to read to operate a crane safely and how some operators, even though
they can read, nonetheless have difficulty taking written tests. The
Committee believed that it is crucial for operators to be able to read
the load chart and other manufacturer procedures for the equipment they
operate. In its view, the failure to be able to read that information
could result in injuries and fatalities through a wide variety of
errors (for example, by overloading the crane as a result of exceeding
the crane's working radius, failing to deploy outriggers in accordance
with the manufacturer's instructions, or failing to apply a footnote in
a load chart that explains that the capacity is lower when a particular
configuration of the crane is used).
    However, the Committee recognized that some employees, while they
have sufficient literacy to be able to read this type of material, for
other reasons are unable to take written tests effectively. Therefore,
under proposed Sec.  1926.1427(h), the written qualification/
certification test could be administered verbally, with the answers
given verbally, if two prerequisites are met.
    The first is that the qualification/certification candidate pass a
written demonstration of literacy relevant to the work (proposed Sec.
1926.1427(h)(1)). The second is that the candidate demonstrate the
ability to use the type of written manufacturer procedures applicable
to the class/type of equipment for which the candidate is seeking
qualification/certification (proposed Sec.  1926.1427(h)(2)). These
would typically include, for example, the load chart and operator's
manual for the crane the candidate would be operating.
    As reflected in the SBREFA Panel Report, some SERs expressed a
concern that operators who are not proficient in English would not be
able to meet either requirement. The Panel recommended that OSHA
solicit comment on whether employers should be permitted to use manuals
that have been re-written to accommodate the level of English
proficiency (that is, lower level or lack of proficiency) of the
operator.
    C-DAC considered this same concern in designing Sec.  1926.1427(h).
Neither the demonstration in Sec.  1926.1427(h)(1) nor (h)(2) would
necessarily have to be made in English as those provisions are
currently drafted. As an example, under these proposed provisions, an
employer could obtain a Spanish-language version of the load charts and
operator's manual from the manufacturer, and arrange to have the
literacy test administered in Spanish. An operator able to meet the
requirements of proposed Sec.  1926.1427(h) using these Spanish
language materials would have demonstrated adequate literacy under the
proposed rule.
    However, it may be necessary to modify proposed Sec.
1926.1427(b)(1), (c) and (e) so that, in such instances, the
qualification/certification is limited to the use of equipment that is
equipped with such translated materials. In addition, there is an issue
with respect to whether the rule needs to incorporate safeguards to
ensure that a translation of manufacturer-supplied materials conveys
the same information as in the original. OSHA requests comment on these
issues.
    Some SERs also expressed a concern that many operators are not
sufficiently literate in any language to meet the proposed requirements
in Sec.  1926.1427(h)(1) and (h)(2). As discussed above, C-DAC
determined that it is essential for ensuring safe crane operation that
operators have sufficient literacy to read and comprehend written
materials that relate to critical aspects of operation, such as load
charts and manufacturer's manuals. However, the Panel

recommended that OSHA solicit comment on whether employers should be
permitted to use manuals that have been re-written to accommodate the
literacy level of operators.
    The concept underlying this recommendation is that a lower level of
literacy may be sufficient as long as that level still enables the
operator to read and understand the simplified language (and perhaps
greater use of illustrations) in the re-written manual. If this were to
be allowed, it would be necessary to modify proposed Sec.
1926.1427(b)(1), (c) and (e) so that the certification is limited to
the use of equipment that is equipped with a suitably re-written
manual. Another issue that such a change would raise is whether the
rule would need to incorporate safeguards to ensure that the modified
materials conveyed the same information as in the original,
manufacturer-supplied materials. OSHA requests comment on the Panel's
recommendation and these related issues.
Paragraph 1427(i) [Reserved.]
    Proposed paragraph (i) would be reserved because it is inconvenient
for readers to determine whether ``i'' is being used as a letter or a
roman numeral.
Paragraph 1427(j) Certification Criteria
    Proposed paragraph (j) sets out the qualification and certification
criteria applicable to the options described in proposed Sec. Sec.
1926.1427(b)(1)(ii)(A), 1926.1427(c)(1)(ii)(C), and
1926.1427(e)(2)(iv). The Committee determined that these are the
criteria needed to address the knowledge and skills that are
fundamental to safe crane operation. As stated in the introductory
language in proposed Sec.  1926.1427(j), these would constitute
``minimum'' criteria; the accredited certifying entities, employers, or
local or state licensing offices would not be precluded from adding
additional requirements to their certification or qualification
programs.
    Proposed paragraph (j)(1) describes the criteria that would have to
be covered by the written examination portion of a qualification/
certification program. As stated above in the discussion of examination
administration, the written portion of the examination may be
administered orally, so long as the candidate has demonstrated
sufficient literacy relevant to the work (e.g., load charts and
equipment manual).
    Proposed paragraph (j)(1)(i) states that the individual seeking
qualification or certification must know ``the information necessary
for safe operation of the specific type of equipment the individual
will operate * * *'' As discussed above with respect to proposed Sec.
1926.1427(b)(1)(ii)(B) (requirement that different levels of
certification be provided, based on varying equipment capacities and
types), during the SBREFA process, several SERs described situations in
which an operator is very knowledgeable and skillful with respect to
one particular model of crane, but has very limited knowledge and
ability regarding other models and types of cranes. These SERs were
concerned that such operators would be unable to obtain a certification
based on equipment capacity and type. They believe that, since these
operators are well qualified to operate a particular crane model, there
should be a mechanism for them to become certified to operate that
model. The Panel recommended that OSHA consider and solicit public
comment on expanding the levels of certification so as to allow an
operator to be certified on a specific brand's model of crane.
Consistent with the Panel's recommendation, OSHA seeks public comment
on this issue.
    Also, as discussed above with respect to proposed Sec.
1926.1427(b)(1)(ii)(B), the SBREFA Panel received comments from some
SERs suggesting that the standard should accommodate crane operators
who were fully capable of operating particular equipment in a limited
set of circumstances but who would be unable to pass certification
tests that required knowledge and abilities beyond those circumstances.
The Panel recommended that OSHA consider and solicit public comment on
expanding the levels of operator qualification/certification to allow
such operators to be certified for a specific, limited type of
circumstance defined by a set of parameters that, taken together, would
describe an operation characterized by simplicity and relatively low
risk. In response to the Panel's recommendation, OSHA requests public
comment on whether such parameters could be identified in a way that
would result in a clear, easily understood provision that could be
effectively enforced.\68\
---------------------------------------------------------------------------

