[Federal Register: August 9, 2010 (Volume 75, Number 152)]
[Rules and Regulations]
[Page 47905-48177]
[DOCID:fr09au10-10]

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Part II

Department of Labor

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 Occupational Safety and Health Administration

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29 CFR Part 1926

Cranes and Derricks in Construction; Final Rule

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]
RIN 1218-AC01

Cranes and Derricks in Construction

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

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SUMMARY: OSHA is revising the Cranes and Derricks Standard and related
sections of the Construction Standard to update and specify industry
work practices necessary to protect employees during the use of cranes
and derricks in construction. This final standard also addresses
advances in the designs of cranes and derricks, related hazards, and
the qualifications of employees needed to operate them safely. Under
this final rule, employers must determine whether the ground is
sufficient to support the anticipated weight of hoisting equipment and
associated loads. The employer is then required to assess hazards
within the work zone that would affect the safe operation of hoisting
equipment, such as those of power lines and objects or personnel that
would be within the work zone or swing radius of the hoisting
equipment. Finally, the employer is required to ensure that the
equipment is in safe operating condition via required inspections and
that employees in the work zone are trained to recognize hazards
associated with the use of the equipment and any related duties that
they are assigned to perform.

DATES: This final rule will become effective November 8, 2010.
    The incorporation by reference of specific publications listed in
this final rule is approved by the Director of the Federal Register as
of November 8, 2010.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency
designates Joseph M. Woodward, Associate Solicitor of Labor for
Occupational Safety and Health, Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: General information and press
inquiries. Contact Ms. Jennifer Ashley, Director, Office of
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1999 or fax<PHONE_NUMBER>.
     Technical inquiries. Contact Mr. Garvin Branch,
Directorate of Construction, Room N-3468, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202) 693-2020 or fax<PHONE_NUMBER>.
     Copies of this Federal Register notice. Available from the
OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1888.
     Electronic copies of this notice. Go to OSHA's Web site
(http://www.osha.gov), and select ``Federal Register,'' ``Date of
Publication,'' and then ``2010.''

SUPPLEMENTARY INFORMATION: Availability of Incorporated Standards. The
standards published by the American National Standards Institute
(ANSI), the American Society of Mechanical Engineers (ASME), the
American Welding Society (AWS), the British Standards Institution
(BSI), the International Organization for Standardization (ISO), the
Power Crane and Shovel Association (PCSA), and the Society of
Automotive Engineers (SAE) required in subpart CC are incorporated by
reference into this subpart with the approval of the Director of the
Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce
any edition other than the editions specified in subpart CC, the
Occupational Safety and Health Administration (OSHA) must publish a
notice of change in the Federal Register and the material must be
available to the public.
    All approved material is available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, telephone<PHONE_NUMBER>, or go
to: http://www.archives.gov/federal_register/code_of_federal_
regulations/ ibr_locations.html. Also, the material is available for
inspection at any OSHA Regional Office or the OSHA Docket Office (U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-2625,
Washington, DC 20210; telephone<PHONE_NUMBER> (TTY number: 877-889-
5627)).

I. General

A. Table of Contents

    The following Table of Contents identifies the major preamble
sections in this notice and the order in which they are presented:

I. General
    A. Table of Contents
II. Background
    A. History
    B. The Cranes and Derricks Negotiated Rulemaking Advisory
Committee (C-DAC)
    C. Hazards Associated with Cranes and Derricks in Construction
Work
III. The SBREFA Process
IV. Summary and Explanation of the Rule
V. Procedural Determinations
    A. Legal Authority
    B. Executive Summary of the Final Economic Analysis; Final
Regulatory Flexibility Analysis
    C. OMB Review Under the Paperwork Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Applicability of Existing Consensus Standards
    H. List of Subjects in 29 CFR Part 1926
V. Authority and Signature
VI. Amendments to Standards

II. Background

A. History

    The Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29
U.S.C. 651 et seq.) (the OSH Act) authorizes the Secretary of Labor to
adopt safety and health standards to reduce injuries and illnesses in
American workplaces. Pursuant to that authority, the Secretary adopted
a set of safety and health standards applicable to the construction
industry, 29 CFR part 1926. Initially, standards for the construction
industry were adopted under the Construction Safety Act, 40 U.S.C. 333.
Under the Construction Safety Act, those standards were limited to
employers engaged in Federally-financed or Federally-assisted
construction projects. The Secretary subsequently adopted them as OSHA
standards pursuant to Sec. 6(a) of the OSH Act, 29 U.S. C. 655(a),
which authorized the Secretary to adopt established Federal standards
as OSH Act standards within the first two years the OSH Act was
effective (see 36 FR 25232, Dec. 30, 1971). Subpart N of 29 CFR part
1926, entitled ``Cranes, Derricks, Hoists, Elevators, and Conveyors,''
was originally adopted through this process.
    The section of subpart N of 29 CFR part 1926 that applied to cranes
and derricks was former Sec.  1926.550. That section relied heavily on
national consensus standards that were in effect in 1971, in some cases
incorporating the consensus standards by reference. For example, former
Sec.  1926.550(b)(2) required crawler, truck, and locomotive cranes to
meet applicable requirements for design, inspection, construction,
testing, maintenance, and operation prescribed in ANSI B30.5-1968,
``Crawler, Locomotive and Truck Cranes.'' Similarly, former Sec.
1926.550(e)

required derricks to meet applicable requirements for design,
construction, installation, inspection, testing, maintenance, and
operation prescribed in ANSI B30.6-1969, ``Derricks.'' Until today,
former Sec.  1926.550 was amended substantively only twice. In 1988,
former Sec.  1926.550(g) was added to establish clearly the conditions
under which employees on personnel platforms may be hoisted by cranes
and derricks (see 53 FR 29116, Aug. 2, 1988). In 1993, former Sec.
1926.550(a)(19) was added to require that all employees be kept clear
of lifted and suspended loads.
    Considerable technological advances have been made since the 1971
OSHA standard was issued. For example, hydraulic cranes were rare at
that time, but are now prevalent. In addition, the construction
industry has updated the consensus standards on which the original OSHA
standard was based. For example, the industry consensus standard for
derricks was most recently updated in 2003, and that for crawler,
locomotive and truck cranes in 2007.
    In recent years, a number of industry stakeholders asked the Agency
to update subpart N's cranes and derrick requirements. They were
concerned that accidents involving cranes and derricks continued to be
a significant cause of fatal and other serious injuries on construction
sites and believed that an updated standard was needed to address the
causes of these accidents and to reduce the number of accidents. They
emphasized that the considerable changes in both work processes and
technology since 1971 made much of former Sec.  1926.550 obsolete.
    In response to these requests, in 1998 OSHA's Advisory Committee
for Construction Safety and Health (ACCSH) established a workgroup to
develop recommended changes to the subpart N requirements for cranes
and derricks. The workgroup developed recommendations on some issues
and submitted them to the full committee in a draft workgroup report.
(ID-0020.) In December 1999, ACCSH recommended to OSHA that the agency
consider using a negotiated rulemaking process as the mechanism to
update subpart N. (OSHA-ACCSH1999-4-2006-0187-0035.)

B. The Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-
DAC)

    In July 2002, OSHA announced plans to use negotiated rulemaking
under the Negotiated Rulemaking Act (NRA), 5 U.S.C. 561 et seq., to
revise the cranes and derricks standard. The Agency made this decision
in light of the stakeholder interest in updating subpart N, the
constructive discussions and work of the ACCSH workgroup, ACCSH's
recommendation, a positive assessment of the criteria listed in the NRA
(5 U.S.C. 563(a)) for the use of negotiated rulemaking, and the
Department of Labor's policy on negotiated rulemaking (see ``Notice of
Policy on Use of Negotiated Rulemaking Procedures by Agencies of the
Department of Labor,'' 57 FR 61925, Dec. 29, 1992). The Agency
published a Notice of Intent to Establish a Cranes and Derricks
Negotiated Rulemaking Advisory Committee (``C-DAC'' or ``the
Committee'')) (see 67 FR 46612, Jul. 16, 2002).
    Negotiated rulemaking is a process by which a proposed rule is
developed by a committee comprised of members who represent the
interests that will be significantly affected by the rule. Section 562
of the NRA defines ``interest'' as follows:

    ``[I]nterest'' means, with respect to an issue or matter,
multiple parties which have a similar point of view or which are
likely to be affected in a similar manner.

By including different viewpoints in the negotiation process, the
members of a negotiated rulemaking committee learn the reasons for
different positions on the issues as well as the practical effect of
various approaches. Each member of the committee participates in
resolving the interests and concerns of other members. Negotiation
allows interested parties, including members who represent the
interests of employers subject to the prospective rule and the
employees who will benefit from the safer workplaces the rule will
produce, to become involved at an earlier stage of the rulemaking
process. As a result, the rule that OSHA proposes would receive close
scrutiny by affected parties at the pre-proposal stage.
    The goal of the negotiated rulemaking process is to develop a
proposed rule that represents a consensus of all the interests. The NRA
defines consensus as unanimous concurrence among the interests
represented on a negotiated rulemaking committee unless the committee
itself unanimously agrees to use a different definition of consensus.
As discussed below, C-DAC agreed by unanimous vote to a different
definition: A consensus would be reached on an issue when not more than
two non-Federal members dissented on that issue.
    In the July 2002 Federal Register notice announcing negotiated
rulemaking on cranes and derricks mentioned earlier, the Agency listed
key issues that it expected the negotiations to address, and the
interests that OSHA tentatively identified as being significantly
affected by the rulemaking. The key interests were:

--Crane and derrick manufacturers, suppliers, and distributors.
--Companies that repair and maintain cranes and derricks.

--Crane and derrick leasing companies.
--Owners of cranes and derricks.
--Construction companies that use cranes and derricks.
--General contractors.
--Labor organizations representing construction employees who operate
cranes and derricks.
--Labor organizations representing construction employees who work in
conjunction with cranes and derricks.
--Owners of electric power distribution lines.
--Civil, structural and architectural engineering firms and engineering
consultants involved with the use of cranes and derricks in
construction.
--Training organizations.
--Crane and derrick operator testing organizations.
--Insurance and safety organizations, and public interest groups.
--Trade associations.
--Government entities involved with construction safety and with
construction operations involving cranes and derricks.
    In the Federal Register notice, OSHA asked for public comment on
whether interests other than those listed would be significantly
affected by a new rule. It also solicited requests for membership on
the Committee. OSHA also urged interested parties form coalitions to
support individuals identified for nomination to the Committee.
    The Agency noted that the need to limit the Committee's membership
to a number that could conduct effective negotiations may result in
some interests not being represented on the Committee. OSHA further
noted that interested persons had means other than Committee membership
available to participate in the Committee's deliberations, including
attending meetings and addressing the Committee, providing written
comments to the Committee, and participating in Committee workgroups
(see 67 FR 46612, 46615, Jul. 16, 2002).
    In response to its request for public input, the Agency received
broad support for using negotiated rulemaking, as well as 55
nominations for committee membership. To keep membership to a
reasonable size, OSHA tentatively listed 20 potential committee
members, and asked for public comment on the proposed list (see 68 FR
9036,

Feb. 27, 2003). In response to the comments, OSHA added three members
to the committee--individuals from the mobile crane manufacturing
industry, the Specialized Carriers & Rigging Association, and the
outdoor advertising industry (see 68 FR 39879, Jul. 3, 2003).
    The members of the Committee, the organizations and interests they
represent, and a summary of their qualifications at the time the
Committee was formed are in Table 1 below:

