, Operation.
    Paragraph (d)(6) prohibits the use of a personnel platform directly
attached to a luffing jib. In the experience of C-DAC members, a
complete prohibition of use of a boom-attached personnel platform to a
luffing jib was necessary in light of the range of motion of a luffing
jib and the fact that boom-attached personnel platforms are not
designed for attachment to a luffing jib. Thus, only a suspended type
personnel platform may be used on a luffing jib. OSHA defers to the
expertise of the Committee. No comments were received on these
provisions; they are promulgated as proposed.
Paragraph (e) Personnel Platform Criteria
    This paragraph establishes the minimum criteria for a personnel
platform. Paragraph (e)(1) of this section requires that both the
platform and its

attachment/suspension system be designed by a qualified person who
understands structural design and be designed for the particular
function of personnel hoisting. The purpose of this paragraph is to
clearly stipulate that the platform must be designed for employee
safety. This addresses the hazards of structural failure of the
platform, failure of the attachment/suspension system, and precludes
the use of designs that would be inappropriate for hoisting people.
    Paragraph (e)(2) requires the system used to connect the personnel
platform to the equipment to be within 10 degrees of level. This
addresses the hazard of platform tipping by maintaining the platform
close to level.
    Paragraph (e)(3) requires the platform designer to consider the
movement of employees on the platform and design the suspension system
to minimize platform tipping from such movement. The purpose is to
design the platform in such a way as to limit the likelihood of
platform tipping while employees are working from the platform.
    Paragraph (e)(4) requires the platform to support its own weight
plus a minimum of five times the maximum intended load without failure.
C-DAC selected this minimum limit because it would provide an adequate
margin of safety for employee protection from structural failure of the
platform. The guardrail system and personal fall arrest system
anchorages are not subject to this requirement but instead are subject
to Sec.  1926.1431(e)(6).
    Paragraph (e)(5) requires that welding of any part of the platform
or its component parts be performed by a welder who is certified and
familiar with the weld grades, types and material specified in the
particular platform's design. This requirement is designed to prevent
structural failure of the platform due to improper welding.
    Paragraph (e)(6) details the requirements of the platform for
guardrails, fall arrest anchorage points and enclosure of the platform
between the toeboard and mid-rail. Proper guardrails and fall arrest
anchorage points are critical fall protection devices, and the required
platform enclosure is needed to protect employees below from falling
objects. In addition, points to which personal fall arrest systems are
attached must meet the anchorage requirements in 29 CFR part 1926
subpart M.
    Paragraph (e)(7) requires the placement of a grab rail within the
entire perimeter of the personnel platform except for access gates/
doors where a grab rail can be impractical. The grab rail provides a
place for the employee to hold onto while in the platform instead of
using a guardrail as a hand hold. Using a guardrail as a hand hold
exposes the employee's hand to being smashed by external objects.
    No comments were received on paragraphs (e)(1) through (e)(7); they
are promulgated as proposed.
    Paragraphs (e)(8)(i) and (ii), Access gates/doors, specifies that
access gates/doors must be designed to not swing outward and must also
have a mechanism that will keep the gate/door from being opened
unintentionally.
    One commenter, a platform manufacturer, stated that generally their
platforms have doors that do not swing outward. (ID-0238.1.) However,
for certain custom platforms, such as a one-person platform, the size
and design of the platform makes it unsafe for a person to enter the
platform and close the gate behind the occupant when it is an inward
swinging gate. The commenter indicated that for this type of platform,
the gates are designed to swing outward to provide safe access for the
individual. To protect against accidental opening of the gate, a
positive latching system is included with an outward swinging gate.
    The Agency agrees that certain types of personnel platforms could
be of a size or configuration that would necessitate an outward
swinging access gate or door to allow for safe entry and egress of an
occupant. Therefore, OSHA has revised this paragraph to include an
exception for this type of platform. When it is infeasible to have an
inward swinging gate due to the size or design of the platform, the
gate can swing outward. However, the additional feature of a positive
latching or similar system that prevents accidental opening must be
included. This conforms with the intent of this requirement to prevent
an occupant from falling from the platform due to an access gate or
door opening unexpectedly.
    Paragraph (e)(9) requires adequate headroom to allow employees to
stand upright in the personnel platform. This provides adequate space
for the employee to work from the platform while keeping his/her entire
body within the platform, and contributes to greater stability during
platform movement. No comments were received on this provision; it is
promulgated as proposed.
    Paragraph (e)(10) requires an overhead protective cover attached to
the platform when an employee is exposed to falling objects. It
mandates the overhead cover of the platform to be of such material and
design to provide visibility for both the operator and the employees on
the platform, while maintaining adequate protection from falling
objects. The reference to a wire mesh with \1/2\ inch openings is an
example of a type of material and design that could be used for the
platform cover. The nature of the worksite conditions and likely type
of falling objects determines the type of material and design needed to
protect the platform occupants. Full overhead protection (i.e., no
visibility through the protective cover) is allowed when conditions are
such that a full protective cover is necessary to protect employees
from falling objects.
    Paragraph (e)(10) explicitly states that the protection provided by
the cover is supplemental to the protection provided by hard hats--the
use of hard hats does not obviate the requirement for the platform
cover.
    One commenter noted that having overhead protection for employees
in the power line industry interferes with the ability to work
overhead, which is a routine occurrence. (ID-0144.) Additionally, at
the public hearing, a representative from a labor union noted that
typically an overhead cover would not be used on a personnel platform
when they are working near power lines, as it is desirable to minimize
the amount of conductive material. (ID-0344.) The Agency acknowledges
that it is common for those in the power line industry to work
overhead. However, the use of a personnel platform attached to a crane
is not the only means of reaching this work location. As noted in Sec.
1926.1431(a), the use of a personnel platform attached to a crane is
only permitted where the employer demonstrates that conventional means
of reaching the worksite, such as an aerial lift, would be either more
hazardous or impossible. OSHA notes that aerial lifts are commonly used
in utility work, and it therefore determined that crane-suspended
personnel platforms will be used rarely in such work. OSHA also notes
that paragraph (e)(10) mandates overhead protection only when an
employee is exposed to falling objects, and that should not be a common
occurrence in utility work. Therefore, the Agency does not determine
that this provision needs to make special accommodation for work near
power lines. Paragraph (e)(10) is promulgated as proposed.
    Paragraph (e)(11) requires that all edges of the platform be smooth
enough to prevent injury. The purpose is to protect the employee from
injuries such as lacerations and puncture wounds.
    Paragraph (e)(12) requires conspicuous posting of a plate or other
permanent written notice on the personnel platform listing the weight
of

the platform itself and the platform's rated capacity. The purpose of
the provision is to make employees aware of the platform's limits to