    \68\ The SBREFA Panel also recommended that OSHA ask for public
comment on whether the standard should state more clearly that more
limited training is required for operators of smaller capacity
equipment than for more complex equipment. This recommendation is
addressed below in the discussion of Sec.  1926.1430, Training.
---------------------------------------------------------------------------

    Proposed paragraph (j)(1)(i)(A) would require that the written
examination address the candidate's knowledge of the equipment controls
and operational/performance characteristics of the specific type of
equipment. Operational/performance characteristics would include, for
example, the deflection characteristics of the boom, including how
deflection affects the positioning of the load and the extent to which
deflection varies with boom angle and length as well as load weight.
Also, equipment with lattice/cable supported booms has different
deflection characteristics than equipment with non-lattice booms (that
is, hydraulic ram supported booms). Meeting these criteria would ensure
that the person controlling the equipment would be able to make
necessary judgments and adjustments for safe crane operation.
    Proposed paragraph (j)(1)(i)(B) was included to ensure that
operators would be able to use load capacity information on a variety
of configurations of the capacity and type of equipment. Such
information is typically contained in load charts and manuals. This
would ensure that the operator would be able to accurately determine,
independently, the capacity of the equipment in each situation that he/
she might encounter. The Committee believed that this ability is
critical to helping prevent injuries and fatalities caused by
overloading the equipment.
    The Committee considered whether it is also necessary for the
operator to be able to use the load information without the aid of a
calculator. It determined that calculators are now so commonly
available and used that it is not necessary for the operator to be able
to use the load information without one.
    Proposed paragraph (j)(1)(i)(C) addresses the need for crane
operators to know how to prevent power line contact. In the Committee's
experience, electrocutions and electrical injuries are typically caused
when the operator unintentionally brings the boom, load line or load in
electrical contact with a power line. Operator knowledge of the
procedures that are necessary for preventing such contact (see the
discussions of proposed Sec. Sec.  1926.1407 through 1926.1411 above)
is essential for preventing these injuries and fatalities.
    Proposed paragraph (j)(1)(i)(C) also addresses the need for crane
operators to know how to respond to a power line contact if one occurs.
For example, the Committee determined that some electrocutions of
operators occur while an operator attempts to exit the equipment. After
realizing that the equipment is in electrical contact with a power
line, the operator is electrocuted when he/she creates a grounding path
by touching the

equipment while stepping on the ground.\69\
---------------------------------------------------------------------------

    \69\ Note that, as provided in proposed Sec.
1926.1408(g)(1)(i)(A) on power line safety, operators must be aware
of the danger of electrocution if they simultaneously touch
energized equipment and the ground. They must also, pursuant to
proposed Sec.  1926.1408(g)(1)(i)(B), be trained to understand that
when the equipment makes electrical contact with a power line, the
operator's safety requires him or her to remain inside the cab
except where there is an imminent danger of fire, explosion, or
other emergency that necessitates their leaving the cab.
---------------------------------------------------------------------------