              Table 1--The Qualifications of C-DAC Members
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Stephen Brown, International Union of Operating Engineers (labor)
    Title: Director of Construction Training, International Union of
     Operating Engineers.
    Organizations/interests represented: Organized construction
     employees who operate cranes and derricks, and work with such
     equipment.
    Experience: Worked in numerous positions in the construction
     industry over 28 years, including Equipment Operator, Mechanic, and
     Training Director.
Michael Brunet, Manitowoc Cranes, Inc. (manufacturers and suppliers)
    Title: Director of Product Support for Manitowoc Cranes.
    Organizations/interests represented: Crane manufacturers, suppliers,
     and distributors.
    Experience: Extensive engineering experience in crane engineering;
     participated in development of SAE and ISO standards for cranes.
Stephen P. Chairman, Viacom Outdoor, Inc. (employer users)
    Title: Vice President (New York) of Viacom Outdoor Group.
    Organizations/interests represented: Billboard construction.
    Experience: Over 43 years' experience with the construction
     industry, including specialized rigging.
Joseph Collins, Zachry Construction Corporation (employer users)
    Title: Crane Fleet Manager.
    Organizations/interests represented: Highway and railroad
     construction.
    Experience: Over 30 years' experience with the construction industry
     in a variety of positions including crane operator, mechanic, and
     rigger.
Noah Connell, U.S. Department of Labor, Occupational Safety and Health
 Administration (government)
    Title: Director, Office of Construction Standards and Guidance.
    Organization/interests represented: Government.
    Experience: 22 years' experience with government safety and health
     programs.
Peter Juhren, Morrow Equipment Company, L.L.C. (manufacturers and
 suppliers)
    Title: National Service Manager.
    Organization/interests represented: Tower crane distributors and
     manufacturers.
    Experience: 22 years' experience with Morrow Equipment Company,
     L.L.C.
Bernie McGrew, Link-Belt Construction Equipment Corp. (manufacturers and
 suppliers)
    Title: Manager for Crane Testing, Product Safety, Metal Labs and
     Technical Computing.
    Organization/interests represented: Mobile crane manufacturers.
    Experience: Extensive engineering experience in crane engineering.
Larry Means, Wire Rope Technical Board (manufacturers and suppliers)
    Title: Rope Engineer.
    Organization/interests represented: Wire rope manufacturing
     industry.
    Experience: 36 years' wire rope engineering experience.
Frank Migliaccio, International Association of Bridge, Structural,
 Ornamental and Reinforcing Iron Workers (labor organization)
    Title: Executive Director for Safety and Health.
    Organization/interests represented: Organized construction employees
     who operate cranes and derricks, and work with such equipment.
    Experience: 31 years' experience in the ironworking industry,
     including 10 years as Director of Safety and Health Training for
     the Ironworker's National Fund.
Brian Murphy, Sundt Corporation (employer users)
    Title: Vice President and Safety Director.
    Organization/interests represented: General contractors; crane
     owners and users.
    Experience: Over 35 years' experience in the construction industry,
     most of them with Sundt Corp.
George R. ``Chip'' Pocock, C.P. Buckner Steel Erection (employer users)
    Title: Safety and Risk Manager.
    Organization/interests represented: Steel erection crane users and
     employers.
    Experience: Over 22 years' experience in the construction and steel
     erection industry.
David Ritchie, St. Paul Companies (trainer and operator testing)
    Title: Crane and Rigging Specialist.
    Organization/interests represented: Employee training and
     evaluation.
    Experience: Over 31 years' experience in the construction industry.
Emmett Russell, International Union of Operating Engineers (IUOE)
 (labor)
    Title: Director of Safety and Health.
    Organization/interests represented: Organized construction employees
     who operate cranes and derricks, and work with such equipment.
    Experience: Over 32 years' experience in the crane and construction
     industry, including 10 years in the field as well as over 20 years
     with IUOE.
Dale Shoemaker, Carpenters International Training Center (labor)
    Organization/interests represented: Labor organizations representing
     construction employees who operate cranes and derricks and who work
     with cranes and derricks.
    Experience: Became a crane operator in 1973; served as a rigging
     trainer for labor organizations since 1986.
William Smith, Maxim Crane Works (lessors/maintenance)
    Title: Corporate Safety/Labor Relations Manager.
    Organization/interests represented: Crane and derrick repair and
     maintenance companies.
    Experience: 24 years' experience in the crane, rigging, and
     construction industry, both public and private sectors.
Craig Steele, Schuck & Sons Construction Company, Inc. (employer users)
    Title: President and CEO.
    Organization/interests represented: Employers and users engaged in
     residential construction.
    Experience: 30 years' experience in the construction industry with
     Schuck & Sons Construction Company, Inc.

Darlaine Taylor, Century Steel Erectors, Inc. (employer users)
    Title: Vice President.
    Organization/interests represented: Steel erection and leased crane
     users.
    Experience: 19 years' with Century Steel Erectors, over 12 years' in
     the construction safety field.
Wallace Vega III, Entergy Corp. (power line owners)
    Organization/interests represented: Power line owners.
    Experience: 35 years' experience in the power line industry.
William J. ``Doc'' Weaver, National Electrical Contractors Association
 (employer users)
    Organization/interests represented: Electrical contractors engaged
     in power line construction.
    Experience: Over 53 years' electrical construction experience, 37 of
     which spent in management positions.
Robert Weiss, Cranes, Inc. and A.J. McNulty & Company, Inc. (employer
 users)
    Title: Vice President and Project Manager for Safety.
    Organization/interests represented: Employers and users engaged in
     precast concrete erection.
    Experience: 20 years' experience in the precast and steel erection
     industry.
Doug Williams, C.P. Buckner Steel Erection (employer users)
    Title: President.
    Organization/interests represented: Buckner Heavy Lift Cranes.
    Experience: 32 years' experience in the construction industry.
Stephen Wiltshire, Sports and Public Assembly Group, Turner Construction
 Corp. (employer users)
    Title: National Safety Director.
    Organization/interests represented: Employers and users of owned and
     leased cranes.
    Experience: 28 years' experience in construction safety.
Charles Yorio, Acordia (Wells Fargo) (insurance)
    Title: Assistant Vice President.
    Organization/interests represented: Insurance.
    Experience: 17 years' experience in loss prevention and regulatory
     compliance.
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    As this summary of qualifications shows, the Committee members had
vast and varied experience in cranes and derricks in construction,
which gave them a wealth of knowledge in the causes of accidents and
other safety issues involving such equipment. The members used this
knowledge to identify issues that required particular attention and to
devise regulatory language that would address the causes of such
accidents. Their extensive practical experience in the construction
industry and the other industries represented on the Committee helped
them to develop revisions to the current subpart N requirements.
    C-DAC was chaired by a facilitator, Susan L. Podziba of Susan
Podziba & Associates, a firm engaged in public policy mediation and
consensus building. Ms. Podziba's role was to facilitate the
negotiations by: (1) Chairing the Committee's meetings in an impartial
manner; (2) Assisting the members of the committee in conducting
discussions and negotiations; and (3) Ensuring minutes of the meetings
were taken, and relevant records retained; (4) Performing other
responsibilities such as drafting meeting summaries to be reviewed and
approved by C-DAC members.
    C-DAC first met from July 30 to August 1, 2003. Before addressing
substantive issues, the Committee developed ground rules (formally
approved on September 26, 2003) that would guide its deliberations.
(OSHA-S030-2006-0663-0373.) In addition to procedural matters, the
ground rules addressed the Committee's decision-making process. C-DAC
agreed that it would make every effort to reach unanimous agreement on
all issues. However, if the facilitator determined that unanimous
consent could not be achieved, the Committee would consider consensus
to be reached when not more than two non-Federal members (i.e., members
other than the OSHA member) dissented; no consensus could be achieved
if OSHA dissented.
    This consensus process reflects the non-Federal members' view that
Agency support of the Committee's work was essential. The non-Federal
members believed that, if OSHA dissented, the Committee's work product
likely would not be included in the final rule. Therefore, the
Committee members would make every effort to resolve the Agency's
concerns using the negotiation process.
    Under the ground rules, if C-DAC reached final consensus on some or
all issues, OSHA would use the consensus-based language in its proposed
standard, and C-DAC members would refrain from providing formal written
negative comment on those issues in response to the proposed rule.
    The ground rules provided that OSHA could only depart from the
consensus-based language by (1) reopening the negotiated rulemaking
process, or (2) providing the C-DAC members with a detailed statement
of the reasons for revising the consensus-based language, and do so in
a manner that would allow the C-DAC members to express their concerns
to OSHA before it published the proposed rule. The Committee members
also could provide negative or positive comments in response to these
revisions during the public-comment phase of the rulemaking. (OSHA-
S030-2006-0663-0373.)
    A tentative list of issues for the Committee to address was
published along with the final list of Committee members (68 FR at
39877, Jul. 3, 2003). At its initial meeting, the Committee reviewed
and revised the issue list, adding several issues. (OSHA-S030-2006-
0663-0372.) The Committee met 11 times between July 30, 2003 and July
9, 2004. As the meetings progressed, the Committee reached consensus
agreement on various issues and, at the final meeting, reached
consensus agreement on all outstanding issues.
    The Committee's work product, which was the Committee's recommended
regulatory text for the proposed rule, is referred to in this notice as
the ``C-DAC Document.'' (OSHA-S030-2006-0663-0639.) On October 12,
2006, ACCSH adopted a resolution supporting the C-DAC Document and
recommending that OSHA use it as the basis for a proposed standard.
(OSHA-ACCSH2006-1-2006-0198-0021.)
    OSHA issued a proposed rule based on the C-DAC Document on October
9, 2008 (73 FR 59713, Oct. 9, 2008). In reviewing the C-DAC Document
and drafting the proposed rule, OSHA identified several problems in the
C-DAC Document. These problems ranged from misnumbering and other
typographical and technical errors, to

provisions that appeared to be inconsistent with the Committee's
purpose, or that were worded in a manner that required clarification.
The proposed rule deviated from the C-DAC Document when revisions were
clearly needed to validly represent the Committee's purpose or to
correct typographical and technical errors. With respect to substantive
revisions, the Agency identified and explained these revisions in the
portions of the preamble to the proposed rule that addressed the
affected provisions. OSHA also prepared a draft of the proposed
regulatory language identifying each instance in which the proposed
rule differed from the C-DAC Document. In accordance with the ground
rules, prior to publication of the proposed rule in the Federal
Register, OSHA provided the draft showing the revisions to the C-DAC
Document, along with its draft of the summary and explanation of the
proposed rule, to the C-DAC members.
    Additionally, the Agency identified other instances in which the
regulatory text drafted by the Committee did not appear to conform to
the Committee's purpose, or instances in which a significant issue did
not appear to have been considered by C-DAC. In these instances, OSHA
retained the regulatory language used in the C-DAC Document, but asked
for public comment on whether specific revisions should be made to the
proposed regulatory language in the final rule.
    The proposed rule set a deadline of December 8, 2008, for the
public to submit comments on the proposal. At the request of a number
of stakeholders, this deadline was subsequently extended to January 22,
2009 (73 FR 73197, Dec. 2, 2009). On March 17, 2009, OSHA convened a
public hearing on the proposal, with Administrative Law Judge John M.
Vittone presiding. The hearing lasted four days, closing on March 20.
In addition to Judge Vittone, Administrative Law Judge William S.
Colwell presided during the last part of the hearing. At the close of
the hearing, Judge Colwell established a posthearing comment schedule.
Participants were given until May 19, 2009 to supplement their
presentations and provide data and information in response to questions
and requests made during the hearing, make clarifications to the
testimony and record that they believed were appropriate, and submit
new data and information that they considered relevant to the
proceeding. Participants also were given until June 18, 2009, to
comment on the testimony and evidence in the record, including
testimony presented at the hearing and material submitted during the
first part of the posthearing comment period.

