include dedicated pile drivers under this rule even though they are
not traditionally considered to be cranes or derricks (see 73 FR
59727, Oct. 9, 2008).
---------------------------------------------------------------------------

    A commenter objected to defining the scope of the standard in terms
of types of equipment, saying that it represented an unexplained
departure from OSHA's practice of describing the scope of construction
standards in terms of conditions and practices. (ID-0203.1.) Contrary
to this commenter's belief, OSHA has often defined construction
standards in terms of equipment. See, e.g., subpart L, ``Scaffolds.''
Indeed, this rule for cranes and derricks replaces a previous rule for
cranes and derricks at former Sec.  1926.550, the scope of which was
also defined in terms of types of equipment.
    Several commenters asked OSHA to clarify the meaning of
``construction'' as it is used in paragraph (a) of this section. (ID-
0147.1; -0165.1; -0214.1; -0235.1.) Some of these comments asked OSHA
to clarify whether the use of lifting equipment to deliver materials to
a construction site is covered under the standard. That issue is
addressed below and is clarified in a new Sec.  1926.1400(c)(17). One
commenter noted that OSHA draws a distinction between construction work
and routine maintenance and asked for examples of activities that fall
under ``construction'' and under ``maintenance.'' (ID-0147.1.) OSHA
notes that considerable guidance on this distinction is already
available. Several interpretive documents that discuss the distinction
between construction and maintenance in the context of specific
inquiries and issues are available on OSHA's Web site. See, e.g.,
November 18, 2003, Letter of Interpretation to Raymond V. Knobbs,
Minnotte Contracting Corporation, available at http://www.osha.gov;
February 1, 1999, Letter of Interpretation to Randall A. Tindell,
Williams Power Company, available at http://www.osha.gov; August 11,
1994, Memorandum from James W. Stanley, Deputy Assistant Secretary,
available at http://www.osha.gov.
    Two commenters objected to the inclusion of overhead and gantry
cranes on the basis that such cranes are rarely used in construction
and that a number of the most significant provisions of the standard,
such as those covering ground conditions and proximity to power lines,
do not apply to overhead and gantry cranes. (ID-0122.0; -0191.1.) OSHA
agrees that overhead and gantry cranes that are installed in general
industry workplaces and used only incidentally for construction work in
such facilities should be covered under the general industry standard.
This final standard accommodates this objective by providing, in Sec.
1926.1438, that overhead and gantry cranes that are permanently
installed in a facility are covered by the general industry standard
even though used in construction work, such as renovating the facility
in which they are installed. However, under Sec.  1926.1438, overhead
and gantry cranes that are not permanently installed in a facility,
such as a launching gantry used in the construction of a bridge, are
covered by this standard. Such cranes are intended to be used for
construction work, present many of the same hazards as other equipment
used in construction work, and are properly regulated under this
construction standard.
    No other comments were received objecting to the inclusion of items
on the non-exclusive list in paragraph (a).
    Several commenters asked that construction work performed in
certain industries be excluded from the standard. The industries making
such requests include railroads (ID-0170.1; -0176.1); shipbuilders (ID-
0195.1); electric utilities (ID-0203.1; -0215.1); and companies that
install signs in buildings under construction (ID-0189.1). For all of
these industries, the commenters identify what they believe are
specific problems in applying the standard to their activities and
suggest that the most direct way of solving those problems is to
exclude them from the standard entirely. For the following reasons,
OSHA declines to exempt construction work performed by employers in
these industries from the scope of this standard.
    Two commenters ask that work along railroad rights-of-way be
excluded from the standard. (ID-0170.1; -0176.1.) They claim that a
number of provisions in the proposed rule are not suitable for railroad
operations, including: (1) The operator qualification/certification
requirement because no current certifying organization tests for the
type of cranes used by railroads; (2) the requirements for ground
conditions, work area control, and level positioning; and (3) the
requirement for a dedicated channel if electronic signals are used.
They also say that most such work is maintenance rather than
construction. OSHA concludes there is merit in some of the specific
concerns raised by these commenters and addresses those concerns in the
sections of the standard pertaining to them. However, OSHA sees no
basis for excluding work along railroad rights-of-way from this rule.
Some such work, such as the replacement or renovation of automotive
bridges over railroads, is plainly ``construction work'' that is
appropriately regulated under this construction standard.
    Several commenters raised concerns with the effect that this
rulemaking would have on electric utilities, including: (1) The limited
exclusion for digger derricks used in the industry; (2) the proposed
requirement that employers performing subpart V work show that it is
infeasible to maintain the normal clearance from energized power lines
before they can use the less restrictive clearances in subpart V; (3)
application of the operator qualification/certification requirement to
the industry; and (4) the duties imposed on utility employers when
other employers operate equipment near power lines owned or operated by
the utility employers. (ID-0201.1; -0203.1; -0215.1.) The commenters
suggest that all of these issues can be resolved by excluding utilities
entirely from the standard.
    OSHA does not agree that this limited group of concerns justifies
completely excluding utilities from this standard. The use of cranes in
utility construction work has always been subject to the construction
crane standards (see Sec.  1926.952(c)), and these commenters have not
advanced a persuasive argument to discontinue this practice. The
specific issues addressed by these commenters with respect to the
application of this rule to electric utilities will be addressed below
in sections dealing with those issues.
    A commenter that operates shipyards in three states asks that
shipyards be excluded from the standard. (ID-0195.1.) This commenter
states that it currently has an excellent crane safety program that is
based on general industry and shipyard standards, and asserts that its
program would be adversely affected by the need to

administer a separate program for the ``small percentage of lifts''
that would fall under the construction standard. The commenter notes
that the proposed standard has partially addressed its concern by
providing that overhead and gantry cranes that are permanently
installed in a facility are subject to the general industry standard
for such cranes rather than this proposed construction standard. It
states that shipyards ``could potentially'' use other types of cranes
to support construction activities at its sites.
    OSHA finds that the proposed rule appropriately addressed this
issue. Overhead and gantry cranes are one of the most common type of
crane used in shipyards and, as the commenter notes, Sec.  1926.1438
allows employers with permanently installed overhead and gantry cranes
to continue to follow the general industry standard. Moreover, 29 CFR
1915.2(a), provides that the shipyard standards ``apply to all ship
repairing, shipbuilding and shipbreaking employments and related
employments.'' Therefore, some work that would otherwise be considered
construction work and subject to subpart CC is in fact included in such
``related employments.'' Therefore, subpart CC will likely affect
shipyards only to a limited extent.
    While it is understandable that the commenter may find it more
convenient to administer a single program addressing only the general
industry and shipyard standards, it has not substantiated its claim
that the integration of this standard into that program or
implementation of an additional program addressing this standard would
not improve safety. The Agency notes that the commenter's construction
operations have historically been subject to part 1926 subpart N.
    A representative of employers who install signs in buildings asks
that sign erection be excluded from the standard. (ID-0189.1.) This
commenter says that sign erection is low-risk work because most signs
are relatively light (rarely exceeding 2,000 pounds) and the equipment
used is ``light duty'' equipment with relatively simple operating
controls. For heavier signs, it states that sign installers typically
hire crane companies that employ certified and professional crane
operators. The commenter notes that proposed Sec.  1926.1441 would
exempt equipment with a rated capacity of 2,000 pounds or less from the
standard but says this would not provide the industry with relief
because sign installers must use higher capacity cranes due to the
reach needed to install signs. Although it asks for complete exclusion,
the commenter makes clear that its objection pertains to the
requirement for operator qualification/certification in Sec.
1926.1427. It asks for less stringent requirements for its industry,
such as employer self-certification and a broader range of training and
certifying entities, such as accredited educational institutions.
    OSHA declines to exempt sign installation from the standard. Using
cranes for sign installation on construction sites involves the same
hazards as when used for other purposes. Examples include installation
of signs near power lines; operation of the crane at an extended radius
due to the need for long reach, which can heighten the risk of tip-
over; the risk to the sign installers of losing the load; failures due
to poor equipment condition or miscommunication between the operator
and signal person. Finally, the commenter's objections to the operator
qualification/certification requirements for its industry parallels
objections raised by others and will be addressed in the discussion of
Sec.  1926.1427.
    A commenter representing the propane gas industry says that
industry does not use cranes in ``construction work'' and asks OSHA to
``affirm'' this in the final rule. (ID-0198.1.) The commenter asserts
that the industry installs propane storage tanks ranging from 120 to
5,000 gallons capacity using truck-mounted cranes to lift and place the
tanks onto supports.
    From this limited description of the industry's use of cranes, it
is likely that at least some of the industry's work is construction
work. If the site at which the tank is installed is a building under
construction, installation of a propane tank would qualify as
construction work, just as the installation of an air conditioning unit
on that site would be construction work. At the other extreme,
replacing a small tank at an existing site with a new tank of the same
capacity would be considered general industry work. In sum, based on
the information provided, it appears that some of the industry's work
is construction work and some is general industry. OSHA therefore
cannot ``affirm'' that the propane industry is excluded from the
standard.
    For the foregoing reasons, OSHA is promulgating paragraph (a) as
proposed except for a grammatical correction to clarify that the
standard applies to only equipment used for construction activities.
Employers who use covered equipment for both general industry work and
construction work would not be required to comply with subpart CC when
the equipment is used for general industry work and not construction
work.
Paragraph (b)
    Proposed paragraph (b) of this section provided that equipment
covered by paragraph (a) remains within the scope of the standard when
used with attachments that are either ``crane-attached or suspended.''
As defined in Sec.  1926.1401, an ``attachment'' is ``any device that
expands the range of tasks that can be done by the equipment. Examples
include, but are not limited to: an auger, drill, magnet, pile-driver,
and boom-attached personnel platform.'' C-DAC decided to include such
attachments, even though they might not use the crane's hoisting
mechanism, to avoid the confusion that would result if the equipment
moved in and out of coverage of the rule as attachments are put on and
taken off. Furthermore, most of the operational characteristics and
hazards of the equipment remain the same while the attachment is in
use. No comments were received regarding this paragraph, and it is
being promulgated as proposed.
Paragraph (c)
    Proposed paragraph (c) of this section listed machinery that would
be specifically excluded from the scope of the rule. As discussed
below, several of these proposed exclusions generated public comment.
    Proposed paragraph (c)(1) provided that machinery otherwise
included under Sec.  1926.1400(a) but ``converted or adapted for non-
hoisting/lifting use'' is excluded. Power shovels, excavators and
concrete pumps are listed as nonexclusive examples of such
``conversions/adaptations'' or modified machinery.
    A commenter suggested that OSHA consider including concrete pumping
trucks because they are configured as cranes and suspend loads over a
distance. (ID-0178.1.) C-DAC considered this issue but decided not to
include them. While a concrete pumping truck does pose some of the same
hazards as a crane, its load (i.e., the concrete being pumped) is
carried in a piping system affixed to its boom, rather than being
suspended. Consequently, it does not fit the functional definition in
paragraph (a) of this section. This commenter noted that, like a crane,
a concrete pumping truck may have outriggers or be located near a power
line. However, this standard is designed to address the hazards that
are specific to cranes and derricks rather than to address stability
and power line