    Proposed paragraph (j)(1)(i)(D) addresses the need for crane
operators to have technical knowledge on a range of subjects that, if
not sufficiently understood, could cause injuries and fatalities. The
list of subjects in proposed Non-Mandatory Appendix E of this subpart
serves as an example of that set of knowledge. The Committee believed
that a degree of flexibility should be accorded in terms of what
specific subjects need to be included. For example, a subject relevant
only to an extensible boom crane would not need to be covered for a
certification for a traditional lattice boom crane. Therefore, the
proposed provision states that the testing criteria must include
technical knowledge ``similar'' to the subject matter criteria listed
in Appendix E of this subpart. To accommodate those who have less of a
need for such flexibility and more of a need for specificity in this
regard, the proposed provision also makes clear that, when the subjects
listed in Appendix E are used, the requirements of the provision would
be met.
    In addition to the technical knowledge that would be required under
proposed Sec.  1926.1427(j)(1)(i)(D), technical knowledge applicable to
three specific subjects would also be required under proposed Sec.
1926.1427(j)(1)(i)(E).
    Proposed paragraph (j)(1)(i)(E)(1) would require that an operator
be able to demonstrate sufficient knowledge of how to assess ground
conditions to identify potential hazards. The operator would therefore
be able to assess ground conditions through inspection, and would also
be aware of the potential for unseen hazards such as sewers, water
mains, and other underground installations or conditions that might
affect the ability of the ground to support the equipment and expected
load.
    Proposed paragraph (j)(1)(i)(E)(2) would require operators to
demonstrate sufficient knowledge of site hazards so that the operator
would be able to identify them and understand their significance to
safe operation of the equipment. Examples of typical site hazards
include electrical hazards posed by underground electrical or cable
lines and aboveground telephone poles and power lines, and ground-
support hazards posed by manholes, drains and trenches, which can lead
to tip-overs.
    Proposed paragraph (j)(1)(i)(E)(3) would require operators to
demonstrate sufficient technical knowledge to ensure that conditions at
the entrance to the site are sufficient to enable the equipment to
travel safely onto the site. For example, where equipment must descend
or ascend a dirt ramp, the operator needs to be able to assess the
effect of the ramp's steepness and to detect signs of instability.
    Proposed paragraph (j)(1)(i)(F) would require operators to
demonstrate a thorough knowledge of this subpart, including
incorporated materials. The Committee believed that operators play a
key role in the application of these requirements and it is therefore
essential that they understand them.
    Proposed paragraph (j)(1)(ii) is intended to ensure that operators
have the ability, at a minimum, to demonstrate sufficient literacy to
locate and understand information both in the equipment manual as well
as in other sources which address the information discussed in proposed
Sec.  1926.1427(j)(1)(i)(A) through (j)(1)(i)(F). Since the Committee
determined that safe crane operation depends on applying that
information, the operator needs to be able to locate and understand it.
    Proposed paragraph (j)(2) would require a practical test and sets
criteria for such a test. Safe crane operation depends on an operator
having sufficient skill to operate the equipment safely. The Committee
felt that a successful demonstration of ability to perform the
operations discussed below is essential to ensuring that the operator
will be able to apply the requisite knowledge in the field. The
practical test under this proposed paragraph would be conducted using
equipment of the capacity and type for which the candidate seeks
certification.
    Proposed paragraph (j)(2)(i) would require an operator to
demonstrate the ability to recognize, from visual and audible
observation, the items listed in proposed paragraph Sec.
1926.1412(d)(shift inspection). Irrespective of whether the operator or
someone else conducts the shift inspection, the operator needs to be
able to recognize apparent deficiencies associated with these parts and
mechanisms. First, the operator needs to be able to identify
indications of safety problems that may arise after the shift
inspection has been completed. In addition, this ability is important
since the operator needs to be able to effectively exercise his/her
authority under proposed Sec.  1926.1418, Authority to stop operation
to stop lifting operations (see discussion of that proposed section
above).
    Proposed paragraph (j)(2)(ii) addresses the need for operators to
have demonstrated proficiency with operational and maneuvering skills.
Lack of such proficiency could result in a wide range of accidents that
could cause injuries or fatalities. For example, without this level of
skill, the operator could unintentionally exceed the crane's capacity
(such as by booming out too far) and overturn the equipment, make
electrical contact with power lines, or cause struck-by injuries and
fatalities (such as by losing a load or losing control of the load).
    Proposed paragraph (j)(2)(iii) requires that the operator
demonstrate the ability to apply load chart information. The Committee
believed that if an operator is unable to apply load chart information,
there is a significantly heightened risk of the crane overturning. This
is because an operator without this ability may fail to keep the crane
within the required operational parameters called for by the load chart
(for example, by failing to recognize that proceeding with the lift
will result in exceeding the maximum allowable boom radius as specified
in the load chart).
    As with proposed paragraph (j)(2)(i) (ability to recognize
inspection items), this ability is also important since the operator
needs to be able to effectively exercise his/her authority under
proposed Sec.  1926.1418 (Authority to stop operation) to stop lifting
operations (see discussion of that proposed section above). For
example, if the only way to land the load with the crane in its current
position would be to exceed the allowable radius specified in the
chart, the operator would need to be able to recognize that this would
happen and stop the lift.
    Proposed paragraph (j)(2)(iv) would require that an operator be
able to shut down and secure equipment safely. This ability is
necessary to ensure that the shut down procedure is done safely and the
equipment is properly secured to prevent unintended movement of the
equipment after shut down.
Paragraph 1427(k) Phase-In
    Under proposed paragraph (k), the qualification/certification
requirements in proposed Sec.  1926.1427 would not become effective
until four years after the effective date of the final rule. The
Committee believed that this four year period would provide time for
operators to get additional training (where

