U.S. Department of Labor

Occupational Safety and Health Administration

 Informal Public Hearing:

"Cranes and Derricks in Construction:

Operator Certification"

[Docket ID-OSHA-2007-0066]

9:30 a.m. to 4:02 p.m.

May 19, 2014

U.S. Department of Labor

Francis Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C.  20210

PRESIDING OFFICIAL:

JUDGE STEPHEN R. HENLEY,

  Administrative Law Judge

OSHA STAFF PRESENT:

JIM MADDUX, Director,

  Directorate of Construction

JUDGE STEPHEN R. HENLEY,

  Administrative Law Judge

RICHARD EWELL, Office of the Solicitor

PAUL BOLON, Directorate of Construction

VERNON PRESTON, Directorate of Construction

BRYAN LINCOLN, Directorate of Construction

C O N T E N T S

                                            PAGE

Welcome

  JAMES MADDUX, Director,

  Directorate of Construction, OSHA            6

Introduction and Hearing Guidelines

  JUDGE STEPHEN R. HENLEY                      8

Associated General Contractors of America (AGC)

  CHIP POCOCK                                 14

National Association of Home Builders (NAHB)

  ROBERT MATUGA                               40

Crane Institute Certification (CIC)

  DEBBIE DICKINSON                            57

Crane Training Group

  BARNEY SHORTER                              81

National Commission for the Certification of

Crane Operators (NCCCO)

  GRAHAM BRENT                                93

W.O. Grubb

  CHUCK COOKE                                118

Specialized Carriers % Rigging Association

  BETH O'QUINN                               133

C O N T E N T S (continued)

                                             PAGE

NationBuilders Insurance Service

  WILLIAM SMITH                               140

Associated Builders and Contractors, Inc. (ABC)

  STEPHEN WILTSHIRE                           171

Caldwell Tanks

  BRIAN HOPE                                  181

Industrial Training International

  JOSEPH KUZAR                                199 Operating Engineers
Certification Program (OECP)

  JIM LESLIE                                  210

  LARRY HOPKINS                               212

International Union of Operating Engineers (IUOE)

  ELIZABETH NADEAU                            221

  DAVE D'OSTILIO                              223

  GLEN JOHNSON                                230

Crane Industry services

  CLIFF DICKINSON                             261

The Walsh Group

  MICHAEL GANNON	                             273

E X H I B I T S

                                             PAGE

Exhibit 1   Written testimony of Jeff Dudley,

            Walsh Construction                 14

Exhibit 2   NAHB submission of websites that

            show operator certifications       57

Exhibit 3   Testimony of Debbie Dickinson      81

Exhibit 4   Handwritten notes of

            Barney Shorter                     92

Exhibit 5   IUOE List of Witnesses            242

Exhibit 6   IUOE Testimony and PowerPoint     242

P R O C E E D I N G S

Welcome

	MR. MADDUX:  Good morning, everybody.  My name is Jim Maddux, and I am
the Director of Construction here at OSHA.  I think I know most of the
folks that are here today.

	I'd like to thank you all for attending today's informal Public Hearing
on OSHA's proposed extension of the crane operator certification
deadline and of the separate existing employer duty to ensure that crane
operators are competent to perform their duties safely.

	OSHA appreciates the time that you have taken out of your schedule to
provide the agency with more information on this topic.  We will review
and evaluate all the information conveyed at this hearing along with all
the comments submitted to the Notice of Proposed Rulemaking, and we will
use those to make our decision about how to proceed in the best interest
of worker safety.

	A few logistical items before we begin, especially for people that
aren't familiar with the building.  Rest rooms are located outside the
auditorium, past the elevator bank and down to the right.  We have
scheduled a 1-hour lunch break, and we will have regular 15-minute
breaks as we go through the day.

	The cafeteria on the sixth floor is available and open until 2:30 p.m.
There is also a snack bar on the fourth floor that's open until four
o'clock in the afternoon.  I would ask you to please at least turn your
cell phones to vibrate or "stun," as we call it, during the proceeding.
It really is pretty annoying to have telephones go off in the middle of
one of these hearings.

	If there is an emergency of some sort, we'll hear a message over the
intercom that will tell us whether or not whether to stay in this room,
what we call a "shelter-in-place," or if we need to exit the building.
If we do need to exit the building, please just find some of the OSHA
staff that are round.  You will recognize us all with these beautiful
IDs that we wear, and we will help you get to the shelter spot.

	I will now turn things over to Judge Stephen Henley, who will preside
over today's hearing.

	JUDGE HENLEY:  Thank you, Mr. Maddux.

	The hearing is called to order.  Good morning, ladies and gentlemen.
This is a Public Hearing on the Occupational Safety and Health
Administration's proposed extension of the crane operator's
certification deadline from November 10, 2014, to November 10, 2017, an
extension of the employer's duty to ensure crane operator competency for
the same period.

	The Proposed Rule for this proceeding was published in the Federal
Register on February 10, 2014, at Volume 79, page 7611.  A Notice of
Public Hearing was published in the Federal Register on April 15, 2014,
at Volume 79, page 21154.

	I am Stephen Henley.  I am an Associate Chief Administrative Law Judge
at the United States Department of Labor and will be presiding over
these proceedings.

	The purpose of this hearing is to review the oral and written testimony
of interested parties as well as other information pertinent to the
promulgation of the Proposed Rule.  At the conclusion of the hearings,
the record of the proceedings will be reviewed by the Department of
Labor in determining whether a Final Rule should issue, and if so, what
the content of the rule should be.

	My participation in these proceedings is limited to conducting the
hearing and to ensure that a complete record is made and that all
concerned and interested parties receive an opportunity to express their
views.

	The rules governing this hearing as well as the prehearing guidelines
are available on a table outside the main entrance to the auditorium.
There is also a list of witnesses available designating their proposed
order of appearance and the time at which they may be appearing.

	Despite the informal nature of the hearing, it is still governed by
some basic guidelines to ensure that everyone has an opportunity to
express their point of view.  Repetitious, argumentative, and irrelevant
testimony will not be allowed.  Questions should be limited to
addressing only the proposal to extend the operator certification
deadline as well as the proposal to extend the existing employer duty to
ensure crane operator competency.

	The hearing is not intended to address the issues of whether OSHA
should remove the type and capacity requirements from the standard or
whether OSHA should add new employers duties to its standard.  These
issues may be addressed in a separate rulemaking.

	The written submissions that have been provided will be a matter of the
public record, and participants in this proceeding should, accordingly,
concentrate on presenting the highlights or clarifying their written
submissions.  Witnesses may, if they wish identify and sponsor their
written submissions and make themselves available for questioning by the
other participants who filed a timely appearance.  If witnesses have
additional written materials that they wish to submit today, I ask that
they present them to the representative from the Solicitor's Office to
be labeled with an exhibit number and entered into the record.

	After a witness has completed his or her testimony, parties who have
filed a timely appearance may question the witness.  When a witness'
testimony is completed, I will ask for a show of hands of those
individuals in the audience who wish to question the witness.  I will
then determine the order in which the participants in this proceeding
will question the particular witness.

	Now, the guidelines for the hearing were set out in detail in the
second notice in the Federal Register and my order of May 9, 2014.  I
will just echo Mr. Maddux's request and ask that you turn off phones,
pagers, and other devices that could disrupt the proceedings.  If you
need to make a phone call or take care of some other business --

	[Cell phone sounds.]

	[Laughter.]

	JUDGE HENLEY:  And on cue.  I have been told that I don't have any
contempt powers, so I can't have you arrested and shown the exit.
Please turn it off.  Thank you.

	These proceedings will now begin.  I would like to call on the
representative of the Solicitor's Office, Mr. Richard Ewell.

	MR. EWELL:  Thank you, Judge Henley.

	My name is Richard Ewell.  I am an attorney with the Solicitor's Office
here at the Department of Labor.

	I just want to briefly introduce the panel of the people who are here
today.  We have Paul Bolon, who is with the Directorate of Construction;
Vernon Preston, who is also with the Directorate of Construction; and
Bryan Lincoln, who is an economist with OSHA.

	I also wanted to mention that on the appearance list, my colleague Kim
Robinson was listed as also sharing the duties with the Solicitor's
Office today, but because of illness, she is not going to be able to be
here, so you are stuck with me all day.

	And I will turn it over to Judge Henley.

	JUDGE HENLEY:  Mr. Ewell, I understand that we have an exhibit that has
been offered by an individual who was scheduled to appear in person that
would like his written testimony as part of the written record?

	MR. EWELL:  Yes.

	JUDGE HENLEY:  And I believe that is --

	MR. EWELL:  We have Mr. Jeff Dudley, who is a corporate crane trainer
and inspector for the Walsh Group and the Vice President of the Crane
Institute Certification.  He had filed a Notice of Intent to Appear;
however, due to, I understand, an accident, he is not able to be here
today, but he asked that we enter his planned testimony into the record.

	I am going to mark it as Exhibit Number 1, and it is also going to be
available, I understand, if it's not already, for people to review out
at the table outside of this auditorium.

	So I am presenting this to you.  That is Exhibit Number 1.

	JUDGE HENLEY:  Without objection, Exhibit 1 is received.

[Exhibit 1 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Is the witness from the Associated General Contractors
of America present?

	Thank you, sir.  You can have a seat at the table.

Associated General Contractors of America

	MR. POCOCK:  Thank you, and good morning.  My name is Chip Pocock.  I
am the Safety and Risk Manager at Buckner Companies.  I am here to
testify on OSHA's Notice of Proposed Rulemaking on "Cranes and Derricks
in Construction: Operator Certification" on behalf of the Associated
General Contractors of America.

	Before I discuss a proposal, I want to tell you a little bit about my
company and my experience.  Buckner Companies is a steel erection and
heavylift crane service based in Graham, North Carolina.  We handle many
large complex construction projects throughout the United States,
including sports arena, petroleum, gas, wind, pharmaceutical, and
nuclear projects.

	As a steel erection, heavylift crane firm, we will be directly impacted
by the decision that OSHA makes regarding crane operator certification
and the 3-year extension.

	I have more than 30 years of experience in the construction industry
and have been a longstanding member of AGC.  As the Safety and Risk
Manager, I am responsible for, among other things, the training and
qualification of our operators, equipment, support personnel such as
assembly/disassembly personnel, mechanics.  I also proudly served as a
member of the Crane and Derrick Advisory Committee that worked on this
rule starting back in 2003 and as a part of the ACCSH group that worked
on the rule prior to that time.

	The CDAC committee viewed operator certification as a method to ensure
the cranes being operated in the construction industry were done so in
the safest possible manner and in a manner consistent with those that
were developed by the crane and rigging industry.

	At the time that the CDAC committee was meeting, there was only one or
possibly two certification bodies that were performing crane operator
certification.  Neither one of those two bodies provided any type of
training.  They only evaluated operators.  They are both non-profit
groups, and they are both supported by the crane industry.  And they are
also supported by employers like our company who support operator
certification.

	I make a note of this because I think the industry buy-in that came out
of the CDAC negotiated rule with regard to operator certification is
critical to the success of overall operator certification.  I think
anytime we can get that industry buy-in, we are all going to be much
better served by a safer industry.

	What brings us here today is OSHA's misinterpretation of the intent of
the CDAC committee in regards to the operator certification piece.  I'd
like the record to reflect that myself and I believe all the other CDAC
committee members knew exactly what the issue of type and capacity was
about.

	We didn't have a lot of discussion about it because at the time, as I
said, there were only two certification bodies out there.  We had every
anticipation as a committee that operator certification would look like,
feel like, taste like what we had been knowing since the early or
mid-1990s.

	While the notice issued to today's hearing witnesses seems to restrict
the discussion on proposed extension of the effective date for operator
certification as well as the employer's responsibility to ensure
operators art competent to safely operate the equipment, I do not see
how the two can be separated.

	In the final Crane and Derrick in Construction standard section,
1926.1427(b)(2), OSHA acknowledges inserting for clarity, which reads --

	[Cell phone sounds.]

	MR. POCOCK:  I did mute it.

	[Laughter.]

	MR. POCOCK:  But now I have.  My apologies.

	An operator will be deemed qualified to operate a particular piece of
equipment if the operator is certified under paragraph (b) of this
section for that type and capacity of equipment or for higher capacity
equipment of that type.  If no accredited testing agency offers
certification examinations for a particular type and/or capacity of
equipment, an operator will be deemed qualified to operate that
equipment if the operator has been certified for the type and capacity
that is most similar to that equipment and for which certification is
sought.  The operator certificate must state the type and capacity of
equipment for which the operator is certified.

	OSHA also provided an example in their Small Entity Compliance Guide in
their compilation of Frequently Asked Questions that state an operator
certified for 100-ton hydraulic crane may operate a 50-ton hydraulic
crane but not a 200-ton hydraulic crane.  This response generated an
enormous amount of concern from the industry stakeholders resulting in 2
days of public hearings.

	During these meetings, it was made clear by the majority that
certifying by type and capacity is not practical and is costly.
Additionally, there is no evidence supporting that certifying by type
and capacity provides any additional safety benefit or requires any
additional skill sets to safely operate a crane of a higher capacity.

