competent in the area of the observed deficiency.
    As discussed in the explanation for paragraph (b)(5), triggers for
retraining under paragraph (b)(5) and re-evaluation under paragraph
(f)(7) might include a wide variety of feedback, such as (but not
limited to) information from an on-site supervisor or safety manager,
contractor, or other person that the operator was operating equipment
unsafely, OSHA citations, a crane near miss, or other incidents that
indicate unsafe operation of the crane.\24\ The re-evaluation must
target the deficiency in skills, knowledge, or ability to recognize and
avert risk that triggered the retraining, but need not include a re-
evaluation of other previously evaluated skills, knowledge, or ability.
Re-evaluations would need to be conducted by a person who meets the
requirements of paragraph (f)(4).
---------------------------------------------------------------------------

    \24\ In proposed Sec.  1926.1427(f)(5), OSHA inadvertently
referred to compliance with retraining requirements under a non-
existent paragraph (b)(6) instead of the correct reference to
paragraph (b)(5). OSHA has corrected this error in the final rule.
---------------------------------------------------------------------------

    OSHA does not view this re-evaluation as a significant departure
from typical practices in the industry. As discussed previously, many
stakeholders who spoke with OSHA at meetings and site visits emphasized
that observation and re-evaluation take place on an ongoing, daily
basis (see the Background and Need for a rule sections). For example,
several stakeholders told OSHA that they would re-evaluate an operator
if there was a crane near-miss or other incident indicating unsafe
operation of the crane, or if they received negative feedback about
that operator's performance from the controlling contractor or another
party on a jobsite. (Reports #1, 2, 3, 18, 19, 22, 26 of ID-0673). Some
employers conduct random worksite audits. (Reports #2, 3, 15, 18, 19 of
ID-0673). One large construction company stated that it conducts over
100 safety audits of job sites each year to ensure operators are
properly qualified. (Report #15 of ID-0673). Four companies that hire
crane rental companies (crane rental with operators) noted that they
raise any observed issues with the employer of the crane operator or
the union from which the operator was selected. (Reports #12, 14, 15,
16 of ID-0673).
    OSHA requested comment on the re-evaluation requirement, noting in
the NPRM that the requirements for re-evaluation are also in line with
the powered industrial truck operator training standard, in which OSHA
requires re-evaluation if there is reason to believe that the operator
is operating unsafely, if there is a near-miss or other incident, if
the nature of the work to be performed changes, or if other factors
indicate a deficiency (Sec.  1910.178(l)(4)) (see 83 FR 23554). One
commenter generally agreed with this approach, but requested that OSHA
not include a fixed time period for renewals such as the 3-year period
required in the powered industrial truck standard. ``As a practical
matter,'' the commenter stated, ``reevaluation of [powered industrial
truck] operators employed in the construction industry occur far more
frequently than triennially'' and ``contractors evaluate crane
operators daily, mandatory reevaluations of crane operators at
arbitrarily-selected intervals are unnecessary and will not advance
crane safety'' (ID-1719). Another commenter suggested that re-
evaluation of an operator should be required ``if there is a
demonstrated need, or the technology or operations controls or
expectations change'' (ID-1615). A different commenter, however,
asserted that, in addition to requiring re-evaluations following
observations of unsafe operation, OSHA should specify a fixed time
period for re-evaluations ``at least on the same cycle as
recertification (that is, at least every 5 years)'' because
``certification procedure does not ensure competency for the particular
equipment the operator is assigned'' (ID-1768).
    OSHA agrees with the commenters opposing fixed evaluations times
that the record does not indicate a compelling need for re-evaluations
at fixed intervals. While the one commenter requesting fixed re-
evaluations is correct that the re-certifications required every five
years do not serve the same function as re-evaluation on particular
equipment, re-certification would at least ensure that the operator is
familiar with significant changes in the industry. In general,
operators should not require the same type of refresher for specific
equipment that is not changing, particularly equipment that they are
operating regularly. If there are significant changes to the equipment
on which an operator was previously evaluated, such as the retrofitting
of a new computer system or significant safety device onto that
equipment, the employer would need to retrain the operator on that
equipment and re-evaluate the operator's ability to operate the
retrofitted equipment if an evaluation of the operator's knowledge
indicates that retraining is necessary for the operator (this
evaluation is required under paragraph (f)(1) because the employer must
ensure that the operator demonstrates the skills and knowledge to
operate the equipment safely, ``including those specific to the safety
devices, operational aids, software'').
    Thus, the regulatory text addresses the commenter's concern about
changes in technology (ID-1615). Near misses and other unsafe operation
are examples of when the ``performance of the operator . . . [provides]
an indication that retraining is necessary'' under paragraph (b)(5).
OSHA is not clear about the intent of the same commenter's suggestion
of re-evaluation when ``expectations change'' (ID-1615), but regulatory
text would require evaluations when there is a change in the tasks to
which the operator is assigned that would require new knowledge, skill,
or ability to identify and avert risk.

Paragraph (g)--[Reserved]

    This paragraph is reserved because the text at previous Sec.
1926.1427(g) was moved to revised paragraph Sec.  1926.1427(c)(4). The
provision was

moved to improve clarity of certification program requirements.

Paragraph (h)--Language and Literacy Requirements

    Previous paragraph Sec.  1926.1427(h) allowed operators to be
certified in a language other than English, provided that the operator
understands that language. Revised paragraph (h) is nearly identical to
previous paragraph (h) with one exception. The last sentence of
paragraph (h)(2) has been reworded to clarify that an operator is
permitted to operate equipment only when he or she is furnished
materials that are necessary for safe operation of the equipment and
required by subpart CC, such as operations manuals and load charts, in
the language of the operator's certification. The reference to previous
paragraph (b)(2) was not maintained in proposed (h)(2) because it is no
longer needed.
    Paragraph (h) continues to allow ``tests'' in languages understood
by the operator. In revised paragraph (h), ``tests'' encompasses both
the certification test and the employer's evaluation of the operator.
Either or both may be in any language understood by the operator. The
language of the operator's manual or other furnished materials required
by the standard would only need to match the language of the
certification.

Paragraph (i)--[Reserved]

Paragraph (j)--Certification Criteria

    Paragraph (j) specifies criteria that must be met by an accredited
testing organization under revised paragraph (d) and an audited
employer program under revised paragraph (e). The criteria specified by
revised paragraph (j) of this section are the same as those specified
under previous Sec.  1926.1427(j). However, the introductory regulatory
text in the previous version of Sec.  1926.1427(j) states that
``qualification and certifications'' must be based, at a minimum, on
several criteria for the written and practical tests found in Sec.
1926.1427(j)(1) and (2). Revised paragraph (j) deletes the words
``qualification and'' because they are no longer necessary: Under the
revised rule, a certification issued by an audited employer program is
intended to be equivalent to that of an accredited testing program for
purposes of complying with OSHA's rule. In the NPRM, OSHA neglected to
replace the word ``qualification'' with ``certification'' in paragraph
(e)(6)(i), so it is making that revision in this final rule. The other
references to ``qualification'' have been removed from paragraph (e) in
the final rule.

Paragraph (k)--Effective Date

    Almost all of Subpart CC has already been in effect since 2010, the
certification requirements were scheduled to go into effect on November
10, 2018 per OSHA's extension rule published last year (see 82 FR 51986
(November 9, 2017)). The effective date of this final rule applies to
the certification requirements and all but one of the amendments. As
explained below and as an exception, OSHA has decided to allow 90 days
after the publication of the final rule for employers to conform their
practices for evaluating their operators, including documenting the
evaluations, to the requirements of OSHA's standard.
    OSHA anticipates that most employers will require only minimal
adjustment to their current practices, if any, such as documenting
evaluations if they have not previously followed that practice.
Employer assessment of operators has been a key part of the entire
scheme of Sec.  1926.1427 in effect through Sec.  1926.1427(k) for
eight years, so employers should already have a system in place that
could be adapted as necessary to the new requirements.
    Nevertheless, several commenters requested additional time to
adjust to the new evaluation requirements. Three commenters requested
that OSHA extend the November 10, 2018, deadline for one year (ID-1605,
1779, and 1801). One of these commenters stated that the extension was
needed to provide ``an adequate amount of lead-time for instituting any
new requirements for crane operator qualification'' and ``allow OSHA
enough time and the opportunity to finalize the proposed rule'' (ID-
1605). The second of these stated that the additional time would
``permit entities subject to certification requirements additional time
to plan for and implement compliance'' and ``help alleviate any burden
felt by small business affected by the rule'' (ID-1779). The third of
this group of commenters suggested that the additional time was
necessary to ``provide employers who have not currently certified their
operators with sufficient time to do so,'' and encouraged OSHA to
``align the effective date for successful evaluations of new or
existing operators with that of the requested operator certification
extension,'' but did not provide any additional rationale for their
recommendation (ID-1801).
    Three commenters requested a six-month extension for OSHA to
finalize the rulemaking and allow time for employers to adjust (IDs
1611, 1735, and 1826). Another requested an indefinite extension of the
operator certification requirement while OSHA reconsidered exemptions
from the standard (ID-1707).
    OSHA agrees that some phase-in period is appropriate for the
evaluation and documentation requirements, but disagrees that it is
appropriate for the certification requirements. Employers have had
ample notice since 2010 that certification requirements were going to
go into effect.
    A trade association for the lumber industry (ID-1821) requested a
year to develop training and evaluation programs that would comply with
Sec.  1926.1427(b) and (f) because ``the training requirements in
proposed Sec.  1926.1427(b) significantly differ from the current
training requirements, and . . . would impose new measureable standards
that will take time to incorporate in current training and evaluation
programs'' (footnotes omitted). OSHA does not recognize any substantive
difference between the revised training requirements in Sec.
1926.1427(b) and the previous requirements in Sec.  1926.1427(f) except
that the revised training requirements are clearer regarding the duty
for continued training even after obtaining certification. The
commenter's footnote 34, however, indicates that the commenter is
comparing the revised training requirements to the phase-in operator
competency requirements in Sec.  1926.1427(k), which are separate and
different from the main training requirements in prior Sec. Sec.
1926.1427(f) and 1926.1430. Those operator training requirements have
been in effect since 2010.
    A labor organization (ID-1816) urged OSHA not to delay the
effective date of the certification requirement or the amendments to
the standard:

    Given the health of the construction economy there are,
unfortunately, crane operators running types of equipment for which
they are not fully qualified. In this way, the tight labor market
places particular urgency on OSHA to implement the crane
certification requirement thereby reducing the safety risks to
workers as soon as possible. * * * we do not believe that a 6-month
``phase-in'' period is necessary given the certainty that now exists
for workers, employers, and other stakeholders in crane-operator
certification.