needed) to prepare them for the testing, for additional testing
organizations to become accredited for purposes of Option 1 (proposed
Sec.  1926.1427(b)), for additional organizations to become nationally
recognized accrediting agencies, for employers (who so choose) to
develop audited programs for use under Option 2 (proposed Sec.
1926.1427(c)), for accredited testing organizations to develop programs
to certify auditors as described under Option 2, and for state and
local government entities (who so choose) to make preparations to meet
the criteria under Option 4 (proposed Sec.  1926.1427(e)). It would
also give employers time to plan which of the qualification/
certification options would be most suitable for them.
    Under proposed paragraph (k)(1), during this four year period,
proposed paragraphs Sec.  1926.1427(k)(1)(i) and (ii) would address
operator qualifications and training. Specifically, proposed Sec.
1926.1427(k)(1)(i) would require that operators be competent for the
purposes of operating the equipment safely. This would require that the
operator have the requisite knowledge and skill to identify,
anticipate, and avoid actions which could result in hazardous
conditions related to the equipment and job site.
    Proposed paragraph (k)(1)(ii) would require employers to ensure
that operators who do not already have sufficient knowledge or skill to
operate the equipment safely undergo training prior to engaging in
operations. In addition, the employer would be required to ensure that
the operator is evaluated to confirm that he/she understands the
information provided in the training. These interim measures are not
significantly different from current requirements under Subpart N of
this part, Sec.  1926.20(b)(4) (``the employer shall permit only those
employees qualified by training or experience to operate equipment and
machinery'') and Sec.  1926.21(b)(2) (``the employer shall instruct
each employee in the recognition and avoidance of unsafe conditions * *
* ''). However, they would ensure that there would not be a gap with
respect to this issue between the termination of the requirements under
Subpart N of this part and the effective date of proposed Sec.
1926.1427(a) through (j) and (m). The four-year phase-in period
discussed above is set out in proposed Sec.  1926.1427(k)(2).
Paragraph 1427(l) [Reserved.]
    Proposed paragraph (l) would be reserved because of the
inconvenience that would result from the use of ``l'' both as a small
Arabic numeral and as the letter ``l.''
Paragraph 1427(m) Definitions
    Proposed paragraph (m) defines two terms used in the qualification/
certification provisions in Sec.  1926.1427(b) through (e) (addressed
above). Proposed Sec.  1926.1427(m)(1) explains that, if an operator
has a ``portable'' certification, any employer may rely on that
certification. The employer of an operator who carries a portable
certification (which can be obtained only through the method described
in proposed Sec.  1926.1427(b)) has ensured that the operator has been
qualified or certified, and has met the requirements of proposed Sec.
1926.1427(a).
    Proposed paragraph (m)(2) explains that, if an operator has a
qualification that is ``not portable,'' only the employer who issued
that qualification may rely on it for purposes of meeting the
requirements of proposed Sec.  1926.1427(a). As discussed above, OSHA
is considering adding a third definition for the term ``employee of the
U.S. military'' (see the discussion above of proposed Sec.
1926.1427(d)).

Dissenting View of C-DAC Member Brian H. Murphy

    Under the C-DAC ground rules (OSHA-S030-2006-0663, Ex. 36-1-8), the
Committee reaches consensus if no more than two non-federal members
dissent on a particular issue. The ground rules also provide that, upon
the request of a dissenting member, OSHA will include the member's
reasons for dissenting in the preamble to the proposed rule. Two
members of C-DAC, Mr. Brian H. Murphy and Mr. Craig Steel, dissented
from the Committee's draft of proposed Sec.  1427. Mr. Murphy asked
that his reasons for dissenting be included in the preamble, and
provided them in the letter reprinted below (OSHA-2007-0066-0007). Note
that, pursuant to the ground rules, OSHA has not reprinted comments in
the letter regarding issues upon which the member did not dissent.