	I will give you a small example.  Our company just took delivery of a
new Liebherr 11000 lattice boom crawler crane.  It is an 1,100-ton
machine, just set up in a very basic mode, although with the insertion
of parallel boom or "P boom," as we call it in the industry, and some
super-lift attachments, the crane capacity jumps to a 1,450-ton machine.

	To assemble that crane, freight and assembly time for crews, we're
talking about a cost of approximately $220,000.  If we had to test
operators on that crane so that they could run everything below that in
our company, that setup cost would be borne by us entirely, and we would
probably have to do that on the site of ours, because most of our
customers are not going to allow operator certification to take place on
the site.

	Furthermore, without an extension granted, many employers who have
already proactively certified their operators through either of the two
organizations whose programs are going to now be deemed noncompliant
would effectively be penalized for attempting to do what they thought
was right.  Our company has been certifying crane operators since 1996.

	We employ 70 operators, all who are certified by type of crane only.
According to OSHA, these operators may no longer be considered certified
and therefore would be unable to earn a living, and that would leave us
with a huge void when our customers demand certified crane operators.

	I have already hit on the financial burden of testing by type and
capacity.

	There have been comments submitted to the record to suggest offering an
extension will compromise the safety of crane operations on construction
job sites.  This could not be any further from the truth.  We believe
that OSHA's interpretation of operator certification has created a
significant amount of uncertainty within the construction industry, thus
resulting in employers being reluctant to certify operators without
knowing if these certifications will be deemed compliant upon any
effective date set forth by OSHA.  In my view, this uncertainty has done
more to compromise safety than proposing to extend the compliance
effective date for operator certification.

	AGC and Bucker Companies fully supports OSHA's proposal to extend the
operator certification date, so that the agency can address all issues
surrounding operator certification by type and capacity, as well as any
other additional employer duties, to ensure operators are fully
qualified to safely operate equipment.

	Additionally, OSHA must provide assurances to employers who were
proactive in certifying their operators in advance of the original
effective date that their operator certifications will be viewed as
compliant.  However, we caution against setting an arbitrary deadline of
3 years.  We'd recommend that OSHA issue the proposal and utilize the
information submitted to the record to reestablish an effective date
that removes all uncertainty from within the construction industry.

	And I'll be happy to answer any questions at this point, Your Honor.

	JUDGE HENLEY:  Thank you, Mr. Pocock.

	Any questions?  If so, please approach the podium.

	[Pause.]

	JUDGE HENLEY:  Ma'am, if you could identify yourself, please, for the
record.

	MS. NADEAU:  Yes.  Elizabeth Nadeau, N-a-d-e-a-u, and I am with the
International Union of Operating Engineers.

	I had a couple of questions regarding the phase-in period and how you
ensured compliance with the requirement that the employer must ensure
that workers are competent to operate equipment safely.  If you have a
certified operator show up on site, what would you do at that point to
ensure competence for the various types of operations that they might be
engaged in?

	MR. POCOCK:  Well, I don't know what all employers do, but as I was
saying, we just took delivery of a $12 million LR 11000, and we go to
great lengths to make sure that the people who operate it have either
been with us and they are a known quantity, they have the qualifications
in that type of equipment.  If we get a new operator in, we have people
on our staff that go out and actually check that operator out,
familiarize him with a piece of equipment, show him the operator's
manual, make sure he's comfortable with the load charts, physically
watch or assist him, operate the machine to ensure that he's qualified
to run the piece of equipment.

	MS. NADEAU:  Now, if you learn that somebody has operated a particular
type but not a model, what would you do at that point?

	MR. POCOCK:  Pretty much the same thing.  We'd check them out on one
piece of equipment versus another.  In other words, if somebody has run
a 888 Manitowoc and then we are going to jump them from a 225-ton crane
to a 275-ton crane, we simply have somebody go out, familiarize them
with any differences there may be between the 8's and the 9's, review
everything with them, watch them, check them out.

	We fill out a real simple qualification sheet and track that.  Probably
a little bit more time spent with somebody that might be moving, say,
from a 275-ton machine to a -- maybe a 275-ton Manitowoc to a 400-ton
Liebherr, now you're increasing a little bit in size, but you are also
making a change in the manufacturer, so controls are a little different,
computer is a little different, charts are a little different.  So we
spend a little bit more time with when we make a change like that than
we would maybe from a 888 to a 999.

	MS. NADEAU:  Can you name some crane functions or operations for which
you would expect to use a highly experienced crane operator versus
somebody who is newly certified?

	MR. POCOCK:  Well, I mean, a two-crane lift, a multi-crane lift would
be one that we would want to have somebody pretty good in the seat.

	There's probably a couple hundred ironworkers back in Graham, North
Carolina, that would say just plain old steel erection, but things like
blind lifts, maybe taking a tilt-wall panel and taking it from a
horizontal to a vertical position using two hoist lines, is a fairly
complex, tricky operation that you would want somebody that you know is
pretty good in the seat to do.

	MS. NADEAU:  Now, if OSHA grants the extension that's proposed, what
impact do you see that it will have on safety?

	MR. POCOCK:  For us internally, I don't see any.  I think that from a
pure safety standpoint, I don't think it will have any.  I think it will
benefit, because we will be able to get more concise understanding of
the rule done in that time frame, hopefully less than 3 years, but we'll
see.

	MS. NADEAU:  Just one more question.  OSHA issued guidance question 4
on the small business guidance regarding capacity and type.  Would you
recommend rescission of that rule pending the period of extension?

	MR. POCOCK:  I would.  I think there was a couple pieces in it -- I
read some of them in my testimony -- that I think should be redacted or
that the guide ought to be pulled back, because I think there's some bad
information in there.  I think there's some information that confuses
employers.

	MS. NADEAU:  Such as?  Can you elaborate a little?

	MR. POCOCK:  Well, if a guy is certified on a hydraulic crane, on a
large telescope or swing-cab telescope, where he's running a 50-ton,
100-ton, or 200-ton, there is not enough characteristical differences in
that, that he should be limited, so that's one issue that I think could
be cleared up right away.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Thank you, Ms. Nadeau.

	Any additional questions of this witness?

	Yes, sir.

	[Pause.]

	JUDGE HENLEY:  Thank you, sir.  If you could identify yourself, please.

	MR. DICKINSON:  My name is Cliff Dickinson, Crane Industry Services.

	This question is for Chip.  First of all, it was my understanding that
we weren't going to be discussing type and capacity here today, but
since we are, it's been my experience that customers welcome
certification on site, and many require qualification exercises be
conducted after the equipment is configured.

	You have mentioned examples of this employer qualification that you do
with such examples.  What would be the harm in leaving a certification
in place and requiring the employers to continue to do operator
qualification for specific types?

	MR. POCOCK:  I think the agency has a duty, Cliff, to all employers in
the construction industry to have clarity in the standards, and I think
that since CDAC was published that there has been misinterpretations
both from an industry perspective and certainly from OSHA's perspective
of what CDAC's intent was.  So I think the danger for me would be that
all employers are not going to go to the level that our company does.  I
think there is a lot of companies out there that may not do that due
diligence.  That is where I think the danger would be.

	MR. DICKINSON:  While that may be the case, do we just let them slide?
Shouldn't the employer still be responsible, even though they are not
doing as safe a job as you are?

	MR. POCOCK:  I tend to agree.

	MR. DICKINSON:  Thank you.

	JUDGE HENLEY:  The initial questioning of the witness should be limited
to those who filed a Notice of Intent to Appear.  Sir, do you fall in
that category?

	Could you identify yourself, please.

	MR. BROWN:  Yes.  My name is Tony Brown with AD Brown Consulting
Company, and I just have, I guess, more of a question for Paul about the
scope of the hearing, and if since type and capacity has been entered,
can we continue with that?

	JUDGE HENLEY:  No.  Do you have a question that has to do with the
witness' testimony itself or just a general observation on type and
capacity?

	MR. BROWN:  It was a general observation.

	JUDGE HENLEY:  No, sir.

	MR. BROWN:  Okay.

	JUDGE HENLEY:  You could certainly question Mr. Pocock on his
testimony.

	MR. EWELL:  I believe Mr. Brown submitted a comment but not a Notice of
Intent to Appear, so I am not sure that he is entitled to a question.

	JUDGE HENLEY:  All right.  As I indicated, I was going to give
everybody an opportunity to speak or question the witness, but the
questioning would be limited to the purpose of the hearing.  So on that
basis, I am not allowing the question.

	Any additional questions from the members of the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.  Thank you Mr. --

	ATTENDEE:  We have got somebody.

	JUDGE HENLEY:  I'm sorry, sir.

	[Cell phone sounds.]

	JUDGE HENLEY:  Hold on, please.

	MR. POCOCK:  It is not mine, Paul.

	MR. BOLON:  I know.  Paul Bolon from the Directorate of Construction.
Thank you for coming today, Mr. Pocock.

	You are here representing the Associated General Contractors of
America, right?

	MR. POCOCK:  Correct.

	MR. BOLON:  I just had a couple of questions about the transition and
phase-in period.

	In your comment, you expressed concerns about the lack of adequate
transition and preparation time for operators if OSHA only extends the
rule for 3 years.  If OSHA extends the deadline as you request, which
would be tied to publishing a Final Rule, you suggest that OSHA, quote,
reestablish an effective date with an appropriate phase-in period for
operator certification based on all available information, unquote.

	What type of period are you envisioning?  A couple of years?  Thirty
days?

	MR. POCOCK:  Well, I think that would depend on how quick the agency
goes to work and comes out with a Final Rule.

	Operator certification is nothing new to the construction and the crane
industry.  I mean, we kind of know what it tastes like and feels like.
Like I said, we've been dealing with it for 20 years, so I think barring
turning it upside-down, if the agency did something ludicrous in a Final
Rule, that the industry could be ready pretty quickly.  That's my
consensus.

	Now, I'm sure there's some people in the construction industry that may
not feel the same way, but I don't think it would take long for the
industry to be prepared.

	MR. BOLON:  Okay.  AGC was also concerned about extending the employer
certification deadline for only 3 years would, quote, actually delay
operators from getting certified, unquote, and that uncertainty over
whether a certificate would be compliant for 5 years would be a
disincentive to a company sending an individual to get their
certification right now.

	Would AGC's suggested approach extending the deadline until OSHA
publishes a new Final Rule -- would that provide any more incentive for
a company to send an individual to get certified right now?

	MR. POCOCK:  I think the concern in the construction industry at all
was that there's probably a large group out there that are waiting,
taking a waiting -- wait-and-see approach, if you will, about what the
agency is going to do in the type and capacity issue, the certified
versus qualified issue, and whether certification is going to be the
end-all.  And there's going to be those employers that do that, but I
think part of those comments -- and can go back and read there, but the
5-year qualification period, I think most of the certification bodies
qualify operators for 5 years prior to a recertification.

	I personally think that the 5 years is the right thing to go.  It
follows the ANSI guidelines, B30.5 guidelines.

	MR. BOLON:  Your 5 years refers to the length of the certification.

	MR. POCOCK:  Correct, yeah.  Correct.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.

	The National Association of Home Builders offered an alternative of a
5-year extension.  Would you support an alternative extension like that,
and if so, why?

	MR. POCOCK:  The 5-year extension?

	MR. PRESTON:  Yes, to the 3-year extension.

	MR. POCOCK:  I couldn't support it.

	When CDAC finished the rule in 2003, 2004, and we're still talking
about rolling out operator certification, we still have no law in this
country governing operator certification in the construction industry,
and that to me is sad.  I'd like to see it done in 3 years or less.

	MR. PRESTON:  And if OSHA does not extend the operator certification
deadline, how would the members of your organization be affected, and
how do you feel it would affect safety?

	MR. POCOCK:  If they don't extend it?

	MR. PRESTON:  Yes.

	MR. POCOCK:  Well, for my company and a lot of other companies that
already have certified operators out there, it's going to impact us.
Our customer base demands certified operators.  I guess it depends on
where the agency goes.  Does the agency disenfranchise operators that
are already certified?  There's a lot of questions along those lines.

	I don't know.  We'd have to see and make comment at that time.

	MR. EWELL:  Thank you, Mr. Pocock.  This is Richard Ewell with the
Solicitor's Office.

	You had said in response to Paul's first question that if the phase-in
period, if OSHA actually extended indefinitely or until OSHA takes a
final action, that you thought depending on how the rule would come out
that people in the industry could respond pretty quickly.  Do you have
any idea of what -- what does "pretty quickly" mean?  Because I think
we're looking at what is the real impact of extending.  If OSHA issues a
Final Rule, how much longer are we talking about delaying until there is
actual crane operator certification requirement that would be in effect?

	MR. POCOCK:  Well, I think part of the issue, Richard, is trying to
understand what it is going to look like.  If it is similar to what we
know today with operator certification and we are not talking about --
the capacity issue is gone, we are certifying by crane type, I think the
industry is ready.

	We have certification bodies out there that are supported by the
industry, that were developed by the industry, but if it looks
different, than I think there's a lot of financial impact studies got to
be done.  I mean at least one.

	I know the financial impact study that was done on the tail end of the
CDAC document didn't look at anything other than what we had back in the
early 2000s, 2000 through 2003.  CCO, the IOUE's program, Local 12 --
there might have been one other.  I'm not sure, but that was where we --
where CDAC came from.  That's what we knew as type and capacity was that
type of testing, and that's the way the financial impact study was done.