    With respect to the evaluation requirements, there are more
specific substantive differences between the revised standard and the
previous standard, so it is understandable that employers may need some
period of adjustment. The time periods suggested by the commenters
appear excessive because the adjustment from the type of assessment
required to comply with

prior Sec.  1926.1427(k) compared to the revised provisions should not
be that significant. OSHA believes that the 90-day extension strikes a
more appropriate balance to address the urgency expressed by the labor
organization and the need for some transition period as outlined by
other commenters.
Section 1926.1430(c)--Conforming Changes to Operator Training
    As noted earlier in this preamble, OSHA has amended only paragraph
(c) of the training requirements in Sec.  1926.1430 by replacing the
substantive operator training requirements with a reference to Sec.
1926.1427(a) and (b). The primary purpose of this revision is to
centralize the training requirements that are specific to operators in
revised paragraph Sec.  1926.1427(b). However, OSHA has retained in
Sec.  1926.1430 the training requirements that are more broadly
applicable. OSHA requested comments on the proposed change, but
received none. The paragraph is therefore revised as proposed.
    Paragraph Sec.  1926.1430(c)(1) requires that the employer train
operators of equipment covered by subpart CC in accordance with Sec.
1926.1427(a) and (b), which contain all of the requirements for
training under the final rule. Operators of equipment that remains
exempted from the training requirements of Sec.  1926.1427--derricks,
sideboom cranes, and cranes with a rated hoisting/lifting capacity of
2000 pounds or less--are addressed by paragraph Sec.  1926.1430(c)(2).
Revised paragraph (c)(2), which is substantively the same as paragraph
(c)(3) of the 2010 crane rule, provides a general requirement to train
operators on the safe operation of the equipment. Paragraphs (c)(1) and
(2) of this section work together to specify training requirements and
clarify that all operators must be trained, regardless of whether an
operator must be licensed/certified by any entity (including the U.S.
military) to operate equipment.
    Section 1926.1430(c)(2) of the 2010 crane rule, Transitional
Period, is no longer needed because employees need to train all
operators under this final rule. The requirements of previous Sec.
1926.1427(c)(4) have been moved to paragraph (c)(3) of this section.
Sections 1926.1436(q)--Derricks, 1926.1440(a)--Sideboom Cranes, and
1926.1441(a) Equipment With a Rated Hoisting/Lifting Capacity of 2,000
Pounds or Less
    As noted in the explanation for revised Sec.  1926.1427(a)(2), OSHA
had proposed to apply the employer evaluation requirements to the
following group of equipment otherwise exempt from the requirements of
Sec.  1926.1427: Derricks, sideboom cranes, and equipment with a rated
hoisting/lifting capacity of 2,000 pounds or less. To accomplish the
application of the evaluation requirements, OSHA had proposed revising
Sec.  1926.1436(q) (Derricks), Sec.  1926.1440(a) (Sideboom Cranes),
and Sec.  1926.1441(a) (Equipment with a Rated Hoisting/Lifting
Capacity of 2,000 Pounds or Less) to require employers to evaluate
operators according to the requirements in revised Sec.  1926.1427(f).
    One commenter (ID-1611) opposed any new evaluation requirements for
derricks absent substantial evidence that this additional measure,
which includes a requirement to document the evaluations, is warranted.
In the 2010 final rule, OSHA relied on C-DAC's recommendation to
exclude digger derricks, sideboom cranes, and low-capacity cranes
(hoisting capacity at or below one ton) from the certification
requirements of the standard and also went further in excluding this
group of equipment from all of the requirements of Sec.  1926.1427,
including the phase-in requirement for employer assessment of operators
in Sec.  1926.1427(k). Instead, OSHA required employers to ``train each
operator . . . on the safe operation of equipment the individual will
operate'' (derricks and low-capacity cranes; see Sec. Sec.
1926.1436(q) and 1926.1441(e)) or comply with the operator
qualification provisions of ASME B30.14-2004 (sideboom cranes, see
Sec.  1926.1440(c)(10)). In the NPRM of this rule, OSHA also clarified
that sideboom cranes would need to comply with the training
requirements in Sec.  1926.1430 (see proposed Sec.  1926.1427(a)(2)).
    In light of the concern about an unwarranted burden on employers
raised by the commenter and the fact that OSHA had not previously
explained its exclusion of this group of equipment from the phase-in
assessment requirements in Sec.  1926.1427(k), OSHA has decided not to
change the status quo that has existed for the last eight years with
respect to this group of equipment. OSHA still requires employers to
train operators of this equipment in accordance with the requirements
of this standard. The agency therefore is not requiring employers to
comply with the evaluation or documentation requirements in Sec.
1926.1427(f) when their operators use derricks, sideboom cranes, or
low-capacity cranes. As a result, operators of this group of equipment
do not have to comply with any of the provisions of Sec.  1926.1427, so
it is not necessary to revise Sec.  1926.1436(q), Sec.  1926.1440(a),
or Sec.  1926.1441(a) as proposed because those paragraphs already
state that compliance with Sec.  1926.1427 is not required.\25\
---------------------------------------------------------------------------

    \25\ Another commenter was concerned that OSHA was changing the
scope of the existing exemption for ``digger derricks,'' which is a
group of equipment used primarily for electric utility and
telecommunications construction (ID-1779). This limited exemption,
which is in Sec.  1926.1400(c)(4), removes digger derricks from the
entire cranes standard, but only to the extent that employers are
using this equipment for work covered by OSHA's electric utility
standard for construction (Subpart V of 29 CFR part 1926) or
telecommunications construction (29 CFR 1910.268). OSHA did not
propose to change this exemption for digger derricks and is not
altering the exemption in this final rule, so the new evaluation
requirements in this final rule do not apply to operators of digger
derricks exempted from the scope of the standard by Sec.
1926.1400(c)(4).
---------------------------------------------------------------------------

IV. Agency Determinations

A. Legal Authority

    The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), and 658. A safety or health standard
``requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment.'' 29 U.S.C. 652(8). A safety standard is reasonably
necessary or appropriate within the meaning of 29 U.S.C. 652(8) if:
     It substantially reduces a significant risk of material
harm in the workplace;
     It is technologically and economically feasible;
     It uses the most cost-effective protective measures;
     It is consistent with, or is a justified departure from,
prior agency action;
     It is supported by substantial evidence; and
     It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.

(See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II).) In addition, safety standards must be highly
protective. See id. at 669.
    A standard is technologically feasible if the protective measures
it requires already exist, available technology can bring these
measures into existence, or there is a reasonable expectation for
developing the technology that can produce these measures. (See, e.g.,

American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980
(D.C. Cir. 1991) (per curiam).) A standard is economically feasible
when industry can absorb or pass on the costs of compliance without
threatening an industry's long-term profitability or competitive
structure. (See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,
530 n. 55 (1981); Lead II, 939 F.2d at 980.) A standard is cost
effective if the protective measures it requires are the least costly
of the available alternatives that achieve the same level of
protection. (See, e.g., Lockout/Tagout II, 37 F.3d at 668.)
    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA
explains deviations from relevant consensus standards elsewhere in this
preamble.

B. Final Economic Analysis and Regulatory Flexibility Certification

Introduction
    When it issued the final crane rule in 2010, OSHA prepared a final
economic analysis (2010 FEA) as required by the OSH Act (29 U.S.C. 651
et seq.) and Executive Order 12866 (58 FR 51735 (Sept. 30, 1993)). OSHA
also published a Final Regulatory Flexibility Analysis as required by
the Regulatory Flexibility Act (5 U.S.C. 601-612). Both the 2010 FEA
and Regulatory Flexibility Analysis are in Docket ID 422. On September
26, 2014, the agency included a separate FEA when it published a final
rule extending until November 10, 2017, both the deadline for all crane
operators to become certified, and the employer duty to ensure operator
competency (79 FR 57785). In November 2017, OSHA published another
extension for an additional year, until November 10, 2018 (82 FR
51986), which closely tracks the 2014 FEA analysis. For each
rulemaking, OSHA published a preliminary economic analysis (PEA) and
received public comment on the analysis before publishing the final
analysis.
    In the NPRM for the current rulemaking, OSHA included a PEA that
relied on some of those earlier estimates, extensive agency interviews
with industry stakeholders, crane incident data, and other documents in
the rulemaking record. For example, the 2017 FEA for the deadline
extension rule included a cost analysis of the employer evaluation to
ensure operator competency. As a result, the cost estimates in the PEA
in the current rulemaking were based on that analysis, which in turn is
drawn from the 2014 FEA. Following the approach taken in the PEA, this
Final Economic Analysis estimates new costs only for elements that have
not previously been accounted for in either the 2010 final rule or in
the deadline extensions. These are:
     Additional evaluations to ensure operator competency when
there are changes not just in the type of crane (accounted for in the
2017 FEA) but also changes that would require new skills, knowledge, or
ability to recognize and avert risk necessary to operate the equipment
safely, including those specific to the use of equipment or its safety
devices, operational aids, software, or the size or configuration of
the equipment.
     The permanent status of the employer duty to assess
competency. While the cost of employer's duty to assess operator
competency was estimated in the 2017 rule, the duty to assess was
assumed to phase out after the deadline had passed. This final rule
makes this duty permanent, so these costs are included in this FEA.
     Documentation by employers. This rule now requires
employers to document the successful completion of operator
evaluations.
     Additional training required beyond the training necessary
for certification.
    Certain unit costs, such as the initial cost of operator
certification and recertification every five years, are not re-analyzed
in the FEA because they are unchanged by this rulemaking. The rule
makes no changes that would impact the costs of certification by type
of crane; OSHA simply allowed the existing operator certification
deadline to be instituted as planned. The employer evaluation, which
under the 2010 final crane rule (and the 2014 and 2017 extensions) was
set to be phased out when certification took effect, remains in effect
and is therefore a cost of the final rule. The unit costs of the
employer evaluations were analyzed in the final rule of the deadline
extension FEAs, and the agency relied on that analysis in calculating
the ongoing evaluation costs in this FEA. In this FEA the agency has
also updated wage rates to reflect the latest 2017 estimates that are
from the same source as used in the PEA: Occupational Employment
Statistics (OES), prepared by the U.S. Bureau of Labor Statistics. The
PEA relied on 2016 wages because the 2017 data was not yet available in
time for the preparation of the PEA.
    The rule's cost savings are associated with withdrawing the
requirement that crane operator certification be both for type and
capacity of crane in favor of new regulatory text that certification be
required only for type of crane.
    For the PEA, OSHA included an overhead rate when estimating the
marginal cost of labor in its primary cost calculations. Overhead costs
are indirect expenses that cannot be tied to producing a specific
product or service. Common examples include rent, utilities, and office
equipment. Unfortunately, there is no general consensus on the cost
elements that fit this definition, and the lack of a common definition
has led to a wide range of overhead estimates. Consequently, the
treatment of overhead costs needs to be case-specific. OSHA adopted an
overhead rate of 17 percent of base wages.\26\ This is consistent with
the overhead rate used for sensitivity analyses in the FEA in the 2017
final rule on Improved Tracking (81 FR 29624) and the FEA in support of
the 2016 final rule on Occupational Exposure to Respirable Crystalline
Silica (81 FR 16286). For example, to calculate the total labor cost
for a crane and tower operator (SOC: 53-7021), three components are
added together: Base wage ($26.78) + fringe benefits ($11.92, slightly
more than 44% of $26.78) + applicable overhead costs ($4.55, 17% of
$26.78).\27\ This increases the labor cost of the fully-loaded wage for
a crane operator to $43.25. OSHA received no comments on this approach
to estimating overhead costs and, as a result, has used the same
approach in this FEA.
---------------------------------------------------------------------------

    \26\ The methodology was modeled after an approach used by the
Environmental Protection Agency. More information on this approach
can be found at: Cody Rice, U.S. Environmental Protection Agency,
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (ID-2025). This analysis itself was based
on a survey of several large chemical manufacturing plants: Heiden
Associates, Final Report: A Study of Industry Compliance Costs Under
the Final Comprehensive Assessment Information Rule, Prepared for
the Chemical Manufacturers Association, December 14, 1989.
    \27\ Throughout this chapter, OSHA presents cost formulas in the
text, usually in parentheses, to help explain the derivation of cost
estimates for individual provisions. Because the values used in the
formulas shown in the text are shown only to the second decimal
place, while the actual spreadsheet formulas used to create final
costs are not limited to two decimal places, the calculation using
the presented formula will sometimes differ slightly from the
presented total in the text, which is the actual and mathematically
correct total.
---------------------------------------------------------------------------

    One change in costs for this FEA beyond updating economic data was

that the 2017 OES does not include the same occupation category for
crane inspector (SOC 5353-1031 First-Line Supervisors of Transportation
and Material-Moving Machine and Vehicle Operators) that was in the 2016
OES and that was used in the PEA. The agency instead proxies the 2017
mean hourly wage for this SOC category by adjusting the 2017 OES crane
operator hourly wage by the percentage markup of the 2016 crane
inspector hourly wage over the 2016 crane operator hourly wage (8%,
28.75/26.58). The resulting estimated crane inspector hourly wage is
$28.97 (26.78 x 1.08). Including a benefit markup of 1.45 (but not
including overhead), the full hourly wages of a crane operator and
crane inspector are $38.70 and $41.86, respectively.
    As noted earlier in the preamble, OSHA received a comment from the
National Propane Gas Association (NPGA, ID--1631), echoed by many
others, questioning whether OSHA had accurately estimated the number of
operators in the propane gas industry affected by the standard as
follows:

    OSHA states that there are approximately 117,130 crane operators
subject to the proposal and an annual cost to the proposal of
$1,425,133. There is no indication that these estimates include the
propane industry, which has about 40,000 propane field technicians
who perform delivery and retrieval functions and, thus, would be
subject to the third-party certification required by the proposal. *
* * [T]he industry uses two types of cranes interchangeably to
deliver or retrieve propane containers . . . [so] propane field
technicians would require two certifications; one for each type of
crane.