    Dear Deputy Assistant Secretary Snare:
    Thank you for providing an opportunity for the Associated
General Contractors of America (AGC) to serve on the Occupational
Safety and Health Administration's (OSHA's) Crane and Derrick
Advisory Committee (C-DAC). AGC welcomed and appreciated the chance
to explore OSHA's several options for a new standard on cranes and
derricks with the other knowledgeable members of that committee. In
addition, it was a personal privilege for me to represent AGC's
33,000 members.
    AGC is a nationwide trade association of general contractors,
specialty contractors, material suppliers, equipment dealers and
other firms that collectively form the core of the construction
industry. The association was formed in 1918 at the express request
of President Woodrow Wilson, and today, AGC maintains a network of
98 state and local chapters throughout the United States. Its
members engage in the construction of commercial buildings,
factories, warehouses, highways, bridges, airports, waterworks
facilities, waste treatment facilities, dams, water conservation
projects, defense facilities and multi-family housing projects, and
on site preparation and utilities installation for housing
development.
    AGC shares and strongly supports OSHA's mission. While AGC
occasionally disagrees with OSHA's views on the best and most
effective means and methods of improving construction safety and
health, AGC is and will remain equally committed to that goal.
Indeed, from its very inception, AGC has taken a great interest in
the safety and health of construction workers. Its bylaws expressly
provide that ``[t]he members of [AGC] shall work to develop good
relations with employees * * * and shall make every effort to
provide safe working conditions on construction projects and to
promote safe working habits by their employees.
    AGC has long taken a very proactive approach to construction
safety and health. Over the last 15 years, AGC has produced over 100
videos and publications on the various practices and procedures that
may be necessary, on any given jobsite, to protect construction
workers from occupational injury or illness. Each year, AGC sponsors
two nationwide safety award programs. Regularly, AGC also offers
safety management training courses and other safety training
programs. In 2003, AGC used a Susan Harwood Training Grant to train
1,800 construction workers on OSHA's new steel erection standard. In
2004, AGC will use a third grant to train another 600 construction
workers on fall protection. AGC was proud to receive these grants,
and today, AGC is even prouder that an overwhelming number of its
trainees gave these programs excellent reviews. These efforts
demonstrate AGC's commitment to partnering with OSHA to make
construction work-sites safer.
    AGC also supports OSHA's very specific effort to set new
standards for the men and women operating cranes and derricks. AGC
agrees that systematically increasing the knowledge and improving
the skill of these construction workers will reduce the number of
accidents involving cranes and derricks and limit the closely
related risks of injury. Long before serving on C-DAC, AGC
collaborated with the St. Paul Companies on an exemplary training
program on the essentials of crane safety. AGC also signed a
cooperative agreement with the National Commission for the
Certification of Crane Operators (NCCCO), recognizing the
``importance of safe crane operations on our nation's construction
sites'' and ``the CCO written and practical examination is a method
of documenting the qualifications criteria outlined in ASME B30.5-
3.1-1995, ``Qualifications for and Conduct of Operators and
Operating Practices.''
    As a member of C-DAC, fully committed to its goals and
objectives, AGC worked long

and hard to find common ground with the other members of that group.
At the end of the day, both AGC and the others did reach agreement
on a vast majority of the issues that the group had to confront. The
group wrote forty-two sections and two appendices into the new
standard that it proposed to OSHA, developing a document that
totaled one-hundred-nineteen pages in length. During its
deliberations, the group reached agreement on forty-one of those
sections and both appendices, which collectively accounted for one-
hundred-twelve of the pages of text. On only one of the sections,
and only seven pages of the text, did everyone fail to agree. On
only that one section, and those few pages of text, did AGC find it
necessary to part company with the others. (Endnote 1).
    AGC would not, however, suggest that the disagreement was a
trivial one. Quite to the contrary, AGC believes that the
disagreement was a serious one that OSHA needs to address. C-DAC
accomplished most but not all of its mission. It is now incumbent
upon OSHA to correct the one significant error that C-DAC made.
    The disagreement between AGC and the other members of the
committee was over section 1427 of the committee's proposal. That
section is entitled ``Operator qualification and certification.'' In
paragraph (a), it requires an employer to ``ensure'' that its crane
and derrick operators are either:
     ``Qualified or certified * * * in accordance with'' one
of four procedures, found in the following paragraphs (b), (c), (d)
and (e); or
     ``Operating the equipment during a training period in
accordance with paragraph (f)
    Paragraph (b) of section 1427 provides for ``[c]ertification by
an accredited crane/derrick operator testing organization.''
Paragraph (c) provides for ``[q]ualification by an audited employer
program.'' Paragraph (d) provides for ``[q]ualification by the U.S.
military.'' And paragraph (e) provides for ``[l]icensing by a
government entity.'' (Endnote 2)
    AGC opposes section 1427 primarily because its requirements for
the qualification and certification of crane and derrick operators
are too restrictive. For many and perhaps the vast majority of
construction contractors, none of the four options for operator
qualification or certification are practical to pursue. At the same
time, section 1427 omits several requirements that would far more
directly affect crane and derrick safety. If adopted as currently
written, section 1427 would disrupt the construction industry and
might actually hinder the broad effort necessary to ensure that
crane and derrick operators are knowledgeable, competent and well
prepared, every day, to perform their work.
    Following are AGC's more specific comments on each of the four
options that Section 1427 provides, on the risks that this provision
would create for any employer that chose to implement an operator
training program, and on several significant omissions from the
proposed standard.