	If the agency comes out with something that looks a lot different --

	MR. EWELL:  But if it's generally the same, it would be like the normal
effective date of 30 days or so?

	MR. POCOCK:  I think I'd probably want a little more time than that,
but --

	MR. EWELL:  I'm not trying to pin you down.  The specific thing is just
like I'm talking a couple years.

	MR. POCOCK:  If it looks relatively the same as what we know operator
certification to be today, I would think that the industry could be
ready to go in 90 days.  That's my feeling.

	Some of the trade associations, AGC, one may want more time because not
all employers are in the crane industry.  They have a crane or two, and
they may not be as ready to go as quickly as what our company could be,
so . . .

	MR. EWELL:  I think if AGC has any additional information that they
want to add, they can add it in the post-comment time.

	MR. POCOCK:  We'll comment at that time.

	MR. BOLON:  I have one more question.  Paul Bolon.

	In your operations, are most of your operators your own permanent
long-term employees?

	MR. POCOCK:  Paul, for the most part, yes.  We do have some project
agreements where we have operators that aren't long term from time to
time, but --

	MR. BOLON:  Thank you.

	MR. EWELL:  Did you have any written submissions that you wanted to
enter?  You don't need to.  It's just if you want to.  Now would be the
time.

	[No audible response.]

	JUDGE HENLEY:  Mr. Pocock, thank you very much for your testimony.

	MR. POCOCK:  Thank you.

	JUDGE HENLEY:  You can step down.

	Is the witness from the National Association of Home Builders, Mr.
Robert Matuga, present?

National Association of Home Builders

	MR. MATUGA:  Thank you, Your Honor.  Thank you also for the OSHA staff
and for OSHA for having and holding this important hearing.  My name is
Rob Matuga.  I am the Assistant Vice President for Labor, Safety, and
Health for the National Association of Home Builders.

	NAHB, we represent about 140,000 members involved in home building,
remodeling, multi-family construction, subcontracting, as well as
property management, design, housing, finance, and lots of other aspects
of the home building industry.

	NAHB has been an interested stakeholders and has been involved in this
crane rulemaking for over a decade.  NAHB had one of its members, Craig
Steele, participate in the crane and derrick negotiated rulemaking
advisory committee, or the CDAC committee.  I guess I had the pleasure
to sit through.  I think there was 10 or 11 CDAC meetings, so I am
fairly familiar with many of the issues surrounding the crane and
derrick rulemaking.

	Just by way of background, cranes are used for lots of tasks in
residential construction, primarily for new home construction.  They are
used to hoist large components of the structure, primarily room trusses,
handling raw materials such as lumber, drywall, shingles, bricks, and
lifting and placing other sections of manufactured housing.

	Specialized subcontractors perform most of the work.  At any given time
in homebuilding, the home builders, who are usually the general
contractors, have really no idea whether or not a crane will be on the
job site or not.

	Getting to really the meat of this particular hearing, NAHB generally
supports OSHA's proposal to extend the dates for crane operator
certification as well as extending the employer duties for ensuring
crane operators are competent.

	 guess we generally support this.  Why?  I guess the first question, I
am going to hit on really two topics there, is really the timing.  I
know that Vernon asked about the 5-year extension.  It's interesting
that the OSHA Advisory Committee for Construction Safety and Health
actually went beyond NAHB, went beyond what OSHA had proposed, which was
3 years.  NAHB had suggested 5 years.  The Advisory Committee on
Construction Safety and Health actually recommended that OSHA postpone
this indefinitely.

	I guess the reason why is that there's a number of things that need to
be fixed with this particular rulemaking and this particular issue.
Obviously, the whole idea of crane operator certification was proposed
over a decade ago, and there are some issues that are just broken with
this.

	I think the first thing, in terms of the timing, the reason why NAHB
suggested 5 years is that we believe that this is pretty -- an extensive
issue.  It's not as cut and dry as many have -- that will probably lead
this group to believe today.

	The reason why is that I think that we are going to encourage OSHA to
actually reach out again to the small business community.  As we know,
the small business community really is impacted disproportionately by a
number of OSHA rules.

	OSHA did have a SBREFA panel for the original rulemaking, and we are
going to encourage OSHA and we are going to request OSHA to reach out to
small business and actually have another SBREFA panel on this particular
issue on the operator certification.

	There are a number of recommendations from the small business review
panel during the initial rulemaking, and I would encourage OSHA to go
back and look at those.  NAHB actually had a member to participate in
the small business review process, and we really focused on the need to
actually have trained, competent, and qualified individuals operating
cranes.

	It probably won't be a surprise to anybody in this room that NAHB since
the beginning was really opposed to this third-party certification.  We
believe that when OSHA goes down this path, it needs to look at not only
all the options that were laid out but also options that NAHB put
forward, as well.  There are significant alternatives that we believe
that the agency has not considered, and we encourage them to actually
consider those other alternatives.  That is why we suggested a minimum
of 5 year to go back and look at this, because we believe that the small
businesses really need a second bite at this apple.

	I know that this probably won't rise to the level of the $100 million
threshold to hold a SBREFA panel; however, I think the agency really
needs to -- if they are going to look at something different in terms of
operator certification, small businesses need to actually have some
input as well.

	One of the other issues that I did want to cover here is really the
issues surrounding the problems with the current rule.  Like I said,
NAHB has been opposed to the operator certification since the beginning.

	Just in preparation for this hearing, I just did a little bit of
research in terms of operator certification.  I went to two different
crane operator certification websites, and one of the things, if I can
step back for one second, is that OSHA even recognizes that 50 percent
-- so there's four operating -- there's four certification bodies out
there right now.  Half of them -- half of them don't meet the current
OSHA criteria.

	So I went to two different websites, and I want to submit this for the
record.  I won't name the two bodies.  You all can try to figure this
out.

	The one certification body actually has ANSI listed on their website as
well as the OSHA logo.  The second body actually has OSHA recognized and
nationally accredited certification.  I believe that one of these meets
the OSHA criteria, and the other doesn't.  That's the reason why I think
the certification is such a large issue, and it is going to take more
time than 3 years for OSHA to get through this.

	And I think this is one of the reasons why I think our members have
been opposed to this, because it's really you're taking much of the
criteria from the employers and putting it on a third party.  So if one
of our members actually had their credit operator certified by one of
these bodies, it may or may not be in compliance with the standard.

	Finally, I'd like to talk in terms of the additional serious
considerations that OSHA should really cover in this particular
rulemaking, and that's the why more time is needed.

	OSHA really should look at the feasible alternatives or consider making
the requirement permanent that the employers certify or ensure that
their crane operators are trained and competent.

	If you think about this, OSHA had a very large phase-in period, which
is 4 years.  OSHA is considering and proposing that at least another 3
years for the phase-in period.  My question is, if the phase-in period
was 4 years plus an additional 3 years -- that's 7 years -- if that's
sufficient to make sure that crane operators are qualified and
competent, NAHB believes that really it's important to actually have
trained and competent and qualified, not necessarily third-party
certified.  Why don't OSHA just consider making that requirement
permanent?

	I think that's all I have to say for right now.  I'd be happy to answer
any questions.

	JUDGE HENLEY:  Thank you, sir.

	Questions of this witness from any individual who has filed a Notice of
Intent to Appear?

	Yes, ma'am.  Ms. Nadeau.

	MS. NADEAU:  I am Elizabeth Nadeau, International Union of Operating
Engineers.

	I have a couple of questions regarding what the sector of the industry
has been doing since August 2010 to ensure that the operators are
trained, competent, and qualified.

	MR. MATUGA:  I guess I can speak in terms of talking with some of our
member that actually own and operate their cranes.

	Typically, how this works in home building is that the crane operator
or the owner of the companies will actually make sure that their crane
operators are trained at a local level and that they will make sure and
they'll go out and work with the crane operators to make sure that they
are competent and qualified to operate the piece of equipment.

	Since the downturn in the housing industry, many of our members that
own and operate their own cranes have either gone out of business or
have sold their cranes, just because there is not enough work to keep up
with having a crane operator and carrying a piece of equipment.  So
really what they're doing is that they're training at their local level,
and that the owners of the companies are making sure that whoever is
sitting in their piece of equipment -- and as one member told me, they
are not going to give anybody the keys to their $250,000 piece of
equipment without them qualifying and making sure that they are
competent and trained in order to operate that piece of equipment.

	MS. NADEAU:  Well, you used the word "make sure" a number of times, and
I am trying to understand what making sure entails.  How specifically do
you ensure that they are qualified and competent?  What assessment
process takes place?

	MR. MATUGA:  I don't know all the details, and we can certainly provide
that for the record, but from what I understand is that many of these
crane operators have been working for multiple years for these
companies.  And what they do is that they make sure that they're
trained.  I don't know if it's every 1 or 2 years, but they are
continually assessing them through some means to make sure that they are
operating that crane safely.  But I will be happy to provide that in the
post-hearing comments.

	MS. NADEAU:  I just had a couple of questions pertaining.  Do you have
a typical crane capacity that you operate?  Would it be less than 50
tons, 35 tons?  I mean, is there a range that' slower than other sectors
of the industry?

	MR. MATUGA:  We worked with our members when this rule was originally
proposed, and one of the things that we recommended is that OSHA really
allow employer certification for cranes 35 tons and under and with a
boom length of less than 102 feet.  So that's typically the largest type
of crane that you would find on any home building site, so under 35
tons.

	MS. NADEAU:  So the capacity and type issue would probably not impact
your industry because the typical capacity that was spoken of at the
stakeholders meeting would be at greater than 50,000-ton, 100,000-ton,
so you wouldn't be as impacted as other sectors in the industry?

	MR. MATUGA:  Based on that comment, I don't think so, but we think that
for crane operators to be competent and qualified by the capacity and
type of crane makes a lot more sense than making broad generalizations
with most of the crane types.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Any questions from the OSHA representatives?

	MR. BOLON:  Yes.  Paul Bolon.

	Thanks for coming today, Mr. Matuga.

	I wanted to clarify one thing that you said first.  You recommended
that OSHA have a small business panel for the rulemaking, and I just
want to be clear.  You're referring to the second rulemaking, not this
rulemaking, on the phase-in period?

	MR. MATUGA:  Yeah.  That's what I'm recommending, which is not this
particular rulemaking, but OSHA had stated that they're going to address
the type and capacity and other issues in a separate rulemaking, and a
separate rulemaking is where we are suggesting that OSHA reach out to
small businesses with whatever they plan on proposing and get additional
feedback from the small business representatives.

	MR. BOLON:  Thanks.

	I know you already provided some explanation about why you're
recommending a 5-year extension on the deadline, but I would just ask
you, Is there anything magical about 5 years?  OSHA has proposed 3
years.  Is there, I mean, 4 or 5 -- what does 5 mean to you?

	MR. MATUGA:  There was really nothing magical about 5 years.  OSHA said
that you'll have about, I believe, 3 years from the deadline because you
assumed that you would get this particular -- I'm assuming you assumed
that you would get this extension through.

	I've been around, you know, a long time with rulemakings.  If you
really look at the time frame from when OSHA finished the crane and
derrick rulemaking, the recommendation from the Advisory Panel to the
time that the actual rule got proposed to the Final Rule, that was, I
believe, more than 5 years.  I know that this is just one small segment.

	The question is there seems like there is an awful lot of work to do
here, and we were wondering whether or not it could actually be done in
3 years.  I know that there's been some questions as to whether or not
there needs to be some certainty or not.

	Obviously, ACCSH recommended an indefinite amount of time, so we sort
of split the difference and said on definite -- 3 years, we just think 5
years is more reasonable than 3 years and gives everybody a little bit
more certainty than an indefinite, or if OSHA wasn't unable to complete
this rulemaking in 3 years, having to go back and reopen this rulemaking
once again to add some additional time, that's the reason why we
recommended 5 years.

	MR. EWELL:  I just wanted to clarify one thing.  I think towards the
beginning of your comments -- and correct me if I'm wrong -- you said
that CDAC had recommended postponing indefinitely, and CDAC hasn't
existed for a number of years, so --

	MR. MATUGA:  If I did say CDAC, I was misspoken.  The Advisory
Committee on Construction Safety and Health, or ACCSH, recommended an
indefinite postponement.  I believe -- I'm not sure if "postponement" is
the right word.  An indefinite amount of time for this particular
rulemaking.

	MR. EWELL:  Okay, thank you.  That helps.

	MR. BOLON:  Are you going to ask?

	MR. EWELL:  So just to be clear, this is the same question that I posed
to Mr. Pocock.  So if we had an extension of time as OSHA had proposed
-- actually, if we have an extension of time that's more indefinite or 5
years as you requested, what type of phase-in?  You started to get into
this just a minute ago.  What type of phase-in period do you think would
be needed?  Mr. Pocock was saying it depended on what we do with the
rule, if anything, but he said if it was similar, it might be done
quickly within 90 days or something.

	MR. MATUGA:  That's a very good question.  I don't know how many
members of NAHB that own and operate cranes have actually gone out and
proactively gotten their crane operators certified under option number
1.  I think, basically, they are operating under the fact that the
employers have to ensure that the operators of the equipment are
competent to operate the equipment safely.