(ID-1631).
    OSHA has previously accounted for the propane gas industry. In its
2010 FEA, OSHA estimated that ``each of the retail establishments has,
on average, a truck-mounted crane that would be engaged occasionally in
construction activity covered under the rule'' (see 75 FR 48087). OSHA
also estimated in 2010 that there were a total of 5,567 establishments
in the propane industry (NAICS 454312, Liquefied Petroleum Gas
Dealers). Therefore, with an average of one crane per establishment
affected by the standard, there were 5,567 cranes affected by the
standard (Id.). OSHA continued to rely on these numbers in the economic
analyses accompanying the two extension rulemakings in 2014 and 2017,
treating the number of establishments as a proxy for the number of
propane crane operators requiring certification under the standard.\28\
---------------------------------------------------------------------------

    \28\ The NPGA did not dispute OSHA's estimates of the number of
crane operators when it commented on the 2014 extension (ID-0487).
In response to the 2017 extension, the NPGA only encouraged OSHA to
``consider more recent cost estimates'' but did not specify any new
numbers (ID-0648).
---------------------------------------------------------------------------

    To support its claim that OSHA has underestimated the rule's cost
to the propane industry, NPGA pointed OSHA to a recent study of the
consumer propane industry in 2015 prepared by the Propane Education &
Research Council (PERC) (see ID 1631, Part 2). NPGA relies on that
study in asserting that OSHA underestimated the number of
establishments, and therefore operators, in the PEA for this
rulemaking. Specifically, NPGA claims that a new 4-Digit NAICS code for
``Fuel Dealers'' (45431) encompasses relevant propane establishments
that are covered by the cranes standard but were not accounted for in
OSHA's previous analysis of NAICS 454312, Liquefied Petroleum Gas
Dealers (Id.).
    Based on NPGA's comment, OSHA believes that it may have previously
underestimated the number of covered establishments and has decided to
increase its estimate in this analysis. Because the PERC study does not
identify which establishments in the ``Fuel Dealers'' NAICS code are
actually propane delivery firms that might occasionally engage in
construction activity, OSHA has conservatively revised the industry
profile to include all 8,341 of the establishments in that more general
NAICS code. However, OSHA believes that many of these 8,341
establishments may not be propane delivery firms that engage in
construction activity. This revision adds 2,774 additional
establishments to OSHA's previous estimate of 5,567 establishments in
the PEA. Continuing OSHA's methodology of estimating one certified
crane operator per establishment, OSHA is estimating that there are
8,341 crane operators in this industry that occasionally use a crane
for construction activity.
    The NPGA's analysis takes a different approach, disregarding OSHA's
approach of estimating the number of operators engaged in construction
work per establishment. Instead, as quoted earlier, NPGA asserts that
every operator possible--``about 40,000 propane field technicians who
perform delivery and retrieval functions''--will use two different
types of cranes, with each technician evidently requiring two different
certifications under the theory that each technician uses both types of
cranes for work covered by OSHA's construction standard (ID-1631).
Thus, NPGA asks OSHA to assume that every propane field technician in
the industry operates two different cranes and does so in situations
involving construction activity, and that propane gas employers are
ignoring standard measures of economic efficiency by having all
employees engage in all tasks.
    OSHA disagrees with this approach. Propane field technician
operators would fall under the crane rule in only one very specific and
limited scenario: Installation of new tanks (not replacement of
existing tanks in kind) at a construction site. As the NPGA
acknowledges, delivery occurs at a construction site ``a far lower
percentage of the time'' than at non-construction sites and that OSHA's
cranes standard applies to only ``a small percentage'' of propane
delivery work (ID-1631). Indeed, another stakeholder from the propane
industry estimated that only ``around 10 percent of new construction
jobs (such as new homes in rural areas) annually will require propane
delivery'' (Report #19 of ID-0673, p. 76). NPGA has not indicated that
conversion of existing homes to propane from other sources (thus
requiring the delivery of a brand new tank) constitutes any significant
percentage of their deliveries. OSHA therefore concludes that propane
deliveries covered by OSHA's construction standard constitute ten
percent or less of propane employer activities.
    OSHA notes that its conclusion is confirmed by a review of
additional data. Using New Construction starts data from the US Census
(at https://www.census.gov/construction/nrc/pdf/quarterly_starts_completions.pdf) the average number of construction
starts (both single family and multi-unit) per year for the years 2015-
2017 was 1,163,000. If 10% of the new construction starts involve the
installation of propane, then 116,300 deliveries subject to OSHA's
standard would be required. The same research group that created the
2015 propane report that NPGA relied on in its comments also provided
an estimate that ``about 30,000 fuel oil households per year have
converted to propane.'' \29\ Adding this to the new construction
estimate above gives a total of 146,300 deliveries of new tanks per
year, which, based on NPGA's estimate of 40,000 operators in the
propane industry, results in an average of 3.66 jobs per

propane operator per year (146,300/40,000).
---------------------------------------------------------------------------

    \29\ Sloan, Michael, 2016 Propane Market Outlook, ICF
International for the Propane Education and Research Council), p.
20, available at https://www.afdc.energy.gov/uploads/publication/2016_propane_market_outlook.pdf (visited 10/1/18).
---------------------------------------------------------------------------

    Given that only operators engaged in construction activity must be
certified under OSHA's standard, and that only a very small percentage
of overall delivery activity constitutes construction activity covered
by OSHA's standard, OSHA disagrees that all operators in this industry
will require certification. While it is technically possible that every
operator would go on two different jobs with two different cranes such
that all would need two certifications, such an approach would ignore
economic convention. As with specialized work in general, an
economically rational employer will, in most cases, be able to assign a
consistent operator to handle this small percentage of specialized
activity rather than assuming the cost to have all of its employees
prepared to engage in a small percentage of the employer's overall
activity. OSHA therefore continues to estimate that each establishment
on average will require one certified operator to handle the occasional
delivery of tanks that would be covered by OSHA's construction rule.
    OSHA's estimate is consistent with the information OSHA obtained
during its interview with a propane distribution company that told OSHA
it operates approximately 50 delivery centers in 11 states and
maintains a fleet of 49 truck cranes (Id.), which is an average of
almost one crane per delivery center. It is possible that a few
establishments may require more than one certified operator due to
special circumstances, but OSHA expects that number to be offset by the
number of smaller establishments that would not be covered by OSHA's
construction standard because they use equipment that is outside the
scope of the standard (rated lifting capacity of less than 2,000
pounds). Such establishments would only engage in re-fueling existing
tanks or replacing existing tanks in kind, or they only deliver new
tanks to the ground at a construction site (see OSHA's June 27, 2016,
response to Mr. Robert F. Helminiak, former Director of Regulatory
Affairs for the National Propane Gas Association, that simply
transferring propane tanks from the equipment directly to the ground is
considered ``delivery'' and covered by applicable requirements of
general industry standards, not construction standards. Included in
NPGA's comments, ID-1631, Appendix b-3). Furthermore, OSHA believes
that its adoption of the highest end of the potential number of
establishments provides an adequate margin to account for differences
between the one-operator-per-establishment estimate and the actual
number of operators at each establishment who would be engaged in
construction activity.
    Due to these factors, the agency is not persuaded by the NPGA's
economic analysis for either the number of operators or the cost of
certification. OSHA has increased the number of affected establishments
(and thus affected operators) in this FEA for this industry, but not to
the extent proposed by NPGA.
    The remainder of the FEA first discusses the estimates for each
type of cost and cost savings and then summarizes the net cost savings.
Subsequent sections discuss economic and technological feasibility,
regulatory flexibility certification, and finally potential benefits of
this final rule. For this FEA, OSHA reviews any comments about its
estimates at the end of the relevant sections.
    Given the updating of economic data, and the changes from the
proposal to the final rule, the revisions to the standard will result
in a cost savings of $1,752,000, at a 3 percent discount rate (versus
the PEA estimated cost savings of $1,828,000), and $2,388,000 at the
discount rate of 7 percent (versus the PEA estimated cost savings of
$2,469,000k).
Evaluation Costs
    This section evaluates two kinds of evaluation costs: (1) The
addition of evaluations when operators change equipment,
configurations, or tasks that require new evaluations; and (2) the
addition of evaluation requirements for all new employees. OSHA also
increased its estimates of how many operators would require evaluations
as a result of the addition of more propane delivery operators, as
discussed above.
    As noted in the preamble explanation of this final rule, OSHA
received feedback during stakeholder meetings, site visits, and
interviews that, for a small percentage of employers, the proposed
rule's requirements for additional evaluations for specific situations
may have increased the number of operator evaluations they would
conduct. The increase from previous estimates would result if employers
need to conduct additional equipment-specific or task-specific
evaluations.
    To estimate the costs for the new evaluations required by this rule
(evaluations of operator knowledge and skills required to operate
different equipment or perform new tasks), the agency had taken the
following steps in the PEA, and the agency followed the same
methodology for the FEA. First, it estimated the number of new
evaluations required by the proposed rule. Then it estimated the unit
costs for each evaluation. Finally, the agency multiplied the number of
evaluations times the unit cost to identify the total costs of the
proposed rule due to new evaluations.
    OSHA began its preliminary estimate of the number of evaluations by
looking to its former rulemakings. In the 2017 deadline extension
economic analysis, OSHA estimated employers' evaluations due to
turnover of crane operators between employers, changes in the type of
equipment operated for the same employer, and evaluations of operators
new to the occupation. OSHA used the same estimate of total number of
evaluations in the original 2010 crane rule.
    In the 2017 deadline extension economic analysis, OSHA estimated
the total number of new evaluations needed each year to be 30,981
evaluations (26,940 successful initial evaluations as well as 4,041 (15
percent of 26,940) for operators who have to be re-assessed (82 FR
51993)). The added propane field technician operators, with the
standard 23% turnover and 15% re-assessment, contribute another 733
evaluations (23% * (1 + 15%) * 2,774) for a total of 31,715 evaluations
each year.
    However, after conducting extensive interviews with crane industry
stakeholders for this rule, OSHA preliminarily determined in the PEA
for this rulemaking that the agency had previously overestimated the
number of new evaluations that the rule would require to be performed
because OSHA had assumed that, in the absence of the rule, no employer
would conduct evaluations. In fact, stakeholders reported that almost
all employers conduct evaluations of new employees. As a result, the
agency modified its estimates to estimate that 50 percent of employers
(rather than 100 percent) would need to conduct such evaluations and,
as a result, 15,490 annual evaluations would be attributable to this
rule (83 FR 23559). The addition of the propane field technician
operators, discussed earlier, adds another 367 evaluations (50% of the
733 total propane evaluations, as identified earlier) for a total of
15,857 evaluations each year that will occur as a result of this rule.
The agency believes that even this estimate likely overestimates costs
given that most employers conduct such evaluations and that assessments
have been required for at least the last eight years under Sec.
1926.1427(k). None of the commenters questioned OSHA's estimate that at
least 50 percent of