clearance issues for all types of construction equipment.
    A commenter asked that a type of equipment for which it holds
patent rights, the ``Linemaster Robotic Arm,'' be excluded. (ID-
0209.1.) According to the commenter, this equipment is a hydraulically
powered, boom mounted, rotating and telescopic robotic arm that is used
to separate live power lines from poles. The commenter states that
crews using the robotic arm use a crane only as a non-hoisting support
machine, and that the crane cannot be used to lift or haul materials
because its winch line is removed. The commenter believes that such
equipment should be excluded under paragraph (c)(1) because the crane
has been converted to a non-hoisting use.
    OSHA does not agree with this commenter. As discussed above, under
paragraph (b) of this section, equipment otherwise covered by the
standard remains covered when used with attachments that are either
``crane-attached or suspended.'' The description of the robotic arm
supplied by the commenter suggests that the robotic arm fits within
paragraph (b). As explained above, paragraph (b) is designed to avoid
having equipment move in and out of coverage as attachments are added
and removed. Excluding a crane when a robotic arm is attached would be
inconsistent with that objective. Moreover, as the preamble to the
proposed rule stated, even when a crane is being used for a non-
hoisting purpose, its hoisting capability is still present, and most of
its operational characteristics and hazards remain the same while the
attachment is in use.
    For those reasons, and those explained in the preamble to the
proposed rule, paragraph (c)(1) is promulgated as proposed (see 73 FR
59729, Oct. 9, 2008).
    Proposed paragraph (c)(2) excluded power shovels, excavators, wheel
loaders, backhoes, loader backhoes, and track loaders. It provided that
such machinery is also excluded when used with chains, slings or other
rigging to lift suspended loads. These types of material handling
machinery were excluded even though, when used to lift suspended loads,
they present hazards similar to those associated with equipment covered
by the proposed rule. However, C-DAC proposed to exclude them because
it determined that the differences between the equipment included in
the standard and the material handling machinery that is excluded are
such that one standard could not be readily designed to suit both. OSHA
agrees. It should be noted that another construction standard, Sec.
1926.602 in subpart O--Motor Vehicles, Mechanized Equipment, and Marine
Operations, covers the material handling equipment that is excluded
from this standard. No comments were received concerning paragraph
(c)(2), and it is promulgated as proposed.
    Proposed paragraph (c)(3) excluded automotive wreckers and tow
trucks ``when used to clear wrecks and haul vehicles'' (see explanation
at 73 FR 59729, Oct. 9, 2008). No comments were submitted on this
paragraph, and it is promulgated as proposed for the reasons provided
in the preamble to the proposed rule.
    Proposed paragraph (c)(4) would have excluded service trucks with
mobile lifting devices that are designed specifically for use in the
power line and electric industries when those trucks are used either to
auger holes to set power and utility poles or to handle associated
materials that will be installed or removed from utility poles. A
digger derrick, or radial boom derrick, is an example of such a truck.
    This machinery is currently covered by subpart N, with the
exception of certain provisions, by virtue of Sec.  1926.952(c). We
note that ASME B30.5-2004 excludes digger derricks and ``cranes
manufactured specifically for, or when used for, energized electrical
line service'' from the scope of that industry consensus standard.
    Digger derricks are a specialized type of equipment designed to
install utility poles. They are equipped with augers to drill holes for
the poles and with a hydraulic boom to lift the poles and set them in
the holes. The booms can also be used to lift objects other than poles,
and electric utilities use them both to place objects on utility poles
and for general lifting purposes at worksites such as utility
substations. (ID-0139.1.) Digger derricks have rated capacities as high
as 36,000 pounds. (ID-0369.1.) When electric utilities are finished
with them, they sell them to other construction companies. (ID-0341.)
    Since its promulgation in 1972, subpart V (``Power Transmission and
Distribution'') has excluded digger derricks from certain requirements
of subpart N. C-DAC considered whether to continue special treatment of
digger derricks used in subpart V work and proposed to exclude digger
derricks used in Subpart V work from the standard to the extent they
are used to auger holes and to handle associated materials to be
installed on or removed from utility poles. C-DAC determined that such
an exclusion was appropriate because of the ``narrow, specialized range
of activities and circumstances in which such trucks are used'' (73 FR
59729, Oct. 9, 2008).
    Most of the commenters on this issue favored an exclusion for
digger derricks but asked that the proposed exclusion be broadened to
all uses of digger derricks by electric utilities. (ID-0129.1; -0139.1;
-0144.1; -0162.1; -0200.1; -0215.1; -0217.1; -0226.) Several noted that
the proposed exclusion would lead to the incongruous result in that
digger derricks would move in and out of coverage depending on the task
they are performing. Noting that most of the exclusions developed by C-
DAC applied to types of equipment rather than specific tasks, a
commenter stated that C-DAC contradicts itself by proposing a task-
related exclusion instead of an equipment-related exclusion. (ID-
0200.1.) One commenter recommended that the proposed exclusion be
extended to the setting and removal of poles. (ID-0209.1.) Another
opposed any exclusion for digger derricks because digger derricks work
in proximity to power lines. (ID-0092.20.)
    Some commenters suggested that any exclusion for digger derricks
should also apply to other industries. One stated that a similar
exclusion should apply to digger derricks used to auger holes and set
poles in the telecommunication industry. (ID-0234.) Another contended
that it would be inconsistent to exclude a digger derrick used to set
an electric utility pole but not a telecommunications pole. (ID-
0129.1.) The same commenter also said that digger derricks are used to
set poles for outdoor lighting along roadways and indicated that the
exclusion should apply to such use. A commenter in the railroad
industry said that the exclusion should apply to digger derricks used
in the railroad industry to install utility and communication signal
poles. (ID-0176.1.)
    Certain commenters criticized the description of the equipment in
proposed paragraph (c)(4), which described the equipment subject to the
exclusion as ``service trucks with mobile-lifting devices designed
specifically for use in the power line and electric service industries,
such as digger derricks (radial boom derricks).'' One objected to the
limitation that the equipment be ``designed specifically for use in the
power line and electric service industries'' on the basis that
employers should not be required to show the purpose for which their
equipment is designed. (ID-0215.1.) Another, a witness at the public
hearing, stated that the term ``service truck'' used in the proposal
has no commonly

understood meaning in the industry. (ID-0342.)
    OSHA agrees with these commenters that the description of the
excluded machinery should be clarified and is using the term ``digger
derrick'' exclusively to describe the equipment that is subject to the
exclusion. The term ``digger derrick'' is well understood in the
industry and is the only term used to describe the equipment by the
ANSI standard applicable to such equipment, ANSI/ASSE A10.31-2006,
Safety Requirements, Definitions, and Specifications for Digger
Derricks. Accordingly, OSHA concludes that using ``digger derrick''
without reference to the purpose for which the equipment is designed or
synonyms such as ``service truck'' is the clearest way to describe the
exclusion. The Agency notes that despite its name, a ``digger derrick''
is not a ``derrick'' as defined in Sec.  1926.1436(a). Thus, the
additional requirements applicable to derricks in Sec.  1926.1436 do
not apply to digger derricks, and the exception from operator
certification requirements in Sec.  1926.1427(c) for derrick operators
does not apply to operators of digger derricks included within the
scope of Sec.  1926 subpart CC.
    OSHA also agrees with the majority of commenters who argued that
the exclusion should be broadened so that it encompasses all digger
derrick work on electric utility poles. Digger derricks are
specifically intended to be used for augering holes for utility poles,
placing the poles in the holes (and removing them when necessary), and
handling materials being installed on or removed from the poles.
Excluding all of these uses will minimize the incongruous result of
having digger derricks move in and out of coverage while they are being
used for their intended purposes at the same worksites. OSHA also
agrees with those commenters who argued that the exclusion should
encompass similar work on poles carrying telecommunication lines, since
the rationale described above is equally applicable.
    In addition, OSHA has drafted the exclusion in the final rule so
that it is based on the type of work done with the digger derrick,
rather than the industry classification of the employer performing the
work. For example, digger derricks used by a railroad to install poles
for telecommunication lines would be excluded.
    When digger derricks are used in the operation and maintenance of
existing electric power lines, they are subject to the general industry
standard at Sec.  1910.269. OSHA is currently conducting another
rulemaking designed to avoid inconsistencies between subpart V of the
construction standards, which applies to power line construction work,
and Sec.  1910.269 (see 70 FR 34821, Jun. 15, 2005). Pending the
completion of that rulemaking, digger derricks excluded from this rule
will be subject to the same requirements regardless of whether they are
used for work subject to subpart V or work subject to Sec.  1910.269.
To ensure that digger derricks excluded from this rule (Subpart CC) are
subject to appropriate safety requirements, OSHA is including language
in Sec.  1926.1400(c)(4), and is amending subpart V, to explicitly
state that the activities from which digger derricks are excluded from
subpart CC are subject to applicable provisions of Sec.  1910.269.
Those rules include Sec.  1910.269(p) (mechanical equipment), Sec.
1910.269(a)(2) (training), and Sec.  1910.269(l) (work on or near
exposed energized parts).
    Similarly, digger derricks used in general industry
telecommunication work are subject to the general industry standard at
Sec.  1910.268. Section 1910.268 includes requirements for working near
energized power lines and requirements pertaining to the operation of
the equipment, such as the need to comply with manufacturer load
ratings. The requirements applicable to digger derricks under the
general industry telecommunications standard (Sec.  1910.268) are
comparable to those in the general industry electric utility standard
(Sec.  1910.269). Accordingly, to ensure that comparable safety
requirements apply to digger derricks during pole work, OSHA is
including language in final Sec.  1926.1400(c)(4) stating that Sec.
1910.268 applies when digger derricks are used in construction work for
telecommunication service. Section 1910.268 includes requirements for
working near energized power lines and requirements pertaining to the
operation of the equipment, such as the need to comply with
manufacturer load ratings.
    In addition, Sec.  1926.952(c)(2) is also being amended to conform
subpart V to Sec.  1926.1400(c)(4).
    While OSHA agrees that the limited exclusion recommended by C-DAC
should be broadened in this manner, the Agency does not agree that the
exclusion should encompass all uses of digger derricks in electric
utility construction work, as some commenters suggested. Digger
derricks are specifically designed to be used to install and remove
utility poles. However, their lifting ability is not limited to utility
poles, and the record shows that they are used by electric utilities
for general lifting work, such as setting transformers in substations.
    Their use with utility poles falls within the ``narrow, specialized
range of activities and circumstances'' that led C-DAC to develop the
proposed exclusion (see 73 FR 59729, Oct. 9, 2008). But when digger
derricks are used for general lifting purposes, the hazards are the
same as when other equipment of similar capacity is used for general
lifting, and the exclusion developed by C-DAC is not appropriate for
such work. OSHA determines that an exclusion limited to augering holes,
setting and removing poles from those holes, and handling associated
material to be installed on or removed from the poles will provide
employees with an appropriate level of protection while accommodating
the unique uses for which digger derricks are designed. It will also
minimize the practical problems associated with equipment moving in and
out of coverage at the same worksite.
    OSHA recognizes that excluding digger derricks only when they are
used for pole work would mean that the same machinery might be excluded
for some work but covered when it is used at different worksites.
However, the general lifting work done at those other worksites would
be subject to this standard if done by other types of lifting
equipment, and the same standards should apply as apply to that
equipment. OSHA concludes that excluding digger derricks only for the
work for which they are primarily designed and used is a reasonable
approach. It accommodates the considerations that led C-DAC to propose
a partial exclusion while treating digger derricks used for other
construction work the same as other, similar equipment used for such
work.
    OSHA also declines to extend the exclusion broadly to installation
of all poles for outdoor lighting along roadways, as one commenter
suggested. OSHA notes that some poles that carry electric and
telecommunication lines also have street lights installed on them, and
use of digger derricks to install such lights would qualify for the
exclusion to the extent that the employer complies with either
Sec. Sec.  1910.268 or 1910.269. It is unclear whether, and to what
extent, digger derricks are used to install other types of poles used
for lighting alone which do not carry electric power lines or
telecommunication lines. Many such poles are installed on aboveground
concrete bases rather than set in holes in the ground, and it is
unclear whether and to what extent digger derricks are used to install
them. In this regard, OSHA notes that the commenter asking