	So in terms of a phase-in, I think we need to go back to our members
and really take a look at that, and we'll do that in our post-hearing
comments.

	MR. EWELL:  You had something that you wanted to submit for the record?

	MR. MATUGA: Yeah.  I did want to submit these two websites.  Both of
them have OSHA's logo.  I believe that one of them meets the current
criteria; the other doesn't.  And like I said, this is just really
indicative of the problems associated with the third-party certification
on whether or not employers will be able to adequately make a
determination on their own as to which certification bodies actually
meet the standard and which ones don't.

	MR. EWELL:  Okay.  If I could get a copy of that?

	Your Honor, I am labeling the submissions from NAHB that show websites
of operator certification organizations.  There are two pages.  I am
labeling these as Exhibit 2.  I will try not to cover up anything that
is important on the website.

	Thank you, Mr. Matuga.

	MR. MATUGA:  All right.  Thanks again.

	JUDGE HENLEY:  Thank you, sir.

	Without objection, Exhibit 2 is received.

[Exhibit 2 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Is the witness from the Crane Institute Certification
present, Ms. Debbie Dickinson?

	[Pause.]

Crane Institute Certification

	MS. DICKINSON:  Hello.  My name is Deborah Dickinson.  I am the
Executive Director of Crane Institute Certification, CIC.  Thank you,
Jim, OSHA, Judge Henley, all who worked to provide this meeting here
today and to all of the industry who has taken the time to gather here
once again to discuss this important issue.

	CIC is endorsed by more than 300 crane and rigging professionals,
trainers, and examiners nationwide, the Institute for Safety and Health
Management, and is a member of SC&RA, the ACRP, NCCA, ANSI, the AGC, and
the National Safety Council.  CIC works with virtually every industry
where cranes and rigging are in use.

	Our world revolves around the lives and safety of the people working in
the crane and rigging industry.  Recently, dozens of CIC Governing
Committee and Advisory Board members spent a great deal of time focusing
on the crisis facing this industry for the purpose of finding solutions
to the OSHA regulation and the conflict that we have been discussing.
Specifically, they looked at the projected cost of lives that delaying
certification 3 years would take and the necessity of ongoing employer
responsibility.

	The CIC Governing Committee and Advisory Board members and the
shareholders voted to publicly state and offer these solutions.  CIC
agrees that a delay of crane operator certification is necessary in
order to allow OSHA time to address the clarification of the employer's
responsibility.  We have listened to the industry, and we are here today
to present a solution that can be accomplished quickly, efficiently, and
with care and concern for the lives that are at stake.

	The language presented in the existing rule referencing employer
responsibility for qualification in 1926.1427(k)(2)(i) and (ii) is
sufficient to accomplish OSHA's goal.

	1926.1427(k)(2) states that when 1926.1427(a)(1) is not applicable, all
of the requirements in paragraphs (2)(k)(1) and (2) of this section
shall apply until November 10, 2014.

	1926.1427(k)(2)(i) states that the employer must ensure that operators
of equipment covered by this standard are competent to operate the
equipment safely.

	1926.1427(2)(k) -- wait a minute.  Start again.  1927 [sic]
point-1427(k)(2)(ii) states that where an employee assigned to operate
machinery does not have the required knowledge or ability to operate the
equipment safely, the employer must train that employee prior to
operating the equipment.  The employer must ensure that each operator is
evaluated to confirm that he or she understands the information provided
in the training.

	Maintaining the language in 1926.1427(k)(2)(ii) and (ii) and removing
the reference to the November 20, 2014, date keeps the employer's
responsibility for safe crane operation intact for as long as the
regulation is in effect.

	A shorter window for compliance reduces the anticipated reduction of
voluntary compliance, which OSHA determined to be estimated to be 2
years.  If extension was delayed until 2017, the industry has already
experienced a reduction in companies voluntarily seeking certification
promulgated by OSHA's May 22nd, 2013, announcement that it was
considering a delay.

	A 1-year delay is sufficient time to allow OSHA to make this change to
the regulation and to the industry to recover and resume pursuit of
accredited operator certification.

	The solution to remove the November 10, 2014, date from the regulation
will save lives and maintain the needed balance of accredited
certification and employer responsibility.  The solution is viable, and
precedence has been set for OSHA to shorten time frames for compliance
to protect workers.

	By comparison, the food industry concerned was raised over three
deaths; whereas, the crane and rigging industry estimated death toll for
1 year is over 20 deaths.  For example, OSHA acted swiftly according to
a Department of Labor statement that was issued over a concern for
workers in the food services industry.  Secretary Solis said, "I am
alarmed at workers exposed to food flavorings containing diacetyl may be
at risk of developing potentially fatal lung disease.  Exposure to this
harmful chemical may have already been linked to the deaths of three
workers.  These deaths are preventable, and it is imperative that the
Labor Department move quickly to address exposure to food flavorings
containing diacetyl and eliminate unnecessary steps without affecting
the public's ability to comment on rulemaking process."

	The estimate for the crane and rigging industry is that accredited
certification saves 22 lives a year and reduces serious accidents as
much as 80 percent.  That is according to a Cal/OSHA study and an
ongoing study by Province of Ontario since 1976.

	We appreciate the fact that the Department of Labor took a potential
three employee deaths a year seriously in the food industry.  The
solution offered today from the CIC Governing and Advisory members may
save more lives.  CIC asks that OSHA delay the effective date 1 year to
recover the 1 year since the announcement of the proposed delay and
require crane operators to be certified by November 10, 2015.

	CIC also asks OSHA to eliminate the end date of November 10, 2014, for
employer responsibility.  CIC gives employers a valid mean for
certification.  Whether it's from CIC or any one of the other accredited
certifications that are available today gives employers a valid means
for hiring and qualifying crane operators' knowledge and skill levels,
employer responsibility will never end.

	Thank you.

	JUDGE HENLEY:  Thank you, Ms. Dickinson.

	Any questions for this witness from any individual who has filed a
Notice of Intent to Appear?

	Ms. Nadeau?

	MS. NADEAU:  Hi.

	MS. DICKINSON:  Hi, Liz.  Good to see you came prepared, as always.

	MS. NADEAU:  Just one question, actually.  At the stakeholder meeting
in April 2013, Dr. Swift of ANSI stated and commented that there was no
national studies validating testing and certification by separate
capacities.  Are you aware of any national study?  Do you have any
commentary on what Dr. Swift said?

	MS. DICKINSON:  I was not at that meeting due to some circumstances
beyond my control at that point, so I don't know specifically what Dr.
Swift said, but I heard a lot about that comment.  And from ANSI
perspective of validation, I'm sure that he's absolutely right.

	There are studies that I referenced.  There was the Cal/OSHA study, and
the Province of Ontario has also given studies that I referenced. And
I'll be happy to provide a link to you -- I can send that to you if you
like -- that do provide a great deal of information about certification
and how certification does save lives.

	MS. NADEAU:  Now, on your --

	JUDGE HENLEY:  Ms. Nadeau?

	MS. NADEAU:  Yes?

	JUDGE HENLEY:  Please try to limit your questions to the purpose of the
hearing or in direct response to what the witness testified to.

	MS. NADEAU:  Okay, thank you.

	JUDGE HENLEY:  Thank you.  I don't mean to stop your questioning.

	Any questions from any other individual?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from the OSHA representatives?

	MR. BOLON:  Hi, Debbie.

	MS. DICKINSON:  Hi, Paul.

	MR. BOLON:  Thank you for coming today.

	I just wanted to clarify a couple of things.  Today, you are
recommending that OSHA delay the operator certification only for a year,
and I think in your written comments that you opposed any delay.

	MS. DICKINSON:  We locked ourselves in a room for days on end, and we
listened to our industry colleagues, what they've had to say.  I listed
out early on in my testimony that we are members of SC&RA.  We're
members of the AGC, the ACRP.  We have listened to what other people
have had to say, and though we are ready, we have certification by type
and capacity.  We always have, ever since we began, and regardless of
that, we also have a great deal of respect for our colleagues in the
industry and realize that every accredited certification is backed by
subject-matter experts.

	And given the fact that we all have come together in various ways for
the purpose of testing the knowledge, skills, and abilities of crane
operators, and just because our methodologies may vary a little bit,
they are still valid ways and valid means of testing that wouldn't be
accredited if they were not backed by subject-matter experts.

	And so we listened, and we said at some point, there has to be some
meeting ground.  These has been confusion in the industry.  There has
been companies who have just said, "We're confused.  We don't know what
we're supposed to do.  Is there a delay?  We don't want to spend money
on certification if we don't know what we're supposed to do at the end,"
and so it's been about a year since OSHA announced its proposed delay.

	And on one hand, yes, we really wish that we would just move forward
and not have a delay, because we think that that will reduce the number
of accidents, it will save more lives, but a reasonable solution, it's
been about a year.  We can recover that year, and so a compromise would
be let's recover this year.  Let's get the industry back on track, give
people time to recover.  There's been plenty of time since that
announcement.  It's only been off track 1 year.  Let's recover that year
and move forward.

	MR. BOLON:  Just clarify, I think in your written remarks, you didn't
think extending the employer duty was necessary, but now you are
recommending that we do extend the employer duty indefinitely, and you
are saying it is sufficient to protect employees at construction work
sites.

	MS. DICKINSON:  No.  I think in my original written remarks, we kept
referencing employer duty, and your comments back to me was, "No, it's
going away November 10, 2014."  And we said, "Well, that's ridiculous.
Then employer responsibility should never go away."

	No matter what OSHA writes, no matter how much we test or any other
accredited organization tests, no matter what profession you look at,
there is a limit to how far testing can go.  There is a limit to how far
training can go.  The two together, certification, a quality
certification backed by subject-matter experts, coupled with quality
training, coupled with the wonderful associations that we all
participate in, coupled with the best that OSHA can bring to the table,
these things go hand-in-hand.  Nothing stands alone.  OSHA doesn't stand
alone.  Accredited certification doesn't stand alone.  Training doesn't
stand alone.  These are things that work in conjunction together, but
every single day, jobs are unique.  What happens on that job, unique
loads are created.  What happens has to be planned on a daily basis.

	Employer responsibility never goes away, nor should it have to stand
alone and on its own.  Those things work in conjunction.  So what I'm
saying is that accredited certification is automatically backed by
training.  There's very few individuals who are going to pass an
accredited certification exam without appropriate training.  The
requirement for accredited certification forces a higher quality
training.  It forces people into that higher level of competence that we
are all looking for in the industry.  It puts the industry in that mode,
in that plain where it needs to be.

	And so employer responsibility never goes away, so what I'm saying now
is eliminate the date.  Employer belongs as a permanent place on work
sites, as Chip and I think every employer would say.  It never goes
away.

	MR. EWELL:  Richard Ewell.

	I want to make sure that I understand.  So you are suggesting putting
the rule, so it would be in there permanently, but if you are willing to
extend the employer duty and you think that needs to be part of the
standard indefinitely, are you necessarily opposed to a shorter
extension while OSHA considers a longer extension?  In other words, are
you necessarily saying OSHA has proposed a 3-year extension?  Are you
necessarily saying that 3 years, which is shorter than indefinite, would
be inappropriate?

	MS. DICKINSON:  I think the longer that OSHA -- well, according to the
studies -- our world is a dangerous world, and we know that it is.
Crane and rigging work is dangerous work, and the quicker that we can
come to a solution, the more lives we're going to save.  That's our goal
is to save lives, send people home without injury, and so I am in favor
of coming to a solution as quickly as possible.

	So I am asking that we not wait 3 years, that if we can get it done in
1 year, if we can get it done -- the sooner the better is what I am
asking for, but I am trying to be reasonable and trying to say, "Okay,
we do need some time to recover."  It's been a year of confusion, and
so, yes, the sooner the better is what I'm asking for.  And keep the
employer responsibility.  Just simply eliminate the date.  The date of
saying that employer responsibility goes away and that employers would
rest everything they are going to do on a certification card, that part
was just not well thought out.  That was a mistake.

	That needs to be corrected by striking November 10, 2014.  Correct that
part by getting rid of that date that ends employer responsibility with
November 10, 2014, because anyone in this room, whoever has owned a
machine or rented a machine, is probably going to tell you, "Oh, I'm not
that stupid.  I'm not going to take that risk."  I hope they would say
that.  The people who are invested enough to be in this room, I don't
think they would, but the guys out there who might take that risk,
that's the ones that we're trying to prevent.

	MR. EWELL:  In the proposal, OSHA had proposed a 3-year extension,
while it considered whether or not it wanted to have a more permanent
extension.  If OSHA had any legal concerns about whether or not it could
go directly, as part of this rulemaking, into the type of outcome that
you wanted, basically a permanent employer duty that would be put into
the standard, would a 3-year period be okay to you for OSHA to study
that?

	MS. DICKINSON:  Don't love it.  It's too long.  It's not necessary.

	MR. BOLON:  Paul Bolon again.

	And you also said that you are recommending to OSHA that we extend the
period for operator certification to take effect by just 1 year, and in
that 1 year, could you tell us a little bit your thinking that OSHA can
resolve all of the issues with operator certification in 1 year?