establishments already provided the appropriate evaluations, and thus
OSHA has not changed this estimate for this FEA.
    In the PEA, OSHA also estimated a small increase in evaluation
costs from those in the 2017 deadline extension analysis because of the
additional specificity in this rule about when evaluations are required
and what an employer must evaluate. Specifically, proposed Sec.
1926.1427(f) required evaluation as necessary to ensure that the
operator maintains the ``skills, knowledge, and judgment necessary to
operate the equipment safely'' and to perform assigned tasks, including
specialty lifts such as blind lifts or multi-crane lifts. A similar
version of this requirement is included in this final rule (with the
replacement of ``judgment'' with ``ability to recognize and avert
risk'') and therefore OSHA retains this estimated increase in
evaluation costs for this FEA.
    In the PEA, OSHA preliminarily estimated that the proposed rule's
specificity would lead to an additional 15 percent of evaluations, on
top of the 15,490 evaluations conducted to comply with the less
specific prior rule (83 FR 23559), or 2,324 ``new evaluations.'' OSHA
explained that the stakeholder meetings and extensive OSHA interviews
indicated that this new language would not require many employers to
change their existing operator evaluation practices. Even before its
2010 rulemaking, OSHA required employers engaged in construction to
ensure that their operators were capable of operating their equipment
safely (Sec. Sec.  1926.550 and 1926.20(b)(4) prior to promulgation of
the crane standard on November 10, 2010). So for most employers, this
final rule will simply be a requirement to continue their existing
evaluation practices. OSHA further noted in the proposal that none of
the stakeholders OSHA met with expressed any concerns about their
ability to comply with these requirements (83 FR 23559). None of the
commenters contested OSHA's estimate of a 15 percent increase in
evaluations or disputed the agency's assessment of existing practices.
    In this FEA the agency again estimates that this rule will add 15
percent more evaluations, but that 15% is calculated from a higher
total number of operator evaluations that includes the additional 367
propane operators. Thus, in this FEA OSHA estimates that there will be
an additional 2,379 (15% x 15,857) ``new evaluations'' as a small
percentage of employers increase their evaluations of operators who are
switching equipment or performing more difficult tasks. This represents
a very small percentage of the total costs of evaluations.
    The second element needed in order to estimate the total cost of
evaluations is the unit costs for these evaluations. OSHA's unit cost
estimates for evaluations, which are unchanged from the PEA except for
increases in wage rates, took into account the time needed for the
evaluation, along with the wages of both the operator and the
specialized operator evaluator who will perform the evaluation. In its
2017 FEA, OSHA estimated that an initial evaluation of an experienced
operator with a compliant certification would take, on average, one
hour (82 FR 51992). The new evaluations generated by the specificity of
the rule would all be for previously evaluated, experienced operators
who are adding a new skill or new knowledge to an existing skill set,
not an initial evaluation for a brand new operator or an experienced
employee new to the firm. Thus, in many cases any evaluation time will
be minimal.
    Due to the specificity of the evaluation requirement in this rule,
OSHA included the ongoing cost for the initial evaluations, which it
had estimated previously in the 2017 FEA. These evaluations will
continue to be necessary because of turnover of crane operators between
employers, changes in the type of equipment operated for the same
employer, and evaluations of operators new to the occupation. The total
cost for these evaluations in this FEA is lower than the total
evaluation cost estimated in the 2017 FEA. This is partly because the
evaluations cost in the 2017 FEA was for an operator population that
was a mix of operators with a compliant certification (certified by
both the type and capacity of crane), non-compliant certification (by
type but not capacity), and no certification. The time for evaluation,
and hence its cost, was linked to operator certification status and
varied for these three types with the least time (one hour) for an
evaluation of an operator with a compliant certification. The new final
rule removes the existing requirement for certification by capacity,
meaning there would be no operators in the previously estimated ``non-
compliant certification'' group. This means that all operators would
receive evaluations for operators with a compliant certification and
hence will have the same unit cost for a one-hour evaluation. The
hourly wage of the evaluator was estimated to be the same as the hourly
wage of occupation First-Line Supervisors of Transportation and
Material-Moving Machine and Vehicle Operators (SOC: 53-1031 from the
BLS 2016 OES dataset updated to 2017) of $46.78 in 2017 dollars
including a markup for fringe benefits and overhead.\30\ The operator's
time is valued at the wage plus fringe benefits of occupation Crane and
Tower Operators (SOC: 53-7021) plus overhead, at $43.25. Hence, the
combined hourly cost for an evaluation or a training episode is $90.04
($43.25 + $46.78).
---------------------------------------------------------------------------

    \30\ The fringe markup is 1.45, derived from the BLS Employer
Costs for Employee Compensation, Private Industry Total Benefits for
Construction Industries March 2018.
---------------------------------------------------------------------------

    Multiplying that unit cost by the 15,857 initial evaluations
estimated in this FEA, the total annual cost for these ongoing initial
evaluations is $1,428,000 ($90.04 x 15,857).\31\
---------------------------------------------------------------------------

    \31\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    The total cost for the 2,379 new evaluations, which are for
experienced operators who are adding a new skill or new knowledge to an
existing skill set, is therefore the product of multiplying that unit
cost by the total number of evaluations: $22.51 x 2,379 new evaluations
= $54,000.
    The total annual cost for evaluations is therefore $1,481,000,
which is the sum of the $1,428,000 in initial evaluations and the
$54,000 for new evaluations.\32\
---------------------------------------------------------------------------

    \32\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    No commenter raised specific objections to the estimates used in
the PEA for the costs of evaluation. Some comments suggested generally
that OSHA's preliminary estimate of the number of evaluations was low,
based on an apparent misunderstanding of the standard (see, e.g., ID
1623, 1801). For example, one commenter (ID-1801) was concerned that
OSHA's requirement to document the make and model of crane on which an
operator was evaluated meant that OSHA would require a separate
evaluation for every single make and model of crane that a crane
operator might use. This is not the case. While the employer must list
the make and model of the crane that the operator was evaluated on, the
employer can then rely on that evaluation as a baseline and allow the
operator to use other cranes that do not require significant new
skills, knowledge, or ability to identify and avert risk in order for
the operator to operate the equipment safely. Another commenter (ID-
1623) states that ``One crane company alone testified [at an ACCSH
meeting] that the cost to document all of his employees on every crane
he owns, with each capacity, configuration and new additional
requirements would cost him more than ONE MILLION dollars.'' The
commenter did not provide any explanation or basis for that

amount, and the agency does not find this plausible and suggests it is
a misreading of the rule. OSHA's single evaluation cost is $90.04, so
to reach one million dollars in cost for a single employer, that
employer would have to do 11,106 evaluations each year (1,000,000/
90.04).
    Other commenters expressed some confusion about who had to conduct
the evaluation. Some asked if an employer renting a crane with an
operator(s) had to conduct its own evaluation (see ID-1495, ID-1615).
This is not required. The crane rental company is the employer of the
operator in that scenario and carries the duty to evaluate its
operator. Thus, there is no expense for an additional evaluation for
operators who are provided with rented cranes. Some small businesses
were concerned that they might not have an employee with the expertise
to evaluate a crane operator (see ID-1495.) The employer is responsible
for assuring that an operator has been evaluated, but need not conduct
that evaluation itself. The employer can, for example, arrange for an
evaluator from another organization, such as a labor organization or
crane operator training company, to serve as its agent and evaluate a
crane operator from a union hiring hall.
Employer Evaluation Documentation Costs
    The rule adds a new documentation requirement for a successful
evaluation. In both the PEA and the FEA, OSHA estimated the annual
evaluation documentation costs using the following three steps: It
estimated unit costs of meeting this requirement; estimated the total
number of cases of documentation that employers will need to perform in
any given year; and multiplied unit costs of documentation by the
number of cases to determine the annual costs.
    This final rule requires that employers document information about
the equipment that the operators is evaluated on (make, model, and
configuration) and include the evaluator's signature. Because of this,
the agency determined that the evaluator will complete all
recordkeeping related to this documentation. OSHA's unit cost estimates
for evaluation documentation take into account the time needed and the
wage of the employee who completed the documentation. The time needed
for creating and filing the needed information is estimated to be 5
minutes of the evaluator's time. As above, the hourly wage of the
evaluator is estimated to be $46.78. Hence, the cost of documenting a
successful evaluation is $3.90 ((5/60) x $46.78).
    The revised standard does not require employers to re-evaluate
operators who have already previously demonstrated that they have the
skills, knowledge, and abilities to operate the employer's equipment
safely. The employer may rely on previous assessments of these
operators, but must still document their qualifications (see preamble
discussion of Sec.  1926.1427(f)(1)(iii) and (f)(4)). In the PEA, the
agency preliminarily determined that employers would have documented
most evaluations in the past, but estimated the number of past
evaluations still needing documentation at 15 percent of the number of
operators, or 17,570 (15% x 117,130) (see 83 FR 23560). This approach
assumed that each employer would need to document employees evaluated
within the year prior to effective data of the rule, but not all
existing employees. To account for the one time need to document the
evaluations for all existing employees, and not just those hired in the
last year, OSHA is assuming all employees not hired in the last year
(85 percent derived as 100 percent minus the 15 percent new in that
year) would need to be documented. The FEA is thus raising the number
of evaluations needing documentation to 85 percent of the number of
operators, or 99,561 (85% x 117,130), thus taking account of the need
to document past or ongoing evaluations of all employees.
    With the addition of 2,774 propane field technician operators, the
total number of evaluations needing documentation is estimated to be
102,335 (99,561 + 2,774) in this FEA. This estimate is based on the
final rule's clarification that all evaluations of existing employees
must be documented, but existing operators at the time the rule becomes
effective do not need to be re-evaluated from scratch. This estimate
assumes that all existing employees not subject to turnover or changes
in equipment will need new documentation. This almost certainly
overestimates the need for documentation because it ignores existing
documentation practices, which OSHA's interviews with stakeholders
indicate exist. This total extra first year cost is $399,000 ($3.90 x
102,335). Annualized over 10 years at a 3 percent discount rate gives
an annualized cost of $47,000. At a discount rate of 7 percent, this
annualized cost is $57,000.
    Employers are only required to document successful evaluations, and
OSHA estimates that 15% of the operators will fail their evaluations.
As noted above, OSHA estimates 15,857 initial evaluations and 2,379 new
evaluations, for a total of 18,236 evaluations. With this 15% failure
rate, only 15,857 evaluations would require documentation (18,236/
1.15). OSHA calculated that the total annual documentation cost, absent
the first year extra documentation costs for existing, previously
evaluated operators, is $62,000 ($3.90 per evaluation x 15,857
evaluations).
    In the PEA, OSHA requested comment on its estimates of the
documentation costs. While none of the commenters dispute any of the
individual components of OSHA's documentation cost estimates, most of
the same comments that expressed concern about costs because of an
apparent confusion about the number of evaluations that would be
required also raised the same concern about the number of
documentations and resulting costs (ID-1623, 1801).
Employer Costs for Operator Training
    The final rule clarified the operator training requirements as
proposed, and OSHA retained the same methodology in its analysis of the
training costs. As explained in the 2010, 2014, and 2017 rulemakings,
employers were already required to train their operators prior to the
2010 rule, and OSHA did not estimate additional training costs other
than costs of optional certification preparation training classes in
its recent rulemakings (see, e.g., 75 FR 48097). The revised rule
clarifies that the training already required under the previous rule
continues to be required even after an operator is certified, including
training necessary when an operator requires new knowledge or skills
because of a change in equipment or tasks. Although OSHA's site visits
and interviews indicated that most firms are already providing the
required training, including the additional training necessary to
ensure that certified operators have the skills and knowledge to
operate new equipment or perform new tasks, OSHA calculated costs for
additional trainings that may occur as a result of this clarification.
    OSHA's calculation of the cost of these additional trainings
required several steps. First, OSHA estimated the average annual number
of equipment-specific or task-specific trainings as a percentage of the
new evaluations required by the rule, as estimated earlier. OSHA
expected the number of trainings to be a subset of the number of
evaluations because in many cases the operator will already possess the
required skills necessary for a new piece of equipment or a new task
and be able to demonstrate competency after only a cursory explanation
of the differences.