C. Hazards Associated With Cranes and Derricks in Construction Work

    OSHA estimates that 89 crane-related fatalities occur per year in
construction work. The causes of crane-related fatalities were recently
analyzed by Beavers, et al. (See J.E. Beavers, J.R. Moore, R. Rinehart,
and W.R. Schriver, ``Crane-Related Fatalities in the Construction
Industry,'' 132 Journal of Construction Engineering and Management 901
(Sept. 2006) (ID OSHA-2007-0066-0012 \1\).) The authors searched OSHA's
Integrated Management Information System (IMIS) database for all fatal
accidents for 1997-2003 investigated by OSHA involving cranes in the
construction industry. By searching the database for cases using the
key words ``crane,'' ``derrick,'' or ``boom,'' they identified 381 IMIS
files for the covered year in the Federal program states, which include
states with about 57% of all workers throughout the country. The
authors requested the case files from OSHA so that they could confirm
that a crane or derrick was involved in the fatality. Of the 335 case
files that OSHA provided, the authors identified 125 (involving 127
fatalities) as being crane or derrick related. From these files, they
determined the percentages of fatalities caused by various types of
incidents (see Table 2 below).
---------------------------------------------------------------------------

    \1\ The term ``ID'' refers to the column labeled ``ID'' under
Docket No. OSHA-2007-0066 on the Federal eRulemaking Portal, http://
www.regulations.gov. This column lists individual records in the
docket. Hereafter, this notice will identify each of these records
only by the last four digits of the record. Records from dockets
other than OSHA-2007-0066 are identified by their full ID number.

  Table 2--The Causes of Fatalities During the Performance of Hoisting
                               Activities
------------------------------------------------------------------------

------------------------------------------------------------------------
Struck by load (other than failure of boom/cable)..........          32%
Electrocution..............................................          27%
Crushed during assembly/disassembly........................          21%
Failure of boom/cable......................................          12%
Crane tip-over.............................................          11%
Struck by cab/counterweight................................           3%
Falls......................................................           2%
------------------------------------------------------------------------

    A study by Suruda et al. examined the causes of crane-related
deaths for the 1984-1994 period. (See A. Suruda, M. Egger, and D. Liu,
``Crane-Related Deaths in the U.S. Construction Industry, 1984-94,''
The Center to Protect Workers' Rights (Oct. 1997) (ID-0013).) The
authors examined OSHA IMIS data to identify the number of fatal
accidents involving cranes, and determined their causes. For the years
in question, they found 479 accidents involving 502 fatalities. In the
worst year, 1990, 70 deaths occurred. The authors noted some
limitations in the data they examined: Data for California, Michigan,
and Washington State were not available for 1984-1989; the proportion
of fatal accidents investigated by OSHA and states having OSHA-approved
State plans is unknown; and some of the investigation reports were not
sufficiently detailed to allow the authors to determine the cause of
the accident or the type of crane involved.
    The Suruda study determined the number and the percentage of
fatalities from various causes (see Table 3 below).

                 Table 3--The Causes of Crane Incidents
------------------------------------------------------------------------

------------------------------------------------------------------------
Electrocution..............................................    198 (39%)
Crane assembly/disassembly.................................     58 (12%)
Boom buckling/collapse.....................................      41 (8%)
Crane upset/overturn.......................................      37 (7%)
Rigging failure............................................      36 (7%)
Overloading................................................      22 (4%)
Struck by moving load......................................      22 (4%)
Accidents related to manlifts..............................      21 (4%)
Working within swing radius of counterweight...............      17 (3%)
Two-blocking...............................................      11 (2%)
Hoist limitations..........................................       7 (1%)
Other causes...............................................      32 (6%)
------------------------------------------------------------------------

    This final standard addresses the major causes of the equipment-
related fatalities identified in the Beavers and Suruda studies. The
following synopsis identifies the sections in the final standard that
address the major causes of equipment-related fatalities.
    Electrocution hazards are addressed by Sec. Sec.  1926.1407-
1926.1411, which deal with power-line safety. These sections contain
requirements to prevent equipment from contacting energized power
lines. The final standard delineates systematic, reliable procedures
and methods that employers must use to prevent a safe clearance
distance from being breached. If maintaining the safe clearance
distance is infeasible, additional protections are required, including
grounding the equipment, covering the line with an insulating sleeve,
and using insulating links and nonconductive tag lines.
    These procedures and methods are supplemented by requirements for
training the operator and crew in power-line safety (see Sec.
1926.1408(g)), and requirements for operator qualification and
certification in Sec.  1926.1427. C-DAC concluded that compliance with
these training and certification requirements will not only reduce the
frequency of power-line contact, but will give the

workers the knowledge they need to help avoid injury in the event such
contact occurs.
    Fatalities that involve employees being struck or crushed during
assembly/disassembly are addressed in Sec. Sec.  1926.1403-1926.1406.
These sections require employers to follow specific safe-practice
procedures, and to address a list of specific hazards. Also, assembly
and disassembly of a crane must be supervised by an individual who is
well qualified to ensure that these requirements of these provisions
are properly implemented.
    As the above-mentioned studies show, and the Committee's experience
confirms, many disassembly accidents occur when sections of lattice
booms unexpectedly move and strike or crush an employee who is
disassembling the boom. The final standard addresses this hazard in
Sec.  1926.1404(f) by prohibiting employees from being under the boom
when pins are removed unless special precautions are taken to protect
against boom movement.
    Accidents resulting from boom or cable failure are addressed in a
number of provisions. For example, the standard includes requirements
for: proper assembly procedures (Sec.  1926.1403); boom stops to
prevent booms from being raised too far and toppling over backwards
(Sec.  1926.1415, Safety devices); a boom-hoist limiting device to
prevent excessive boom travel, and an anti two-block device, which
prevents overloading the boom from two-blocking (Sec.  1926.1416,
Operational aids). Also, the inspection requirements (Sec.  1926.1412)
detect and address structural deficiencies in booms before an accident
occurs. Cable failure will be avoided by compliance with sections such
as Sec.  1926.1413, Wire rope--inspection, and Sec.  1926.1414, Wire
rope--selection and installation criteria.
    Crane tip-over is caused by factors such as overloading, improper
use of outriggers and insufficient ground conditions. Section
1926.1417, Operations, includes provisions to prevent overloading. This
section prohibits the equipment from being operated in excess of its
rated capacity, and includes procedures for ensuring that the weight of
the load is reliably determined and within the equipment's rated
capacity. Section 1926.1404(q) has requirements for outrigger/
stabilizer use that will ensure that outriggers and stabilizers provide
stability when a load is lifted. Section 1926.1402 contains
requirements to ensure sufficient ground conditions, which will prevent
crane tip-over.
    The provisions addressing operator training, qualification, and
certification also will prevent tip-over accidents by ensuring that the
operator is sufficiently knowledgeable and skilled to recognize
situations when the crane may be overloaded.
    Fatalities that result from workers being struck by the cab or
counterweights will be avoided under Sec.  1926.1424, Work area
control. That section requires that workers who are near equipment with
a rotating superstructure be trained in the hazards involved, that
employers mark or barricade the area covered by the rotating
superstructure, and that the operator be notified whenever a worker
must enter that area, and instructed not rotate the superstructure
until the area is clear. Protection against being struck by a
counterweight during assembly or disassembly is provided by Sec.
1926.1404(h)(9), which requires the assembly/disassembly supervisor to
address this hazard and take steps when necessary to protect workers
against that danger.
    The final rule addresses a number of equipment failures that can
result in the load striking a worker. Such accidents are directly
addressed by Sec.  1926.1425, Keeping clear of the load, and Sec.
1926.1426, Free fall/controlled load lowering. In addition, improved
requirements in Sec. Sec.  1926.1419-1926.1422 for signaling will help
avoid load struck-by accidents caused by miscommunication.
    Improper operation, including failure to understand and compensate
for the effects of factors such as dynamic loading, can also cause
workers to be struck by a load. Such incidents will be reduced by
compliance with Sec.  1926.1427, Operator qualification and
certification and Sec.  1926.1430, Training. Other provisions, such as
those for safety devices and operational aids (Sec. Sec.  1926.1415 and
1926.1416), and the requirement for periodic inspections in Sec.
1926.1412, will also reduce these accidents.
    Protection against falling from equipment is addressed by Sec.
1926.1423, Fall protection. That section requires that new equipment
provide safe access to the operator work station, using devices such as
steps, handholds, and grabrails. Some new lattice-boom equipment must
be equipped with boom walkways. The final standard also contains fall-
protection provisions tailored to assembly and disassembly work, and to
other work. Section 1926.1431, Hoisting personnel, addresses fall
protection when employees are being hoisted.
    OSHA has investigated numerous crane accidents that resulted in
fatalities. Below are examples from OSHA's IMIS investigation reports
that describe accidents that compliance with this final standard would
prevent.
    1. February 16, 2004: four fatalities, four injuries. A launching
gantry collapsed and fatally injured four workers and sent four other
workers to the hospital. The launching gantry was being used to erect
pre-cast concrete segments span by span. The manufacturer required that
the rear legs and front legs be properly anchored to resist
longitudinal and lateral forces that act on the launching gantry. The
legs of the launching gantry were not properly anchored. (ID-0017.)
    OSHA believes that this type of accident will be prevented by
compliance with the provisions of this final standard for assembling
equipment. Section 1926.1403 requires that equipment be assembled in
compliance with the manufacturer's procedures, or with alternative
employer procedures (see Sec.  1926.1406) to prevent the equipment from
collapsing. In addition, under Sec.  1926.1404, assembly must be
conducted under the supervision of a person who understands the hazards
associated with an improperly assembled crane and is well-qualified to
understand and comply with the proper assembly procedures.
    2. January 30, 2006. One fatality. An employee was crushed by the
lower end section of the lattice boom on a truck-mounted crane while
working from a position underneath the boom to remove the 2nd lower
pin. When the 2nd lower pin was removed, the unsecured/uncribbed boom
fell on the employee. (ID-0017.1.)
    Section 1926.1404(f) will prevent this type of accident by
generally prohibiting employees from being under the boom when pins are
removed. In situations in which site constraints require that an
employee be under the boom when pins are removed, the employer must
implement other procedures, such as ensuring that the boom sections are
adequately supported, to prevent the sections from falling on the
employee.
    3. July 23, 2001: One fatality. Employee failed to extend the
outriggers before extending the boom of a service-truck crane to lift
pipes. As the employee extended the boom, the crane tipped over on its
side, and another employee standing near the truck was struck on the
head by the hook block. (ID-0017.10.)
    This type of accident will be prevented by compliance with Sec.
1926.1404(q), which contains several provisions to ensure that
outriggers and stabilizers are deployed properly before lifting a load.
In addition, the operator