	MS. DICKINSON:  I think there's two things to resolve.  Strike the date
--

	MR. BOLON:  Well, I'm just talking about the one --

	MS. DICKINSON:  That's the reason I read through the paragraph.  If you
end 1926.1427(k)(2), if you end it with the word "apply," so that until
November 10, 2014, put a period after -- just strike, just strike the
"November 10, 2014," so that you keep employer responsibility as written
intact.  Then the employers are responsible.  The employer must ensure
that the operators of equipment covered by this standard are competent
to operate the equipment safely.  Boom!  That's what good employers do.
Where the employer assigned to operate machine does not have the
required knowledge, ability to operate the equipment, the employer must
train the employee prior to operating the equipment.  The employer must
ensure the operator is evaluated to confirm that he/she understands the
information provided in the training.  It's language that works.

	Get rid of the date.  Get rid of the date.  Then move forward by the 1
year of confusion.  Let the accredited certification organizations that
exist that are backed by the subject-matter experts do what they do.

	MR. BOLON:  But, again, I just want to clarify.  So, in a year, we
should extend the date -- or eliminate the date for the employer duty,
and what about the date for operator certification then?

	MS. DICKINSON:  It's written in here, which I will provide, handwritten
notes and all, that what I am recommending is that the operator
certification date be moved out to November 10, 2015.

	MR. BOLON:  What would be achieved by moving it out 1 year?

	MS. DICKINSON:  That this year of confusion will be recovered, almost
to the day.  OSHA issued its date of proposed delay I think on May 22nd,
2013.

	MR. LINCOLN:  Hi.  This is Brian Lincoln.  I'm the economist, so I have
more of the numbers questions.

	One thing you have in your comments is you believe that we have a
number of 15,000 operators in the analysis of how many are compliant
with both type and capacity, and in your comments, you say that that's
too low.  And we were wondering if you had further information on that.
Is there a number that you have estimated that you think is more
correct?

	MS. DICKINSON:  Since I didn't know I was going to be asked that
question, I don't have a current number, but I'll be glad to run a
current number for you and send that to you.  But I know it's too low,
just because I know that our numbers of certification are higher than
that.  I know that we've issued more than 50,000 tests, but some people,
some individuals do test at different levels, so I would need to get an
actual headcount for you, but I'll be glad to send that to you.

	MR. LINCOLN:  That would be great.

	MS. DICKINSON:  Okay.

	MR. LINCOLN:  And so you understand, in terms of the analysis is what
we need is not the number of tests or the number of certifications, but
the whole analysis as based on number of operators currently that have
such a certificate.

	Certainly, there is a relationship between number of certificates and
operators currently have it, but it's the latter number that we are
currently using in the analysis.

	MS. DICKINSON:  Right, got it.

	MR. LINCOLN:  Okay.  One thing, though, that would be useful for us to
know, in, say, a normal month when it's normal circumstances, how many
operators does your certification program end up certifying?  Again,
it's a question out of the blue, if you need more time, but that would
be of interest to us.

	MS. DICKINSON:  Okay, great.

	MR. LINCOLN:  Okay.  And then I have slightly less numeric, so the
question is, in your comment, you stated that the deadline extension was
not necessary because, quote, OSHA could simply recognize the
certifications of each organization accredited by the NCCA or ANSI and
backed by reputable industry subject-matter experts, end quote.

	Are you suggesting that OSHA deem certifications of NCCCO and OECP as
to be in compliance with OSHA's existing standard?

	MS. DICKINSON:  Absolutely.

	MR. LINCOLN:  Thank you.

	MS. DICKINSON:  NCCCO is -- we benchmark our -- the  other
organizations.  We look at what they do.  I know that when they started
out, they started out issuing certifications by type and capacity.

	Even now, I also read the white paper that the OECP published.  They
certainly are here.  They can speak to this more, but as far as the type
and capacity statement is issued, every organization, we can all publish
statements to address the rather broad language that OSHA has written of
certification by type and capacity.

	With all due respect, OSHA has no crane experts on its panel, and so I
am suggesting that each of the accredited organizations -- and we
offered to do that, as I recall.  All of the executive directors at one
point did offer to come together and say that we would provide a
training to OSHA when the accredited certification was announced, and we
said that we would come together, that we would do a training, so the
compliance officers in the field would understand the difference between
our various cards, so that whenever they would look at a card and they
would see what someone was operating, that they would know what is this
guy certified to do.  Is he on the right equipment?  What does this
mean?  We can still do that, and so I think within the very broad scope,
every organization is capable of saying, "This is how we test.  This is
how our organization meets the letter of the law."

	The OECP issued a white paper that went into a great deal of depth to
explain how they tested operators and how they don't have a definition
like CIC does of type and capacity.  They do actually have definitions
and have had definitions in place for years that match up with pay
grades of union operators, and so there can be definitions that are put
forth by the different organizations as long as their subject-matter
experts agree on the validity of these statements.

	If it is not a valid statement, if it is smoke and mirrors, these guys
are not going to sign off on it.  I know that from working with my own
Governing Committee.  If they don't agree with what you are trying to
sell them, you are not about to get their signoff on something, but the
subject-matter experts that back each one of these accredited
organizations, they can come up with a statement.  They can provide that
to OSHA.  We can figure out a way to make the statements that give the
clarity that support the law, that support the regulation.

	MR. PRESTON:  This is Vernon Preston from the Directorate of
Construction.

	We had a comment to the NPRM that asked OSHA to delay the certification
deadline to allow more time for the development of tests offered in
other languages than English, and I wanted to know if your group
currently offers any exams in languages other than English, and if so,
for how long have you offered them?

	MS. DICKINSON:  We do offer exams in Spanish also, and we went through
the entire validation process in Spanish.  2010 or '11 is when we filed
for our Spanish exams, I think.

	MR. PRESTON:  Okay, thank you.

	MS. DICKINSON:  Again, if you want an exact number, I am going to have
to go back and look.

	MR. EWELL:  Are there any other questions?

	[No audible response.]

	MR. EWELL:  You are welcome to submit a written exhibit, if you would
like.  You are not required to, but if you like, now would be the time,
and I can label it.

	MS. DICKINSON:  Okay.

	MR. EWELL:  This is your testimony from today?

	MS. DICKINSON:  Yes.

	MR. EWELL:  Okay.  So I am labeling as Hearing Exhibit Number 3, Ms.
Dickinson's testimony, which has been submitted in written form.

	JUDGE HENLEY:  Without objection, 3 is received.

[Exhibit 3 was marked for identification and received in evidence.]

	JUDGE HENLEY:  We will take a short recess and reconvene at 11:10.

	[Recess taken from 10:54 to 11:11 a.m.]

	JUDGE HENLEY:  The hearing is called to order.

	Is Mr. Barney Shorter from the Crane Training Group present?

Crane Training Group

	MR. SHORTER: Ready?

	JUDGE HENLEY:  Yes, sir.  Go ahead.

	MR. SHORTER:  Good morning.  My name is Barney Shorter, and I am the
President of a company called the Crane Training Group.  We are in the
business of training mobile crane operators.  We prepare them for their
accreditation, certification, written test, and we administer the field
or the practical exams.

	Not to take issue with your number, respectfully, but we've done 2,000
certifications since 2010, since it was announced, just our little
company.

	I am a civil engineer, Clemson University, 1977.  I am a certified
mobile crane operator.  I'm a certified practical examiner, and I'm a
certified classroom instructor for mobile cranes.

	Our interests and concerns center around the instructions and education
of crane operators, riggers, signalers, and anybody in a ground crew in
and around a crane operation.  We like to say we are in the business of
educating operators and saving lives.  We have seen it firsthand several
times.

	There's been a lot of talk this morning about type and size and all the
issues that are in and around this proposal to extend the deadline.  In
the past, OSHA has used something called their "fast-track procedures"
in terms of medicine, disease control, vaccinations, several things.

	One that strikes me is one that was used before when there was an alarm
over the number of fatalities that would occur during a lengthy
rulemaking delay in 2009.  Just three deaths from lung disease were the
concerns of that particular fast track deal, and so OSHA fast-tracked it
to remove the threat of that lung disease for three deaths, and we are
talking now about maybe 10 times that many deaths in and around our
industry.  You won't use 22, 32, 15, you know.  What matters?

	So a fast-track method to solve these issues, as Ms. Dickinson outlined
earlier, is what we propose in my segment of this industry.  Employers
that I deal with are in a state of confusion.  We were online until the
announcement was made a few months back that you all were considering
lengthening this deadline, and I get two, three calls a week from folks
that we do business with asking me should they do, because they are
confused, and so their innate human tendencies take over, if you're
confused, "Well, let's just stop right here.  Maybe I shouldn't certify
until 2017 if that is what the deal is going to be," and it is hard to
tell them one way or another, accurately.

	For responsible companies, training their operators for liability
reason, a lot of them do it because the end user or the owner or the
people they are performing the work for require it in many cases, but in
the nooks and crannies and the hills and the dales of America, there is
tons and tons of small businesses, family pop, mother pop -- what do
they call it? -- mom-and-pop-type issues that have one or two or three
cranes, and they do lifting for folks all over the place, just a pick
here and a pick there.  None of those people are certified, yet they're
all going to wait until the last minute.  And there are tons and tons
out there.  I deal with them quite a bit.

	So fast-tracking this thing would not only save lives, but it would
also inject a sense of stability coming from the mandate that has been
in a state of confusion for 2 or 3 months now, and I am here to address
that and tell you guys that there is an opinion out there that the folks
that are involved in this room and in this organization from the agency
down to me are perceived as not knowing what we want to do.  It's been
2010, and we want to go to 2017.  You know, folks look at me and say,
"Barney, this is 2014.  This is the 21st century.  What are you talking
about?"  Most business plans have a 1-, a 3-, and a 5-year plan.  People
have come and gone since this thing was enacted.

	In my expression and in my business and in my line of fire, I think
this is one of those times, coupled with the solution that CIC has put
forth, to issue a fast-track 1-year delay, if need be, 6 months, a year
and 2 months, not 3 years.  It's 2014.  I realize there are lots of
things that have to be done, but if you really look at this thing -- and
we really have -- this does not require 3 years to right the ship.

	And with that said, I'm done, and I'll answer any questions.

	JUDGE HENLEY:  Thank you, Mr. Shorter.

	Any questions of this witness?  Anybody in the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from the OSHA representatives?

	MR. BOLON:  Thank you for coming, sir.

	Just to summarize and clarify your messages that you agree with, I
guess, the positions that were presented by Ms. Dickinson for CIC?

	MR. SHORTER:  Yes, sir.

	MR. BOLON:  And I gather also that you are finding that the confusion
about -- or the possibility of extending the op-cert date, that's
affected the number of people that are coming for training?

	MR. SHORTER:  Yes, sir.  Both sides.  For those that were responsible
enough that got trained and started in 2010, nationally accredited
certification processes, they feel penalized in some ways, and then the
folks that are waiting to the last minute are going to wait another 3
years.  And that's obvious.  I mean, I'm a businessman, and it's plain
as the nose on my face.  It's obvious, so yes.

	MR. BOLON:  If OSHA didn't follow through on its proposal, we could
always revisit the substantive issues and decide whether to propose
changes, regardless of whether it extends a certification deadline or
not.  How would it impact your customers if OSHA does not extend the
certification deadline but then decides to change the standard a year or
two later?

	MR. SHORTER:  Great question.  You know, to not extend the deadline
puts some certainality into the marketplace and law.  To reopen it up 2
years later, you know, that's sort of a hypothetical.  However, I guess
you deal with that when you got to it, cross that bridge when you get
there.  I don't know how the industry would respond.

	By and large, the industry itself has changed, and people have --
there's been a mad push for accredited certification.  There are lots of
folks out there certifying, quote/unquote, operators that weren't
accredited prior to 2010 that clean that up quick, and now with the four
certification entities that are out there now, even though they may vary
from entity to entity, as Ms. Dickinson said, they are all backed by
subject-matter experts, and they know -- they know the right way.

	We're in the business of designing and writing those testing
procedures.  So if one is a little different than the other, they are
both backed by subject-matter experts that are probably a lot more
knowledgeable about what people should be tested on and what type, what
size, whatever, than anything that has been proposed or anything that we
might want to look at 2 years from now.  That's my opinion.

	MR. EWELL:  Thank you.  I am going to ask the same question that I
posed to Ms. Dickinson.  It sounds like you are in agreement with Ms.
Dickinson that there should be a permanent extension of the existing
employer duty.

	MR. SHORTER:  Definitely.  Yes, sir.

	MR. EWELL:  And if OSHA is not able to do that for legal reasons, would
a 3-year extension with an intent to consider a longer extension, is
that just not your preference, or is there a real problem with that?  I
know you are saying you would rather have it be permanent, but is there
a problem with having a 3-year extension to consider that issue and
possibly have a longer extension?

	MR. SHORTER:  You know what, if you turn up reason in your due
diligence in the next year and it could be explained to me, you know, I
would have an opinion about it, but being involved in training on all
sides of the fence -- you know, I don't represent this entity or that
entity or this organization or that organization -- we are a
boots-on-the-ground kind of an organization, and the language that's in
the standard in the ruling, subsequent with the dates that are at the
end of the sentence, is truly in my mind a simple way of accomplishing
something that you should not take 3 years to do.

	So I think the solution is at hand already, so I'd have to say 3 years
would be -- according to what I see and what I read and what I've heard
and what I know, we have the tools to solve it now, and so I don't think
we need 3 years to solve it, sir.  That's my opinion.