for the exclusion to be extended to light poles represents equipment
manufacturers, and no company that installs lighting poles suggested
such an exclusion. To the extent that some light pole installation
would not be covered by either Sec. Sec.  1910.268 or 1910.269,
extending the exclusion to such work would leave the excluded work
without coverage by an appropriate general industry standard and leave
workers without the protection they receive when performing electric
utility or telecommunication work.
    OSHA disagrees with the comment that digger derricks should not be
excluded at all because of the danger of power line contact. As
discussed above, the digger derrick exclusion is limited to situations
in which certain general industry standards apply, and those general
industry standards, both Sec. Sec.  1910.268 and 1910.269, contain
requirements for protecting against power line contact.
    Proposed paragraph (c)(5) specifically excludes machinery
originally designed as vehicle mounted aerial lifts and self-propelled
elevating work platforms. The language of this provision reflects C-
DAC's intent to differentiate between equipment with an attachment such
as a personnel platform pinned to the boom, which is within the scope
of the proposed rule, and machinery originally designed to be
configured only as an aerial lift, which is excluded. Another standard,
Sec.  1926.453, addresses aerial lifts. The only comments to address
this exclusion supported retaining it. (ID-0129.1; -0312.1.)
Accordingly, paragraph (c)(5) is promulgated as proposed.
    Proposed paragraph (c)(6) excluded telescopic/hydraulic gantry
systems. C-DAC excluded this machinery because it presents hazards that
differ in many respects from those presented by the equipment covered
by this standard. As a result, many provisions of this standard would
not be workable or needed for this equipment, and hazards unique to
this type of machinery would not be addressed. In the proposed rule,
OSHA noted that the Specialized Carriers & Rigging Foundation recently
issued a voluntary consensus standard for telescopic/hydraulic gantry
systems. (73 FR 59730, Oct. 9, 2008; ID-0027.) As no comments on this
exclusion were received, paragraph (c)(6) is promulgated as proposed.
    Under proposed paragraph (c)(7), stacker cranes were excluded. C-
DAC noted that these cranes are rarely used in construction, and their
configuration is too unlike other equipment covered by the proposed
standard to warrant inclusion. No comments on this exclusion were
received, and paragraph (c)(7) is promulgated as proposed.
    Paragraph (c)(8) of the proposed rule excluded ``powered industrial
trucks (forklifts).'' C-DAC proposed to exclude such machines because
forklifts are mostly used in a manner that does not involve suspended
loads and would often require different responses to the hazards
presented than are provided in this standard.
    OSHA solicited public comment on whether the scope language should
be modified to explicitly state that forklifts modified to perform
tasks similar to cranes are covered. Two commenters stated that the
inclusion in paragraph (a) of this section of multi-purpose machines
when configured to hoist and lower by means of a winch or hook would
include forklifts that are modified to perform tasks similar to a
crane. (ID-0205.1; -0213.1.) Several other commenters argued that
forklifts should be excluded even if they are configured to perform
tasks similar to cranes and suggested adding specific language to that
effect. (ID-0187.1; -0231.1; -0232.1) These commenters noted that
forklifts are regulated under a different section, Sec.  1926.602(c),
and believed that Sec.  1926.602(c) was better suited to the hazards
presented by such equipment than this standard. One commenter stated
that the challenges facing modified forklift operators are
fundamentally different from the challenges facing crane operators,
thus the standards regulating them should also be fundamentally
different. (ID-0231.1.)
    The comments submitted on this issue highlight the need for greater
clarity. This standard applies to equipment that can hoist, lower and
horizontally move a suspended load. First, as a preliminary matter, the
standard does not apply to forklifts used exclusively in their most
traditional form: placing the forks underneath a load and using the
forks to lift or lower the load. With a ``suspended'' load, the forks
(or modified lifting device) would be above the load.
    Second, OSHA has included paragraph (c)(8) to exclude forklifts
when used to suspend a load from its forks. OSHA recognized that a
forklift could technically meet the criteria of subpart CC coverage
whenever it is used to suspend a load from its forks (such as by
hanging the load from a chain wrapped around the forks), hoist it
vertically by raising or lowering the forks, and move the load
horizontally by moving the entire forklift. Under such a scenario the
forks are used as the primary support for a load suspended directly
from the forks, but OSHA concludes that these forklifts warrant an
exception from the scope of this subpart CC because they do not utilize
the components in the same manner as other equipment covered by this
standard. In contrast, a piece of equipment covered by this standard
manipulates suspended loads by utilizing components such as winches,
booms, jibs, gantries, and trolleys. Outriggers and stabilizers are
also often needed to stabilize the equipment while hoisting a load.
    Third, OSHA is revising paragraph (c)(8) to clarify that the
forklift exclusion applies only to forklifts that do not meet the
definition of multi-purpose machines covered under subpart CC (those
that are configured to hoist and lower (by means of a winch or hook)
and horizontally move a suspended load). This standard covers multi-
purpose machines because they are configured with the above-mentioned
components (winches, booms, jibs, gantries, trolleys, stabilizers,
etc.), even though they also have a dual function. OSHA recognizes that
a powered industrial truck could be modified so that it would qualify
as a multi-purpose machine, such as by adding an after-market boom and
hook attachment in addition to the fork attachment. It is the Agency's
intent that forklifts that are capable of multiple configurations are
treated as multi-purpose machines and excluded from coverage of subpart
CC only as set forth in Sec.  1926.1400(a). A forklift with a boom
attachment affixed to its forks that uses a hook to raise and lower the
load like a crane would be covered by subpart CC. However, as noted in
the preamble to the proposed rule, a forklift would be excluded from
the coverage of subpart CC when its sole means of suspending a load is
a chain wrapped around the forks.
    Proposed paragraph (c)(9) excluded mechanics' trucks with hoisting
devices when used in activities related to equipment maintenance and
repair. One commenter stated that similar trucks are used in the power
line industry for tasks such as installing transformers and suggested
that such equipment should also be excluded. (ID-0144.1.) However, as
explained in the proposed rule, this provision was not intended to
exclude mechanics' trucks when used to hoist materials during
construction work but only to provide a limited exception when they are
used for equipment maintenance and repair activities. Their use in this
manner is similar to the way automotive wreckers and tow trucks, which
are excluded under paragraph (c)(3) of this section, are used. OSHA
determines that this exclusion should be

limited in the manner stated in the proposed rule, and paragraph (c)(9)
is promulgated as proposed.
    In proposed paragraph (c)(10), machinery that hoists by using a
come-a-long or chainfall was excluded for the reasons explained in the
preamble to the proposed rule (see 73 FR 59730, Oct. 9, 2008). No
comments were received on this provision, and it is promulgated as
proposed.
    Proposed paragraph (c)(11) excluded dedicated drilling rigs. This
exclusion received substantial attention during the C-DAC negotiations
and was discussed at length in the proposed rule (see 73 FR 59730, Oct.
9, 2008). OSHA requested public comment on issues related to this
exclusion. No written comments were submitted but, in testimony at the
public hearing, a trade association supported the proposed exclusion.
(ID-0341.) Accordingly, paragraph (c)(11) is promulgated as proposed.
    Proposed paragraph (c)(12) excluded ``gin poles when used for the
erection of communication towers.'' (See discussion at 73 FR 59730,
Oct. 9, 2008). A commenter stated that this exclusion should be
extended to also cover gin poles used to erect electrical transmission
towers and lines, but gave no supporting rationale or information. (ID-
0209.1.)
    The use of gin poles for erecting communications towers is highly
specialized; the communication tower industry has developed a detailed
consensus standard that specifically addresses their use in that
application.\5\ However, the Agency is unaware of a similar degree of
specialization and development of safe practices for gin poles used for
erecting electrical transmission towers. Accordingly, OSHA lacks a
basis for extending the exclusion to work other than that covered in
proposed paragraph (c)(12); paragraph (c)(12) is promulgated as
proposed with the addition of the word ``when'' before ``used'' to
clarify that the exclusion does not apply when gin poles previously
used to erect communication towers are used for other purposes.
---------------------------------------------------------------------------

    \5\ See ANSI/TIA-1019 (2004), Structural Standards for Steel Gin
Poles Used for Installation of Antenna Towers and Antenna Supporting
Structures, which contains detailed provisions for installing and
using gin poles to erect communication towers.
---------------------------------------------------------------------------

    Proposed paragraph (c)(13) excluded tree trimming and tree removal
work from the scope of the proposed rule. One commenter favored the
exclusion as written (ID-0040.1), but another suggested limiting the
exclusion to tree trimming performed for maintenance and including tree
trimming related to construction (ID-0172.1). The latter commenter
stated that tree trimming related to construction is particularly
dangerous because the weight of the pick is uncertain and the ground
conditions to support the equipment may be inadequate.
    C-DAC agreed to exclude tree trimming and removal because the vast
majority of the tree care industry's work does not take place in
construction and is therefore governed by general industry standards.
OSHA continues to agree that this is a valid reason for the exclusion.
OSHA is promulgating paragraph (c)(13) as proposed.
    Proposed paragraph (c)(14) excluded anchor handling with a vessel
or barge using an affixed A-frame. Two commenters suggested that the
vessels to which this paragraph pertains should be excluded even when
used for purposes other than anchor handling to avoid having the
vessels move in and out of coverage depending on how they are used.
(ID-0376.1; -0383.1.) These commenters stated that such vessels are
sometimes used for dredging operations and suggested rewording the
exclusion to state: ``Anchor handling or dredge related operations with
a vessel or barge using an affixed A-frame.''
    OSHA is adopting these commenters' suggestion and their recommended
wording of paragraph (c)(14). As explained in the proposed rule, C-DAC
agreed to the exclusion in proposed paragraph (c)(14) because its
Cranes on Barges Work Group concluded that the requirements of this
rule could not readily be applied to the specialized equipment listed
in the exclusion. That rationale favors the broader exclusion
recommended by the commenters.
    Proposed paragraph (c)(15) excluded roustabouts because C-DAC
concluded that the proposed standard was similarly unsuited to address
these devices (see 73 FR 59731, Oct. 9, 2008). No commenters addressed
this issue, and paragraph (c)(15) is promulgated as proposed.
    Paragraph (c)(16) excludes helicopter cranes. Such cranes are
regulated under Sec.  1926.551 of subpart N, which is not affected by
this final rule and continues in effect. C-DAC and OSHA did not intend
to cover helicopter cranes under this subpart. However, such cranes fit
the description in Sec.  1926.1400(a) of the equipment covered by this
rule in that they are power-operated equipment that can hoist, lower,
and horizontally move a suspended load. To avoid any uncertainty over
whether they are subject to this rule or to Sec.  1926.551, OSHA is
explicitly excluding them from this rule through paragraph (c)(16).
Paragraph (c)(17) Delivery of Material to Construction Sites
    It is common for material that is to be used in construction work
to be delivered to the construction site on a truck equipped with a
lifting attachment that is used either to place the materials on the
ground or to place them on the structure. For example, articulating/
knuckle-boom truck cranes are often used to deliver bundles of drywall
to the site and then move the bundles from the truck up to a floor of
the building under construction. To the extent these cranes are used in
``construction work,'' they fall within the scope of this final rule as
defined in Sec.  1926.1400(a).
    OSHA has long taken the view that an employer who delivers
materials to a construction site is not engaged in ``construction
work'' if that employer's work once at the site is limited to simply
placing/stacking the materials on the ground. OSHA requested comment
from the public on whether the final rule should include an explicit
exclusion to this effect (see 73 FR 59731, Oct. 9, 2008).
    Most commenters on this issue favored such an exclusion to clarify
that such equipment was not being used in construction. (ID-0145.1; -
0147.1; -0165.1; -0184.1; -0206.1; -0218.1; -0232.1; -0233.1; -0235.1;
-0299.1.) Certain commenters expressed the view that any such exclusion
should also extend to delivery of materials onto structures at the
construction site because, in their view, this was also not a
construction activity. (E.g., ID -0184.1; -0233.1; -0235.1.) Some of
these commenters represented employers who deliver building materials
such as lumber, drywall, and roofing materials. (See, e.g., ID-0184.1;
-0233.1.) Others represented employers in the heating, ventilation, air
conditioning, and refrigeration (HVACR) industry. (ID-0165.1; -0235.1.)
Several of the commenters pointed to the operator training and/or
certification requirements in Sec.  1926.1427 of the proposed rule as
particularly burdensome given the distinctions between delivery
activities and what they characterized as the more complex activities
typically associated with the equipment covered by the proposed rule.
(ID-0165.1; -0184.1; -0218.1; -0231.1; -0233.1; -0235.1.)
    OSHA notes some commenter confusion regarding instances when the
construction materials are not delivered to the curb or a stockyard but
instead to a designated area on the construction site where the
materials are staged/organized to facilitate hoisting activities. In
these scenarios, OSHA construction

standards apply. See, e.g., Letter to Johnson (2/6/08) (stacking of
materials), Letter to Reynolds (1/5/01) (delivery of materials onto
structure). When hoisting equipment is used to arrange the materials in
a particular sequence for hoisting or to lift materials onto a
structure that is under construction, it is being used to expedite work
that is integral to the construction process and is, therefore,
construction work. However, to remain consistent with existing
compliance guidance, this final rule states that when lifting equipment
is used solely to deliver building supply materials from a supplier to
a construction site by placing/stacking the materials on the ground,
without arranging the materials in a particular sequence for hoisting,
OSHA does not regard the delivery process as a construction activity.
OSHA believes that this limited and conditional exclusion will exclude
this equipment when used to perform such deliveries and address the
concerns of commenters who only deliver construction materials to the
ground.
    Construction typically consists of a process of assembling and
attaching (or in some cases, disassembling) a vast variety of materials
to form a building or other structure.\6\ In building construction,
those materials typically include small, individual items (a few
examples include: nails, lumber, pipes, duct work sections, electrical
items, sheet goods), large individual items (a few examples include:
structural steel or precast concrete columns and beams), and
prefabricated structural and building system components (a few examples
include: roof trusses, precast concrete wall sections, and building
machinery such as boilers, pumps, and air handling equipment). All of
these items must be delivered to the jobsite and unloaded from the
vehicle delivering them before they can be used in the building or
structure.
---------------------------------------------------------------------------

    \6\ Construction also includes the deconstruction or demolition
of a portion, or all, of a structure.
---------------------------------------------------------------------------