For example, an experienced operator conducting a blind lift for the
first time may have sufficient mastery of the equipment such that she
could pass an evaluation after only a very brief discussion of the
signals to be used. In the PEA, the agency judged that 50 percent of
the new evaluations, or 1,162 evaluations (50% x 2,324), would also
require trainings (83 FR 23560-23561). OSHA did not receive any comment
on this estimate. Using the same estimates for the newly included
propane field technician operators adds 28 additional evaluations (15%
of 366 evaluations is 55, and 50% of 55 is 28) that will require
additional training for a total of 1,189 (1,162 + 28) instances where
additional training will be needed.
    The second step is to identify an average amount of time that each
training will take. Some trainings are likely to require detailed
instructions about operating particular equipment and discussions of
protocol prior to a lift. Other trainings might involve a very short
period of instruction, such as to familiarize an experienced operator
with the setup of standard controls in a different crane of the same
type with which the operator already has experience. While OSHA lacked
data about the frequency of these different types of trainings, it
estimated in the PEA that the average time for each training is one
hour (83 FR 23561). For context, this is the same amount of time that
OSHA previously estimated that it would take for an inexperienced
operator to take the practical portion of the standard crane operator
test. OSHA solicited comment on this one-hour estimate, but received
none. OSHA has therefore relied on the same estimate in this FEA.
    OSHA expects two employees to be occupied during this hour of
training: The equipment operator and the trainer. Using the same wage
estimates as above, the hourly wage for the operator would be $43.25
and a supervisor's hourly wage of $46.78 for the trainer. However, not
all of the training time will result in a loss of productivity to the
employer. OSHA's site visits and interviews indicate that it is common
for operators to spend at least some of the training time operating the
crane under the instruction of the trainer, performing tasks that
actually are useful for the employer. While all of the trainer's time
is an opportunity cost for the employer, at least part of the
operator's time results in productivity for the employer. OSHA
estimated in the PEA that, on average, 75 percent of the operator's
training time (45 minutes of the hour) would consist of pure
instruction or other activities that would not be productive for the
employer (Id.). OSHA requested comment on this estimate but received
none and is therefore relying on that estimate in the FEA. Based on the
estimated one hour for each training, the unit cost for each training
is therefore the supervisor's wage for one hour ($46.78) plus $31.95 in
operator's wages for the 45 minutes of non-productive time (Three
quarters of the operator's hourly wage of $43.25), or $79.22 per
training. Thus, the total cost of the training industry-wide is $94,000
($79.22 x 1,189).
Cost Savings of Avoiding Additional Certifications
    Absent this final rule, all crane operators who are currently
certified only by crane type would have needed to obtain certification
both by type and capacity. This final rule removes the requirement for
certification by capacity and allows employers to rely on either ``type
and capacity'' or ``type only'' crane certifications, leaving only
certification by crane type as the obligation of the crane standard. To
calculate the cost-savings of additional certifications that would be
avoided by the final rule, OSHA estimated the number of crane operators
not yet in compliance with the type-and-capacity certification
requirement and multiplied that estimate by the estimated cost of
obtaining such certification.
    Based on OSHA's previous rulemakings, OSHA estimated that 71,700
crane operators do not yet possess a type-and-capacity certification.
(82 FR 51993). Although the 2014 FEA estimated a gradual decline over
time of the number of such operators (an estimate of 61,474 in 2016,
see Table 1, 79 FR 57796), the 2017 extension estimated that 71,700
operators were not yet in compliance and would not be for much of 2017
and 2018 leading up to the new 2018 deadline. (see Table 1, 82 FR
51995). In the PEA, the agency accordingly estimated the number of
operators certified by crane type only would remain at 71,700 each year
and no commenters provided better data. OSHA adopted this approach
because 71,700 was the last hard data point the agency had, and relies
on it again in the final rule.\33\ Certification has likely gradually
spread as an expected job qualification in the crane operator job
market, so it is quite possible that the number of operators possessing
a type, but not type-and-capacity certification, is actually higher
today. The largest certification school issues a certificate by type
only, which means there may be additional cost savings that OSHA is not
attributing to this final rule since there are more operators certified
by type only who would not have to become certified by type and
capacity.
---------------------------------------------------------------------------

    \33\ Note that this 71,700 operators is not impacted by OSHA's
increase in the total number of operators to account for additional
propane industry operators because this number only reflects
operators certified by type of crane, but not capacity, who would
have needed to obtain a new certificate by capacity. The NPGA has
indicated that the majority of its operators have not yet obtained
any certification under the hope that they would be excluded from
the standard, so those operators are not included in the group of
71,700.
---------------------------------------------------------------------------

    OSHA looked to the 2017 deadline extension rule to estimate the
unit cost of a type and capacity certificate. There, the agency
estimated that such a test would take 2.5 hours and require a $250
fixed testing fee (82 FR 51994). At the hourly crane operator wage
noted above ($43.25), the total cost for a compliant certification is
$358.13 ($250 + (2.5 x $43.25)). If 71,700 crane operators needed to
take the test, the cost would be $25,678,000 (71,700 x $358.13). These
costs include only the time and costs necessary for certification, and
do not include the costs necessary for training for the certification
examination, which would occur prior to taking the type-only
examination. Because this rule would remove the requirement for
additional certifications by capacity, that amount becomes a cost
saving.
    Commenters presented two different challenges to OSHA's estimates
of the unit cost for certification. The NPGA's comment, mirrored in
many of the comments that were part of a mass mailing from the propane
industry, claimed that the unit cost for two certifications is $3,790,
which would be $1,185 per certificate ((ID-1631, Part 2). However, the
NPGA's estimates are for a brand new operator (including preparatory
class time as well as the tests), which is different than the cost that
OSHA estimated here for the purpose of determining costs savings from
avoiding an additional certificate for an operator who already has a
type-only certificate.\34\
---------------------------------------------------------------------------

    \34\ The economic analysis used by the agency to estimate costs
for new operators (those without any certificates) results in a
comparable number that is actually slightly higher than NPGA's
estimate. See, for example, the 2014 deadline extension analysis:
``OSHA estimated that training and certification costs for an
operator with only limited experience would consist of $1,500 for a
2-day course (including tests) and 18 hours of the operator's time,
for a total cost of $2,141.16.'' (79 FR 57794).
---------------------------------------------------------------------------

    The IUOE identified a per-certification cost from NCCCO of $225,
which is slightly lower than OSHA's estimate of $250 (ID-1816). But the
IUOE estimate does not account for the hourly cost of the operator's
time to take the certification exam. The agency notes

that its estimate costs the average price in the market, not a single
firm, and believes its current costs are reasonable. Note to the extent
the agency is underestimating costs this means its estimate of cost
savings is too low.
    This, of course, is a one-time cost savings, while costs of
continued evaluations and most of the other cost elements of the rule
are ongoing. Using the agency's standard 10 year horizon, the result is
an annualized cost savings of $3,010,000 at a discount rate of 3
percent, and an annualized cost savings of $3,656,000 at a discount
rate of 7 percent.
    The agency estimates there will also be ongoing cost savings due to
a number of certifications that would have only been needed for a
change in capacity (but not type) and hence no longer will be needed.
More than half of certified crane operators have been certified by a
certifying body (including state and local governments) that does not
issue certificates by capacity, which indicates that many of these
operators may not need multiple capacity certifications. OSHA
conservatively estimated the value of this cost savings by taking 50
percent of the 2,379 additional evaluations, or 1,189 (0.50 x 2,379) as
an additional number of annual certifications that would have been
required solely due to changes in crane capacity but not crane type.
The unit cost for this certification follows previous analysis in
assigning a $250 flat fee for the certificate, as well as 1.5 hours of
the operator's time for the written exam and 1 hour for the practical
exam. This gives a unit cost of $358.13 ($250 + (2.5 x $43.25)).
Finally, the total annual cost savings for these avoided certifications
is $426,000 (1,189 x $358.13). Hence, along with the one-time cost
savings due to omitted certifications, the total cost savings for these
two elements are $3,436,000 ($3,010,000 + $426,000) at a 3 percent
discount, and total cost savings for these two elements of $4,082,000
($3,656,000 + $426,000) at a 7 percent discount rate.\35\
---------------------------------------------------------------------------

    \35\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    As noted above, OSHA may be somewhat underestimating the cost
savings of this final rule, which would offset any potential
underestimation of costs. Regardless, this has no effect on the
economic feasibility of this rule.
Total Cost of the Final Rule
    The total annual cost of the final rule comprises the cost items
identified above: Evaluations (those previously calculated with offsets
from the removal of the requirements to certify by capacity and with
the additional evaluation costs to account for new skills and tasks),
documentation of the evaluations (including the one-time first year
evaluation documentation for existing, currently employed operators
without such documentation), and training costs. The cost savings is
due to averting the need for all operators who currently have a type
only certification to obtain a type-and-capacity certification. Since
the last item is relatively large and primarily occurs in the first
year while the other costs are ongoing, the discount rate and discount
horizon have a significant impact on the final total cost. At a
discount rate of 3 percent the sum of those parts is a cost savings of
$1,752,000 ($1,428,000 + $54,000 + $62,000 + $94,000 + $47,000-
$3,010,000-$426,000). Using a discount rate of 7 percent there are cost
savings of $2,388,000 ($1,428,000 + $54,000+ $62,000 + $94,000 +
$57,000-$3,656,000-$426,000).\36\
---------------------------------------------------------------------------

    \36\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    Here is a summary table of all the costs:

                     Summary Table-Annualized Costs
------------------------------------------------------------------------
                                            3% Discount     7% Discount
                                               rate            rate
------------------------------------------------------------------------
initial evaluations.....................      $1,428,000      $1,428,000
new evaluations.........................          54,000          54,000
ongoing documentation evaluation........          62,000          62,000
Training................................          94,000          94,000
initial evaluation documentation                  47,000          57,000
 (annualized)...........................
non-capacity certifications, current         (3,010,000)     (3,656,000)
 population (cost savings, 10 years
 annualized)............................
non-capacity certifications, ongoing           (426,000)       (426,000)
 (cost savings).........................
                                         -------------------------------
    Total...............................     (1,752,000)     (2,388,000)
------------------------------------------------------------------------

Economic and Technological Feasibility
    The agency has determined that the proposal is technologically
feasible because many employers already comply with all the provisions
of the revised rule and the rule would not require any new technology.
Ignoring cost savings, the cost elements of significance for this rule
making are the evaluation requirement with associated training of
$79.22 per training and $90.04 for each operator evaluation, for a
total of $169.25 per operator, which should be a small expense for the
businesses covered under this rule. The vast majority of employers
already invest the resources necessary to comply with the provisions of
the standard. Hence the agency preliminarily concludes that the
standard is economically feasible.\37\
---------------------------------------------------------------------------

    \37\ A number of commenters questioned the impact of the
standard's requirement for operator certification on their
industries (see for example 1612, 1631, 1746 and many other comments
from the propane gas industry). The requirement for operator
certification is already part of the standard and the removal of
that requirement is beyond the scope of this rulemaking, as
explained earlier in the preamble to this rulemaking. OSHA
demonstrated the economic feasibility of operator certification
requirement in the 2010 rulemaking; the agency need not re-analyze
it in this rulemaking, which addresses certification only to the
extent that it reduces the number of certifications required by the
standard.
---------------------------------------------------------------------------

Certification of No Significant Economic Impact on a Substantial Number
of Small Entities
    The largest cost element of the revisions to the rule is an
evaluation requirement with associated training of $79.22 per training
and $90.04 for each operator evaluation, for a total of $169.25. Small
businesses will, by definition, have few operators, and the $169.25
cost for each operator evaluation with training will not be a
significant impact for even the smallest businesses. At an hourly wage
of $43.25, the annual salary for an operator is $86,500 ($43.25 x 8 x 5
x 50), so this operator evaluation cost is 0.2% (169.25/86,500) of an
operator's annual salary. Hence, OSHA certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities.