	I hope I've answered your questions.

	MR. EWELL:  Just to follow up a little on that -- sorry.

	MR. SHORTER:  You bet.  You bet.

	MR. EWELL:  I was thinking it was answered.  I understand that you and
Ms. Dickinson are in agreement that that should be the permanent
extension.  Should OSHA have hearings?  Should they consider other
people's opinions about that?  Should they be reaching out to other
people to find out whether they agree?

	MR. SHORTER:  Oh, absolutely, but, you know, I think it -- yes.  You
know, I don't believe it should take 3 years, though, to find that out.

	MR. EWELL:  Thank you.

	MR. SHORTER:  You're welcome.

	MR. EWELL:  And if you have anything that you'd like -- you are not
required at all to submit anything in writing, but if you have anything,
now would be the time.

	MR. SHORTER:  I have some things I'm going to share with you.  Sure.

	MR. EWELL:  Okay.  To enter into the record?

	MR. SHORTER:  This is a little bit crude, but I'm going to enter it
into the record, please.

	MR. EWELL:  All right.

	MR. SHORTER:  My handwritten notes.

	MR. EWELL:  Okay.  So these will be posted on the Internet.  Are you
okay with that?

	[Laughter.]

	MR. EWELL:  All right.

	MR. SHORTER:  That's part of the record.  Thank you for that.

	MR. EWELL:  You're not required to, but if you want, we will post these
up on the Internet as part of you --

	MR. SHORTER:  Erase any phone numbers.  No, I'm just kidding.

	MR. EWELL:  We're actually not going to edit it at all, so if you want
to do anything --

	MR. SHORTER:  No, I'm kidding.  I'm joking.

	MR. EWELL:  All right.

	MR. SHORTER:  Thank you.

	MR. EWELL:  I will then enter as Exhibit Number 4, the notes that were
provided for Mr. Shorter.

	Here you are, Your Honor.

	JUDGE HENLEY:  Without objection, Exhibit 4 is received.

[Exhibit 4 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Thank you for your testimony, Mr. Shorter.

	Mr. Graham Brent from the National Commission for the Certification of
Crane Operators present?

National Commission for the Certification of

Crane Operators

	MR. BRENT:  Good morning.  Thank you, Judge Henley and members of the
OSHA panel for this opportunity to provide some testimony at this OSHA
hearing.

	My name is Graham Brent, and I am the Executive Director of the
National Commission for the Certification of Crane Operators, NCCCO, or
CCO, as we're also known.  I intend to keep my comments brief and to the
point, given the limited time we have here today.  Also, we will not
reiterate the comments we have already made on the record submitted into
this docket previously and including anything that we might also submit
after the hearing.  Rather, this is a summary of our position with a
couple of other pertinent details, some of which has been prompted by
conversation here this morning.

	I should like to make ti clear that my comments are from the
perspective of an organization that considers itself to be a service
organization to the industries that it serves.  NCCCO, or CCO, has never
thought it appropriate to seek to dictate to the industry the type of
certifications it should have.  Rather, having been established by the
industry almost 20 years ago and continuing to be supported by it, we
develop programs in response to industry requests and that are of a
nature designed to meet those industry needs.

	Since it became certification testing in 1996, NCCCO has issued more
than 170,000 certifications.  Of the almost 80,000 individuals currently
certified, 65,000 or more than 65,000 are CCO-certified crane operators.
 That equates, in another metric I heard this morning, to over 900,000
tests.

	We estimate that accounts for between 80 and 90 percent of all
accredited certifications issued from all sources combined.  I recount
these figures because we often hear about the impact on industry of
OSHA's decision to effectively deem certain certifications to be
noncompliant with the federal role in November 2014.

	The flip side of that position and much the more important, given the
safety goal, which this rule is aimed is that CCO certification is, we
believe, highly compliant with the intent of CDAC, the Cranes and
Derricks Advisory Committee, that authored the document that was the
basis of the rule.

	It is unfortunate it has taken us this long, as we've heard the
commentators say this morning, as long as it has to recognize, for OSHA
to recognize that the industry has some real concerns over certain
aspects of the rule, notably the issues of certifying by capacity and
whether certification is equivalent to qualification, which are the two
issues we understand OSHA would address -- well, the two main issues in
the proposed 3-year extension.

	We are gratified, however, that OSHA has appeared to recognize those
issues and we are here today to discuss them.

	On the first point, from our point of view, is the question is not can
crane operators be tested and certified by capacity but should they be.
There is no particular secret or difficulty in designing tests that
would do that, but industry has said over and over again that this is
not what it wants.  CDAC members have stated it's not what they
intended.  An accrediting body such as ANSI, on whose opinion OSHA
currently places considerable weight, have challenged OSHA to provide
data that would support its position.

	Most importantly, there is no evidence that testing by capacity would
make the certification more effective nor the industry more safe.  On
the contrary, the Cal/OSHA study that we have heard reference this
morning that was published in 2008 that compared the 3 years prior to
Cal/OSHA mandating certification in the state to the 3 years afterwards
did show an 80 percent drop in crane-related fatalities, was based on
certification not issued by capacity.

	No state requires testing by capacity, even though remarkably they
wouldn't have to under the rule as written, because certifying by
capacity only appears to apply to option one.  So anything that falls
into option two, three, and four isn't wrapped into that part of the
rule.

	And the industry has spoken.  First, at the stakeholder meetings OSHA
hosted, unbelievably, in April last year, during the 3 meetings that
were held then, an overwhelming majority of the more than 40 industry
representatives that respond to OSHA's invitation to comment provided
ample evidence as to why they believe that OSHA's stance was
ill-founded, including another federal agency, the Army Corps of
Engineers.

	Secondly, ACCSH, we have already heard this morning, the representative
body to OSHA on construction issues and of course the group that
originally requested negotiated rulemaking all the way back in 2002, has
also put its support behind the rule postponement.

	Third, in response to the Notice of Proposed Rulemaking issued in
February, when the industry sent OSHA a clear and unequivocal two-part
message, postpone the crane operator certification requirements and
change the crane role to reflect industry's intent on the role the
certification should play in an employer's qualification process, the
response to OSHA's request for comments on its proposal to extend the
deadline for operator certification by 3 years to November 2017 was
overwhelmingly positive and a further validation of prevailing industry
opinion that OSHA's understanding of CDAC's original intent with respect
to operator certification is flawed.

	I think it's worth pointing out that among the more than 40 letters of
support received by OSHA before the March 12th deadline, there were no
less than 10 from national and key regional industry associations, a
couple of which we have already heard from this morning, representing
tens of thousands of employers from all facets of the U.S. construction
industry.  And this is across the board -- union, open shop, labor, and
management.

	Contractors, steel erectors, crane rental, utilities, the crane
distributors, the industry were all represented.  Perhaps most
significant of all, however, was a letter signed by no less than 16
members of the Cranes and Derricks Committee, CDAC -- Cranes and
Derricks Advisory Committee, one of them, you have already heard from,
and others who are present here today, that should finally put to rest
any doubts as to what they meant when they wrote the rule in 2003.  It
was never the intent of CDAC that crane operator certification should be
according to the capacity of the crane, the letter states, nor to imply
that crane operator certification was equal to qualification.  And in
addition, five CDAC members wrote individual letters of support.
Perhaps just as importantly, no member of CDAC has come out against the
3-year proposed extension.

	So given the nationally accredited crane operator certification has
been proven to save lives, as we have seen through the Cal/OSHA study as
well as various other informal reports from around the country, some
industry observers have pointed to the continued exposure to risk that
such a delay might cause crane operators, but industry has responded to
the major areas of concern for the future safety of employees working
around cranes must be addressed before the regulation can effectively
save lives.  Leaving the rule as written would take us back in time, not
forward.

	Therefore, in view of the industry's overwhelmingly clear position on
the matter, the NCCCO would support, reluctantly, OSHA's proposal to
extend the deadline based on OSHA's statement that it needs this time in
order to address these concerns.  However, we would strongly urge OSHA
to pursue the second phase of this initiative, which we understand would
be the development of further rulemaking with all haste.  An extension
of the deadline is obviously not worthwhile without immediate and
substantive action to solicit industry comments that will result in a
resolution that accurately reflects the intent of the industry group,
CDAC, that OSHA itself assembled to develop this rule.

	Your Honor, thank you for the opportunity to address the hearing on
this very important matter, and I am open to any questions that the
panel or the assembled stakeholders here may have.

	JUDGE HENLEY:  Thank you, Mr. Brent.

	Questions of this witness from any member in the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from any of the OSHA representatives?

	MR. BOLON:  Yes.  Thank you for coming.  Paul Bolon.

	I guess we have heard from two -- several other witnesses, suggestions
that OSHA take various amounts of time to reach a conclusion on another
rulemaking, actually, and that affects the extension of time for op-cert
and for the employer duty.  Do you have any -- we have proposed 3 years.
 We have heard someone suggest 5 years.  We have heard indefinite, and
we have heard 1 year.  Do you have any comment on that?

	MR. BRENT:  Well, I appreciate the question, but really the 3 years was
proposed by OSHA presumably because that's the amount of time you felt
like you would need to take.  If you can get it done in 2, fabulous.  I
don't think anyone in this room would disagree with that.

	I mean, I would emphasize what you have already heard this morning, is
that the longer you take, the longer the industry is unregulated.

	On the flip side, all of those certifications I mentioned that we had
issued have been issued without a federal requirement.  So it's not like
the world stops because we don't have the OSHA rule.  Proactive
employers have a sense that accredited certification was available.
Ever since we started certifications in '96, they have been taking those
steps.

	Obviously, it doesn't capture everybody.  We don't know how many, even
though OSHA has some estimates, but we don't have any real sense of how
many uncertified crane operators there are out there.

	But, honestly, I think that question really is one that the agency has
to answer.  If you feel that you need less time, then I am sure you will
take less time.

	MR. LINCOLN:  This is Bryan Lincoln.

	A couple numbers.  In the testimony, you said that about 80,000
operators -- you believe your organization has certified 80,000 as of
today; is that right?

	MR. BRENT:  No.  We have certified a good number than that -- more than
that.  There are 80,000 currently certified.

	MR. LINCOLN:  Right.  Sorry.  Yeah, that was -- and then I think also
you said you believe that was probably 80 to 90 percent of all
certified.  So working that out -- and I don't have the calculator, but
something like 100,000 is what you believe are for the whole pool or how
many are certified?

	MR. BRENT:  So, you know, this question goes back to 30 years, before
even my organization was established, estimates as to how many potential
certified operators there were out there, and it's a moving target,
because as you bring in regulation, some folks that are running cranes
now, either voluntarily or otherwise, that get excluded from that pool,
because they are not qualified.  They are not competent.  They don't
have the skill set.  So you never really get a figure because you don't
know until you kind of run out, which I guess you never do.

	We actually a number of months ago instituted an effort internally to
try and establish what the field of current certified operators was, and
it was actually rather difficult, because not all certification
providers provide as complete and as current information.  Some are
completely transparent about it, and others, it's rather more difficult.

	For what it's worth, we believe that there are potentially about
190,000 -- there have been around 190,000 certifications issued, which
would be deemed accredited.  However, not all of those are current,
because included in that is 170,000 or so, 60 to 70, that CCO has issued
since the beginning, some of which obviously are no longer current.

	You can slice the data all kinds of different ways, but we are
continuing to work on this, and we'd be happy to provide whatever we can
to the agency.

	MR. LINCOLN:  Yeah, that was going to be my next -- that would be
great.

	MR. BOLON:  Yeah, if I could.  There is really one principal way we'd
like to slice it.  We'd really like to know the number of current
individuals that are certified.

	MR. BRENT:  Well, one approach I would suggest that agency might take
is to go directly to the accrediting bodies.  Every certification body
has to make a full disclosure to either whichever body they are
accredited by, one or both, and the veracity of that data ought to be
questioned, because the accreditation depends on a completely
transparent and honest assessment of each certification body's data.  So
I think an approach by OSHA to NCCA and to ANSI, with which agency those
accrediting bodies might feel more comfortable sharing that kind of
data, I think would be appropriate.

	MR. LINCOLN:  It was a question I also asked Ms. Dickinson -- and it
was a little out of the blue -- but one piece of information that would
be great to have is, in normal circumstances, how many individuals you
end up getting certified?  That would be nice to know.

	MR. BRENT:  So I can tell you the figure we use is about 1,000 a month.
 Sometimes it's 1,500.  Sometimes it's -- it's not usually less than
1,000, and that will depend.  There's a seasonal variety to that too,
because we do less practical testing during the winter months, and
sometimes there's a slowdown in the summer.  That, of course -- I think
when you ask that question, it ought to be clear that you are asking for
crane operators within the purview of this rule, because a lot of us do
other types of certifications or qualifications of other types of
individuals.

	I think it's always going to be mobile crane operators are the big
piece of that, and I would just add that we certainly want to make sure
that we aren't talking about data that is crane operator-related,
because this is a crane operator certification rule.  But I think we
need to be careful that we are comparing apples to apples, and that we
are talking about current versus historic.

	MR. LINCOLN:  Right.  So the 1,500, that is total for your
organization, not just crane operators?