qualification and certification requirements of Sec.  1926.1427, which
ensure that operators understand and follow the safety-requirements for
the equipment they are operating, will help prevent this type of
accident.
    4. March 8, 1999. One fatality. Employees were using a mobile crane
to maneuver a load of steel joists. The crane contacted a 7,200-volt
overhead power line, electrocuting an employee who was signaling and
guiding the load. The crane operator jumped clear and was not injured.
(ID-0017.11.)
    Section 1926.1408 includes provisions that will prevent this type
of accident. This section requires the use of ``encroachment
prevention'' measures to prevent the crane from breaching a safe
clearance distance from the power line. It also requires that, if tag
lines are used to guide the load, the lines must be non-conductive.
Finally, if maintaining the normal clearance distance is infeasible, a
number of additional measures must be implemented, one of which is the
use of an insulating link between the end of the load line and the
load.
    These measures protect employees guiding the load in several ways,
including: reducing the chance that a crane would contact a power line;
employees using tag lines to guide a load from being electrocuted
should the load become energized.
    5. August 21, 2003. Three fatalities. A crane operator and two co-
workers were electrocuted when a truck crane's elevated boom contacted
a 7,200 volt uninsulated primary conductor 31 feet above the ground.
When the operator stepped from the cab of the truck, a conduction
pathway to the ground was established through the operator's right hand
and right foot, resulting in electrocution. A co-worker attempted to
revive the incapacitated crane operator with cardio-pulmonary
resuscitation (``CPR''), while a third co-worker contacted 911, and
then returned to the incident location. When the third co-worker
simultaneously touched the energized truck crane and the back of the
co-worker performing CPR, the resulting pathway conducted the
electrical charge through the workers, electrocuting them all. (ID-
0017.12.)
    The final standard will avoid this type of accident. Section
1926.1408 ensures that a minimum safe distance from the power line is
maintained, which prevents equipment from becoming energized. Also,
when working closer than the normal minimum clearance distance, the
crane must be grounded, which reduces the chance of an electrical
pathway through the workers.
    In addition, Sec.  1926.1408(g) requires that the operator be
trained to remain inside the cab unless an imminent danger of fire or
explosion is present. The operator also must be trained in the hazards
associated with simultaneously touching the equipment and the ground,
as well as the safest means of evacuating the equipment. The crane's
remaining crew must be trained to avoid approaching or touching the
equipment. The required training is reinforced by the electrocution
warnings that must be posted in the cab and on the outside of the
equipment.
    6. September 28, 1999: One fatality. A 19-year old electrical
instrument helper was at a construction site that was on a
manufacturing company's property. A contractor positioned a 50-ton
hydraulic crane in an open area that consisted of compacted fill
material. This area was the only location that the crane could be
situated because the receiving area for the equipment was too close to
the property border.
    The crane's outriggers were set, but matting was placed only under
one of the outrigger pads. As the crane was moving large sections of
piping to a new location, the ground collapsed and the crane
overturned, striking the helper. (ID-0017.13.)
    Section 1926.1402, Ground conditions, will prevent this type of
accident. Under that section, employers must ensure that the surface on
which a crane is operating is sufficiently level and firm to support
the crane in accordance with the manufacturer's specifications. In
addition, Sec.  1926.1402 imposes specific duties on both the entity
responsible for the project (the controlling entity) and the entity
operating the crane to ensure that the crane is adequately supported.
It places responsibility for ensuring that the ground conditions are
adequate on the controlling entity, while also making the employer
operating the crane responsible notifying the controlling entity of any
deficiency in the ground conditions, and having the deficiency
corrected before operating the crane.
    7. June 17, 2006: One fatality. A spud pipe, used to anchor a
barge, was being raised by a crane mounted on the barge when the
hoisting cable broke, causing the headache ball and rigging to on an
employee. (ID-0017.3.)
    This type of accident can have various causes: an improperly
selected wire rope (one that has insufficient capacity); a damaged or
worn wire rope in need of replacement; or two-blocking, in which the
headache ball is forced against the upper block, causing the wire rope
to fail. The provisions of Sec. Sec.  1926.1413 and 1926.1414 address
wire rope inspection, selection, and installation, and will ensure that
appropriate wire rope is installed, inspected and removed from service
when continued use is unsafe. Section 1926.1416, Operational aids,
contains provisions to protect against two-blocking.
    8. July 13, 1999: Three fatalities. Three employees were in a
personnel basket 280 feet above the ground. They were in the process of
guiding a large roof section, being lifted by another crane, into
place. Winds gusting to 27 miles per hour overloaded the crane holding
the roof section; that crane collapsed, striking the crane that was
supporting the personnel basket, causing the boom to fall. All three
employees received fatal crushing injuries. (ID-0018.)
    This type of accident will be prevented by Sec.  1926.1417(n),
which requires the competent person in charge of the operation adjust
the equipment and/or operations to address the effect of wind and other
adverse weather conditions on the equipment's stability and rated
capacity. In addition, Sec.  1926.1431, Hoisting personnel, requires
that, when wind speed (sustained or gust) exceeds 20 mph, employers
must not hoist employees by crane unless a qualified person determines
it is safe to do so.
    9. November 7, 2005: One fatality. A construction worker was
crushed between the outrigger and the rotating superstructure of a
truck crane. The worker apparently was trying to retrieve a level and a
set of blueprints located horizontal member of one of the outriggers
when the operator began to swing the boom. (ID-0017.5.)
    Section 1926.1424, Work area control, will prevent this type of
accident. This section generally requires that employers erect barriers
to mark the area covered by the rotating superstructure to warn workers
of the danger zone. However, workers who must work near equipment with
a rotating superstructure must be trained in the hazards involved. If a
worker must enter a marked area, the crane operator must be notified of
the entry, and must not rotate the superstructure until the area is
clear.
    10. March 19, 2005: Two fatalities and one injury. During steel-
erection operations, a crane was lifting three steel beams to a parking
garage. The crane tipped over and the boom collapsed. The boom and
attached beams struck concrete workers next to the structure, killing
two workers and injuring one worker. The accident apparently occurred
because the crane was overloaded. (ID-0017.6.)

    Overloading a crane can cause it to tip over, causing the load or
crane structure to strike and fatally injure workers in the vicinity of
the crane. Section 1926.1417, Operations, includes provisions to
prevent overloading. This section prohibits employers from operating
equipment in excess of its rated capacity, and includes procedures for
ensuring that the weight of the load is reliably determined and within
the equipment's rated capacity.
    The provisions of the final standard addressing operator training,
certification, and qualification (Sec.  1926.1427) will also prevent
this type of accident by ensuring that operators recognize conditions
that would overload the crane.
    11. December 7, 2005. One fatality. Two cranes were used to lower a
concrete beam across a river. During the lowering process, one end of
the beam dropped below the other end, causing the load's weight to
shift to the lower end; this shift in weight overloaded the crane
lifting the lower end, and it tipped over. The lower end of the beam
fell into the river, while the higher end landed on a support mat
located on the bank of the river, causing a flagger to be thrown into
the beam. (ID-0017.7.)
    Section 1926.1432, Multiple crane/derrick lifts--supplemental
requirements, will prevent this type of accident. This section
specifies that, when more than one crane is supporting a load, the
operation must be performed in accordance with a plan developed by a
qualified person. The plan must ensure that the requirements of this
final standard are met, and must be reviewed by all individuals
involved in the lifting operation. Moreover, the lift must be
supervised by an individual who qualifies as both a competent person
and a qualified person as defined by this final standard. For example,
in the accident just described, the plan must include a determination
of the degree of level needed to prevent either crane from being
overloaded. In addition, the plan must ensure proper coordination of
the lifting operation by establishing a system of communications and a
means of monitoring the operation.
    12. May 7, 2004: One fatality. An employee, a rigger/operator-in-
training, was in the upper cab of a 60-ton hydraulic boom-truck crane
to set up and position the crane boom prior to a lift. The crane was
equipped with two hoists--a main line and auxiliary. The main hoist
line had a multi-sheave block and hook and the auxiliary line had a 285
pound ball and hook. When the employee extended the hydraulic boom, a
two-block condition occurred with the auxiliary line ball striking the
auxiliary sheave head and knocking the sheave and ball from the boom.
The employee was struck in the head by the falling ball. (ID-0017.8.)
    This type of accident will be prevented by Sec.  1926.1416,
Operational aids, which requires protection against two-blocking. A
hydraulic boom crane, if manufactured after February 28, 1992, must be
equipped with a device that automatically prevents two-blocking.
    Also, the final rule, under Sec.  1926.1427(a) and (f), prohibits
an operator-in-training from operating a crane without being monitored
by a trainer, and without first having sufficient training to enable
the operator-in-training to perform the assigned task safely.
    13. April 26, 2006: One fatality. A framing crew was installing
sheathing for a roof. A crane was hoisting a bundle of plywood
sheathing to a location on the roof. As the crane positioned the bundle
of sheathing above its landing location, the load hoist on the crane
free spooled, causing an uncontrolled descent of the load. An employee
was under the load preparing to position the load to its landing spot
when the load fell and crushed him. (ID-0017.9.)
    Section 1926.1426, Free fall and controlled load lowering, will
prevent this type of accident. This section prohibits free fall of the
load-line hoist, and requires controlled lowering of the load when an
employee is directly under the load.
    As discussed later in the section titled, Executive Summary of the
Final Economic Analysis; Final Regulatory Flexibility Analysis, OSHA
finds that construction workers suffer 89 fatal injuries per year from
the types of equipment covered by this final standard. Of that number,
OSHA estimates that 21 fatalities would be avoided by compliance with
the final standard. In addition, OSHA estimates that the final standard
would prevent 175 non-fatal injuries each year. Based on its review of
all the available evidence, OSHA finds that construction workers have a
significant risk of death and injury resulting from equipment
operations, and that the risk would be substantially reduced by
compliance with this final standard.
    The OSH Act requires OSHA to make certain findings with respect to
standards. One of these findings, specified by Section 3(8) of the OSH
Act, requires an OSHA standard to address a significant risk and to
reduce this risk substantially. (See UAW v. OSHA, 37 F.3d 665, 668 (DC
Cir. 1994) (``LOTO'').) As discussed in Section II of this preamble,
OSHA finds that crane and derrick operations in construction constitute
a significant risk and estimates that the final standard will prevent
22 fatalities and 175 injuries annually. Section 6(b) of the OSH Act
requires OSHA to determine if its standards are technologically and
economically feasible. As discussed in Section V of this preamble, OSHA
finds that this final standard is economically and technologically
feasible.
    The Regulatory Flexibility Act (5 U.S.C 601, as amended) requires
that OSHA determine whether a standard will have a significant economic
impact on a substantial number of small firms. As discussed in Section
V, OSHA examined the small firms affected by this standard and
certifies that the final standard will not have a significant impact on
a substantial number of small firms.
    Executive Order 12866 requires that OSHA estimate the benefits,
costs, and net benefits of its standards. The table below summarizes
OSHA's findings with respect to the estimated costs, benefits, and net
benefits of this standard. As is clear, the annual benefits are
significantly in excess of the annual costs. However, it should be
noted that under the OSH Act, OSHA does not use the magnitude of net
benefits as decision-making criterion in determining what standards to
promulgate.

         Annual Benefits, Costs, and Net Benefits, 2010 Dollars
------------------------------------------------------------------------

------------------------------------------------------------------------
Annualized Costs*:
    Crane Assembly/Disassembly........  $16.3 million.
    Power Line Safety.................  68.2 million.
    Crane Inspections.................  16.5 million.
    Ground Conditions.................  2.3 million.
    Operator Qualification and          50.7 million.
     Certification.
                                       ---------------------------------
        Total Annualized Costs........  154.1 million.

Annual Benefits:
    Number of Injuries Prevented......  175.
    Number of Fatalities Prevented....  22.
    Property Damage from Tipovers       7 million.
     Prevented.
                                       ---------------------------------
        Total Monetized Benefits......  $209.3 million.
                                       ---------------------------------
Annual Net Benefits (Benefits minus     $55.2 million.
 Costs).
------------------------------------------------------------------------
Source: OSHA Office of Regulatory Analysis.
*Costs with 7% discount rate. Total costs with 3% discount rate: $150.4
  million annually.

    During the SBREFA process, several Small Entity Representatives
expressed concern that the C-DAC Document was so long and complex that
small businesses would have difficulty understanding it and complying
with it. The SBREFA Panel recommended that OSHA solicit public comment
on how the rule could be simplified and made easier to understand. In
the proposal, OSHA requested public comment on this issue. The Agency
did not receive any comments objecting to the length or clarity of the
overall rule, or any comment on how to simplify the final rule. Some
commenters recommended that specific provisions be clarified, and these
comments are addressed later in this preamble.