Certification by an Accredited Crane/Derrick Operator Testing
Organization

    While less restrictive than paragraph (d), paragraph (b) fails
to provide an option for many and perhaps most of the small to
medium-sized firms that dominate the construction industry.
Paragraph (b) would permit employers to engage third parties to test
and certify their crane and derrick operators, but in the process,
paragraph (b) would severely restrict the number of organizations
qualified to perform those tasks. The proposed standard would permit
employers to rely on only those organizations ``accredited by a
nationally recognized accrediting agency.''
    To the best of AGC's knowledge, information and belief, only two
organizations are ``accrediting'' agencies within the meaning and
for the purposes of Section 1427, and only one of the two agencies
has actually accredited any other organization to test and certify
crane and derrick operators. During the lengthy deliberations among
the members of C-DAC, the National Commission for Certifying
Agencies (NCCA) and the American National Standards Institute (ANSI)
were the only two organizations said to be such ``accrediting''
agencies. The NCCA was the only one of the two said to have actually
accredited any other organization to test and certify operators.
    To make matters worse, it was acknowledged and agreed that the
NCCCO is the only testing organization that the NCCA has accredited.
If other organizations are also accredited to test and certify crane
and derrick operators, within the meaning and for the purposes of
Section 1427, then neither the other members of C-DAC nor OSHA
identified them, and AGC is unaware of them.
    AGC would emphasize that it holds the NCCCO in high regard. As
already mentioned, AGC has gone so far as to sign a cooperative
agreement with the NCCCO. Nevertheless, AGC doubts that the NCCCO
could meet the enormous demand that section 1427 would generate for
crane and derrick operator testing and certification. If adopted,
Section 1427 would take that demand to an entirely new level. It
should be noted that NCCCO has largely succeeded in meeting the much
more limited demand for voluntary certification.
    In fairness, AGC believes that other members of C-DAC harbor the
same doubt. Something had to motivate the authors of section 1427 to
include paragraph (k), delaying the mandate for operator testing and
certification for four years. It is certainly possible that the
other members of C-DAC supported section 1427 in the belief that
other testing organizations would use this time to seek
accreditation--in the hope of profiting on a dramatic increase in
the demand for operator testing and certification. The problem is
that neither the other members of C-DAC nor OSHA undertook any study
of the costs that such organizations would have to incur to qualify
for accreditation, or to provide testing or certification services
on the massive scale that section 1427 contemplates. Nor did the
other members identify the sources of capital that these other
testing organizations would require, or the prices they would have
to charge for their services, or how they could even begin to
sustain themselves until testing and certification became mandatory.
There were no business plans or business models for either the
committee or OSHA to review. It might be appealing to suppose that
future demand for testing and certification would call forth the
necessary supply, but it would remain little more than speculation.
There is no factual record to support any such conclusions.
    However logical it may be, AGC maintains that OSHA cannot simply
suppose that the supply of the necessary services would materialize.
The stakes are much too great. If other testing organizations did
not enter the market, or they subsequently failed for financial or
other reasons, or they simply found it necessary to charge more than
most contractors could bear, the construction industry could quickly
find itself in gridlock.
    AGC also doubts the wisdom of giving any private organization--
whether the NCCA, ANSI, the NCCCO or any other accrediting agencies
or testing organization--such a dominant role in the implementation
of a federal regulation. Section 1427 would set minimal standards
for accreditation, leaving most of that process in private hands.
OSHA would not have any direct oversight over (or other relationship
with) any testing organization. The agency would be two steps
removed from that process.

Qualification by an Audited Employer Program

    Paragraph (c) also fails to provide an option for many and
perhaps most construction companies. That provision would permit an
employer to test and qualify its own employees to operate cranes and
derricks, but only if inter alia (1) the employer's written and
practical tests were ``developed by an accredited crane/derrick
operator testing organization,'' (2) the employer's ``program'' were
approved by an auditor ``certified,'' in turn, by such an
organization, and (3) the ``circumstances'' under which the employer
administered the tests were also approved by such an auditor.
    As noted, the NCCCO appears to be the only ``accredited crane/
derrick operator testing organization'' at this time. AGC doubts
that small or medium-sized construction contractors would have the
resources necessary to self-administer the NCCCO's written and
practical tests, particularly ``under circumstances * * * meeting
nationally recognized test administration standards.'' In addition,
it appears that neither the NCCCO nor any other testing
organizations would have any business incentive to develop a large
pool of certified auditors. To the contrary, they would have an
obvious interest in maintaining the demand for their own testing
services, and their own certifications. Nothing in the proposed
standard would compel or even encourage the NCCCO or any other
testing organization to help construction employers develop
practical alternatives.
    Further eroding paragraph (c) are provisions that would require
the employer to have its ``program'' re-audited every three

years, and suspend the employer's ``program'' for any ``significant
deficiency.'' Though it would expressly forbid the auditor of the
employer's program to be the employer's employee--and therefore
subject to the employer's control--paragraph (c) would also render
the employer liable for the auditor's failure to file a ``documented
report'' of any ``significant deficiency'' to OSHA within 15 days,
to maintain records of his or her audits for three years, or to make
such records available to the U.S. Department of Labor.
    For all of these reasons, AGC believes that paragraph (c) would
not be a practical and dependable option for any significant number
of construction employers.