    C-DAC indicated that to facilitate the assembling or attaching of
such items, cranes and derricks are often used to hoist and hold,
support, stabilize, maneuver, or place them. Sometimes they are used to
place items in a convenient location for subsequent use. For example,
they are often used to place a bundle of steel decking sheets onto the
structure for later ``shaking out'' (i.e., after being landed on the
structure, workers ``break'' the bundle and distribute the decking
sheets for subsequent attachment). One of OSHA's construction standards
contains specific requirements related to the landing and placing of
such bundles (see Sec.  1926.754(e)(1)).
    Sometimes cranes and derricks are used to place an item in a
specific location for immediate attachment. For example, cranes are
typically used to precisely place steel columns on concrete footings,
which involves aligning holes at the column's base with anchor rods/
bolts in the footing so that the column can be secured to the footing.
In building and bridge construction, cranes are often used to precisely
place precast concrete members so that workers can attach them to other
precast members (or sometimes to a structural steel frame).
    Cranes are also used to place precast concrete components so that
other items can be connected to them. For example, in utility and sewer
construction, precast concrete manholes or vaults are placed for proper
alignment with utility pipes; in residential construction, precast
concrete septic systems are placed for proper location in an
excavation. Clearly, such movement and placement of material by cranes
and derricks is integral to the construction process, and the fact that
this may be done by the vehicle that delivered the material to the site
does not make it a non-construction activity.
    Cranes are also commonly used to hoist building materials onto a
structure for subsequent use. Although this is also a construction
activity,\7\ OSHA determines that a limited exclusion for articulating/
knuckle-boom truck cranes used for such work is appropriate to minimize
having this equipment move in and out of coverage of this rule.
---------------------------------------------------------------------------

    \7\ Moving building materials onto a structure for subsequent
use is an integral part of the construction process. This is the
case whether the materials are brought onto the structure by hand,
with the aid of a crane after the materials had been previously
delivered to the ground, or by the same equipment that brought them
to the site. See e.g., January 5, 2001, Letter of Interpretation to
Mr. Jeff Reynolds, Division Safety Manager Pacific Supply, available
at http://www.osha.gov.
---------------------------------------------------------------------------

    The record shows that articulating/knuckle-boom truck cranes are
often used to deliver sheet goods (e.g., drywall), or packaged
materials (e.g., roofing shingles) to construction sites and that it is
common for the delivery to be made onto the structure. Delivering
material to a structure can pose a hazard that is typically not present
when material is placed on the ground: when the boom is extended, as
when lifting the material to an upper floor, the possibility of
exceeding the crane's rated capacity, with the resultant possibility of
boom collapse and crane tipover, is present. A representative of a
material delivery trade association testified that articulating/
knuckle-boom cranes are equipped with automatic safety systems that
detect whether the crane is close to being overloaded and automatically
prevent such overloading. (ID-0341; -0380.1; -0381.1.)
    The representative described a test on a crane with a load of 2,900
pounds and a maximum extension of 78 feet, 11 inches, and said that the
automatic device preventing the boom from extending beyond its maximum
safe length for that load and angle of 46 feet. (ID-0341.) Thus, with a
load that is typical of the loads that are often delivered, the hazard
of the crane collapsing exists with the boom at far less than its
maximum possible extension. Another representative of the material
delivery industry, also noted the presence of such devices on the
equipment used by its members and, while it asked for such equipment to
be exempt completely from this rule, alternatively suggested an
exemption for equipment with such devices installed. (ID-0184.1.)
    OSHA is, to a large extent, adopting the commenter's suggestion.
The overloading and subsequent collapse of cranes is one of the primary
hazards this final rule seeks to address. The trade association
witness's testimony shows that the potential for collapse is present
when articulating/knuckle-boom cranes are used to deliver materials
onto a structure. The industry has, however, addressed this hazard by
equipping such cranes with automatic overload prevention devices.
Therefore, OSHA is excluding articulating/knuckle-boom cranes used to
deliver materials onto a structure from the final rule, but only when
the cranes are equipped with properly functioning automatic overload
prevention devices. Without such a device, the crane is subject to all
provisions of this final rule. It should be noted that electrical
contact with power lines is another serious hazard covered by the final
rule. The limited exemption for articulating/knuckle-boom cranes used
for certain construction operations also exempts this equipment from
the requirements for operations near power lines contained in the final
rule. When performing an exempt operation, this equipment (like must of
the other exempt equipment and operations) will be covered by revised
Sec.  1926.600(a)(6).
    OSHA is limiting this exclusion to the delivery of sheet goods and
packaged materials including, but not limited to: sheets of sheet rock,
sheets of plywood, bags of cement, sheets or packages of roofing
shingles, and rolls of roofing felt. The placement of other materials
on a structure under construction is the type of core construction
activity this rule seeks to address, and excluding the

hoisting and movement of other types of materials, such as precast
concrete members, prefabricated building sections, or structural steel
members, would severely reduce the rule's effectiveness. Moreover,
equipment used to lift these types of materials on construction sites
is rarely, if ever, used for non-construction activities on those sites
and does not often present the problem of equipment moving in and out
of coverage when used for different activities.
    OSHA is also limiting the exclusion by making it clear that it does
not apply when the crane is used to hold, support or stabilize the
material to facilitate a construction activity, such as holding
material in place while it is attached to the structure. For example,
while placing a package of shingles onto the roof of a structure would
fall within the exemption, suspending the shingles in the air and
moving them to follow the progress of the roofer would not. When the
crane is being used to facilitate the construction activity, it has
exceeded the ``delivery'' of goods and is therefore engaged in a
process that is more complex than the scenarios addressed by the
commenters who supported an exclusion for materials delivery. OSHA is
also concerned that exempting this activity would provide an incentive
for employers to use materials delivery cranes for other purposes,
thereby undermining the rationale for the materials delivery exclusion.
    In particular, OSHA declines to exclude the handling of HVACR
units, as some commenters urged. Using a crane to deliver HVACR
equipment is an example of using a crane to hoist and position a
component of the building's mechanical systems, which is an integral
part of the construction process. According to one industry commenter,
during a typical installation of a large commercial rooftop HVACR unit,
a mobile crane delivers the equipment to its intended location on the
roof, where an HVACR technician connects the equipment to the
ventilation system. (ID-0165.1) Thus, unlike sheet goods and packaged
materials, which are not placed in their location of final use by the
delivery vehicle, delivery of HVACR equipment may be integral to its
installation. Like the hoisting and movement of other building
components, use of cranes and derricks to move HVACR equipment falls
squarely within this rule.
    OSHA also received a comment from a representative of the precast
concrete industry requesting the exclusion of equipment used to deliver
materials such as concrete manholes, septic tanks, burial vaults,
concrete block, and concrete pipe. (ID-0299.1) This commenter stated
that their portion of the precast concrete industry solely delivers
materials to a construction site, and believed that they simply supply
materials for a construction project but are not involved in actual
construction. (ID-0299.1)
    OSHA agrees that in circumstances where the equipment is used
solely to deliver these types of concrete materials from a supplier to
a construction site by placing/stacking the materials from the delivery
vehicle to the ground in, for example, a storage or staging area,
without arranging the materials in a particular sequence for subsequent
hoisting, the equipment is not being used for a construction activity.
However, if the equipment is used to hoist, hold, support, stabilize or
place precast concrete material as part of the installation process, it
is engaged in a construction activity and would be subject to this
rule. For example, a truck-mounted articulating crane may be used to
maneuver a precast component such as a vault or concrete pipe from the
truck to its installation point in an excavation. As previously
discussed, such use is a typical construction activity.
    To summarize, when a delivery vehicle is used solely to deliver
building supply materials from a supplier to a construction site by
placing/stacking the materials on the ground, without arranging the
materials in a particular sequence for hoisting, the equipment is not
being used for a construction activity and is not subject to this rule.
When an articulating/knuckle-boom truck crane that brings material to a
site is used to transfer building supply sheet goods or building supply
packaged materials from the vehicle onto a structure, the activity is a
construction activity but the crane is excluded from this rule if it is
equipped with a properly functioning automatic overload prevention
device and satisfies the other requirements of the exception in Sec.
1926.1400(c)(17). All other equipment that falls under Sec.
1926.1400(a) is subject to this rule when delivering materials onto a
structure.
    OSHA is including in the final rule a new Sec.  1926.1400(c)(17) to
clarify the circumstances under which material delivery is subject to
the rule. Paragraph (c)(17)(i) excludes from the scope of this standard
an articulating/knuckle-boom truck crane that delivers material to a
construction site when it is used to transfer materials from it to the
ground, without arranging the materials in a particular sequence for
hoisting.
    Paragraph (c)(17)(ii) contains the exclusion for an articulating/
knuckle-boom truck crane that delivers material to a site when it is
used to transfer building supply sheet goods or building supply
packaged materials from it onto a structure, using a fork/cradle at the
end of the boom. This provision conditions this exclusion on the truck
crane being equipped with a properly functioning automatic overload
prevention device and lists examples of the sheet goods or packaged
materials that qualify for the exclusion, stating that these include,
but are not limited to: sheets of sheet rock, sheets of plywood, bags
of cement, sheets or packages of roofing shingles, and rolls of roofing
felt. These are typical building supply materials that pose a reduced
risk of falling when being lifted by the truck crane because of their
configuration and/or packaging, and because the truck crane was
designed to safely handle this type of material.
    Any delivery activities not excluded under paragraphs (c)(17)(i)
and (ii) are subject to the standard. However, to avoid any possible
ambiguity on this point, OSHA has included paragraph (c)(17)(iii).
Paragraphs (c)(17)(iii)(A)-(C) list explicit activities for which the
exclusion does not apply. Paragraph (c)(17)(iii)(D) is included to
avoid any possible implication that paragraphs (c)(17)(iii)(A)-(C)
represent an exclusive list of delivery activities that are subject to
the final rule.
Paragraph (d)
    Paragraph (d) of this section is included because there are some
types of equipment for which only limited requirements apply, and
others where there are special requirements that supplement, rather
than displace, the other requirements in the rule. To avoid confusion,
this paragraph establishes that all parts of the rule apply unless a
provision specifically identifies other parts of the rule as
inapplicable, or identifies the only provisions of the standard that
are applicable. No comments were received on this paragraph, and it is
promulgated as proposed except that ``subpart CC'' replaces the phrase
``this standard'' from the proposed rule.
Paragraph (e)
    Proposed paragraph (e) of this section provided that the duties of
controlling entities \8\ are not limited to the duties specified in
Sec. Sec.  1926.1402(c), 1926.1402(e) and 1926.1424(b). The paragraphs
referenced in this provision listed specific duties imposed on
controlling entities under this rule.

Paragraph (e) was included to avoid any implication that the listing of
certain duties placed on controlling entities by this rule displaces
the duties placed on them under OSHA's multi-employer policy.
---------------------------------------------------------------------------

    \8\ The definition of ``controlling entity'' is explained in the
discussion of Sec.  1926.1402(c).
---------------------------------------------------------------------------

    Several commenters questioned OSHA's authority to enforce its
multi-employer policy against controlling entities as well as the
provisions in the proposed rule that would impose specific duties on
controlling entities. (ID-0166.1; -0197.1; -0214.1; -0232.1.) OSHA
explained in detail in the proposed rule why it has such authority (see
73 FR 59731-59733, Oct. 9, 2008). Paragraph (e) is promulgated as
proposed.
Paragraph (f)
    Paragraph (f) requires that where a provision in the rule directs
an operator, crewmember or other employee to take a specified action,
it is the employer's responsibility to establish work rules to require
the relevant employees to take that action, and to effectively
communicate and enforce those work rules. This paragraph clarifies the
employer's obligations with regard to such provisions. No comments on
this paragraph were received, and it is being promulgated as proposed
with only a minor grammatical correction.\9\
---------------------------------------------------------------------------

    \9\ For clarity, OSHA is substituting references to ``shall'' in
the proposed rule with ``must'' in this final rule to remove any
implication that the sentence is descriptive, rather than
imperative.
---------------------------------------------------------------------------