III. The SBREFA Process

    Before proceeding with a proposed rule based on the C-DAC Document,
OSHA was required to comply with the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. (SBREFA). This
process required OSHA to draft an initial regulatory flexibility
analysis that would evaluate the potential impact of the rule on small
entities (defined as small businesses, small governmental units, and
small nonprofit organizations) and identify the type of small entities
that may be affected by the rule. In accordance with SBREFA, OSHA then
convened a Small Business Advocacy Review Panel (``Panel'') composed of
representatives of OSHA, the Office of Management and Budget, and the
Office of Advocacy of the Small Business Administration. Individuals
who were representative of affected small entities (i.e., Small Entity
Representatives, or ``SERs'') were identified for the purpose of
obtaining advice and recommendations regarding the potential impacts of
the proposed rule.
    OSHA provided the SERs with the C-DAC Document and the draft
Regulatory Flexibility Analysis, and requested that they submit written
comments on these documents. The Agency also drafted questions asking
for their views on the specific aspects of the C-DAC Document that OSHA
believed may be of concern to small entities.
    The Panel conducted two conference calls with the SERs in which the
SERs presented their views on various issues. After reviewing the SERs'
oral and written comments, on October 17, 2006, the Panel submitted its
report summarizing the requirements of the C-DAC proposal and the
comments received from the SERs, and presenting its findings and
recommendations. (OSHA-S030A-2006-0664-0019.) In its findings and
recommendations, the Panel identified issues that it believed OSHA
should address in the proposal (1) through further analysis, and (2) by
soliciting public comment. In the proposed rule, OSHA addressed each of
the Panel's findings and recommendations in the section pertaining to
the issue involved, and also solicited public comment on the issues
raised by the Panel. The following table lists the recommendations made
by the Panel, and OSHA's responses to these recommendations.

        Table 4--SBREFA Panel Recommendations and OSHA Responses
------------------------------------------------------------------------
      SBREFA Panel Recommendation                 OSHA Response
------------------------------------------------------------------------
The Panel recommends that OSHA provide   OSHA has developed a full
 full documentation for how it            preliminary economic analysis
 estimated the number of affected small   (PEA) for the proposal which
 entities and all other calculations      explains all assumptions used
 and estimates provided in the PIRFA.     in estimating the costs and
                                          benefits of the proposed
                                          standard. The Final Economic
                                          Analysis (FEA) also explains
                                          the changes made to the
                                          analysis as a result of
                                          comments on the proposed rule,
                                          and OSHA's responses to these
                                          comments.
The Panel recommends that OSHA           OSHA included homebuilding
 reexamine its estimate of crane use in   industries in the ``Own but Do
 home building, the coverage of crane     Not Rent'' and ``Crane
 trucks used for loading and unloading,   Lessees'' industrial profile
 and the estimates of the number of       categories.
 jobs per crane. Changes in these        OSHA has also made a number of
 estimates should be incorporated into    additions to the industrial
 the estimates of costs and economic      profile to cover firms in
 impacts.                                 general industry that
                                          sometimes use cranes for
                                          construction work, and has
                                          added costs for these sectors.
The Panel recommends that OSHA review    OSHA sought comments on the
 its estimates for the direct costs of    estimates and methodology. As
 operator certification and seek          a result of these comments,
 comment on these cost estimates.         OSHA has increased its
                                          estimate of the unit costs of
                                          certification.
The Panel recommends that OSHA           OSHA sought public comment on
 carefully examine certain types of       all aspects (including
 impact that could result from an         economic impacts, wages,
 operator certification requirement,      number of operators, demand,
 including reports of substantial         etc.) of the operator
 increases in the wages of operators;     certification requirements,
 the possibility of increased market      specifically as it pertains to
 power for firms renting out cranes;      the State of California.
 and loss of jobs for existing           OSHA has included 2 hours of
 operators due to language, literacy,     travel time per operator into
 or knowledge problems; and seek          the unit costs for operator
 comment on these types of impacts. The   certification.
 Panel also recommends studying the      OSHA also increased the unit
 impacts of the implementation of         costs of operator
 operator certification in CA.            certification as a result of
                                          comments. However, based on
                                          comments, OSHA also reduced
                                          the OSHA percentage of crane
                                          operators still needing
                                          certification.

                                         The Agency reviewed data on
                                          wage rates for operators in
                                          California immediately before
                                          and after operator
                                          certification was required
                                          (Employment Development
                                          Department, Labor Market
                                          Information Division, State of
                                          California, 2007). The data
                                          did not show much change in
                                          operators' wages.
                                         OSHA also evaluated the changes
                                          in crane related fatality
                                          rates in California and found
                                          these had significantly
                                          declined after the California
                                          certification requirements
                                          were put into place.
The Panel recommends that OSHA           OSHA sought comment on the
 reexamine its estimates for the amount   methodology used to calculate
 of time required to assess ground        all of the costs in the PEA,
 conditions, the number of persons        which includes the costs for
 involved in the assessment, and the      assessing ground conditions.
 amount of coordination involved;        As a result of these comments,
 clarify the extent to which such         OSHA has added costs for
 assessments are currently being          examination of ground
 conducted and what OSHA estimates as     conditions. This addition of
 new costs for this rule represent; and   costs does not change OSHA's
 seek comments on OSHA's cost estimates.  conclusion that this standard
                                          is economically feasible.
The Panel recommends that OSHA           The Agency describes the
 carefully review the documentation       documentation requirements,
 requirements of the standard,            along with cost estimates, in
 including documentation that employers   the section of this preamble
 may consider it prudent to maintain;     entitled ``OMB Review Under
 estimate the costs of such               the Paperwork Reduction Act of
 requirements; seek ways of minimizing    1995.''
 these costs consistent with the goals
 of the OSH Act; and solicit comment on
 these costs and ways of minimizing
 these costs.
The Panel recommends that OSHA examine   As explained in the discussion
 whether the inspection requirements of   of Sec.   1926.1412,
 the proposed rule require procedures     Inspections, OSHA's former
 not normally conducted currently, such   standard at former Sec.
 as lowering and fully extending the      1926.550 requires inspections
 boom before the crane can be used, and   each time the equipment is
 removing non-hinged inspection plates    used, as well as thorough
 during the shift inspection, estimate    annual inspections. In
 the costs of any such requirements,      addition, national consensus
 and seek comment on these issues.        standards that are
                                          incorporated by reference
                                          include additional inspection
                                          requirements. This final
                                          standard would list the
                                          inspection requirements in one
                                          place rather than rely on
                                          incorporated consensus
                                          standards. This final standard
                                          does not impose significant
                                          new requirements for
                                          inspections. OSHA received
                                          comments on the issue of
                                          lowering and fully extending
                                          the boom before the crane can
                                          be used. However, OSHA
                                          concludes that the comments
                                          were based on a general
                                          misunderstanding of the
                                          requirements. Section
                                          1926.1413(a) explicitly says
                                          that booming down is not
                                          required for shift (and
                                          therefore monthly)
                                          inspections.
                                         Similarly, OSHA stated in the
                                          proposed preamble (73 FR
                                          59770, Oct. 9, 2008) that it
                                          does not believe inspection of
                                          any of those items would
                                          require removal of non-hinged
                                          inspection plates. In the
                                          discussion of proposed Sec.
                                          1926.1412, OSHA requested
                                          public comment on this point.
                                          OSHA finalized Sec.
                                          1926.1412 as proposed because
                                          comments did not confirm that
                                          non-hinged plates needed to be
                                          removed to meet the
                                          requirements of a shift
                                          inspection.
The Panel recommends that OSHA consider  Previous subpart N, at former
 the costs of meeting the requirements    Sec.   1926.550(a)(2),
 for original load charts and full        required load charts; this is
 manuals, and solicit comments on such    not a new cost. Subpart N did
 costs.                                   not require manuals. OSHA
                                          concludes that most crane
                                          owners and operators have and
                                          maintain crane manuals, which
                                          contain the load charts and
                                          other critical technical
                                          information about crane
                                          operations and maintenance.
                                          The Agency determined that the
                                          cost of obtaining a copy of a
                                          manual should be modest and
                                          solicited comment on how many
                                          owners or operators do not
                                          have full manuals for their
                                          cranes or derricks. Few
                                          commenters saw this as a major
                                          problem.
The Panel recommends that OSHA provide   The Agency placed additional
 full documentation for its analysis of   materials in the rulemaking
 the benefits the proposed rule are       docket to aid in the
 expected to produce and assure that      reproduction of the benefits
 the benefits analysis is reproducible    analysis. The Agency also
 by others.                               developed a full benefits
                                          analysis (sec. 4 of the FEA)
                                          which includes the methodology
                                          and data sources for the
                                          calculations.
The Panel recommends that OSHA consider  In the discussion of proposed
 and solicit public comment on whether    Sec.   1926.1400(c)(8), OSHA
 the scope language should be clarified   requested public comment on
 to explicitly state whether forklifts    this issue.
 that are modified to perform tasks
 similar to equipment (cranes and
 derricks) modified in that manner
 would be covered.
The Panel recommends that there be a     OSHA explained in the
 full explanation in the preamble of      discussion of proposed Sec.
 how responsibility for ensuring          1926.1402(e) how the various
 adequate ground conditions is shared     employers, including the
 between the controlling entity, and      controlling entity, the
 the employer of the individual           employer whose employees
 supervising assembly/disassembly and/    operate the equipment, and the
 or the operator.                         employer of the A/D director
                                          share responsibility for
                                          ensuring adequate ground
                                          conditions. OSHA did not
                                          receive any significant
                                          comments on this issue and,
                                          therefore, considers this
                                          matter resolved.
The Panel recommends that OSHA restate   OSHA addressed this
 the applicable corrective action         recommendation in the
 provisions (which are set forth in the   discussion of proposed Sec.
 shift inspection) in the monthly         1926.1412(e) and requested
 inspection section.                      public comment on the issue.
                                          Based on these comments, OSHA
                                          concludes that the
                                          requirements were clear as
                                          proposed, and repeating the
                                          provisions will create
                                          confusion. Therefore, OSHA did
                                          not restate the corrective
                                          actions in Sec.
                                          1926.1412(e).