    As with economic feasibility, there were a number of commenters
focused on the impact of the standard's requirement for operator
certification on OSHA's preliminary determination that the rule would
not have a significant impact on a substantial number of small
businesses. As noted in the economic feasibility analysis, this
rulemaking addresses certification only to the extent that it reduces
the number of certifications required by the standard.
Benefits
    OSHA's 2010 Cranes and Derricks in Construction standard included
an extensive analysis of the benefits attributed to preventing crane-
related fatalities and serious injuries. In that analysis, OSHA relied
on IMIS injury data made available in 2008 (see 75 FR 48093), finding
that the standard would prevent 175 injuries and 22 fatalities per year
for a total annual benefit of $209.3 million (75 FR 48079-48080).
    OSHA, in the proposal for this rule, preliminarily concluded that
allowing certification by type only would result in no loss of
benefits. OSHA received only one comment challenging that conclusion.
That commenter, a representative of a certification body that issues
certifications by capacity, claimed that ``[r]etaining capacity will
require more stringent testing resulting in an increase in crane
safety, thus fewer accidents,'' (ID-1235), but this commenter did not
provide further explanation of why the testing would be more stringent
or any evidence that it would increase safety.
    While testing organizations differed over whether a certification
by capacity provided any useful information to an employer, the
remainder of the commenters agreed that capacity is just one factor to
be considered in the employer's overall evaluation of the operator's
ability. Only one commenter opposed removing certification by capacity,
but even that commenter did not point to any specific loss of safety
benefits. The majority of commenters that responded to this issue
support removing the certification by capacity requirement (ID-0690,
0703, 0719, 1611, 1616, 1619, 1628, 1632, 1719, 1735, 1744, 1755, 1764,
1768, 1801, 1816, 1826, 1828). None of the commenters supporting the
removal of the requirement for certification by capacity indicated that
the removal of that requirement would result in any loss in safety
benefit. An industry group whose membership uses cranes for roofing
work stated that capacity ``did very little to advance the safe
operation of cranes at construction jobsites'' (ID-1619). A local
chapter of a labor union noted that the two certification bodies that
offer certification by capacity did not offer any safety evidence to
the agency in OSHA's previous public hearings or stakeholder meetings
(ID-1719). Referring to consensus standards and industry best
practices, a national labor organization implied that there is no
industry recognition of a safety benefit from certification by
capacity, noting that ASME B30.5 ``does not describe testing or
examination by capacity,'' and the organization ``is not aware of any
state or local regulatory body . . . that requires certification or
licensing by both type and capacity'' (ID-1816). In its request for
comments on this issue, the agency specifically asked for information
that demonstrated the safety benefits of certification by capacity, but
it did not receive any such information.
    As noted in the sections on ``Background'' and ``Need for a Rule,''
OSHA received significant feedback from stakeholders following the 2010
final rule indicating that the standard, to be fully effective, would
need to preserve the employer duty to evaluate operators separately
from the general operator certification requirement. Certifications are
intended to address basic operator knowledge and skills, but do not
assess operators' familiarity with the actual equipment they will
operate or the specific tasks they will perform. The amendments to the
standard in this rulemaking make that employer duty permanent and add
specificity, thereby ensuring that the full benefits of the standard
will be realized.
    The safety benefit of the rule is the prevention of injuries or
fatalities resulting when operators certified to operate the type of
crane assigned still lack the knowledge or skill to operate that crane
for the assigned task. As noted earlier, there are many variables in
equipment and controls between different models of the same type of
crane, and there are many crane operations that require additional
knowledge and skill beyond that demonstrated during certification
(e.g., swinging a ``headache ball'' instead of lifting a load,
performing a blind lift, participating in a multi-crane lift, etc.).
Certification does not address these variables or provide assurance
that the operators are qualified to safely operate the equipment for
the task assigned, so without these amendments operators could be
permitted to perform equipment operations after November 2018 that they
are not qualified to operate safely. OSHA has already determined that
there is a significant risk of injury when operators are allowed to
operate heavy machinery that they are not qualified to operate.
    The 2010 crane rule estimated annual net benefits at $55.2 million
in 2010 dollars (75 FR 47914). Since there are cost savings for this
final rule, net benefits of the joint 2010 final rule and this final
rule are vastly greater than zero.
    While this rule attempts to realize the full benefits already
identified in 2010 for the standard, and OSHA need not parse the
benefits of each provision of the standard separately, OSHA recognizes
that the revision to the standard is also likely to generate additional
benefits from the more specific requirement for employers to evaluate
operators on specific equipment for specific tasks. To explore this,
OSHA conducted further analysis of recent IMIS incident reports in an
effort to illustrate the new benefits of the evaluation requirements
beyond the benefits that would be achieved through the previous
standard with operator certification alone.
    OSHA looked at IMIS accident reports for 2009-2013, years
subsequent to the data used for the FEA for the 2010 rulemaking. All
accidents with any of the search terms ``boom,'' ``crane,'' or ``pile
driver'' in either the event description or in the abstract were
examined, the same keywords as used in the analysis for the 2010 final
rule. OSHA identified incidents where there was an express mention in
the IMIS description that the crane operator was unfamiliar with the
specific crane equipment used during the incident, or with the specific
task. Using this methodology, the agency has been able to identify
three fatalities that may have been prevented if the updated evaluation
requirement had been in place at the time. It is true that there was a
general duty to ensure operator competency at the time of these
incidents (see Sec. Sec.  1926.20(b)(4) and 1926.1427(k)(2)). But, as
explained above, that previous employer duty was stated very generally
and employers might have believed that a preliminary general
examination of the operator could satisfy the requirement without
accounting for evaluation of the operator's ability to operate
different models of the same type or perform new tasks.
    OSHA believes that the revised rule, which makes the evaluation
duty permanent and includes more detailed evaluation documentation
requirements, would make it more likely an employer conducts the
appropriate type of evaluation and therefore more likely that such
incidents would be avoided in the future. By specifying the elements to

be evaluated, OSHA expects the evaluations to be more effective at
preventing injuries by identifying operator limitations in a timely
manner. For example, the employer might have believed it was complying
with the previous general employer duty if it evaluated an operator and
found that the operator was qualified to operate a particular crane to
lift pallets of material, even though the employer did not perform any
additional evaluation before assigning the operator to a lift that
required additional skills, such as a blind lift or lifting poles
instead of pallets. As indicated by the second IMIS example below,
there is greater risk of injury if the operator is not qualified to
perform the new task. OSHA expects the documentation requirement to
assist employers in complying with the different evaluation elements of
the standard. And OSHA expects that the documentation requirement will
facilitate communication between supervisors and operators and help
avoid assignment of an operator to equipment or tasks for which he or
she is not qualified, thereby reducing the risk of injury from
unqualified operation.
    The IMIS summaries are not particularly detailed or uniform, so
many more of these incidents may also have involved similar operator
failures that were not explicitly detailed in the IMIS summary. But the
complete IMIS abstract of each fatal incident follows.

    Case One: Operator not competent to use specific equipment:
    At approximately 2:50 p.m. on June 16, 2009, an employee was
walking toward a seawall the company was reconstructing when a
section of the boom failed and fell on him. The employee was killed.
The crane had been built in 1964, and was bought by Ray Qualmann
Marine Construction, Inc. on April 29, 2008. The company never
performed an annual inspection of the crane or a monthly one, and
documentation was not available to indicate any maintenance had been
done to the crane. The only documentation available for the crane
was an inspection report dated June 10 2009, made by a crane
operator who worked for the company, which failed to identify that
the crane did not have a boom angle indicator, that several lacings
were bent on it, and that the angles and spacing of the repaired
lacings were uneven. In addition, neither the crane operator who
operated the crane on the day of the accident, nor the foreman, had
ever seen the operator's and maintenance manual for the crane
involved in the accident. The crane operator was not familiar with
the controls of the crane. The operator did not know the weight of
the load, and did not know the length of the boom. The crane was
overloaded when the accident occurred.

    The general manager of Ray Qualmann Marine Construction claimed
that the operator had extensive crane experience and had worked for the
company for more than 20 years. OSHA concluded in its investigation,
however, that the company allowed the operator use of the Link-Belt LS-
58 crane with no training for this equipment. The abstract indicates
that the lack of familiarity with the specific equipment used
contributed to the fatality. An evaluation of the operator's competency
on the specific equipment, rather than the general skills and knowledge
tested as part of the third-party certification process, would have
been more likely to identify the problem in this case and avoid the
resulting fatality.

    Case Two: Operator not competent to perform specific task:
    On November 17, 2009, employees with Moreau's Material Yard were
driving pilings for an oil rig foundation in which a 4,000 lb
hammer, attached to the top of the lead, was used to drive 70 to 75
ft poles into the ground. Employee #1 was working on a crawler crane
platform approximately 20 to 25 ft above the ground. He was wearing
a harness with a lanyard connected to a ladder rung. When the crane
tipped over, Employee #1 attempted to jump from the platform to the
ground below. He was struck by the crane and killed. The crane
operator sustained minor injuries. Other employees indicated that
the employer had never lifted poles of that size and the crane boom
may have been used at an improper angle for the load being carried.

    It is clear from the IMIS report that the operator was familiar
with crane equipment but had never lifted poles of that size. While all
of the details of the task are not included in the abstract, the note
about the different pole size and the operator's use of an improper
boom angle suggest that the activity was significantly different from
previous activities such that it would have required different
knowledge or skills. This incident and resulting injuries might have
been prevented if the employer took the time to evaluate the operator
for the specific task assigned.

    Case Three: Operator inadequately trained:
    On June 23, 2011, Employee #1, an ironworker, was installing a
structural steel bracing and painting structural steel beams in the
ceiling of a manufacturing plant addition. Employee #1 was working
alone from a boom-supported aerial work platform that was borrowed
from another employer. At approximately 11:15 a.m., an electrician
walked into the area and found the aerial work platform elevated
with Employee #1 slumped over the controls. Employee #1 was crushed
between the work platform and one of the ceiling beams. Other
tradesmen at the worksite used the ground controls to lower Employee
#1 to the floor. Employee #1 died from the injuries. Employee #1 had
been trained in operating a boom-supported aerial work platform by
his employer, but was not trained in the differences between those
aerial work platforms that were owned by the employer and the
borrowed lift being used the morning of the incident. The drive
controls on the borrowed aerial work platform may have been reversed
from the actual direction that they would operate.

    The abstract does not include enough information to be certain as
to whether the ``boom-supported aerial work platform'' was equipment
that would be covered by the crane standard (it could be a simple
aerial lift not covered by the standard, or a boom crane or multi-
purpose machine configured to support the work platform in a manner
that would be within the scope of the standard). Nevertheless, the
incident illustrates the potentially fatal consequence of requiring an
employee to operate new equipment without ensuring that the employee
can account for differences in control locations and functions. Like
the previous cases, the employee received training for certain crane
equipment but lacked the skills necessary to operate the borrowed
machinery used on the day of the accident. Had the employee been
evaluated by his employer before using the equipment, the employee's
unfamiliarity with the equipment could have been identified earlier and
the fatality might have been prevented.
    OSHA presented the same analysis of benefits, including these IMIS
summaries, in the NPRM and received no comment challenging OSHA's
analysis of the benefits of the rule or of the IMIS summaries provided.
As discussed in the Summary and Explanation, most commenters agreed
with OSHA's conclusion that evaluation improves safety, even if the
effect could not readily be quantified. While there were many
suggestions as to the best approach to the requirements for employer
evaluation, there was virtually no opposition to the basic concept of
requiring employers to evaluate their operators.