Paragraph (g)
    Some commenters requested that OSHA provide a complete exemption
from subpart CC for subpart V work. As discussed in Sec.  1926.1410(k),
OSHA has addressed their concerns through exclusions from specific
requirements of the rule.
    Most employers engaged in construction work under subpart V are
also engaged in general industry work under Sec.  1910.269, which
covers the operation and maintenance of electric power generation,
transmission, and distribution installations. The requirements for
mechanical equipment in Sec.  1910.269(p) are at least as protective as
the requirements in Sec. Sec.  1926.1407-1926.1411 of subpart CC.
Therefore, OSHA determines it is appropriate to give employers doing
subpart V work the option of complying with Sec.  1910.269(p) in lieu
of the requirements in Sec. Sec.  1926.1407-1926.1411 of this final
rule. This decision has been codified in paragraph (g) of this section
and a note referencing this new paragraph has been added to Sec.
1926.952(c)(3).
Paragraph (h)
    Paragraph (h) notes that Sec.  1926.1402, Ground conditions, does
not apply to cranes used on railroad tracks that are part of a general
railroad system that is regulated by the Federal Railroad
Administration. OSHA added paragraph (h) to this section of the final
rule to aid the public in finding this exception. (See discussion of
this provision at Sec.  1926.1402(f).)
Section 1926.1401 Definitions
    OSHA includes a number of definitions to clarify the meaning of
terms used in this subpart. Many of the defined terms are commonly used
in the industry, and C-DAC in most instances relied on standard
industry sources or its own understanding of how terms are used in the
industry to help ensure that the definitions would be readily
understood by employers and employees. Industry sources on which C-DAC
relied include existing OSHA standards, consensus standards, and ``A
Glossary of Common Crane and Rigging Terms'' (Specialized Carriers and
Rigging Foundation 1997) (``SC&RF Handbook'') (ID-0019.). OSHA includes
other definitions to ensure that certain terms used in the proposed
standard have a precise, unambiguous meaning.
    One commenter noted that definitions as proposed were not identical
to those in certain consensus standards and requested they be changed
to match. (ID-0178.1.) The commenter cited to various consensus
standards, including ANSI A10.31-2006, ANSI A10.28-1998, ANSI A10.33-
1998, and ANSI Z359.0-2007. The commenter did not explain why the
definitions as proposed were inappropriate nor how the change would
improve safety. As noted above, consensus standards were utilized as a
resource in developing the definitions for this subpart. OSHA disagrees
with the commenter's position that the definition must match consensus
standards. OSHA established definitions that would work in the
framework of the equipment covered by this subpart, would coordinate
with other OSHA standards and provide a foundation for enforcing the
requirements of this subpart. As a result, OSHA is not making
modifications to definitions based on this commenter's request.
    A few definitions in this final rule have been modified from or
added to those in the proposed rule. Those definitions are: A/D
director; Assembly/Disassembly; Builder; Controlling entity; Digger
derrick; Duty cycle; Freeboard; Hoist; Load moment (or rated capacity)
indicator; Load moment (or rated capacity) limiter; Nationally
recognized accrediting agency; Positioning device system; Range control
limit device; Repetitive lift; Tower crane; Type; Upperworks; and Wire
rope.
    The reasons for these additions or modifications are discussed in
the preamble at the location indicated in Table 5 below, with the
exception of the definition for hoist, which is discussed below.
    OSHA received one comment on the definition of ``hoist'' in the
proposed rule. (ID-0122.0.) This commenter expressed concern that the
proposed definition would exclude hoists that utilized wire rope or
chains. To address this concern, OSHA modified the definition of
``hoist'' in the final rule to refer to ``a line'' rather than
``rope.'' The use of the more general term ``line'' is intended to
refer to any material (e.g., rope, wire rope, chain, etc.) used to
connect the hoist to that which is being hoisted.
    Definitions that did not receive comment are adopted for the
reasons set forth in the preamble of the proposed rule (see 73 FR
59733-59739, Oct. 9, 2008).
    The preamble location for discussion of all definitions provided in
Sec.  1926.1401 can be found in Table 5 below.

                                                             Table 5--Index of Defined Terms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Term                        Location of preamble discussion                  Term                  Location of preamble discussion
--------------------------------------------------------------------------------------------------------------------------------------------------------
A/D director.........................  Sec.   1926.1404(a).......................  Load......................  Sec.   1926.1401
Articulating crane...................  Sec.   1926.1401..........................  Load moment (or rated       Sec.   1926.1416(e)(4)
                                                                                capacity) indicator.
Assembly/Disassembly.................  Sec.   1926.1403..........................  Load moment (or rated       Sec.   1926.1416(e)(4)
                                                                                capacity) limiter.
Assist crane.........................  Sec.   1926.1404(h)(4)....................  Locomotive crane..........  Sec.   1926.1401

Attachments..........................  Sec.   1926.1400(b)(2)....................  Luffing jib limiting        Sec.   1926.1416(d)(2)
                                                                                device.
Audible signal.......................  Sec.   1926.1419(b).......................  Marine hoisted personnel    Sec.   1926.1431(b)(2)(iii)
                                                                                transfer device.
Blocking.............................  Sec.   1926.1404(h)(2)....................  Marine worksite...........  Sec.   1926.1431(b)(2)(iii)
Boatswain's chair....................  Sec.   1926.1431(o).......................  Mobile cranes.............  Sec.   1926.1401
Bogie................................  Sec.   1926.1435..........................  Moving point-to-point.....  Sec.   1926.1423(e)(1)
Boom (equipment other than tower       Sec.   1926.1401..........................  Multi-purpose machine.....  Sec.   1926.1400(a)
 crane).
Boom (tower cranes)..................  Sec.   1926.1435(e)(5)(ii)................  Nationally recognized       Sec.   1926.1427(b)(1)(i)
                                                                                accrediting agency.
Boom angle indicator.................  Sec.   1926.1416(d)(1)(i)(A)..............  Non-conductive............  Sec.   1926.1407(b)(2)
Boom hoist limiting device...........  Sec.   1926.1416(d)(1)....................  Operational aids..........  Sec.   1926.1416
Boom length indicator................  Sec.   1926.1416(e)(3)....................  Operational controls......  Sec.   1926.1417(b)(2)
Boom stop............................  Sec.   1926.1416(a)(2)....................  Operator..................  Sec.   1926.1401
Boom suspension systems..............  Sec.   1926.1404(h)(7)....................  Overhead and gantry cranes  Sec.   1926.1438
Builder..............................  Sec.   1926.1436(c).......................  Paragraph.................  Sec.   1926.1401
Center of gravity....................  Sec.   1926.1404(h)(6)....................  Pendants..................  Sec.   1926.1404(h)(8)
Certified welder.....................  Sec.   1926.1431(e)(5)....................  Personal fall arrest        Sec.   1926.1423(g)
                                                                                system.
Climbing.............................  Sec.   1926.1435(b)(7)....................  Portal cranes.............  Sec.   1926.1415(a)(1)
Come-a-long..........................  Sec.   1926.1400(c)(10)...................  Positioning device system.  Sec.   1926.1423
Competent person.....................  Sec.   1926.1401..........................  Power lines...............  Sec.   1926.1407-1411
Controlled load lowering.............  Sec.   1926.1426(d).......................  Procedures................  Sec.   1926.1401
Controlling entity...................  Sec.   1926.1402(c).......................  Proximity alarm...........  Sec.   1926.1407(b)(3)
Counterweight........................  Sec.   1926.1404(h)(9)....................  Qualified evaluator (not a  Sec.   1926.1428(a)(2)
                                                                                third party).
Crane/derrick........................  Sec.   1926.1400..........................  Qualified evaluator (third  Sec.   1926.1428(a)(2)
                                                                                party).
Crawler crane........................  Sec.   1926.1401..........................  Qualified person..........  Sec.   1926.1401
Crossover points.....................  Sec.   1926.1413(a)(3)(iii)...............  Qualified rigger..........  Sec.   1926.1425(c)(3)
Dedicated channel....................  Sec.   1926.1420(b).......................  Range control limit device  Sec.   1926.1408(a)
Dedicated pile-driver................  Sec.   1926.1439(a).......................  Range control warning       Sec.   1926.1407(a)(3)
                                                                                device.
Dedicated spotter (power lines)......  Sec.   1926.1407(b).......................  Rated capacity............  Sec.   1926.1401
Digger derrick.......................  Sec.   1926.1400(c)(4)....................  Rated capacity indicator..  Sec.   1926.1416(e)(4)
Directly under the load..............  Sec.   1926.1425(e)(1)....................  Rated capacity limiter....  Sec.   1926.1416(e)(4)
Dismantling..........................  Sec.   1926.1405..........................  Repetitive lift...........  Sec.   1926.1414(e)(2)
Drum rotation indicator..............  Sec.   1926.1416(e)(5)(ii)................  Repetitive pickup points..  Sec.   1926.1413(a)(3)(iii)
Duty cycle...........................  Sec.   1926.1414(e)(2)....................  Running wire rope.........  Sec.   1926.1413(a)(2)(ii)(A)
Electrical contact...................  Sec.   1926.1407-1411.....................  Runway....................  Sec.   1926.1431(k)(12)(ii)(A)
Employer-made equipment..............  Sec.   1926.1437(m)(4)....................  Section...................  Sec.   1926.1401
Encroachment.........................  Sec.   1926.1407-1411.....................  Side-boom crane...........  Sec.   1926.1440
Equipment............................  Sec.   1926.1400..........................  Special hazard warnings...  Sec.   1926.1417(c)(1)
Equipment criteria...................  Sec.   1926.1412(b)(1)(i).................  Stability (flotation        Sec.   1926.1437(m)
                                                                                device).
Fall protection equipment............  Sec.   1926.1423(e).......................  Standard Method...........  Sec.   1926.1419(c)
Fall restraint system................  Sec.   1926.1423(d)-(e), (g)..............  Such as...................  Sec.   1926.1401
Fall zone............................  Sec.   1926.1425(b).......................  Superstructure............  Sec.   1926.1424(a)(1)
Flange points........................  Sec.   1926.1413(a)(3)(iii)...............  Tag line..................  Sec.   1926.1407(b)(2)
Floating cranes/derricks.............  Sec.   1926.1437..........................  Tender....................  Sec.   1926.1437(j)(3)
For example..........................  Sec.   1926.1401..........................  Tilt-up or tilt down        Sec.   1926.1425(e)
                                                                                operation.
Free fall (of the load line).........  Sec.   1926.1426(d).......................  Tower crane...............  Sec.   1926.1401
Free surface effect..................  Sec.   1926.1437(m)(5)(ii)................  Travel bogie (tower         Sec.   1926.1435(d)(2)(iv)
                                                                                cranes).
Freeboard............................  Sec.   1926.1437(m)(2)....................  Trim......................  Sec.   1926.1437(e)(1)
Hoist................................  Sec.   1926.1401..........................  Two blocking..............  Sec.   1926.1416(d)(3)
Hoisting.............................  Sec.   1926.1401..........................  Type......................  Sec.   1926.1427(b)(1)(ii)(B)
Include/including....................  Sec.   1926.1401..........................  Unavailable procedures....  Sec.   1926.1417(b)
Insulating link/device...............  Sec.   1926.1408(b)(4)(v).................  Up to.....................  Sec.   1926.1401
Jib stop.............................  Sec.   1926.1415(a)(3)....................  Upperstructure............  Sec.   1926.1424(a)(1)
Land crane/derrick...................  Sec.   1926.1437..........................  Upperworks................  Sec.   1926.1424(a)(1)
List.................................  Sec.   1926.1437(e)(1)....................  Wire rope.................  Sec.   1926.1413
--------------------------------------------------------------------------------------------------------------------------------------------------------

Section 1926.1402 Ground Conditions
    The Committee determined that the failure to have adequate ground
conditions is a significant crane safety problem. Adequate ground
conditions are essential for safe equipment operations because the
equipment's capacity and stability depend on such conditions being
present. In the Committee's view, there are two key problems regarding
ground conditions: (1) Equipment is commonly brought on site by a
subcontractor, who typically has neither control over ground conditions
nor knowledge of hidden hazards, and (2) the entity that usually does
have such authority--the controlling entity--may not have the expertise
to know what changes are needed to make the ground conditions suitable
for equipment operations. This section is designed to address these
problems so that ground conditions will be made sufficient for safe
equipment operations.
    One commenter asserted that, with respect to digger derricks, the
ground conditions provision should be changed. In particular, the
commenter stated that the Committee should incorporate by reference
secs. 7 through 10 of ANSI/ASSE A10.31-2006, Safety Requirements,
Definitions, and