The Panel recommends that OSHA solicit   OSHA addressed this
 public comment on whether, and under     recommendation in the
 what circumstances, booming down         discussion of proposed Sec.
 should be specifically excluded as a     1926.1412(d) and requested
 part of the shift inspection, and        public comment on the issues
 whether the removal of non-hinged        raised in the recommendation.
 inspection plates should be required
 during the shift inspection.
The Panel recommends that OSHA solicit   OSHA solicited comments on this
 public comment on whether to include     issue, but the Agency did not
 an exception for transportation          receive any significant
 systems in proposed Sec.                 comments supporting an
 1926.1412(a), which requires an          exception for transportation
 inspection of equipment that has had     systems. Based on the analysis
 modifications or additions that affect   of comments received about
 its safe operation, and, if so, what     Sec.   1926.1412(a), OSHA
 the appropriate terminology for such     concludes that the inspections
 an exception would be.                   of modifications as required
                                          by the final rule are
                                          sufficient to ensure that safe
                                          equipment is used. Therefore,
                                          OSHA did include the
                                          recommended exclusion in the
                                          final rule.
The Panel recommends that OSHA explain   In the explanation of Sec.
 in the preamble that the shift           1926.1412(d)(1) of the
 inspection does not need to be           proposed rule, OSHA explained
 completed prior to each shift but may    that the shift inspection may
 be completed during the shift.           be completed during the shift.
                                          OSHA finalized Sec.
                                          1926.1412(d)(1) as proposed
                                          because the comments did not
                                          demonstrate how it was safer
                                          to deviate from the rule as
                                          proposed.
The Panel recommends that OSHA solicit   OSHA requested public comment
 public comment about whether it is       on this issue and revised the
 necessary to clarify the requirement     regulatory text of Sec.
 of proposed Sec.   1926.1412(d)(1)(xi)   1926.1412(d)(1)(xi) to provide
 that the equipment be inspected for      more clarity, in response to
 ``level position.''.                     the comments the Agency
                                          received.
The Panel recommends that OSHA solicit   There is no requirement to
 comment on whether proposed Sec.         check the pressure ``at each
 1926.1412(f)(2)(xii)(D) should be        and every line.'' The
 changed to require that pressure be      provision simply states that
 inspected ``at the end of the line,''    relief valves should be
 as distinguished from ``at each and      checked for failure to reach
 every line,'' and if so, what the best   correct pressure. If this can
 terminology would be to meet this        be done at one point for the
 purpose. (An SER indicated that          entire system, then that would
 proposed Sec.                            satisfy the requirement.
 1926.1412(f)(2)(xiv)(D) should be
 modified to ``checking pressure
 setting,'' in part to avoid having to
 check the pressure at ``each and every
 line'' as opposed to ``at the end of
 the line.'').
The Panel recommends that OSHA solicit   Section 1926.1412(f)(2)(xx) of
 public comment on whether proposed       the final rule does not
 Sec.   1926.1412(f)(2)(xx) should be     require the corrective action
 deleted because an SER believes that     to which the SER refers. If an
 it is not always appropriate to retain   inspection under Sec.
 originally-equipped steps and ladders,   1926.1412(f) reveals a
 such as in instances where they are      deficiency, a qualified person
 replaced with ``attaching dollies.''.    must determine whether that
                                          deficiency is a safety hazard
                                          requiring immediate
                                          correction. If the inspection
                                          reveals that original
                                          equipment, such as stairs and
                                          ladders, have been replaced
                                          with something equally safe,
                                          there would be no safety
                                          hazard and no requirement for
                                          corrective action.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on the extent of          Sec.   1926.1412(f)(7), OSHA
 documentation of monthly and annual/     requested public comment on
 comprehensive inspections the rule       this issue. OSHA finalized
 should require.                          Sec.   1926.1412(f)(7) as
                                          proposed because the comments
                                          did not demonstrate a need to
                                          modify the extent of required
                                          documentation.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on whether the            Sec.   1926.1412(e), OSHA
 provision for monthly inspections        requested public comment on
 should, like the provision for annual    this issue. In response to
 inspections, specify who must keep the   these comments, OSHA has
 documentation associated with monthly    explained in the final
 inspections.                             preamble that the employer who
                                          performs the inspection must
                                          maintain documentation. If
                                          another employer wants to rely
                                          on this inspection, but cannot
                                          ensure completion and
                                          documentation of the
                                          inspection, then that employer
                                          must conduct a monthly
                                          inspection.
The Panel recommends that OSHA consider  OSHA addressed this
 ways to account for the possibility      recommendation in the
 that there may sometimes be an           discussion of proposed Sec.
 extended delay in obtaining the part     1926.1416(d), and requested
 number for an operational aid for        public comment on the issue.
 older equipment and solicit public       The Agency did not receive any
 comment on the extent to which this is   significant comments.
 a problem.
The Panel recommends that the provision  Except for a minor change to
 on fall protection (proposed Sec.        Sec.   1926.1423(h), which was
 1926.1423) be finalized as written and   made for clarity purposes,
 that OSHA explain in the preamble how    OSHA has finalized Sec.
 and why the Committee arrived at this    1926.1423 as proposed. OSHA
 provision.                               explained the Committee's
                                          rationale in the proposed
                                          preamble discussion of Sec.
                                          1926.1423.
The Panel recommends that OSHA consider  OSHA addressed these
 the potential advantages of and          recommendations in the
 solicit public comment on adding         discussion of proposed Sec.
 provisions to proposed Sec.              1926.1427, and requested
 1926.1427 that would allow an operator   public comment on the issues
 to be certified on a particular model    raised by the Panel. Based on
 of crane; allow tests to be              these comments, OSHA is not
 administered by an accredited            permitting certification on a
 educational institution; and allow       particular crane model because
 employers to use manuals that have       the body of knowledge and
 been re-written to accommodate the       skills required to be
 literacy level and English proficiency   qualified/certified on a
 of operators.                            particular model of crane is
                                          not less than that needed to
                                          be qualified/certified for
                                          that model's type and
                                          capacity. OSHA is not allowing
                                          an institution accredited by
                                          the Department of Education
                                          (DOE) to certify crane
                                          operators solely on the basis
                                          of DOE accreditation; such
                                          institutions would, like other
                                          operator-certification
                                          entities used to fulfill
                                          Option (1), be accredited by a
                                          ``nationally recognized''
                                          accrediting body. Finally,
                                          OSHA is permitting employers
                                          to re-write manuals to
                                          accommodate the literacy level
                                          and English proficiency of
                                          operators.

The Panel recommends that OSHA clarify   In the discussion of proposed
 in the preamble how the proposed rule    Sec.   1926.1427(h), OSHA
 addresses an SER's concern that his      proposed to allow the oral
 crane operator would not be able to      administration of tests if two
 pass a written qualification/            prerequisites are met. None of
 certification exam because the           the comments explained why the
 operator has difficulty in taking        rule as proposed was not
 written exams.                           effective for evaluating the
                                          knowledge of the candidate.
The Panel recommends soliciting public   OSHA received public comments
 comment on whether the phrase            on this issue. In the final
 ``equipment capacity and type'' in       preamble discussion of Sec.
 proposed Sec.   1926.1427(b)(1)(ii)(B)   1926.1427(b)(1)(ii)(B), OSHA
 needs clarification, suggestions on      explains that the Agency added
 how to accomplish this, and whether      a definition of ``type'' in
 the categories represented in Figures    response to public comment.
 1 through 10 contained in ANSI B30.5-    The Agency also references
 2000 (i.e., commercial truck-mounted     ANSI crane categories to
 crane--telescoping boom; commercial      illustrate the meaning of
 truck-mounted crane--non-telescoping     ``type'' in this standard.
 boom; crawler crane; crawler crane--
 telescoping boom; locomotive crane;
 wheel-mounted crane (multiple control
 station); wheel-mounted crane--
 telescoping boom (multiple control
 station); wheel-mounted crane (single
 control station); wheel-mounted crane--
 telescoping boom (single control
 station)) should be used.
The Panel recommends that OSHA ask for   OSHA addressed this
 public comment on whether the rule       recommendation in the
 needs to state more clearly that Sec.    discussion of proposed Sec.
  1926.1427(j)(1)(i) requires more        1926.1430(c), and explained
 limited training for operators of        that Sec.   1926.1427(j)(1)'s
 smaller capacity equipment used in       requirement for operator
 less complex operations as compared      training in ``the information
 with operators of higher capacity,       necessary for safe operation
 more complex equipment used in more      of the specific type of
 complex situations.                      equipment the individual will
                                          operate'' addressed the SERs'
                                          concern. However, the Agency
                                          sought public comment on this
                                          issue. OSHA finalized Sec.
                                          1926.1427(j)(1) as proposed
                                          because the comments failed to
                                          explain how the hazards
                                          related to the operation of
                                          smaller equipment differed
                                          from larger equipment. OSHA
                                          then concluded that the
                                          comments also were not
                                          persuasive as to why operators
                                          of smaller capacity equipment
                                          should be allowed limited
                                          training.
The Panel recommends that OSHA consider  OSHA addressed this
 and ask for public comment on whether    recommendation in the
 a more limited training program would    discussion of proposed Sec.
 be appropriate for operations based on   1926.1430(c) requested public
 the capacity and type of equipment and   comment on the issue. The
 nature of operations.                    comments failed to explain how
                                          the hazards related to smaller
                                          equipment were any different
                                          from larger equipment. OSHA
                                          then concluded that the
                                          comments also were not
                                          persuasive as to why operators
                                          of smaller capacity equipment
                                          should be allowed limited
                                          training.
The Panel recommends that OSHA consider  OSHA addressed this
 and ask for public comment as to         recommendation in the
 whether the supervisor responsible for   discussion of proposed Sec.
 oversight for an operator in the pre-    1926.1430(c). and requested
 qualification period (Sec.               public comment on the issue.
 1926.1427(f)) should have additional     In the proposed preamble, OSHA
 training beyond that required in the C-  stated that, where a
 DAC document at Sec.                     supervisor is not a certified
 1926.1427(f)(2)(iii)(B).                 operator, ``he/she must be
                                          certified on the written
                                          portion of the test and be
                                          familiar with the proper use
                                          of the equipment's controls;
                                          the supervisor is not required
                                          to have passed a practical
                                          operating test.'' OSHA
                                          finalized this requirement
                                          without substantive change in
                                          Sec.   1926.1427(f)(3)(ii) as
                                          proposed because none of the
                                          comments demonstrated a need
                                          to require additional training
                                          for this qualified individual.
The Panel recommends OSHA solicit        In the discussion of proposed
 comment on whether there are qualified   Sec.   1926.1437(n)(2), OSHA
 persons in the field with the            requested public comment on
 necessary expertise to assess how the    this issue. Based on these
 rated capacity for land cranes and       comments, OSHA has concluded
 derricks used on barges and other        that there are qualified
 flotation devices needs to be modified   persons with dual expertise,
 as required by proposed Sec.             and that the requirement in
 1926.1437(n)(2).                         Sec.   1926.1437(n)(2) is
                                          necessary for safety when
                                          equipment is engaged in duty
                                          cycle work.
The Panel also recommends that OSHA
 solicit comment on whether it is
 necessary, from a safety standpoint,
 to apply this provision to cranes used
 only for duty cycle work, and if so,
 why that is the case, and how ``duty
 cycle work'' should be defined.
The Panel recommends that OSHA consider  In the discussion of proposed
 and ask for comment on whether it        Sec.   1926.1440(a), OSHA
 would be appropriate to exempt from      requested public comment on
 the rule small sideboom cranes           this issue. These comments did
 incapable of lifting above the height    not provide any specific
 of a truck bed and with a capacity of    reason for exempting these
 not more than 6,000 pounds.              small sideboom cranes and,
                                          therefore, OSHA has not
                                          provided a small capacity
                                          sideboom crane exemption from
                                          this standard.
The Panel recommends that OSHA solicit   The length and
 public comment on how the proposed       comprehensiveness of the
 rule could be simplified (without        standard is an issue for this
 creating ambiguities) and made easier    rulemaking. In the proposed
 to understand. (Several SERs believed    preamble Introduction, OSHA
 that the C-DAC document was so long      requested public comment on
 and complex that small businesses        this issue; however, the
 would have difficulty understanding it   Agency did not receive any
 and complying with it.).                 comments objecting to the
                                          length or clarity of the
                                          overall rule or offer any
                                          suggestions as to how it could
                                          be simplified.
The Panel recommends that OSHA consider  OSHA will consider developing
 outlining the inspection requirements    such an aid as a separate
 in spreadsheet form in an Appendix or    guidance document.
 developing some other means to help
 employers understand what inspections
 are needed and when they must be done.