	MR. BRENT:  That would be -- yes.  That would be a true statement, and
that is a figure I'm pulling out, more or less, of the air.

	MR. LINCOLN:  Okay.

	MR. BRENT:  I can certainly give you the monthly statistics for every
month in 2013 if that would be helpful.

	MR. LINCOLN:  Sure.  And, if possible, even just an estimate of how
many of those are crane operators versus the other.

	MR. BRENT:  Yeah, certainly.  Well, again, a ball-park figure, if
you're just looking for that right now, is going to be 80 percent.

	MR. LINCOLN:  Okay, great.

	So one question that's the same -- I guess the question is, just to
clarify the record for the purposes of the numbers and the economic
analysis for the rulemaking, does NCCCO currently issue certificates
that identify the type and capacity of the equipment for which the
operator is certified?  I know you talked about highly compliant with
intent, but this is more the letter.

	MR. BRENT:  We do not issue cards that indicate the capacity of the
certification, and just to make sure the record is accurate, I think a
statement was made earlier this morning that we used to.

	MR. LINCOLN:  Mm-hmm.

	MR. BRENT:  Actually, we've never done that.

	We used to have a certification that used the threshold of 17.5 tons,
and in the telescopic boom category, we had two separate certifications.
 One was below 17.5 tons, and one was above 17.5 tons.  However,
capacity was never the defining element in that certification.

	The 17.5 tons was a marker, if you will, or a reflection of the point
at which at the time that that decision was made, fixed-cab cranes
available from manufacturers in their model lineup changed to swing-cab
cranes.

	Now, you could say why in the world didn't you just say swing cab and
fixed cab, which is what we now do.  That's because back in the early
formulation days of this program, in the early '90s, we were thinking
about capacity, and one of the models we looked at was a series of
capacity bands.

	We went away from that for two reasons before we even launched the
program, one of which was the issue that the industry is now, I think,
pretty clear about, is that capacity in and of itself is not helpful, is
not indicative of any particular skill-set change.

	We've seen testimony on the record that indicates the capacity could
reflect, say, 350 tons, the point at which additional attachments get
added to cranes or which cranes are configured in different
configurations, but the capacity itself is not the key element.

	In fact, as that 17.5 ton threshold started to move, as, of course, it
will with technological advances, we were in a quandary then because we
had, if you will, fixed-cab cranes that had more capacity than 17.5
tons, and in some cases did the reverse.

	So a number of years ago, we made the decision to re-label that back to
a more accurate identifier, which was always the intent, which is fixed
cab because fixed-cab cranes do have a different skill set than
swing-cab cranes.

	I know it was a long explanation --

	MR. LINCOLN:  No, no.

	MR. BRENT:  -- but I think it's important the record reflects that.

	MR. PRESTON:  This is Vernon Preston from Directorate of Construction.

	Does NCCO offer any of their exams in other languages besides English?

	MR. BRENT:  So we've begun to look at that.  Well, we've been looking
at it for a long time, but in the last couple of years, we have started
running pilots, and we're quite well advanced in some of the tests in
Spanish and some of the tests in Chinese, Mandarin Chinese.  That's in
response to market request, industry request.  You can probably guess
that the Mandarin Chinese was not coming from China.  It was coming from
San Francisco, and Spanish has been certainly requested from -- and it
is in the Southern states.  That would be Florida, Texas, and Southern
California.

	However, when we explain to those requesters the full package that goes
with delivering a test in another language, which is in the rule, and
the obligations, additional obligations it imposes on employers, a
number of those requests tend to go away, because there are type
requirements.  The operator's manual has to be in the language of the
certification.  Everyone on the site has to be able to communicate with
the operator in that same language, and then once employers realize that
they are actually not finding an easy solution necessarily, we have
actually seen some of those requests go away.

	It also isn't a solution for literacy.  Just because you don't speak
English doesn't mean to say you're literate in your own first language.
We have actually run into that with a lot of the pilot exams that
literacy issues tend to get masked or characterized as language issues
when in fact it's not the case.  It is a literacy in whatever language.

	MR. BOLON:  I had one follow-up question.  If capacity includes not
just maximum weight but the other factors we heard in our stakeholder
meeting, like boom length, configuration, counterweights, software
operating systems, if capacity includes all that, would you say or would
you agree that it's virtually impossible for a certification scheme to
cover all those permutations?

	MR. BRENT:  Is it possible?

	MR. BOLON:  Isn't it virtually impossible to cover it all?

	MR. BRENT:  Oh, impossible.  Well, from a test design perspective, you
could probably do it, given enough time and enough subject-matter
experts and enough willingness of the industry to support that in terms
of buy-in, but I would suggest it would just implode under its own
weight.  In fact, that's one of the reasons why we went away from those
multiple capacity bands in addition to realizing that capacity was not
in and of itself a skill set determinant.

	You have to always consider once you produce any service or product,
will it float, and if you have 20 or 30 or 40 or 50 or more different
categories, how are you going to administer that program?  How is it
really going to function?

	So our advice, incidentally, we received from the Province of Ontario,
which in North America at that time was really the only model that we
had to look at, we made that change.

	I would say, theoretically, it is possible to do that.  As a matter of
practice, it's probably impractical.

	MR. EWELL:  Any other questions from the panel?

	[No audible response.]

	MR. EWELL:  Thank you.  If you have --

	MS. DICKINSON:  I'm sorry.  I was trying to get my hand up in the
window from the floor pretty fast.  Is it too late?

	JUDGE HENLEY:  Is it Ms. Dickinson?

	MS. DICKINSON:  Yes.

	JUDGE HENLEY:  You can approach.

	MS. DICKINSON:  Thank you.

	Hi, Graham.

	MR. BRENT:  Hi, Debbie.

	MS. DICKINSON:  Graham, as we look at our numbers and we talk about the
number of certified individuals that we have currently, both from your
organization, from mine, what projections are you looking at for the
average age of the crane operator?  Some said you say it's 54, some say
it's 56, and so we're looking at a great need for ongoing training and
certification and people who don't have the awareness of where we are
with this issue that's been going on, as we have a lot of people
retiring from the industry and youthful workers coming into the
industry.

	Where are -- and we've been asked by OSHA for these numbers, and so
have you done any projections as we've been asked for these numbers for
the younger side of the population and not just the existing?

	MR. BRENT:  Well, it's been a concern, I think, of the industry from
the get-go.  I can remember when I first became involved in the
discussions that eventually led to NCCCO being established in '95, the
concern over the average age of a crane operator, and at that time, the
figure -- I don't know how much data there was to support it, but it was
54 or 53.  And I don't know that that's changed a whole lot.  At that
time, 53 or 54 felt quite old.  Now, you know, it doesn't seem quite as
such a bad age to be at.

	[Laughter.]

	MR. BRENT:  Certainly, we have that data.  We capture dates of birth in
our records, I believe, so we have it to contribute to that ongoing
study.

	And, of course, we don't do any training, so that's not part of our
purview, but we could certainly contribute what we know about these tens
of thousands of operators we've certified, what the median age is.  That
would be actually very interesting to do.

	MS. DICKINSON:  All right.  Okay, thank you.

	MR. LINCOLN:  Yeah.  That would be interesting to have from all the
organizations.  That would be great.  Thanks.

	MS. DICKINSON:  Right.  Because as that changes, then we're also losing
some of the experience, and some of the studies we're looking at is a
great concern for the number of accidents to actually increase along
with it, just because of the fewer years of experience that goes on with
that as well.

	MR. BRENT:  Thanks for the question.

	MS. DICKINSON:  Thanks, Graham.

	MR. EWELL:  And as I've said to other witnesses, if you have anything
that you would like to turn in, you are not required at all, but if you
have anything you'd like to submit, you are welcome to.

	MR. BRENT:  I would really hesitate to submit this to you.

	MR. EWELL:  That is fine.  You are not required.  Everything you said
will be recorded in the transcript.

	MR. BRENT:  Thank you, and we will be submitting additional documents
before the deadline.

	Thank you.

	JUDGE HENLEY:  Thank you, Mr. Brent.

	And for the record, you don't look a day over 50.

	[Laughter.]

	MR. BRENT:  Well, that's made my day.

	JUDGE HENLEY:  Is Mr. Chuck Cooke form W.O. Grubb present?

W.O. Grubb

	MR. COOKE:  Good morning, Judge Henley, members of the board.  I'm
Chuck Cooke, W.O. Grubb Steel Erection and Crane Rental, a little, small
company out of Richmond, Virginia.

	Last year, we set and had a wonderful meeting.  Basically, I'm going to
stand what I said last year.  Mr. Pocock stole all my thunder this
morning in what he was saying.  I agree with proposal of extending the
certification date another 3 years or however long it takes to get it
right.

	We have kicked this around enough on certification versus
qualification.  I know we are supposed to just stick to the rules on
proposal of the 3-year period running out, but the employers' due
diligence to qualify operators to specific machines, you can certify.
I'm a certified crane operator, operating engineers for 30 years, been
in the trade my entire life, does not make me qualified to go run any of
the 200 cranes we have in our fleet.  The large ones, we have a process
in place.

	So based on that, if it takes 3 years to get this right, get the
verbiage right, then so be it.  We run out with it.  I do recommend that
you think about getting the CDAC committee back on board, the ones that
want to come in, as an advisory committee to get this straightened out.

	That's all I have.

	JUDGE HENLEY:  Thank you, Mr. Cooke.

	Questions of the witness by any member of the audience?

	Ms. Nadeau.

	MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers.

	I just had a couple of questions about the impact of the extension on
your company.  How do you feel the extension would impact you?

	MR. COOKE:  It won't impact us.  We've been certified operators since
1997.  It's expected in the industry.  Our customers, our clients,
Federal Government, military bases, so forth, they require a
certification as it is right now, so there won't be a big impact.

	If we do change over to capacity, then it will be a huge monetary
impact.  You figure last year when we sat down at the meetings, we had
116 operating engineers proper, crane operators, about 175 total
operating engineers.  We're up above that now, probably in the
neighborhood of 130 to 150 crane operators proper.  If we had to break
it down, the 200 cranes or thereabouts that we have, seven types, eight
manufacturers, and we broke it down in half to certify and qualify a
type and capacity -- all right, let's break it down to each crane --
you're looking at about 6,000 training hours per employee, roughly -- I
had it last year.  I can't remember the exact figures.  About
$30,000-some per employee for a brand total of about $34 million of
out-of-pocket expense for our company to recertify everyone to every
type and size of crane that we have in our fleet.

	MS. NADEAU:  So, currently, between August 2010 to November 2014, what
are you doing in order to ensure the qualifications of each crane
operator for each type of crane, and what would you do if there was an
extension from 2014 to 2017?  Would there be any difference in what you
are doing?

	MR. COOKE:  There would be no difference whatsoever.

	Like Mr. Pocock's company, we have a variety of cranes, from 6-ton to
450-ton, with multiple configurations on the larger cranes.  When we buy
a new crane, we get the manufacturer to come in and give training.
Sometimes it's 40 hours, sometimes it's 80, whatever the manufacturer
sees fit and how many configurations we're going to go with in the crane
if we don't have another of that particular type.

	We will put anywhere from two to five operators, operating engineers,
with that manufacturer's representative to get trained on that crane,
and we take those and do train the trainer in-house.  That's how we go
about it.

	Just because an operator has a certification does not mean we are going
to turn them loose on a $5 million piece of equipment.  That's not going
to happen.

	We have qualified, competent individuals in our company that can go
out, set with these people, observe them, watch them, and train them to
the nuances of all the different machinery.

	MS. NADEAU:  Is that typical industry practice, or is that the practice
of your employer, of your company?

	MR. COOKE:  That's what we do, and I fully expect that the industry
does it, as well.

	We have the luxury of being a union company, that we rely on the
operating engineers through the apprenticeship program, which partners
incoming younger generation with us older guys, the over-50 group that
are out here running cranes.

	So bringing them in, teaching them at the early level, and bringing
them up through a 4-year apprenticeship program, then they are qualified
by the operator they are assigned to, and that might be on multiple
cranes.  It might be on one crane.  Then they are evaluated as time goes
by.

	MS. NADEAU:  Have you observed any confusion that's been created by
OSHA's announcement among -- in the industry?

	MR. COOKE:  There is confusion.  I get a lot of calls from some of our
competitors, which are also colleagues, and the industry on what are we
going to do, what do we have to do.

	Well, like I say, we've been certifying since 1997.  Okay, we're in the
program, we know what needs to be done, this is how we do it.  And if
those companies are doing basically the same thing, I said just do what
you're doing, ride it out, and let's see if we can get the language, as
it is now where it's a little more comprehensive or understandable of
the type and capacity, to what we're doing, and talk with NCCCO.  Our
operators are all NCCCO-certified.  Talking with NCCCO, they're going to
back us, what we've got, and going to make sure everything is right,
should the rules change and stay in pat with type and capacity.

	With type and capacity, unless a crane training company owns these
particular type of machines, you can't afford to bring one in.  It's
ridiculous to think that a crane operator that is not associated with a
permanent employer might be working out the hall or hits outages, just
goes from job to job to job.  That if it goes by type and capacity --
I'm going to throw a number out -- it might be $1,000.  It might be
$2,000 to get certified.  They're not going to be able to afford it.
It's going to put a burden on the industry and the individuals that are
out just trying to make a living, where it's doable now.  There's a lot
of support by the employers, but if you got to go, have to go by
capacity, that is going to be outrageous.