C. Paperwork Reduction Act

Overview
    The final ``Cranes and Derricks in Construction: Operator
Qualification'' rule contains information collection (paperwork)
requirements that are subject to review by OMB. The Paperwork Reduction
Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing
regulations, 5 CFR part 1320, require that the Department consider the
impact of paperwork and other information collection burdens imposed on
the public. A Federal agency generally cannot conduct or sponsor a
collection of information, and the public is generally not required to

respond to an information collection, unless it is approved by OMB
under the PRA and displays a currently valid OMB Control Number. In
addition, notwithstanding any other provisions of law, no person may
generally be subject to penalty for failing to comply with a collection
of information that does not display a valid OMB Control Number. See 5
CFR 1320.5(a) and 1320.6.
Solicitation of Comments
    OSHA published two separate Federal Register notices that allowed
the public an opportunity to comment on the proposed Information
Collection Request (ICR) containing the information collection
requirements in the proposed rule for 60 days, as required by 44 U.S.C.
3507). The NPRM provided an initial 30 days for the public to comment
on the ICR corresponding to the general comment period for the
rulemaking (83 FR 23534), and OSHA published a second companion notice
to the NPRM on July 30, 2018 (83 FR 36507), allowing the public an
additional 30 days to comment on the information collection
requirements contained in the proposal. Concurrent with the proposed
rule, OSHA submitted the ICR to OMB for review (ICR Reference Number
201710-1218-002) in accordance with 44 U.S.C. 3507(d).
    On July 31, 2018, OMB issued a Notice of Action (NOA) assigning the
proposal's ICR a new control number, 1218-0270, to be used in future
ICR submissions. OMB noted that this action had no effect on any
current approvals. OMB also noted that the NOA is not an approval to
conduct or sponsor the information collection contained in the
proposal. Finally, OMB requested that, ``Prior to publication of the
final rule, the agency should provide a summary of any comments related
to the information collection and their response, including any changes
made to the ICR as a result of comments. In addition, the agency must
enter the correct burden estimates.''
    The proposed rule invited the public to submit comments to OMB, in
addition to OSHA, on the proposed information collection requirements
with regard to the following:
     Whether the proposed information collection requirements
are necessary for the proper performance of the agency's functions,
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
cost) of the information collection requirements, including the
validity of the methodology and assumptions used;
     The quality, utility, and clarity of the information
collected; and
     Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
    OSHA received three public comments \38\ on the proposed ICR that
are addressed in the agency's final ICR analysis. In addition, OSHA
received a number of comments in response to the proposed rule,
described earlier in this preamble, that also addressed several
information collection requirements (primarily the requirement to
document evaluations) and contained information relevant to the burden
hour and costs analysis in the ICR. Responses to these comments are
found above in Section III, Summary and Explanation of the Proposed
Amendments to Subpart CC. OSHA considered them when it developed the
revised ICR associated with the final rule.
---------------------------------------------------------------------------

    \38\ See www.Regulations.gov, docket numbers: OSHA-2018-0009-
0003; OSHA-2018-0009-0004; and OSHA-2018-0009-0005.
---------------------------------------------------------------------------

    Concurrent with publication of this final rule, the Department of
Labor submitted the final ICR, containing the full analysis and
description of the burden hours and costs associated with the final
rule, to OMB for approval. A copy of this ICR is available at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201809-1218-001 (this link
will become active on the day following publication of the final rule).
OSHA will publish a separate notice in the Federal Register that will
announce the results of OMB's review. That notice will also include a
list of OMB-approved information collection requirements and total
burden hours and costs imposed by the new standard. The Agency will
also codify the OMB control number for the standard into Sec.
[thinsp]1926.5, which is the central section in which OSHA displays its
approved collection under the Paperwork Reduction Act.
Summary of Information Collection Requirements
    This final rule establishes new information collection
requirements. It also modifies a small number of information collection
requirements in the Cranes and Derricks in Construction Standard (29
CFR part 1926, Subpart CC) Information Collection (IC) previously
approved by OMB. If the new information collection requirements are
approved by OMB, OSHA will request a second OMB approval to amend the
comprehensive Cranes and Derricks in Construction Information
Collection (OMB control number 1218-0261) to incorporate the ICR
analysis associated with the final Cranes and Derricks in Construction
Standard: Operator Qualification and to discontinue the new control
number (1218-0270).
    Below is a summary of the major differences in the information
collection requirements contained in the revised rule from the
information collection requirements previously approved in the ICR.
Also, the summary includes a brief description of the significant
changes between the proposal and the final rule's information
collection requirements. These differences are discussed in more
specific detail in Section III: Summary and Explanation of the
Amendments to Subpart CC. The impact on information collection
requirements is also discussed in more detail in Item 8 of the ICR.
    Some of these adopted revisions resulted in changes to the previous
burden hour and/or cost estimates associated with the current OMB-
approved information collection requirements contained in the Cranes
and Derricks in Construction Standard Information Collection. Others
did not change burden hour or cost estimates, but would substantively
modify language contained in the currently OMB-approved ICR. Still
others revised previous standard provisions that are not information
collection requirements. This summary addresses the first two
categories to ensure that the ICR reflects the updated regulatory text,
but does not address the last category of revisions. In addition, this
summary does not address the provisions that are substantively
unchanged from the current, OMB-approved information collection
requirements. Discussion and justification of these provisions can be
found in the preamble to the final 2010 crane rule (75 FR 48017) and
also in the Supporting Statements for this final rule, as well as in
the approved Information Collection.
Section 1926.1427(a)--Operator Training, Certification, and Evaluation
    The introductory text in paragraph (a) sets out the employer's
responsibility to ensure that each operator is certified/licensed in
accordance with subpart CC, and is evaluated on his or her competence
to safely operate the equipment that will be used, before the employer
permits him or her to operate equipment covered by subpart CC without
continuous monitoring. The revised approach provides a clearer
structure than the previous standard, which was not designed to

accommodate both certification and evaluation.
Section 1926.1427(c)--Operator Certification and Licensing
    Under paragraph (c), the employer must ensure that each operator is
certified or licensed to operate the equipment. Paragraph (c) retains
the certification and licensing structure of the previous standard with
only a few minor modifications intended to improve comprehension of
certification/licensing requirements. For example, OSHA removed the
reference to an ``option'' with respect to mandatory compliance with
existing state and local licensing requirements that meet the minimum
requirements under federal law.
Section 1926.1427(d)--Certification by an Accredited Crane Operator
Testing Organization
    Revised paragraph (d) retains the requirements of previous
paragraph Sec.  1926.1427(b), except that the revision removes the
requirement for certification by capacity of crane, as required in
previous paragraphs (b)(1)(ii)(B) and (b)(2). The need for this change
is explained in the ``Need for a Rule'' section of the preamble. The
revised rule also makes some non-substantive language clarifications.
Compliance with the requirements of revised paragraph (d) is the option
that OSHA expects the vast majority of employers to use.
Section 1926.1427(e)--Audited Employer Program
    The substantive content of revised paragraph (e) is the same as
previous Sec.  1926.1427(c). It sets out the parameters for a
nonportable certification program administered by the employer and
audited by a third party. The changes to the regulatory text for the
audited employer program are to remove the word ``qualification'' and
to replace three cross references with updated references to their new
locations in the final rule.
Section 1926.1427(f)--Evaluation
    Paragraph (f) sets out new specific requirements that employers
must follow to conduct an operator evaluation and re-evaluation,
including documentation requirements. Paragraph (f)(6) requires the
employer to document the evaluation of each operator and to ensure that
the documentation is available at the worksite while the operator is
employed by the employer. OSHA is adding language to this final rule
that states explicitly the documentation must be maintained while the
operator is employed by the employer. This paragraph also specifies the
information that the documentation needs to include: The operator's
name, the evaluator's name and signature, the date of the evaluation,
and the make, model and configuration of the equipment used in the
evaluation. However, the documentation would not need to be in any
particular format. The employer must make the document available at the
worksite for the duration of the operator's employment.
    The final rule also permits the employer to rely on its previous
assessments of an operator employed by that employer prior to December
10, 2018, in lieu of conducting a new evaluation of that operator's
existing knowledge and skills. Thus, for those operators assessed under
this provision of the final rule, the evaluation documentation must
reflect the date of the employer's determination of the operator's
abilities and the make, model and configuration of equipment on which
the operator has previously demonstrated competency. The proposed rule
did not include the provisions permitting employers to rely on previous
assessments of current employees in lieu of conducting new evaluations
and the associated documentation.
Section 1926.1427(h)--Language and Literacy
    Previous paragraph Sec.  1926.1427(h) allowed operators to be
certified in a language other than English, provided that the operator
understands that language. Paragraph (h) in the final rule is nearly
identical to previous paragraph (h) with the exception that it removes
the reference to the previous qualification language in paragraph
(b)(2), which has been replaced.
    Title of Collection: Cranes and Derricks in Construction: Operator
Qualification.
    OMB Control Number: 1218-0270.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 119,904 (117,130 employers
of operators and 2,774 employers of propane field technician officers).
    Total Estimated Number of Responses: 102,144.
    Total Estimated Annual Time Burden Hours: 7,173.
    Total Estimated Annual Other Costs (capital, operation and
maintenance) Burden: $84.

D. Federalism

    OSHA reviewed the revisions to the cranes standard in accordance
with the Executive Order on Federalism (Executive Order 13132, 64 FR
43255, August 10, 1999), which requires that Federal agencies, to the
extent possible, refrain from limiting State policy options, consult
with States prior to taking any actions that would restrict State
policy options, and take such actions only when clear constitutional
and statutory authority exists and the problem is national in scope.
Executive Order 13132 provides for preemption of State law only with
the expressed consent of Congress. Federal agencies must limit any such
preemption to the extent possible.
    Under Section 18 of the OSH Act, Congress expressly provides that
States and U.S. territories may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such States and territories as ``State Plan
States.'' Occupational safety and health standards developed by State
Plan States must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards
(29 U.S.C. 667).
    OSHA previously concluded from its analysis for the 2010 final rule
that promulgation of subpart CC complies with Executive Order 13132
(see 75 FR 48128-29). The amendments in this final rule do not change
that conclusion. In States without an OSHA-approved State Plan, this
revised rule will limit state policy options in the same manner as
every standard promulgated by OSHA. But the revised rule also requires
compliance with State and local crane operator licensing programs that
meet certain minimum standards. Section 18 of the OSH Act, as noted in
the previous paragraph, permits State-Plan States to develop and
enforce their own cranes standards provided these requirements are at
least as effective in providing safe and healthful employment and
places of employment as the requirements specified in this final rule.

E. State Plans

    When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must either amend their
standards to be identical or ``at least as effective as'' the new
standard or amendment, or show that an existing State standard covering
this area is already ``at least as effective'' as the new Federal
standard or amendment (29 CFR 1953.5(a)). State Plan adoption must be
completed within six months of the promulgation date of the final
Federal rule. When OSHA promulgates a new standard or amendment that
does not

impose additional or more stringent requirements than an existing
standard, State Plans do not have to amend their standards, although
OSHA may encourage them to do so. The 28 OSHA-approved State Plans are:
Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana,
Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nevada, New
Mexico, New Jersey, New York, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands,
Washington, and Wyoming. Connecticut, Illinois, New Jersey, New York,
Maine, and the Virgin Islands have OSHA-approved State Plans that apply
to State and local government employees only.
    The amendments to OSHA's cranes standard in this final rule require
employers to permanently implement evaluations of crane operators,
whereas the previous evaluation duty had been temporary with a fixed
end date. These evaluations must be documented and include more
specificity than the previous temporary employer duty to assess and
train operators under Sec.  1926.1427(k)(2). Accordingly, State Plans
are required to adopt an ``at least as effective'' change to their
standard.
    OSHA is also removing the previous requirement for crane operators
to be certified by crane capacity as well as crane type. Because this
change removes a requirement rather than imposing one, State Plans are
not be required to make this change, but may do so if they so choose.

F. Unfunded Mandates Reform Act

    When OSHA issued the final Cranes and Derricks in Construction rule
in 2010 (75 FR 47906), it reviewed the rule according to the Unfunded
Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (56 FR 58093). OSHA concluded that the final rule did not
meet the definition of a ``Federal intergovernmental mandate'' under
the UMRA because OSHA standards do not apply to State or local
governments except in States that voluntarily adopt State Plans. OSHA
further noted that the 2010 rule imposed costs of over $100 million per
year on the private sector and, therefore, required review under the
UMRA for those costs, but concluded that its 2010 final economic
analysis met that requirement.
    As discussed above in Section III.A (Final Economic Analysis and
Regulatory Flexibility Analysis) of this preamble, this final rule has
cost savings of approximately $1.8 million per year. Therefore, for the
purposes of the UMRA, OSHA certifies that this final rule would not
mandate that State, local, or tribal governments adopt new, unfunded
regulatory obligations, or increase expenditures by the private sector
of more than $100 million in any year.

G. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it will not have ``tribal
implications'' as defined in that order. The final rule will not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.

H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

    Consistent with E.O. 13771 (82 FR 9339, January 30, 2017), OSHA has
estimated at a 3 percent discount rate, there are net annual cost
savings of $1,752,000, and at a discount rate of 7 percent there is an
annual cost savings of $2,388,000. This rule is an E.O. 13771
deregulatory action. Details on the estimated costs and cost savings
estimates for this rule can be found in the final rule's economic
analysis.

List of Subjects in 29 CFR Part 1926

    Certification, Construction industry, Cranes, Derricks,
Occupational safety and health, Qualification, Safety, Training.

    Signed at Washington, DC, on November 5, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble of this final rule, OSHA is
amending 29 CFR part 1926 as follows:

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart CC--Cranes and Derricks in Construction

0
1. The authority citation for subpart CC continues to read as follows:

    Authority:  40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657;
Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.