The Panel recommends that OSHA consider  Some SERs requested
 whether use of the words ``determine''   clarification as to when
 and ``demonstrate'' would mandate that   documentation was required,
 the employer keep records of such        believing that the document
 determinations and if records would be   implicitly requires
 required to make such demonstrations.    documentation when it states
                                          that the employer must
                                          ``determine'' or
                                          ``demonstrate'' certain
                                          actions or conditions. OSHA
                                          notes that it cannot cite an
                                          employer for failing to have
                                          documentation not explicitly
                                          required by a standard. See
                                          also the discussion under
                                          proposed Sec.   1926.1402(e).
The Panel recommends soliciting public   In the discussion of proposed
 comment on whether the word ``days''     Sec.   1926.1416(d), OSHA
 as used in Sec.  Sec.   1926.1416(d)     requested public comment on
 and 1926.1416(e) should be clarified     this issue. As a clarification
 to mean calendar days or business days.  in response to the comments
                                          received, OSHA determines that
                                          the term ``days'' refers to
                                          calendar days.
The Panel recommends that OSHA           OSHA proposed a scope section,
 carefully discuss what is included and   Sec.   1926.1400, and
 excluded from the scope of this          discussed in detail the types
 standard.                                of machinery proposed to be
                                          included and excluded under
                                          this standard. OSHA received
                                          public comments on this
                                          proposed scope, analyzed the
                                          comments, and provided more
                                          discussion of the scope
                                          section in the final preamble.
The Panel recommends that OSHA gather    OSHA obtained and evaluated a
 data and analyze the effects of          study by the Construction
 already existing certification           Safety Association of Ontario
 requirements.                            showing that Ontario's
                                          certification requirement led
                                          to a substantial decrease in
                                          crane-related fatalities
                                          there. OSHA also examined both
                                          economic data of crane
                                          operator wage rates before and
                                          after the certification
                                          requirements, and fatality
                                          rates before and after the
                                          certification requirements.
                                         This data shows that costs
                                          disruptions were minimal, and
                                          that crane fatalities were
                                          significantly reduced as a
                                          result of the California
                                          certification standard.
The Panel recommends that OSHA consider  In the discussion of proposed
 excluding and soliciting comment on      Sec.   1926.1400(c), OSHA
 whether equipment used solely to         requested public comment on
 deliver materials to a construction      this issue. Based on the
 site by placing/stacking the materials   analysis of the comments
 on the ground should be explicitly       received, OSHA recognized an
 excluded from the proposed standard's    exclusion for delivery
 scope.                                   materials that should exclude
                                          most true deliveries, while
                                          avoiding creating a loophole
                                          to the standard that would
                                          allow materials-delivery firms
                                          to engage in extensive
                                          construction activities.
The Panel recommends that OSHA should    The information and opinions
 consider the information and range of    submitted by the SERs are part
 opinions that were presented by the      of the record for this
 SERs on the issue of operator            rulemaking, and OSHA
 qualification/certification when         considered them along with the
 analyzing the public comments on this    other public comments on the
 issue.                                   proposed rule.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on            recommendation in the
 expanding the levels of certification    discussion of proposed Sec.
 so as to allow an operator to be         1926.1427, and requested
 certified on a specific brand's model    public comment on the issue.
 of crane.                                Based on these comments, OSHA
                                          is not permitting
                                          certification on a particular
                                          crane model because the body
                                          of knowledge and skills
                                          required to be qualified/
                                          certified on a particular
                                          model of crane is not less
                                          than that needed to be
                                          qualified/certified for that
                                          model's type and capacity.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on            recommendation in the
 expanding the levels of operator         discussion of proposed Sec.
 qualification/certification to allow     1926.1427(j)(1), and requested
 an operator to be certified for a        public comment on this issue.
 specific, limited type of                Though several commenters were
 circumstance. Such a circumstance        in favor of this option, they
 would be defined by a set of             did not explain how these
 parameters that, taken together, would   lifts could objectively be
 describe an operation characterized by   distinguished from lifts
 simplicity and relatively low risk.      generally. Several other
 The Agency should consider and solicit   commenters indicated that the
 comment on whether such parameters       types of hazards present and
 could be identified in a way that        the knowledge needed to
 would result in a clear, easily          address those hazards,
 understood provision that could be       remained the same, regardless
 effectively enforced.                    of the capacity of the crane
                                          involved or the ``routine''
                                          nature of the lift (see
                                          discussion of Sec.
                                          1926.1427(a)). Based on these
                                          comments, the Agency has not
                                          promulgated such a provision.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on allowing   recommendation in the
 the written and practical tests          discussion of proposed Sec.
 described in Option (1) to be            1926.1427(b)(3), and requested
 administered by an accredited            public comment on the issue.
 educational institution.                 Several comments were
                                          submitted in favor of allowing
                                          this option; however, they did
                                          not establish that Department
                                          of Education (DOE)
                                          accreditation would guarantee
                                          the same efficacy in
                                          certification as accreditation
                                          as a personnel certification
                                          entity.
                                         The hearing testimony of Dr.
                                          Roy Swift explained the
                                          difference in the types of
                                          accreditation and the reasons
                                          why DOE accreditation would
                                          not adequately address
                                          operator certification issues.
                                          Therefore, OSHA has finalized
                                          this provision as it was
                                          proposed.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on making it clear        Sec.   1926.1427(h)(1), OSHA
 that: (1) an employer is permitted to    requested public comment on
 equip its cranes with manuals re-        this issue. Based on the
 written in a way that would allow an     analysis of the comments
 operator with a low literacy level to    received, OSHA concludes that
 understand the material (such as         these manuals may not be re-
 substituting some text with pictures     written as recommended because
 and illustrations), and (2) making it    it could cause information
 clear that, when the cranes are          important for safety to be
 equipped with such re-written manuals    omitted.
 and materials, the ``manuals'' and
 ``materials'' referred to in these
 literacy provisions would be the re-
 written manuals.

The Panel recommends that OSHA explain   OSHA will issue a Small
 in a Small Business Compliance Guide     Business Compliance Guide
 that the certification/qualification     after the final rule is
 test does not need to be administered    issued, and will explain these
 in English but can be administered in    points in the Guide.
 a language that the candidate can
 read; and that while the employee
 would also need to have a sufficient
 level of literacy to read and
 understand the relevant information in
 the equipment manual, that requirement
 would be satisfied if the material is
 written in a language that the
 employee can read and understand.
------------------------------------------------------------------------

IV. Summary and Explanation of the Rule

Authority Citations

    For all subparts affected by this rulemaking, the authority
citations have been amended to refer to the documentation that permits
the promulgation of this rule.

Removal of Sec.  1926.31 and Addition of Sec.  1926.6--Incorporation by
Reference

    Section 1926.31 of 29 CFR part 1926 provided information about
locating documents incorporated by reference into all of the
construction standards in that part. The Agency is removing this
section and relocating the majority of its text to new 29 CFR 1926.6
for several reasons. First, the change in the location of the section
from Sec.  1926.31 to Sec.  1926.6 is for organizational purposes. New
Sec.  1926.6 is within 29 CFR part 1926 subpart A (``General''), which
is a more logical placement than Sec.  1926.31, which is within subpart
C (``General Safety and Health Provisions''), and is the same section
number (6) as the incorporation reference section for general industry
standards: 29 CFR 1910.6. Second, OSHA is relocating the list of all
documents incorporated by reference into 29 CFR part 1926 from its
previous location in the ``Finding Aids'' of the CFR to Sec.  1926.6
because the Federal Register is no longer publishing the list in the
hardcopy versions of the CFR.\2\
---------------------------------------------------------------------------

    \2\ The list will still be available online at http://
www.gpoaccess.gov/ecfr from the link to ``Incorporated by
Reference.''
---------------------------------------------------------------------------

    The Agency is restructuring the text previously located in Sec.
1926.31 to make Sec.  1926.6 parallel 29 CFR 1910.6, which lists the
documents incorporated by reference into the general industry standards
in 29 CFR part 1910. OSHA is not including the text formerly in 29 CFR
1926.31(b), which could be read as implying that OSHA intended to
incorporate into its standards, without following the procedures
specified in 1 CFR part 51, revised versions of documents previously
incorporated by reference.
    OSHA determined that the addition of Sec.  1926.6 and the removal
of Sec.  1926.31 are not subject to the procedures for public notice
and comment specified by sec 4 of the Administrative Procedures Act (5
U.S.C. 553), sec. 6(b) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 655(b)), and 29 CFR part 1911. New Sec.  1926.6, like
the Sec.  1926.31 it replaces, is a rule of agency organization,
procedure, or practice within the meaning of 5 U.S.C. 553(b)(3)(A), and
the addition of Sec.  1926.6 constitutes a technical amendment that
does not affect or change any existing rights or obligations. No member
of the regulated community is likely to object to it. In conclusion,
OSHA finds good cause that the opportunity for public comment is
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C.
655(b), and 29 CFR 1911.5.
    In addition to relocating the list of documents from the Finding
Aids list, OSHA is adding to the list of documents incorporated by
reference those documents that are newly incorporated by reference in
these final rules. The Federal Register approved these documents, which
are listed as follows, for incorporation by reference as of November 8,
2010: ANSI B30.5-1968; ASME B30.2-2005; ASME B-30.5-2004; ASME B30.7-
2001; ASME B30.14-2004; AWS D1.1/D1.1M:2002; ANSI/AWS D14.3-94; BS EN
13000:2004; BS EN 14439:2006; ISO 11660-1:2008(E); ISO 11660-2:1994(E);
ISO 11660-3:2008(E); PCSA Std. No. 2 (1968); SAE J185 (May 2003); SAE
J987 (Jun. 2003); and SAE J1063 (Nov. 1993).

Subpart L--Scaffolds

Amendments to Sec.  1926.450
    The agency is removing the reference to former Sec.  1926.550(g)
from this section because former Sec.  1926.550(g) has been
redesignated and reserved by this rulemaking. Section 1926.450(a)
explains that this section applies to all scaffolds used in work
covered by subpart L. Prior to the promulgation of this final rule, it
referenced former Sec.  1926.550(g) to explain that Sec.  1926.450 did
not apply to crane- or derrick-suspended personnel platforms. Prior to
the promulgation of this final rule, former Sec.  1926.550(g)(2)
regulated crane- or derrick-suspended personnel platforms. Personnel
platforms suspended by cranes or derricks are now regulated by Sec.
1926.1431. This change does not affect the requirements of Sec.
1926.450(a), does not change any existing rights or obligations, and no
member of the regulated community is likely to object to it. OSHA,
therefore, finds good cause that the opportunity for public comment is
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C.
655(b), and 29 CFR 1911.5.

Subpart M--Fall Protection

Amendments to Sec.  1926.500
    Prior to the promulgation of this final rule, Sec.
1926.500(a)(2)(ii) stated that subpart N set forth the workplaces,
conditions, operations, and circumstances for which fall protection
must be provided for employees working on ``certain cranes and
derricks.'' Because subpart CC now provides comprehensive requirements
for the provision of fall protection to workers on equipment covered by
subpart CC, the Agency amended Sec.  1926.500(a)(2)(ii) by replacing
the reference to subpart N with a reference to subpart CC and deleting
the word ``certain.''
    Section 1926.500(a)(3) provided that the requirements for the
installation, construction, and proper use of fall protection for
construction workers were set forth in Sec.  1926.502 of subpart M,
with certain exceptions. OSHA amended Sec.  1926.500(a)(3) to provide
an exception for steps, handholds, ladders, and grabrails/guardrails/
railings required by subpart CC because the criteria for those forms of
fall protection are provided in subpart CC. This exception, Sec.
1926.500(a)(3)(v), also clarifies that Sec. Sec.  1926.502(a), (c)-(e),
and (i) apply unless otherwise stated in subpart CC, and that no other
paragraphs of Sec.  1926.502 apply to subpart CC. The exception reduces
the

extent to which Sec.  1926.502 applies to work covered under subpart
CC, and clarifies that subpart CC generally sets forth the criteria for
the fall protection systems required under subpart CC.
    Section 1926.500(a)(4) stated that Sec.  1926.503 sets forth the
requirements for training in the installation and use of fall
protection systems, except in relation to steel erection activities.
The Agency added the phrase ``and the use of equipment covered by
subpart CC'' at the end of the exception to make clear that the fall
protection training requirements in Sec.  1926.503 of subpart M do not
apply to fall protection systems when used to comply with subpart CC.
Training for fall protection systems required by subpart CC is governed
by Sec.  1926.1423(k).

Subpart N--Helicopters, Hoists, Elevators, and Conveyors

    The heading of subpart N has been changed to ``Helicopters, Hoists,
Elevators, and Conveyors.'' The revision of the heading reflects both
the equipment that is now regulated by subpart N and the removal of
sections regulating cranes and derricks from subpart N to subpart CC.