Qualification by the U.S. Military

    As a threshold matter, paragraph (d) is limited to the men and
women in uniform. By its terms, it is ``[n]ot portable,'' meaning
that it ``meets the requirements of paragraph (a) only where the
operator is employed by (and operating the equipment for) the
employer that issued the qualification.'' See Section 1427(m). To
any operator to which paragraph (d) might apply, the military would
be ``the employer that issued the qualification.'' It follows that
any operator qualified by the military would be qualified to operate
a crane or derrick only for the military. (Endnote 3).

Licensing by a Government Entity

    Whether paragraph (e) provided any practical option for
construction contractors would depend entirely on how state and
local governments responded to it. This provision would permit
employers to use state or local government agencies to test and
license their crane and derrick operators. Employers, however, could
use only the government agencies that had volunteered to perform
those tasks.
    In some ways, paragraph (e) is superior to paragraphs (b) and
(c). The state or local agency would have to be the one that
``issue[d] operator licenses for operating [relevant] equipment,''
and it would have to qualify for accreditation as a ``government
accredited crane/derrick operator testing organization.'' But the
``government authority that overs[aw]'' the agency, and not any
private entity, would determine whether the agency met the
substantive criteria for accreditation. Unlike paragraphs (b) and
(c), paragraph (e) makes no direct or indirect reference to a
``nationally recognized accrediting agency.''
    Paragraph (e) does not, however, go far enough to save Section
1427. It would not--and probably could not--require any state or
local agency to test or license operators. It would not--and
probably could not--provide any positive incentives for any such
agency to perform those tasks. It would not--and probably could
not--even reimburse any government agency that volunteered to
perform those tasks.
    Many state and local budgets are already tight, and neither OSHA
nor other members of C-DAC have given AGC any reason to expect that
any significant number of state or local agencies would be likely to
step forward. AGC believes that some would do so but doubts that the
number would be high enough, or their distribution broad enough, to
meet what would be a truly nationwide demand for the testing and
certification of crane and derrick operators. A government license
issued under paragraph (e) would satisfy section 1427 ``only within
the jurisdiction'' of the agency that issued it, and at best, AGC
would expect an irrational patchwork of options for crane and
derrick operators and their employers across the country.

Operator Training

    AGC also believes that Section 1427 would put employers that
provided hands-on training for crane or derrick operators at great
and ultimately uncontrollable risk of liability for any accidents
that their trainees or apprentices might cause, and could become a
legal deterrent to such training. The relevant paragraph of the
proposed standard is paragraph (f), entitled ``Pre-qualification/
certification training period.'' In subparagraph (f)(2)(i), that
provision states that a trainee or apprentice ``shall be provided
with sufficient training prior to operating the equipment to enable
the trainee to operate the equipment safely* * *'' In subparagraph
(f)(2)(ii), that provision adds that ``[t]he tasks performed by the
trainee/apprentice while operating the equipment shall be within the
trainee's ability.'' In subparagraph (f)(2)(iv)(C), that provision
further provides that ``[t]he specific tasks that the trainee/
apprentice will perform during [any fifteen minute] break'' that his
or her supervisor may take ``are within the trainee/apprentice's
abilities.''
    If these were merely statements of principle, AGC would
wholeheartedly support them. AGC completely agrees that trainees and
apprentices should have any prior training that they require to
operate the equipment safely. AGC completely agrees that all tasks
that a trainee or apprentice actually performs--at any time--should
be within his or her ability.
    The problem is that these would be legal requirements, and not
merely goals to which contractors should aspire. As written, they
would render contractors legally liable not for failing to make
every reasonable effort--or even every conceivable effort--to
provide such prior training, or to limit the tasks that a trainee or
apprentice actually performed. In substance and effect, paragraph
(f) would render contractors strictly liable for outcomes that
contractors could not guarantee. If a trainee or apprentice caused
an accident, it would necessarily follow that the individual did not
have prior training ``sufficient'' to operate the equipment safely.
It would also follow that the trainee or apprentice had actually
performed a task not ``within'' his or her ``ability.''
    Neither construction workers nor their supervisors are any less
human than anyone else. No one can guarantee that others will not
make mistakes, or that they will always follow instructions. Nor is
an individual's prior training, or his or her current abilities,
something that one can measure with great precision. Of course, all
construction contractors should make a very strong effort to prevent
accidents. The human toll of any accident involving a crane or
derrick can easily exceed anything that anyone would ever want to
bear. Holding employers strictly liable for any accident that a
trainee or apprentice may cause would, however, punish the good as
well as the bad actors, and in the end, AGC fears that it would
discourage useful training and hinder the effort to protect
construction workers. One could well expect employers to provide no
more than the minimum training necessary to satisfy the proposed
standard, and whenever feasible, to engage third parties to perform
that function.