Specifications for Digger Derricks; American National Standard for
Construction and Demolition Operations. (ID-0178.1.) In addition, the
commenter asserted that the ANSI/ASSE standard ``addresses worksite
selection that is clearer than what OSHA has proposed. For example, the
proposed rule does not recognize the danger that ditches can have on
placement, which is a common occurrence.''
    OSHA first notes that these suggestions apply only to digger
derricks and thus interprets the comment as a recommendation that
digger derricks be treated differently than other equipment under Sec.
1926.1402. As we noted in the preamble to the proposed rule, the
Committee determined that the failure to have adequate ground
conditions is a significant safety problem. The Committee's
determination that this safety problem exists for various types of
equipment is underscored by the application of Sec.  1926.1402 to
nearly all equipment covered by this subpart. In addition, where the
Committee intended for certain equipment to be exempted from Sec.
1926.1402, it indicated that expressly (see, e.g., Sec.  1926.1440,
Sideboom Cranes). OSHA defers to the expertise of the Committee on this
issue.
    Secondly, OSHA has reviewed ANSI/ASSE A10.31-2006 and found that it
is substantively distinguishable from Sec.  1926.1402. Specifically,
the two standards differ in the assignment of responsibilities. ANSI/
ASSE A10.31-2006 divides responsibilities among digger derrick dealers/
installers, owners, users, and operators. Notably, controlling entities
(who often do not fall into any of the ANSI/ASSE A10.31-2006
categories) are assigned no responsibility at all. Furthermore, the
discussion of worksite conditions is included only in sec. 10,
Responsibilities of Operators. ANSI/ASSE A10.31-2006 places the
responsibility of examining ground conditions entirely on the operator.
Also, ANSI/ASSE A10.31-2006 does not require that the ground condition
requirements be met before the equipment is installed; it requires only
that the worksite be surveyed before the digger derrick is used. In
sum, OSHA concludes that Sec.  1926.1402 is more effective than ANSI/
ASSE A10.31-2006 and declines to incorporate ANSI/ASSE A10.31-2006 by
reference.
    The Agency disagrees with the commenter that Sec.  1926.1402 fails
to adequately address ditches. The hazard posed by a ditch is that the
ground is less firm in the area adjacent to it. Under Sec.  1926.1402,
the ground must be sufficiently firm to provide ``adequate support''
for the equipment. The section as proposed therefore addresses this
hazard.
Paragraph (a) Definitions
    Paragraph (a) provides definitions of key terms used in this
section. The term ``ground conditions'' is defined as the ability of
the ground to support the equipment (including slope, compaction and
firmness). The Committee determined that slope, compaction and firmness
are the key factors that are involved in the ability of the ground to
support the equipment.
    ``Supporting materials'' is defined as meaning blocking, mats,
cribbing, marsh buggies (in marshes/wetlands), or similar supporting
materials or devices. Such materials typically help to distribute the
load of the crane over a broad area and/or assist in leveling the
equipment. The list in the definition of examples of such materials is
nonexclusive--it includes similar materials and devices that would
serve the same purpose(s).
    The one comment that was received that referenced this provision is
addressed in the discussion below of Sec.  1926.1402(b). (See ID-
0178.1.)
Paragraph (b)
    Under paragraph (b) of this section, the equipment is prohibited
from being assembled or used \10\ unless ground conditions are firm,
drained, and graded to a sufficient extent so that, in conjunction (if
necessary) with the use of supporting materials, the equipment
manufacturer's specifications for adequate support and degree of level
of the equipment are met. A crane's stability depends (in part) on the
crane being level, and ``degree of level'' is a term used in the
industry to describe the manufacturer's specification for how level the
crane must be. The Agency determined that the text of the proposed rule
did not make it clear that the drainage requirement did not apply to
marshes/wetlands. Accordingly, the final rule's text has been modified
to clearly state that this is the only exception. All other conditions
related to have a stable surface for the equipment is applicable.
---------------------------------------------------------------------------

    \10\ Note that ``used'' is not limited to use of the equipment
at a fixed location; it also includes when the equipment is
traveling with a load.
---------------------------------------------------------------------------

    In the Committee's experience, crane tip-over incidents caused by
inadequate ground conditions are a significant cause of injuries and
fatalities. For example, on September 28, 1999, a 19 year old
electrical instrument helper was killed by a crane that overturned
because insufficient care was taken to ensure that the ground under the
crane was firm and that the crane's outriggers were properly supported.
(ID-0017.13.) Conditions that enhance the chance of such accidents
include ground that is wet or muddy, poorly graded, or that is loose
fill (or otherwise disturbed soil) that has not been compacted. The
Committee determined that requiring adequate ground conditions will
prevent many of these accidents. The exception for marshes and wetlands
is included because the Committee was aware that, in many instances,
the draining of marshes/wetlands is prohibited or restricted by
environmental laws and there are devices available (such as marsh
buggies) that are designed to provide adequate support to cranes in
such areas.
    One commenter suggested that the term ``level'' could be confusing
and suggested that it be defined as ``less than one degree of grade
change or as required by the manufacturer.'' (ID-0178.1.) OSHA finds
this comment unpersuasive. The suggested language is circular because
it does not use the term ``level'' by itself; it refers to ``the
equipment manufacturer's specifications for * * * degree of level of
the equipment.'' The reason the provision refers to the manufacturer's
specification in this regard is that it is the manufacturer that
establishes the load chart, and the load chart is valid only for the
parameters, including degree of level, established by the manufacturer.
    At the public hearing, a representative of the railroad industry
raised an issue that OSHA determines could be the source of some
confusion. The commenter indicated that the railroad industry regularly
has to work in out-of-level conditions, since some sections of track
are not level. (ID-0342.) The commenter explained that the
manufacturers of track-mounted cranes provide specialized load charts
which take into account these out-of-level conditions.
    The manufacturers of these cranes apparently specify that the
cranes can be used in certain out-of-level circumstances, as evidenced
by their provision of load charts for those conditions. Therefore, the
use of equipment in accordance with manufacturer specifications
regarding degree of level would meet Sec.  1926.1402(b)'s requirement
because the provision permits use of the equipment in accordance with
those specifications.

Paragraph (c)
    Under Sec.  1926.1402(c), the controlling entity has several
specific duties regarding ground conditions. OSHA's authority to impose
these duties is discussed in detail in the preamble to the proposed
rule (see 73 FR 59731-59732, Oct. 9, 2008), and the Agency re-asserts
the same authority with respect to the final rule. As it did with
respect to the proposed rule, the Agency is again stating that the
duties imposed on the controlling entity through the promulgation of
this final rule are supplemental to, and do not displace, controlling
entity duties under OSHA's multi-employer policy. (See Sec.
1926.1402(e), discussed below; 73 FR 59731, Oct. 9, 2008).
    ``Controlling entity'' is defined in Sec.  1926.1401 as ``an
employer that is a prime contractor, general contractor, construction
manager or any other legal entity which has the overall responsibility
for the construction of the project--its planning, quality and
completion.'' This definition, which generally mirrors the definition
of ``controlling contractor'' in the steel erection standard, 29 CFR
part 1926, subpart R, reflects the core principle of general
supervisory control over the construction site. In this final rule,
OSHA is clarifying the definition to make it clear that the controlling
entity must be an employer.
    Section 1926.1402(c)(1) requires the controlling entity to ensure
that ground preparations necessary to meet the requirements in
paragraph (b) of this section are provided. The Committee determined
that it is necessary to specify who will have ground condition
responsibility because in many instances the parties are unable to
agree on who will have (or has) that contractual responsibility, with
the result that often no one corrects inadequate ground conditions.
    In the Committee's view, the crane user and operator typically do
not have the equipment or authority to make such preparations. In
contrast, the controlling entity, due to its control of the worksite,
has the requisite authority and is in the best position to arrange for
adequate ground conditions. The Committee was concerned, however, that
some controlling entities may lack the expertise to recognize when
ground conditions are inadequate. To address this concern, the
Committee developed Sec.  1926.1402(e).
    One commenter said that adequate site assessment requires defining
ground bearing capacity compared to loading of the machine, along with
soil testing and proper analysis for ground conditions. (ID-0143.1.) As
explained in the preamble of the proposed rule, C-DAC considered, but
rejected, including specification requirements regarding the soil
conditions (see 73 FR 59739-59740, Oct. 9, 2008). This reflected the
view that most sites and circumstances do not require sophisticated
soil testing. In light of C-DAC's decision not to add new testing or
soil specifications, the many variables that may affect ground
conditions, and the existing body of law and OSHA guidance relating to
testing duties under the Agency's multi-employer policy, the Agency
concludes that it is appropriate to allow the controlling entity
flexibility in the manner in which it satisfies its duties under Sec.
1926.1402 and the multi-employer policy.
    Under Sec.  1926.1402(c)(2), the controlling entity is required to
inform the user of the equipment and the equipment operator of the
location of hazards beneath the equipment set-up area (such as voids,
tanks, and utilities, including sewer, water supply, and drain pipes)
that are identified in documents (such as site drawings, as-built
drawings, and soil analyses) that are in the possession of the
controlling entity. These underground hazards can compromise the
ability of the ground above them to support the equipment. In the
experience of members of the Committee, because of the hidden nature of
these hazards, accidents have occurred when cranes have been set up
above such hazards and a portion of the ground has given way.
    In developing this provision, the Committee was mindful that the
controlling entity often possesses documents obtained or developed
during the ordinary course of business that identify the location of
such hazards. Under the provision as proposed, if the controlling
entity has such a document, whether at the site or at an off-site
location, it is required to inform the equipment user and operator of
the location of the hazard as identified in it. If the controlling
entity does not possess the information, it is not required to obtain
it from another source. The Committee concluded that requiring the
controlling entity to obtain such information from other sources would,
in effect, require it to arrange for testing. As explained above, the
Committee determined such a duty would be unduly burdensome and
unnecessary.
    Some commenters indicated that clarification is needed regarding
whether the controlling entity is required to possess particular
documents. (ID-0166.1; -0214.1.) OSHA agrees that additional
clarification is needed and is making two changes in the final text of
paragraph (c)(2) of this section. Both of these clarifications are
consistent with the rationale of the rule that the controlling entity
need only share information that it possesses, and that the controlling
entity has no obligation under Sec.  1926.1402 to seek out additional
information not in its possession.
    First, OSHA is replacing the proposed phrase ``available to the
controlling entity'' with ``in the possession of the controlling
entity, whether at the site or off-site.'' As explained in the preamble
to the proposed rule,

[i]n developing this proposed provision, the Committee was mindful
that the controlling entity often has access to documents that may
identify the location of such hazards. * * * Under this proposed
provision, if the controlling entity has such a document, whether at
the site or at an off-site location, it would be required to inform
the equipment user and operator of the location of the hazard as
identified in it. If the controlling entity does not possess such a
document, it would not be required to obtain it from another source.

    The phrase ``available to'' may be interpreted as including
documents that the controlling entity does not already have in its
possession but has the ability to obtain, i.e., procure, from other
entities. As is evident from the proposed rule explanation quoted
above, the intent is to apply the duty only with respect to information
that is already in the controlling contractor's possession, whether at
the site or off-site.
    Second, OSHA is revising the text of paragraph (c)(2) of this
section to emphasize that the employer's existing responsibilities
under OSHA's multi-employer policy are not changed by this new rule. As
noted above and in the preamble to the proposed rule, the duties
provided in Sec.  1926.1402 supplement, and do not displace, the
controlling entity's duties under the multi-employer policy.\11\ The
multi-employer policy reflects the Secretary's reasonable
interpretation of the OSH

Act and requires controlling employers to exercise reasonable care to
prevent and detect violations on the site. See OSHA CPL 02-00-124,
Multi-Employer Citation Policy, Dec. 10, 1999. Under this policy, the
controlling employer has a duty to address hazards the employer either
creates or controls, regardless of whose employees are threatened by
the hazard. See, e.g. Universal Const. Co., Inc. v. Occupational Safety
and Health Review Comm'n, 182 F3d 726, 730 (10th Cir. 1999). Implicit
in those duties is a duty to notify employees of hazards the
controlling employer controls and has already detected, particularly
where such notification would prevent a violation. As noted in the
preamble to the proposed rule, requiring employers to include hazard
information needed by downstream employees is a necessary and
appropriate means to ensure that the employees are apprised of all
hazards to which they are exposed. (See 73 FR 59731, Oct. 9, 2008; see
also American Petroleum Institute v. OSHA, 581 F.2d 493, 510 (5th Cir.
1978).) (OSHA may require upstream employers to warn downstream
employees of concealed hazards when the upstream employer knows of
those hazards under remedial purpose of the OSH Act and OSHA's broad
authority to prescribe warning labels under 29 U.S.C. 655(b)(7)).
---------------------------------------------------------------------------

    \11\ The Agency anticipates that the majority of controlling
entities will also be controlling employers for the purposes of the
multi-employer policy. However, even to the extent that a
controlling entity does not also meet the definition of a
controlling employer, the Agency has the authority to require the
controlling entity to comply with the requirements of Sec.
1926.1402. (See discussion of authority at 73 FR 59731-59732, Oct.
9, 2008.) With respect to the controlling entity's duty to warn the
operator and other users of the equipment about hidden ground
condition hazards, Sec.  1926.1402(c) constitutes OSHA's exercise of
its authority to ``prescribe the use of labels or other appropriate
forms of warning as are necessary to insure that employees are
apprised of all hazards to which they are exposed * * * and proper
conditions and precautions of safe use or exposure.'' 29 U.S.C.
655(b)(7).
---------------------------------------------------------------------------