Amendments to Sec.  1926.550

    Cranes and derricks used in construction had been regulated by
Sec.  1926.550. Subpart CC is now the applicable standard for
regulating the use of cranes and derricks in construction. Section
1926.550 has been redesignated as Sec.  1926.1501 and reserved.

Amendments to Sec.  1926.553

    OSHA revised Sec.  1926.553 to include a new provision, Sec.
1926.553(c). This section explains that Sec.  1926.553 does not apply
to base-mounted drum hoists used in conjunction with derricks. Instead,
base-mounted drum hoists used with derricks must conform to the
requirements of Sec.  1926.1436. This change was made in response to a
request by a commenter who wanted to clarify that the requirements for
base-mounted drum hoists used with derricks could be found in new
subpart CC. (ID-0130.1.) No information was submitted to the record
that indicates OSHA should not make the revision to Sec.  1926.553.
    OSHA determined that the revision addresses the commenter's
concerns regarding the applicability of Sec.  1926.553 and enhances the
clarity of the final rule. This revision ensures that base-mounted drum
hoists used in the design of derricks meet the updated requirements of
ASME B30.7-2001, which is referenced in Sec.  1926.1436. The older ANSI
B30.7-1968, which is referenced in Sec.  1926.553, continues to apply
to all base-mounted drum hoists not used in conjunction with derricks.

Subpart O--Motorized Vehicles, Mechanical Equipment, and Marine
Operations

Amendments to Sec.  1926.600
    This section regulates motor vehicles, mechanized equipment, and
marine operations. Prior to the promulgation of this final rule, Sec.
1926.600(a)(6) referenced Sec.  1926.550(a)(15), which has been
redesignated and reserved. Because the Agency inadvertently did not
propose any revision of Sec.  1926.600(a)(6), OSHA is preserving the
same requirements imposed by former Sec.  1926.550(a)(15) pursuant to
this section by incorporating language substantively identical to that
of former Sec.  1926.550(a)(15) into revised Sec.  1926.600(a)(6). The
revision of Sec.  1926.600(a)(6) does not alter any of the substantive
requirements of that section, does not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
533(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart R--Steel Erection

Amendments to Sec.  1926.753 Hoisting and Rigging
    With the exception of former Sec.  1926.550(g)(2), Sec.
1926.753(a) applied all of the provisions of former Sec.  1926.550 to
hoisting and rigging during steel erection. Similarly, Sec.
1926.753(c)(4) allowed cranes and derricks to hoist workers on a
personnel platform in accordance with all of former Sec.  1926.550
except former Sec.  1926.550(g)(2). Because former Sec.  1926.550 has
been redesignated and reserved, Sec.  1926.753 has been revised to
avoid changing the requirements of that section. Section 1926.753(a)
applies all of subpart CC except Sec.  1926.1431(a) to hoisting and
rigging, and Sec.  1926.753(c)(4) applies all of Sec.  1926.1431 except
Sec.  1926.1431(a). These two paragraphs of Sec.  1926.753 reference
Sec.  1926.1431(a) because the requirement formerly found in Sec.
1926.550(g)(2) is now contained in Sec.  1926.1431(a) of subpart CC.

Subpart S--Underground Construction, Caissons, Cofferdams, and
Compressed Air

Amendments to Sec.  1926.800
    This section regulates hoisting unique to underground construction.
Prior to the promulgation of this final rule, Sec.  1926.800(t) of this
section referenced former Sec.  1926.550(g), which has been
redesignated Sec.  1926.1501(g). The Agency intended that the reference
to former Sec.  1926.550(g) be replaced by a reference to new subpart
CC, but inadvertently omitted that action from the Federal Register
notice for the proposed rule. To avoid any potential notice issues that
might arise if the Agency substituted a reference to subpart CC in
place of the prior reference to former Sec.  1926.550(g), the Agency
has instead elected to redesignate Sec.  1926.550 as Sec.  1926.1501 in
new subpart DD, which has been created for this purpose. The Agency
intends to revisit this issue in the near future.
    References to former Sec.  1926.550(g) have been replaced with
references to Sec.  1926.1501(g). This redesignation of Sec.  1926.550
and the replacement of references do not alter any of the substantive
requirements of Sec.  1926.800(t), do not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart T--Demolition

Amendments to Sec. Sec.  1926.856 and 1926.858
    These sections regulate the use of cranes and in demolition work.
Prior to the promulgation of this final rule, Sec. Sec.  1926.856(c)
and 1926.858(b) referenced subpart N, part of which (former Sec.
1926.550) has been redesignated as Sec.  1926.1501. The Agency intended
for the reference to subpart N in Sec.  1926.856(c) to be supplemented
with a reference to new subpart CC, and intended that the reference to
subpart N in Sec.  1926.858(b) be replaced by a reference to new
subpart CC, but inadvertently omitted that action from the Federal
Register notice for the proposed rule. To avoid any potential notice
issues that might arise if the Agency substituted a reference to new
subpart CC in place of the prior reference to subpart N, the Agency has
instead elected to redesignate Sec.  1926.550 as Sec.  1926.1501 in

a new subpart DD which has been created for this purpose. The Agency
intends to revisit this issue in the near future.
    References to subpart N in Sec. Sec.  1926.856(c) and 1926.858(b)
have been supplemented or replaced with references to Sec.  1926.1501.
This redesignation of Sec.  1926.550 and the replacement of references
do not alter any of the substantive requirements of Sec. Sec.
1926.856(c) and 1926.858(b), do not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart V--Power Transmission and Distribution

Amendment to Sec.  1926.952
    The subpart V provisions have been changed to reflect the
terminology used in the scope section of this standard and its new
subpart designation. Accordingly, Sec.  1926.952(c), which referenced
subpart N with respect to derrick trucks and cranes, has been revised
to reference subpart CC. Prior to this final rule, Sec. Sec.
1926.952(c)(1)(i) and (ii) addressed minimum clearance distances.
Because Sec. Sec.  1926.1407 through 1926.1411 address minimum
clearance distances when clearance distances in Table V-1 would apply
to derrick trucks and cranes used in subpart V work, Sec. Sec.
1926.952(c)(1)(i) and (ii) have been deleted.
    In conformance with language in Sec.  1926.1400(c)(4), the agency
is adding new Sec.  1926.952(c)(2) into subpart V. It states that
digger derricks used for augering holes for electrical poles, placing
and removing the poles, or handling associated materials to be
installed or removed from the poles must comply with 29 CFR 1910.269.
This provision ensures comparable safety requirements exist for digger
derricks performing electrical pole work.
    What was Sec.  1926.952(c)(2) prior to the promulgation of this
final rule has been redesignated Sec.  1926.952(c)(3). Former
Sec. Sec.  1926.952(c)(2)(i) and (ii) listed precautions for operating
mechanical equipment closer to energized power lines than allowed by
Sec.  1926.950(c). The precautions (using an insulated barrier and
grounding the equipment) that were specified in Sec. Sec.
1926.952(c)(2)(i) and (ii) are now required under Sec.  1926.1410(d)
when equipment used in subpart V work is operated closer than the Table
V-1 clearances. Since these precautions are now required by Sec.
1926.1410(d), OSHA is deleting them from subpart V. As a result of that
deletion, former Sec. Sec.  1926.952(c)(2)(iii) and (iv) are
redesignated Sec. Sec.  1926.952(c)(3)(i) and (ii).
    OSHA is also adding a note after new Sec.  1926.952(c)(3) to cross-
reference the safe harbor in Sec.  1926.1400(g), which provides that
employers performing subpart V work have the option of complying with
29 CFR 1910.269(p) in lieu of the requirements in Sec. Sec.  1926.1407
through 1926.1411 of new subpart CC. For additional information, see
the discussion of Sec.  1926.1400(g) in the preamble to this final
rule.

Subpart X--Stairways and Ladders

Amendment to Sec.  1926.1050 Scope, Application, and Definitions
Applicable to This Subpart
    This section applies the provisions of subpart X to all stairways
and ladders used in construction. However, C-DAC concluded that the
OSHA requirements of subpart X did not account for the characteristics
of the equipment that would be regulated by subpart CC. OSHA agreed
with the committee and, accordingly, is amending Sec.  1926.1050(a) to
explain that subpart X does not apply to integral components of
equipment covered by subpart CC. It further explains that only subpart
CC establishes the circumstances when ladders and stairways must be
provided on equipment covered by subpart CC. This revision is also
discussed in the preamble section for Sec.  1926.1423(c).

Appendix A to Part 1926 Designations for General Industry Standards
Incorporated Into Body of Construction Standards

    OSHA modified Appendix A to part 1926. Before the promulgation of
this final rule, Appendix A referred to former Sec.  1926.550(a)(19),
which has been redesignated and reserved. Therefore, the reference to
this section and the reference to the general industry standard it
incorporated, Sec.  1910.184(c)(9), have been deleted. This deletion is
a technical and conforming change, does not change any existing rights
or obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5

29 CFR Part 1926 Subpart CC

    The Agency is promulgating Subpart CC for regulating the use of
cranes and derricks in construction. Cranes and derricks used in
construction had been regulated by Sec.  1926.550. Accordingly, Sec.
1926.550 has been redesignated and reserved.
Section 1926.1400 Scope
    As explained in the proposed rule, C-DAC decided to describe the
scope of the rule with both a functional description (``power-operated
equipment used in construction that can hoist, lower, and horizontally
move a suspended load'') together with a non-exclusive list of the
types of existing equipment that are covered.\3\ By defining the scope
in this way, C-DAC tried to provide the clearest possible notice as to
the equipment that is covered by the standard while also including new
and/or other existing equipment that is similar to the listed examples.
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    \3\ The scope of the standard with respect to some of the listed
equipment is further delineated in the section of the standard that
specifically relates to that equipment (for example, Sec.
1926.1436, Derricks and Sec.  1926.1438, Overhead & Gantry Cranes).
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    One commenter objected to this approach, believing that the
approach does not provide the regulated community with clear notice of
the bounds of the regulated equipment. (ID-0286.1.) This commenter
recommended that OSHA avoid this perceived notice problem by limiting
the scope of the standard to equipment described in ASME B30 standards.
It recommended adding the words ``and is described in American Society
of Mechanical Engineers ASME B30 standards'' at the end of the first
sentence of proposed paragraph (a) of this section.
    OSHA disagrees with this commenter that paragraph (a), when read
together with the list of exclusions in paragraph (c) of this section,
does not provide clear notice as to what equipment is covered and what
is excluded. As explained earlier, paragraph (a) is designed to make
clear the types of existing equipment that are covered while also
covering newly-developed equipment that is similar to the listed
examples. The approach suggested by the commenter would limit any
coverage of newly developed equipment to any such equipment that might
be included in an unspecified future ASME B30 standard, without the
opportunity for OSHA to assess that equipment to determine whether its
exemption from subpart CC would be appropriate. OSHA concludes that
this approach may unduly limit the scope of subpart CC. In addition, it
would contradict the intent of C-DAC with respect to several specific
types of equipment. For example, at least three

types of covered equipment that meet the functional definition in
paragraph (a), dedicated pile drivers,\4\ digger derricks (see the
discussion of digger derricks below under paragraph (c)(4)), and
straddle cranes are not covered in ASME B30 standards, while the ASME
B30 standards include equipment (e.g., stacker cranes) not covered
under this standard. Thus, adopting the commenter's suggestion would
exclude certain equipment that C-DAC intended to include and would
introduce ambiguity over whether certain types of equipment that C-DAC
intended to exclude are included. Where the commenter has not made a
compelling argument as to why the standard would be improved by
adopting the ASME standards, OSHA defers to C-DAC's expertise on this
issue.
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    \4\ The proposed rule explained in detail why C-DAC decided to