	MS. NADEAU:  Well, is there any value, given how the tests are
currently administered, to testing by capacity?

	MR. COOKE:  No.  No.  The certification is a great tool, a mechanism in
place to assure that your operators coming in are coherent, they know
the language, they know how to read and interpret a load chart, they got
the conceptual idea of the regulations, but it's up to the employer to
qualify and assure that that operator can operate that piece of
machinery.

	MS. NADEAU:  And one final question.  Would the phase-in time differ,
depending upon the result reached?  For instance, if OSHA reached the
result of capacity and type being required versus OSHA said type only,
would the phase-in time differ for the ability of the industry to sort
of adjust to the requirement?

	MR. COOKE:  I believe it would take a large amount of time to adjust to
that, so everyone that's in the testing business can make arrangements
to get that type or the capacity of the machine that they are going to
test to.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Additional questions from the members of the audience?

	Yes, sir.  You are Mr. Shorter, correct?

	MR. SHORTER:  Yes, sir.

	Hi, Chuck.  Good morning.

	MR. COOKE:  How are you doing?

	MR. SHORTER:  Good.

	I was just listening, and, you know, $34 million hit me pretty hard,
and I was trying to understand the math of that, because I think I heard
you say 9,000 hours?

	MR. COOKE:  6,000.

	MR. SHORTER:  6,000 hours?

	MR. COOKE:  I've got -- I don't have the hard copy.  I have it on my
phone.  I can show you where I broke those numbers down last year.

	MR. SHORTER:  I'm just trying to understand them.  So $6,000 -- 6,000
hours per operator per each one of those seven manufacturers and eight
different types?

	MR. COOKE:  Let's break it down to what you generally do on a testing.
It's 40 hours for your testing, you know, to get used to the material.
Okay.  Then you got your practical exam, and that's based on about $45
an hour that the employee makes, his hourly wage.

	MR. SHORTER:  Total, okay.  I'm with you.

	MR. COOKE:  Yes.  Do you see where I'm going with that?

	MR. SHORTER:  Yeah, yeah.  I got it.

	MR. COOKE:  Being in the business, you have to figure this employee is
costing me X amount of dollars --

	MR. SHORTER:  Lost time.

	MR. COOKE:  -- of an hour.  I have to replace him.  That's not counting
the replacement cost.  That's just one employee based on our industry
with the different unions that we deal with and the different locals we
deal with, roughly about $45 an hour out of pocket, what it's going to
cost us.

	So run that out, and then that's based on our company alone, the
different types of machine and the capacities that we have and the
manufacturers.  If we're going to have to test all that, it's
conceivable to get to 6,000 in a few hours of just training to get to be
certified on each type and capacity of machine that we have as a company
at W.O. Grubb.

	MR. SHORTER:  Well, I heard you say 200 or so, 150, 180 operators, 200
operators, you guys have roughly?

	MR. COOKE:  We were at a 116, this time last year.  We probably put on
about another 40 or 50.

	MR. SHORTER:  I see.  Well --

	MR. COOKE:  About another 40 cranes.

	MR. SHORTER:  I wasn't listening to everything, but I thought, boy, I'd
like to have a chance to train those 200 operators for 34 million bucks.

	[Laughter.]

	MR. COOKE:  Well, I'll tell you what, you cut me some prices, we might
be able to work a deal.

	MR. SHORTER:  I understand.  I understand.

	[Laughter.]

	MR. SHORTER:  Thank you.

	MR. COOKE:  Thanks.

	JUDGE HENLEY:  Glad we're able to make a deal, Mr. Shorter.

	[Laughter.]

	MR. COOKE:  Judge, you heard that.

	JUDGE HENLEY:  Questions from the OSHA representatives?

	MR. PRESTON:  This is Vernon Preston from the Directorate of
Construction.  Thank you for your testimony.

	I just wanted to clarify.  You believe it's important to extend the
employer's duty to ensure the operator is competent to operate the
crane?

	MR. COOKE:  I think it's important to extend it to make sure we get the
language right, and like I said before, I highly recommend you entertain
getting the CDAC committee back in as a good sounding board for where
you're going to go with this.

	MR. BOLON:  Thank you for coming.

	Of the highway, have any of your operators encountered issues with
passing the certification tests, such as ones that have difficulty with
language or literacy or test-taking?

	MR. COOKE:  No.  We have some gentlemen that just get nervous taking a
test in general.  Even in my Safety Department, when we test, when we're
doing the OSHA 10-hour or even doing a first aid CPR class, when it
comes to paperwork, they get nervous, and that's it.

	But as far as literacy side of things and comprehension and
understanding it, not really.

	MR. EWELL:  Thank you.  Richard Ewell here.

	Earlier, you heard Ms. Dickinson for CIC suggest a 1-year extension of
operator certification.  Do you think that that is a sufficient time for
OSHA to extend it as opposed to the 3 years or opposed to a different
length?

	MR. COOKE:  I think in OSHA's infinite wisdom, you all know how much
time it's going to take you all to make this happen and get it right, so
I have no view on that.

	Three years, as it is proposed right now, should be doable.  Shorter
time would be nice, but you all know what you need to do.

	MR. EWELL:  Thank you.

	Are there any other questions?

	[No audible response.]

	MR. EWELL:  If you have anything that you would like to submit, you are
welcome to.  You are not required to.

	MR. COOKE:  Do I get recouped for my time today?

	MR. EWELL:  Yeah, send a bill.

	[Laughter.]

	MR. COOKE:  Gentlemen, thank you.

	JUDGE HENLEY:  Mr. Cooke, thank you for your testimony.

	The hearing will take a lunch break, and we will reconvene at 1:10.

	[Luncheon recess taken from 12:06 to 1:12 p.m.]

	JUDGE HENLEY:  This proceeding is called to order.

	I'd like to call next, Ms. Beth O'Quinn from the Specialized Carriers &
Rigging Association.

	Ms. O'Quinn?

Specialized Carriers & Rigging Association

	MS. O'QUINN:  Good afternoon.  I am Beth O'Quinn, Vice President of the
Specialized Carriers & Rigging Association.  I'd like to thank you for
the opportunity to share our concerns and comments on the proposed rule
to extend the compliance date for the crane operator certification
requirement and the existing phase-in requirement that employers ensure
their operators are qualified to operate the equipment.

	SC&RA is an international trade association with more than 1,300 member
companies from 43 nations.  Using the Small Business Administration's
definition, over 75 percent of our members are small business owners.

	Our mission is to provide the unique information and any other lawful
activities members need to safely, legally, and profitably transport,
lift, and erect oversize and overweight items.

	Over our 65-year history, SC&RA has taken its commitment to safety very
seriously.  SC&RA members regularly tackle some of the most daunting and
dangerous challenges covered by the cranes and derricks in construction
standard.  Any injury or fatality within our industry is one too many.

	For the past year, we have been very actively involved in the
conversation regarding type and capacity issue that's been ongoing since
the new crane rule was published back in 2010.  In addition to
discussions with our members, we have participated in several meetings
with other industry stakeholders, including the Small Business
Administration and OSHA's Advisory Committee for Construction Safety and
Health on this issue.

	We are completely confident in OSHA's decision to extend the compliance
date for crane operator certification requirements until such time that
OSHA completes its recommended rulemaking on operator certification,
which includes clarifying third-party certification and employer
training and qualification requirements.

	We further agree that while the rulemaking is going forward, current
employer duties to ensure operator qualification remain in place.  It is
the employer's duty to ensure their operators are trained on an ongoing
and constant basis and are qualified to operate the equipment to which
they are assigned.  SC&RA agrees this is the right solution to pursue.

	As sometimes happens when multiple parties have varied, vested --
excuse me -- vested interest in the outcome of a particular problem, the
focus strays from the core issue.  I think most of us agree that the
issue, the focus has strayed far from where it rightfully belongs.

	We emphatically believe the type and capacity problem isn't an issue
between certifying bodies or anyone else on the periphery for that
matter.  It is an industry issue.  Any decision made on these issues
will have the greatest effect on the crane and rigging industry.  Right
now, there are just too many questions and too much ambiguity to move
forward with the rule in its present state with no additional
recognizable safety benefits to be realized.

	SC&RA exists to represent the crane and rigging industry.  We do not
stand to gain any profit from the implementation nor from the delay of
this rule.  There are many ways SCR&A supports its members.  One of the
most important benefits we offer is advocacy.  In fact, on our Member
Benefits webpage, you can find the following language.

	SC&RA tirelessly advocates for the specialized transportation, crane,
rigging, and millwrighting industry.  Working with a multitude of
organizations, SC&RA members and staff fight to keep regulations less
burdensome.

	Further rulemaking along with the proper procedures and analysis is the
only way to initiate a Final Rule that the industry can not only live
with but can support.  All major association and unions representing the
workers in the industry support the extension.

	Any decision made impacts thousands of companies employing tens of
thousands of workers, hundreds of thousands of workers.  It is
imperative this issue be properly vetted and not adversely affect the
industry nor cause additional, unnecessary, burdensome requirements,
with no additional safety gain.

	As we all know, 23 dedicated individuals, of which many in this room,
SC&RA being one, have representatives, represented the entire industry,
spent hundreds of hours to write a standard to address the complexities
of the crane and rigging industry, without compromising the safety of
the individuals working in this industry.

	SC&RA firmly believes that we not waste any more time debating the
issue, but rather spend the time addressing the concerns brought forth
by the industry to ensure a safe working environment for all.

	Thank you again for the opportunity, and I'll answer any questions.

	JUDGE HENLEY:  Thank you, Ms. O'Quinn.

	Questions of Ms. O'Quinn by any member of the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions of Ms. O'Quinn by OSHA?

	MR. BOLON:  Thank you for coming.

	You mentioned just now that without change that there wouldn't be
recognizable safety benefits from the crane rule.  So I take it,
certainly, part of your support for the extensions is to maintain a high
level of crane safety at the construction sites?

	MS. O'QUINN:  That is our concern, yes, is to maintain it, but if I
misspoke, we do want the change from capacity.  I mean, for us, we don't
believe that there is any additional safety benefit by testing and
certifying by capacity.

	MR. BOLON:  Right.

	MR. PRESTON:  Vernon Preston from Directorate of Construction.

	We've had some suggestions for extensions of 1 year and 5 years today,
and I just wanted to know what your opinions of some of those
alternative discussions was.

	MS. O'QUINN:  I've been involved with the standard when it was a
subcommittee under the ACCSH group, before it even went to become
negotiated rulemaking.  It's been a very long, arduous path.  Any
extension is too long, but at the same time, there needs to be an
extension.  So I wouldn't say 5 years, 10 years.  I would say, again,
what some of the other people have already stated.

	OSHA knows how long it's going to take, and we would say give yourself
adequate time.  Don't limit yourself to a year and then have us all back
in the room again next year requesting an extension again.

	MR. PRESTON:  Thank you.

	MS. O'QUINN:  Thank you.

	MR. EWELL:  Are there any other questions from the panel?

	[No audible response.]

	MR. EWELL:  Thank you.

	If you have anything that you'd like to submit in writing, you are not
required to, but you may at this time.

	MS. O'QUINN:  No.  Thank you.

	JUDGE HENLEY:  I'd like to call on Mr. William Smith from the National
Builders Insurance Service.

NationBuilders Insurance Service

	MR. SMITH:  Thank you, Your Honor, and members of the committee.

	I am going to be as brief as I can, but for those in the audience that
know me, that's a difficult task in itself --

	[Laughter.]

	MR. SMITH:  -- as you can hear.

	But, also, seeing that it looks like there comes to an agreement now to
extend, I am going to try to keep it as brief as I possibly can, as
well.

	I currently am the Executive Vice President of NationBuilders Insurance
Service.  We insure the crane, rigging, and heavy haul industry.  We
have about 600, plus or minus, crane and rigging companies all over the
country with multiple lines, all lines, property, casualty, inland,
auto, comp, and also access.

	Just a brief history, I started out years ago -- over 50, but years ago
-- as a crane operator in the field, moving on to be a training and
safety director at the International with the operating engineers for
all 50 states and Canada.

	Switch over to the management side as a corporate safety manager for
the largest crane company in North America but maybe in the world at the
time.

	Then I went to -- actually to OSHA as a crane specialist.  At that
point, I used to be able to say that I am from the government, I'm here
to help you, but that has changed, and now I'm on the insurance industry
insuring crane companies, and I am actually the Vice President of Claims
and Risk and Loss Control.

	B30 member for 25-plus years, CDAC member as well on the committee a
SENRAC committee member back prior to CDAC on the steel erection
negotiated rulemaking, and NA-10 committee and also commission with CCO,
just a quick background.

	The extension issue, it has to be an extension just to fix some of the
major -- a couple major issues.  CDAC never intended -- you heard that
today -- to the type and capacity being an interpretative argument, and
that's where we are at today.

	The economic impact to the rule the way it was written doesn't reflect
the fact that if you go to type and capacity, it will be a huge and a
big change from the economic impact.

	The reason I say that is because when I was here at OSHA in that crane
specialist stint for the period of time after CDAC had finished its