    OSHA is therefore clarifying in paragraph (c)(2) that the
controlling entity still must share both documentary and non-
documentary information about other hazards when the hazards are
``known to the controlling entity.'' This requirement only applies to
hazard information already in the possession of the controlling entity,
and does not require the controlling entity to obtain any additional
information. For example, if the controlling entity is setting up non-
crane equipment and discovers during the course of that work that there
is an undocumented void in the area where the crane is to be set up,
the controlling entity would be required to share that information with
the crane operator. Although this requirement extends beyond the
``documents'' specified in the proposed rule, it is consistent with the
rationale provided in the proposed rule and is supported by those
commenters who favor this provision: C-DAC sought to distinguish
between information in the possession of the controlling entity, and
information that must be sought out by the controlling entity. Thus, to
comply with Sec.  1926.1402(c)(2) of the final rule, the controlling
entity has no duty to seek out new information not already in its
possession; it is only required to share information already in its
possession, whether or not such information is contained in a document.
    OSHA received several comments about whether these responsibilities
should rest with the controlling entity as it is defined in Sec.
1926.1401 (prime contractor, general contractor, construction manager
or any other legal entity which has the overall responsibility for the
construction of the project--its planning, quality and completion).
    One commenter sought clarification on whether a construction
manager/general contractor or a site/project owner is considered the
controlling entity where the latter contracts with the former but
retains responsibility for oversight of certain matters (e.g., quality
control, safety). The commenter also wanted to know if the site/project
owner is still responsible for inspecting ground conditions under Sec.
1926.1402 if the construction manager/general contractor is the
controlling entity. (ID-0107.1.) As explained above, the ``controlling
entity'' is the entity which has the overall responsibility for the
construction of the project--its planning, quality and completion.
Where this responsibility is split among several entities, there may
not be a controlling entity. In that case, Sec.  1926.1402(d) applies:
whichever employer has authority to make or arrange for ground
preparations is required to ensure that the necessary ground
preparations are made. If more than one entity each possesses this
authority, then OSHA holds each of those entities separately liable for
the duty to ensure that the necessary ground preparations are made.
    Some commenters suggested that the provision is unclear as to which
hazards, i.e., known or unknown, the controlling entity is required to
disclose. (ID-0166.1; -0214.1.) The purpose of this requirement is to
ensure that the user of the equipment and the operator are informed of
hazards that might not be known to them, because they are beneath the
set-up area, but are known to the controlling entity. In other words,
under this provision, the controlling entity must examine information
in its possession (such as site drawings, as-built drawings, and soil
analyses) to see if there are hazards beneath the set-up area. If there
are hazards identified in those documents, or if the controlling entity
has already identified other hazards not in those documents, the
controlling entity must inform the user and operator of the hazards. As
explained above and in the proposed rule preamble, new Sec.  1926.1402
does not place any new requirements on the controlling entity to
discover hazards that are not already known to it (see 73 FR 59741,
Oct. 9, 2008). The Agency concludes that the provision's language
adequately reflects this intent.
    One commenter suggested that Sec.  1926.1402(c) be replaced with a
section that would simply encourage a cooperative meeting between the
controlling entity, the employer using the crane, and the employer best
situated to control and prepare the ground conditions. (ID-0218.1.)
OSHA determines that such a change would merely replicate the status
quo, an arrangement which the Committee found to be inadequate for
ensuring adequate ground conditions.
    Several commenters argued that the crane operator, not the
controlling entity, should be required to obtain information about the
location of hazards beneath the equipment set-up area. (ID-0165.1; -
0179.1; -0191.1; -0197.1; -0214.1; -0232.1; -0235.1; -0285.1.) These
comments fell into one of two groups.
    The first group argued that some controlling entities are either
not engaged in construction work,\12\ may have little to no expertise
concerning ground conditions in general, or may hire subcontractors to
work at a remote location of which the controlling entity may have
little knowledge. (See, e.g., ID-147.1; -0165.1; -0232.1; -0235.1.)
This group appears to read Sec.  1926.1402(c)(1) to mean that the
controlling entity must personally determine and provide the ground
conditions necessary to meet the requirements in Sec.  1926.1402(b).
---------------------------------------------------------------------------

    \12\ In most cases entity that meets the definition of
``controlling entity'' will be engaged in construction.
---------------------------------------------------------------------------

    C-DAC considered the concern that some controlling entities would
not have the expertise needed to determine if ground conditions were
adequate. The final rule therefore addresses this concern in two ways.
First, paragraph (c)(1) provides that the controlling contractor is
responsible for ``ensuring'' that these ground conditions are provided.
In other words, if the controlling contractor is not familiar with the
crane's requirements or with the ground conditions at the particular
site, then it must make sure that someone who is familiar with those
requirements and conditions provides what is required by Sec.
1926.1402(b). Second, under Sec.  1926.1402(e), if the A/D director or
operator determines that ground conditions are inadequate, the
controlling entity will, through a discussion, obtain the relevant
information. (See discussion of

1926.1402(e) at 73 FR 59741, Oct. 9, 2008).
    One of the commenters suggested that Sec.  1926.1402(c) be revised
to place requirements on either the controlling entity or a competent
person designated by the controlling entity. (ID-0191.1.) As explained
above, Sec.  1926.1402, as promulgated, does not preclude a controlling
entity from using a competent person to provide the information it
needs to meet its responsibilities under this section. However, C-DAC's
experience indicates that it is important to ensure that one entity
with the authority to address ground condition hazards has the
responsibility to do so. To permit a controlling entity to divest
itself of its ground condition responsibilities would unduly fragment
responsibility for ground conditions, thus defeating one of the goals
of the section.
    The second group argued that the rule may result in situations that
are beyond the capacity and responsibility of certain subcontractors.
(See, e.g., ID-0165.1; -0191.1; -0235.1.) One commenter suggested that
the definition of ``controlling entity'' be revised ``to reflect that
subcontractors and others who have little to do with the overall
project including site conditions and do not have the expertise to
determine compliance with crane manufacturer specifications are not
included in the definition, purpose, or requirements of a controlling
entity.'' (ID-0191.1) These commenters also argued that, because such
subcontractors do not know or control the site conditions, the
responsibilities in Sec.  1926.1402(c) should fall on the crane owner
or operator. The other two commenters were concerned about the effect
of the rule on heating, ventilating, air conditioning, and
refrigeration (HVACR) contractors in particular. (ID-0165.1; -0235.1.)
    These commenters have misunderstood Sec.  1926.1402(c). For
example, an HVACR contractor, if contracted to do only HVACR work and
is not in control of the entire work site, would not be the controlling
entity, and would be subject to the limited requirements in Sec.
1926.1402(d) only if it had authority to make changes to the ground
conditions.
    One commenter requested that the term ``user of the equipment'' be
defined. (ID-0214.1.) OSHA determines this term does not need to be
defined in Sec.  1926.1401, since its meaning is sufficiently clear.
``User of the equipment'' refers to the employer that is using the
equipment to perform a task. For example, a drywall installation
employer engaged in erecting precast wall panels would be a ``user of
the equipment'' if that employer directs a crane to hoist the panels
into place. Similarly, an employer installing wooden roof trusses would
be a ``user of equipment'' if that employer directs a crane to place
the trusses on the structure. A general contractor handling several
subcontracting areas, but not the controlling entity for the worksite,
would also be a ``user of equipment'' if it directs its subcontractors
to use a crane to hoist materials. In the latter example, the general
contractor and the subcontractor would each be a ``user of equipment.''
Paragraph (d)
    In the event that no controlling entity exists, Sec.  1926.1402(d)
provides that the requirement in Sec.  1926.1402(c)(1) must be met by
the employer that has authority at the site to make or arrange for
ground preparations needed to meet the requirements of Sec.
1926.1402(b). For example, if the employer who hires the crane has the
authority to get the ground prepared in the absence of a controlling
entity, the responsibility for complying with Sec.  1926.1402(b) would
fall to that employer. However, that employer would not be required to
comply with Sec.  1926.1402(c)(2) because the information required to
be disclosed under Sec.  1926.1402(c)(2) is not likely to be available
to that employer.
    One commenter suggested that paragraph (d) of this section be
revised to read that the requirements in Sec.  1926.1402(c)(1) must be
met by a competent person designated by the employer that has authority
at the site to make or arrange for ground preparations needed to meet
the requirements of Sec.  1926.1402(b). (ID-0191.1.) As explained above
with respect to a similar suggestion regarding Sec.  1926.1402(c), OSHA
determines this would have the effect of unduly fragmenting the
responsibility for ground conditions, which is contrary to the intent
of the provision.
    For the reasons above, OSHA is promulgating Sec.  1926.1402(d) as
proposed.
Paragraph (e)
    Proposed Sec.  1926.1402(e) established a mechanism for a
controlling entity to obtain information from the A/D director or the
equipment operator about insufficient ground conditions and the
preparations needed to correct the problem. Specifically (as discussed
above in the context of Sec.  1926.1402(c)(1)), if the A/D director or
equipment operator determines that ground conditions do not meet the
criteria in Sec.  1926.1402(b), that person's employer is required to
have a discussion with the controlling entity regarding the ground
preparations needed so that, with the use of suitable supporting
materials/devices (if necessary), the requirements in Sec.
1926.1402(b) can be met.
    The Committee determined that, in some instances, the controlling
entity may lack the expertise needed to know what ground preparations
may be needed. In such cases, it is necessary for the information it
needs to be provided by the A/D director or operator, who has that
expertise, so that the preparations needed for safe crane operations
can be made. The Committee concluded that, in such circumstances, such
a discussion would make it more likely that the requirements in Sec.
1926.1402(b) would be met, which, as discussed above, is necessary for
safe crane operations.
    One commenter suggested that the provision will encourage disputes.
The commenter suggested that rental companies would not accept a
controlling entity's ground conditions unless the controlling entity
purchases services from the rental company to improve them. (ID-
0105.1.)
    OSHA determines that the commenter's concerns are unwarranted.
Section 1926.1402(e) is a mechanism for a controlling entity to obtain
information to facilitate its compliance with Sec.  1926.1402(c)(1).
Once ground conditions meet the criteria in Sec.  1926.1402(b), the
controlling entity is not required to make further improvements, even
if the rental company objects.
    For the reasons above, OSHA is promulgating Sec.  1926.1402(e) as
proposed, with the substitution of the word ``director'' for the word
``supervisor'' to be consistent with the change made and discussed in
Sec.  1926.1404.
Paragraph (f)
    At the public hearing, a representative of the railroad industry
explained that, in his experience, railroads use cranes to: remove,
replace or renew rails; build bridges; handle materials; and to pick up
and repair railroad cars. (ID-0342.) In addition, the witness explained
that the railroad industry uses a variety of construction equipment,
some on the tracks (locomotive cranes, rubber-tired off-road cranes
that are capable of being used on the tracks) and others off the tracks
(rubber-tired off road cranes, truck cranes, and service trucks). (ID-
0342.) The witness estimated that 95% of railroad industry crane
operations take place on or around railroad tracks. (ID-0342.)

    One commenter expressed concern about the application of Sec.
1926.1402 to the railroad industry's use of cranes and requested an
exemption for the use of cranes on and alongside tracks. (ID-0176.1; -
0292.1.) The commenter expressed two specific concerns. First, that,
unlike most construction sites, a railroad construction site may
include many miles of railroad track. The commenter elaborated that the
time and cost associated with locating and checking site drawings and
soil analyses--which the commenter said may arguably be available to
the railroad industry--for thousands of miles of track would be
``exorbitant'' and would ``not appreciably lower the risks to the crane
operator.'' (ID-0176.1.)
    As for the cost associated with locating and checking documents,
Sec.  1926.1402 does not require the controlling entity to possess or
acquire any particular documents or other information, but requires
that the controlling entity share any information about underground
hazards that it has in its possession with the crane user and operator.
As explained above, OSHA has replaced ``available to'' with ``in the
possession of'' to make this clear.
    The commenter also suggested that there is no need to apply Sec.
1926.1402 to cranes used by railroads along track rights of way because
the Federal Railroad Administration (FRA) has regulations that specify
minimum requirements for roadbeds and areas immediately adjacent to
roadbeds that concern the ground conditions underneath and alongside
the track, as well as requirements for how the track must be laid.
    The Federal Railroad Administration has established requirements
for the ballasts beneath railroad tracks,\13\ limited requirements for
the roadbed,\14\ and requirements for the track surface.\15\ The
failure of any one of these elements (the ballast, the roadbed or sub-
grade, or the track) is detrimental to the effectiveness of the system
as a whole. These provisions are designed to, in concert, enable trains
to travel safely, and involve conditions adjacent to the track only to
the extent that they affect track stability.
---------------------------------------------------------------------------

    \13\ The FRA regulations for the ballast (the foundation for
most railroad tracks) can be found at 49 CFR 213.103 and 213.334,
depending on the class of track. The provisions are otherwise
identical, and provides:
    Unless it is otherwise structurally supported, all track shall
be supported by material which will--
    (a) Transmit and distribute the load of the track and railroad
rolling equipment to the subgrade;
    (b) Restrain the track laterally, longitudinally, and vertically
under dynamic loads imposed by railroad rolling equipment and
thermal stress exerted by the rails;
    (c) Provide adequate drainage for the track; and
    (d) Maintain proper track crosslevel, surface, and alignment.
    \14\ FRA requirements address issues other than ground support
in the area adjacent to the track roadbed. Specifically, 49 CFR
213.31 requires that each drainage or other water carrying facility
under or immediately adjacent to the roadbed be maintained and kept
free of obstruction, to accommodate expected water flow for the area
concerned. Section 213.37 requires the control of vegetation on
railroad property which is on or immediately adjacent to roadbeds to
prevent fires, maintain visibility and signals, and to prevent
interference with other duties.
    \15\ 49 CFR 213.51 et seq. contains requirements for the gage,
alignment, and surface of the track.
---------------------------------------------------------------------------