0
2. Revise Sec.  1926.1427 to read as follows:

Sec.  1926.1427   Operator training, certification, and evaluation.

    (a) General requirements for operators. The employer must ensure
that each operator is trained, certified/licensed, and evaluated in
accordance with this section before operating any equipment covered
under subpart CC, except for the equipment listed in paragraph (a)(2)
of this section.
    (1) Operation during training. An employee who has not been
certified/licensed and evaluated to operate assigned equipment in
accordance with this section may only operate the equipment as an
operator-in-training under supervision in accordance with the
requirements of paragraph (b) of this section.
    (2) Exceptions. Operators of derricks (see Sec.
[thinsp]1926.1436), sideboom cranes (see Sec.  [thinsp]1926.1440), or
equipment with a maximum manufacturer-rated hoisting/lifting capacity
of 2,000 pounds or less (see Sec.  [thinsp]1926.1441) are not required
to comply with Sec.  1926.1427. Note: The training requirements in
those other sections continue to apply (for the training requirement
for operators of sideboom cranes, follow section 1926.1430(c)).
    (3) Qualification by the U.S. military. (i) For purposes of this
section, an operator who is an employee of the U.S. military meets the
requirements of this section if he/she has a current operator
qualification issued by the U.S. military for operation of the
equipment. An employee of the U.S. military is a Federal employee of
the Department of Defense or Armed Forces and does not include
employees of private contractors.
    (ii) A qualification under this paragraph is:
    (A) Not portable: Such a qualification meets the requirements of
paragraph (a) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
qualification.
    (B) Valid for the period of time stipulated by the issuing entity.
    (b) Operator training. The employer must provide each operator-in-
training with sufficient training, through a combination of formal and
practical instruction, to ensure that the operator-in-training develops
the skills, knowledge, and ability to recognize and avert risk
necessary to operate the equipment safely for assigned work.
    (1) The employer must provide instruction on the knowledge and
skills listed in paragraphs (j)(1) and (2) of this section to the
operator-in-training.
    (2) The operator-in-training must be continuously monitored on site
by a trainer while operating equipment.

    (3) The employer may only assign tasks within the operator-in-
training's ability. However, except as provided in paragraph (b)(3)(v)
of this section, the operator-in-training shall not operate the
equipment in any of the following circumstances unless certified in
accordance with paragraph (c) of this section:
    (i) If any part of the equipment, load line, or load (including
rigging and lifting accessories), if operated up to the equipment's
maximum working radius in the work zone (see Sec.  1926.1408(a)(1)),
could get within 20 feet of a power line that is up to 350 kV, or
within 50 feet of a power line that is over 350 kV.
    (ii) If the equipment is used to hoist personnel.
    (iii) In multiple-equipment lifts.
    (iv) If the equipment is used over a shaft, cofferdam, or in a tank
farm.
    (v) In multiple-lift rigging operations, except where the
operator's trainer determines that the operator-in-training's skills
are sufficient for this high-skill work.
    (4) The employer must ensure that an operator-in-training is
monitored as follows when operating equipment covered by this subpart:
    (i) While operating the equipment, the operator-in-training must be
continuously monitored by an individual (``operator's trainer'') who
meets all of the following requirements:
    (A) The operator's trainer is an employee or agent of the operator-
in-training's employer.
    (B) The operator's trainer has the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use.
    (ii) While monitoring the operator-in-training, the operator's
trainer performs no tasks that detract from the trainer's ability to
monitor the operator-in-training.
    (iii) For equipment other than tower cranes: The operator's trainer
and the operator-in-training must be in direct line of sight of each
other. In addition, they must communicate verbally or by hand signals.
For tower cranes: The operator's trainer and the operator-in-training
must be in direct communication with each other.
    (iv) The operator-in-training must be monitored by the operator's
trainer at all times, except for short breaks where all of the
following are met:
    (A) The break lasts no longer than 15 minutes and there is no more
than one break per hour.
    (B) Immediately prior to the break the operator's trainer informs
the operator-in-training of the specific tasks that the operator-in-
training is to perform and limitations to which he/she must adhere
during the operator trainer's break.
    (C) The specific tasks that the operator-in-training will perform
during the operator trainer's break are within the operator-in-
training's abilities.
    (5) Retraining. The employer must provide retraining in relevant
topics for each operator when, based on the performance of the operator
or an evaluation of the operator's knowledge, there is an indication
that retraining is necessary.
    (c) Operator certification and licensing. The employer must ensure
that each operator is certified or licensed to operate the equipment as
follows:
    (1) Licensing. When a state or local government issues operator
licenses for equipment covered under subpart CC, the equipment operator
must be licensed by that government entity for operation of equipment
within that entity's jurisdiction if that government licensing program
meets the following requirements:
    (i) The requirements for obtaining the license include an
assessment, by written and practical tests, of the operator applicant
regarding, at a minimum, the knowledge and skills listed in paragraphs
(j)(1) and (2) of this section.
    (ii) The testing meets industry-recognized criteria for written
testing materials, practical examinations, test administration,
grading, facilities/equipment, and personnel.
    (iii) The government authority that oversees the licensing
department/office has determined that the requirements in paragraphs
(c)(1)(i) and (ii) of this section have been met.
    (iv) The licensing department/office has testing procedures for re-
licensing designed to ensure that the operator continues to meet the
technical knowledge and skills requirements in paragraphs (j)(1) and
(2) of this section.
    (v) For the purposes of compliance with this section, a license is
valid for the period of time stipulated by the licensing department/
office, but no longer than 5 years.
    (2) Certification. When an operator is not required to be licensed
under paragraph (c)(1) of this section, the operator must be certified
in accordance with paragraph (d) or (e) of this section.
    (3) No cost to employees. Whenever operator certification/licensure
is required under this section, the employer must provide the
certification/licensure at no cost to employees.
    (4) Provision of testing and training. A testing entity is
permitted to provide training as well as testing services as long as
the criteria of the applicable governmental or accrediting agency (in
the option selected) for an organization providing both services are
met.
    (d) Certification by an accredited crane operator testing
organization. (1) For a certification to satisfy the requirements of
this section, the crane operator testing organization providing the
certification must:
    (i) Be accredited by a nationally recognized accrediting agency
based on that agency's determination that industry-recognized criteria
for written testing materials, practical examinations, test
administration, grading, facilities/equipment, and personnel have been
met.
    (ii) Administer written and practical tests that:
    (A) Assess the operator applicant regarding, at a minimum, the
knowledge and skills listed in paragraphs (j)(1) and (2) of this
section.
    (B) Provide certification based on equipment type, or type and
capacity.
    (iii) Have procedures for operators to re-apply and be re-tested in
the event an operator applicant fails a test or is decertified.
    (iv) Have testing procedures for re-certification designed to
ensure that the operator continues to meet the technical knowledge and
skills requirements in paragraphs (j)(1) and (2) of this section.
    (v) Have its accreditation reviewed by the nationally recognized
accrediting agency at least every 3 years.
    (2) If no accredited testing agency offers certification
examinations for a particular type of equipment, an operator will be
deemed to have complied with the certification requirements of this
section for that equipment if the operator has been certified for the
type that is most similar to that equipment and for which a
certification examination is available. The operator's certificate must
state the type of equipment for which the operator is certified.
    (3) A certification issued under this option is portable among
employers who are required to have operators certified under this
option.
    (4) A certification issued under this paragraph is valid for 5
years.
    (e) Audited employer program. The employer's certification of its
employee must meet the following requirements:
    (1) Testing. The written and practical tests must be either:
    (i) Developed by an accredited crane operator testing organization
(see paragraph (d) of this section); or
    (ii) Approved by an auditor in accordance with the following
requirements:
    (A) The auditor is certified to evaluate such tests by an
accredited crane

operator testing organization (see paragraph (d) of this section).
    (B) The auditor is not an employee of the employer.
    (C) The approval must be based on the auditor's determination that
the written and practical tests meet nationally recognized test
development criteria and are valid and reliable in assessing the
operator applicants regarding, at a minimum, the knowledge and skills
listed in paragraphs (j)(1) and (2) of this section.
    (D) The audit must be conducted in accordance with nationally
recognized auditing standards.
    (2) Administration of tests. (i) The written and practical tests
must be administered under circumstances approved by the auditor as
meeting nationally recognized test administration standards.
    (ii) The auditor must be certified to evaluate the administration
of the written and practical tests by an accredited crane operator
testing organization (see paragraph (d) of this section).
    (iii) The auditor must not be an employee of the employer.
    (iv) The audit must be conducted in accordance with nationally
recognized auditing standards.
    (3) Timing of audit. The employer program must be audited within 3
months of the beginning of the program and at least every 3 years
thereafter.
    (4) Requalification. The employer program must have testing
procedures for re-qualification designed to ensure that the operator
continues to meet the technical knowledge and skills requirements in
paragraphs (j)(1) and (2) of this section. The re-qualification
procedures must be audited in accordance with paragraphs (e)(1) and (2)
of this section.
    (5) Deficiencies. If the auditor determines that there is a
significant deficiency (``deficiency'') in the program, the employer
must ensure that:
    (i) No operator is qualified until the auditor confirms that the
deficiency has been corrected.
    (ii) The program is audited again within 180 days of the
confirmation that the deficiency was corrected.
    (iii) The auditor files a documented report of the deficiency to
the appropriate Regional Office of the Occupational Safety and Health
Administration within 15 days of the auditor's determination that there
is a deficiency.
    (iv) Records of the audits of the employer's program are maintained
by the auditor for 3 years and are made available by the auditor to the
Secretary of Labor or the Secretary's designated representative upon
request.
    (6) Audited-program certificates. A certification under this
paragraph is:
    (i) Not portable: Such a certification meets the requirements of
paragraph (c) of this section only where the operator is employed by
(and operating the equipment for) the employer that issued the
certification.
    (ii) Valid for 5 years.
    (f) Evaluation. (1) Through an evaluation, the employer must ensure
that each operator is qualified by a demonstration of:
    (i) The skills and knowledge, as well as the ability to recognize
and avert risk, necessary to operate the equipment safely, including
those specific to the safety devices, operational aids, software, and
the size and configuration of the equipment. Size and configuration
includes, but is not limited to, lifting capacity, boom length,
attachments, luffing jib, and counterweight set-up.
    (ii) The ability to perform the hoisting activities required for
assigned work, including, if applicable, blind lifts, personnel
hoisting, and multi-crane lifts.
    (2) For operators employed prior to December 10, 2018, the employer
may rely on its previous assessments of the operator in lieu of
conducting a new evaluation of that operator's existing knowledge and
skills.
    (3) The definition of ``qualified'' in Sec.  1926.32 does not apply
to paragraph (f)(1) of this section: Possession of a certificate or
degree cannot, by itself, cause a person to be qualified for purposes
of paragraph (f)(1).
    (4) The evaluation required under paragraph (f)(1) of this section
must be conducted by an individual who has the knowledge, training, and
experience necessary to assess equipment operators.
    (5) The evaluator must be an employee or agent of the employer.
Employers that assign evaluations to an agent retain the duty to ensure
that the requirements in paragraph (f) are satisfied. Once the
evaluation is completed successfully, the employer may allow the
operator to operate other equipment that the employer can demonstrate
does not require substantially different skills, knowledge, or ability
to recognize and avert risk to operate.
    (6) The employer must document the completion of the evaluation.
This document must provide: The operator's name; the evaluator's name
and signature; the date; and the make, model, and configuration of
equipment used in the evaluation. The employer must make the document
available at the worksite while the operator is employed by the
employer. For operators assessed per paragraph (f)(2) of this section,
the documentation must reflect the date of the employer's determination
of the operator's abilities and the make, model and configuration of
equipment on which the operator has previously demonstrated competency.
    (7) When an employer is required to provide an operator with
retraining under paragraph (b)(5) of this section, the employer must
re-evaluate the operator with respect to the subject of the retraining.
    (g) [Reserved].
    (h) Language and literacy requirements. (1) Tests under this
section may be administered verbally, with answers given verbally,
where the operator candidate:
    (i) Passes a written demonstration of literacy relevant to the
work.
    (ii) Demonstrates the ability to use the type of written