    The comment is persuasive to the extent that it pertains to cranes
that operate on railroad tracks that are part of the general railroad
system of transportation because FRA's regulations address ground
support for the tracks.\16\ Therefore, OSHA has decided to exempt from
the requirements of Sec.  1926.1402 cranes used on railroad tracks that
are part of the general railroad system of transportation subject to
FRA regulation. To effectuate this change from the proposed rule, OSHA
has added Sec.  1926.1402(f), which exempts cranes that are designed
for use on railroad tracks and that are being used on tracks regulated
by the Federal Railroad Administration requirements at 49 CFR part 213.
In addition, OSHA has exempted railroad tracks and their underlying
support from the ground conditions inspection requirements in Sec.
1926.1412(d)(1)(x).
---------------------------------------------------------------------------

    \16\ The general railroad system of transportation is defined as
``the network of standard gage track over which goods may be
transported throughout the nation and passengers may travel between
cities and within metropolitan and suburban areas.'' Appendix A to
49 CFR part 209. If a railroad that is part of the general railroad
system of transportation operates over track that is confined to an
industrial installation, that plant trackage is also considered part
of the general railroad system of transportation.
---------------------------------------------------------------------------

    The commenter also stated that the FRA has regulations that
``concern[] the ground conditions * * * alongside the track.'' (ID-
0176.1.) The only aspects of the ground conditions of the area adjacent
to the track roadbed addressed by the FRA regulations are drainage and
vegetation.\17\ An area with adequate drainage can nonetheless present
problems for equipment set-up with respect to slope, compaction and
firmness, as well as have hazards beneath the set-up area. For this
reason, the Agency has decided not to exempt equipment used alongside
railroad tracks. Therefore, for example, a rubber tired off-road crane
designed for use on tracks would be exempted from Sec.  1926.1402 while
being operated on the tracks, but would be subject to the requirements
of Sec.  1926.1402 if used adjacent to the tracks.
---------------------------------------------------------------------------

    \17\ See the description of FRA requirements that relate to the
area adjacent to the track roadbed in footnote 11.
---------------------------------------------------------------------------

Sections 1926.1403--1926.1406 Assembly and Disassembly
    Sections 1926.1403 through 1926.1406 set out requirements designed
to ensure the safety of employees while equipment is assembled and
disassembled (and, in the case of tower cranes, during erecting,
climbing and dismantling). C-DAC members indicated that, in their
experience, the failure to adequately address hazards associated with
these processes is a significant cause of injuries and fatalities. The
Committee also concluded that the most effective way to reduce these
injuries and fatalities would be to have a standard that
comprehensively addresses these hazards (see also the Agency's
discussion of fatality data associated with assembly/disassembly at 73
FR 59741-59742, Oct. 9, 2008).
    Note that the term ``procedures,'' which is used in the assembly/
disassembly provisions, is defined to include (but is not limited to)
instructions, diagrams, recommendations, warnings, specifications,
protocols and limitations (see Sec.  1926.1401). The operation of an
``assist'' crane used to help in the assembly/disassembly process is
not covered by the assembly/disassembly requirements but is covered by
the other sections of this standard.\18\
---------------------------------------------------------------------------

    \18\ However, the rigging requirements in Sec. Sec.
1926.1404(r) and 1926.1425(c)(3) apply to the rigging used by the
assist crane.
---------------------------------------------------------------------------

    One commenter suggested that the Agency clarify whether Sec. Sec.
1926.1403 through 1926.1406 apply to activities that modify or increase
the height of the crane such as ``jumping.'' (ID-0156.1.) ``Jumping''
(or ``climbing'') refers to the process of adding mast sections to a
tower crane to increase its height. In many cases a tower crane is
first erected and used at one height, and then as the height of the
structure being built increases, the height of the tower crane is
increased in stages to keep pace with it.
    Irrespective of whether the crane is initially erected to its full
height, or is ``jumped'' in stages, the process of increasing the
height of the crane is an assembly/erection process. Sections 1926.1403
through 1926.1406 apply whenever the crane's height is modified. To
ensure that this intent is reflected in the standard, OSHA has added a
sentence to the definition of ``assembly/disassembly'' in Sec.
1926.1401 to this effect.

    In proposed Sec.  1926.1401, ``assembly/disassembly'' was defined
to mean ``the assembly and/or disassembly of equipment covered under
this standard.'' With regard to tower cranes, `erecting and climbing'
replaces the term `assembly,' and `dismantling' replaces the term
`disassembly.' C-DAC did not originally include a definition of
``assembly/disassembly,'' but OSHA included this definition in the
proposed rule to avoid any implication that Sec. Sec.  1926.1403-
1926.1406 do not apply to tower cranes because the terms ``assembly''
and ``disassembly'' are not commonly used in the industry in referring
to tower cranes. Instead, the words ``erecting,'' ``climbing,'' and
``dismantling,'' are used, and the definition of ``assembly/
disassembly'' makes it clear that Sec. Sec.  1926.1403-1926.1406 also
apply to tower cranes.
Section 1926.1403 Assembly/Disassembly--Selection of Manufacturer or
Employer Procedures
    Final Sec.  1926.1403 requires that when assembling or
disassembling equipment (or attachments), the employer must comply with
all manufacturer prohibitions applicable to assembly and disassembly
and must also comply with either manufacturer procedures, or employer
procedures, for assembly and disassembly. Employer procedures may be
used only where the employer can demonstrate that the procedures used
meet the requirements in Sec.  1926.1406 and may not be used during
rigging if the employer uses synthetic slings, as explained in the
discussion below regarding Sec.  1926.1404(r).
    Two commenters suggested that only manufacturer procedures for
crane assembly/disassembly be allowed. (ID-0151.1; -0305.1.) One of
these commenters clarified its comment at the hearing (ID-0343.) and
confirmed this clarification in post-hearing submissions (ID-0387.1.)
that they did not believe the assembly/disassembly procedures should be
limited to just manufacturer procedures. The commenter suggested using
a procedure designed by a registered professional engineer or by a
qualified person. (ID-0387.1.) Note that Sec.  1926.1406(b) of the
final rule requires employer procedures to be developed by a qualified
person.
    As explained in the proposed rule preamble, the Committee members
discussed whether employers should be required to comply with the
manufacturer's procedures, or if deviations from those procedures
should be allowed. The Committee determined that deviations should be
allowed for two reasons. First, manufacturers' procedures are typically
designed for use in ``ideal'' environments: Large, flat, dry,
unencumbered open areas. However, in C-DAC's experience, such
conditions are not typical, especially in urban areas. Consequently,
employers are currently unable to implement those procedures in those
situations. Second, members were of the view that there is often more
than one way to safely assemble and disassemble a crane, and that it is
unnecessary to mandate that in every case the manufacturer procedures
be used. The inclusion of specific requirements in the standard that
employer procedures must meet (see Sec.  1926.1406) addresses the
concern that those procedures ensure worker safety.
    Another commenter suggested that employer procedures not be allowed
for climbing operations unless approved by the manufacturer. (ID-
0137.1.) As explained in the discussion below regarding Sec.
1926.1404(r), the Agency has decided to require manufacturer procedures
to be used with regard to the use of synthetic slings. Since the
commenter has not provided information substantiating the need for
manufacturer approval with respect to deviation from climbing
procedures, the Agency is unaware of any basis to conclude that the
requirements in Sec. Sec.  1926.1403 and 1926.1406 would be inadequate
to ensure the safety of employer procedures in this regard. Therefore,
OSHA has decided not to adopt the commenter's suggestion.
    Another commenter suggested that if the Agency is going to allow
employer procedures, a written copy should be required to be kept on
the job site for the use of the entire crew. (ID-0178.1.)
    The final rule requires that the A/D director understand the
assembly/disassembly procedures. In addition, the A/D director must
review the assembly/disassembly procedures prior to starting the
assembly/disassembly process unless the A/D director is experienced in
having used them on the same type and configuration of equipment and is
able to recollect the procedures such that review is unnecessary. (See
Sec.  1926.1404(b).) Furthermore, before beginning assembly/disassembly
operations, the A/D director must determine that the crew members
understand their tasks and the associated hazards, as well as any
hazardous positions/locations that they need to avoid. (See Sec.
1926.1404(d).) These requirements ensure that both the A/D director and
crew members understand the assembly/disassembly procedures that are
going to be undertaken.
    C-DAC declined to require the procedures to be in writing and at
the site. In some cases, the procedures are not complex and are very
familiar to the A/D director. In such cases C-DAC determined that
having them in writing is not necessary. In other cases, such as where
the procedures are complex, the equipment is new to the employer, or
the A/D director has not often assembled/disassembled the equipment,
there is an inherent incentive for the employer to have them in
writing. In such instances, OSHA expects that the employer will have
written procedures on site to facilitate meeting the requirements in
Sec. Sec.  1926.1404(b) and (d). The Agency therefore finds that it is
not necessary to have a requirement that they be in writing and at the
site.
    Lastly, a commenter suggested that this section incorporate by
reference the ANSI/ASSE A10.31 American National Standard, Safety
Requirements, Definitions and Specifications for Digger Derricks. (ID-
0178.1.) Because the commenter did not explain how incorporating this
standard would make the final rule more effective, OSHA has decided not
to incorporate ANSI/ASSE A10.31 into Sec.  1926.1403.
    In the proposed rule, Sec.  1926.1404(n) set forth the requirement
(now set forth in this section) that an employer must comply with
manufacturer prohibitions. The Agency decided that this important
caveat to Sec.  1926.1403 would be better understood if it was moved to
this section. Therefore, Sec.  1926.1404(n) is now reserved and its
text is integrated in this section.
    Additionally, OSHA has substituted an ``or'' in place of the
``and'' separating ``assembling'' and ``disassembling'' to clarify that
the listed requirements apply when the employer is assembling or
disassembling. Finally, a reference to Sec.  1926.1404(r) has been
added to Sec.  1926.1403(b) to clarify when employer procedures may not
be used.
Section 1926.1404 Assembly/Disassembly--General Requirements (Applies
to All Assembly and Disassembly Operations)
Paragraph (a) Supervision--Competent--Qualified Person
    Section 1926.1404(a) requires assembly/disassembly to be directed
by a person who meets the criteria for both a competent person and a
qualified person, or by a competent person who is assisted by one or
more qualified persons (``A/D director''). Where the assembly/
disassembly is being performed by only one person, that person must
meet the criteria for both a competent person and a qualified person.
For purposes of this standard,

that person is considered the A/D director.
    Section 1926.1401 defines ``A/D director'' as ``an individual who
meets this standard's requirements for an A/D director, irrespective of
the person's formal job title or whether the person is non-management
or management personnel.'' C-DAC constructed the definition in this way
to make clear that it is the substance of the individual's
qualifications, and not his or her job title or position in the company
hierarchy, that determines whether the person is qualified to act as an
A/D director.
    In the proposed rule, OSHA used the term ``A/D supervisor.'' Some
commenters objected by written submission and at the hearing to the use
of the word ``supervisor'' in this provision. (ID-0182.1; -0199.1; -
0172.1; -0341.) They were concerned that the use of this term would
imply that anyone who serves in this role under Sec.  1926.1404 would
be considered a supervisor under the National Labor Relations Act
(``NLRA'').\19\ Their objections are rooted in the fact that the word
``supervisor'' is used and defined in the NLRA. The commenters' only
objection to Sec.  1926.1404(a) was the use of the term ``supervisor'';
they did not object to the actual duties or prerequisites spelled out
in the proposed rule applicable to this individual/team. Several
commenters suggested that the word ``supervisor'' be replaced with the
term ``designated individual'' and that the regulatory text be amended
to definitively indicate that OSHA has no intention of creating NLRA
implications by use of the term. (ID-0182.1; -0199.1; -0172.1.)
---------------------------------------------------------------------------

    \19\ 29 U.S.C. 159-169 (1935).
---------------------------------------------------------------------------

    The use of ``supervisor'' in this rule would not be determinative
of supervisor status under the NLRA.\20\ Nonetheless, OSHA understands
the commenters' concerns that workers in the industry may be confused
by the use of this term. However, the term ``designated individual,''
suggested by a labor representative and other commenters, could also