Significant Omissions From the Proposed Standard

    AGC also encourages OSHA to reconsider the broader question that
Section 1427 raises. At the heart of that provision lies the
assumption that elaborate procedures for testing and certifying
crane and derrick operators would have benefits commensurate with
their cost. The proposed requirements for such testing and
certification are above and beyond the broader training requirements
that C-DAC embedded--with AGC's concurrence--in Section 1430. In
many other instances, OSHA requires employers to train their
employees, and even to ensure that the individuals employed to
perform certain functions are ``competent persons.'' In these other
instances, OSHA has not, however, found it necessary to go so far as
to require sophisticated testing and formal certification.
    Paragraph (k) of Section 1427 contemplates a four-year ``phase-
in'' for the testing and certification procedures, and indeed, for
that substantial phase-in period, even the authors of Section 1427
considered it sufficient to require operators ``to be competent,''
to ``be provided the necessary training,'' and to be ``evaluated to
confirm that he/she understands the information provided in the
training.'' Under these circumstances, AGC would consider it more
than fair to request that OSHA take a hard look at the actual costs
and benefits of ever going beyond paragraph (k)--to the point of
requiring testing and certification by third parties beyond the
federal government's supervision or direct control. (Endnote 4).
    AGC would simply add that the costs of the proposed testing and
certification could be social as well as financial. The construction
workforce is not entire English-speaking. AGC is also concerned that
Section 1427 could have the unintended but clearly detrimental
effect of limiting employment opportunities for competent crane
operators who do not speak English. AGC is unaware of any
organization that currently provides nationally recognized testing
for crane or derrick operators in any language other than English.
* * * * *

Conclusion

    In closing, AGC would like to thank you for the opportunity to
serve on C-DAC. Crane and derrick safety is extremely important to
AGC's members, and the association greatly appreciated the chance to
participate in the committee's deliberations.
    In the end, C-DAC succeeded in reaching agreement on all but one
of the provisions included in the standard that the committee
proposed to OSHA. AGC could not support

that one provision because it is too restrictive. AGC supported the
proposed requirements for the training of crane and derrick
operators, and AGC could even support a carefully tailored and clear
requirement that construction contractors employ ``competent''
operators for their cranes and derricks. AGC is far less certain
that the benefits of mandating elaborate procedures for the
sophisticated testing and formal certification of crane and derrick
operators would ever outweigh the great cost of doing so.
* * * * *
    AGC supports OSHA's effort to improve crane and derrick safety,
and believes that C-DAC has greatly contributed to that effort, but
maintains that Section 1427 of the proposed standard requires
serious reconsideration.

Sincerely,

/S/

Brian H. Murphy, P.E., C.S.P. AGC C-DAC Representative.

    Endnote 1: On that one section, the National Association of Home
Builders also parted company with the other members of the
committee.
    Endnote 2: Presumably, the authors of this provision intended to
equate ``licensing'' with ``qualification'' or ``certification.''
    Endnote 3: AGC has received reports that some members of C-DAC
were led to believe that a military certification would be valid for
a construction contractor working for the military on a military
installation. The wording of paragraph (d) is, however, clear and
makes no reference to military projects or installations, or to the
contractors construction such projects at such locations. By the
express and unambiguous terms of paragraph (d), a military
certification is ``[n]ot portable'' and in paragraph (m) by
definition applies ``only where the operator is employed by (and
operating the equipment for) the employer that issued the
certification.''
    Nor is it clear that OSHA could justify such awkwardly limited
portability for military certifications. If OSHA rewrote paragraph
(d) to provide for portability then whether a construction
contractor could use a military certification to satisfy section
1427 would depend entirely on (1) whether the project owner is a
branch of the military and (2) whether the project is located on a
military installation. Those two factors would not, however, have
any obvious bearing on the merits of the process that the military
used to certify crane or derrick operators, or the knowledge or
skills that such operators actually possessed. AGC cannot readily
identify any rational basis for rendering a military certification
portable to a contractor working for the military project on one of
its installations but not portable to even the same contractor when
working for a different owner, or simply across the street.
    In any event, paragraph (d) could not begin to solve the larger
problem. Even if it provided for portability to construction
contractors working for the military on military installations,
paragraph (d) would remain far too limited to provide an option for
the overwhelming majority of construction contractors. The military
and its installations account for only a small fraction of the
contractors and projects that the new standard would cover.
    Endnote 4: AGC would also encourage OSHA to compare paragraph
(k) with other standards that require construction contractors to
employ ``competent persons'' to perform certain functions. AGC
believes that many if not most of those other provisions define the
required competence far more precisely. AGC presumes that paragraph
(k) refers to competence in dealing with the various subjects listed
in paragraph (j) of section 1427, or perhaps paragraph (c) of
Section 1430, but paragraph (k) of section 1427 does not cross-
reference either of those other provisions or otherwise define the
required competence. Nor does it define the ``required training.''

[End of Murphy comments.]

    OSHA notes that Mr. Murphy indicated in his letter that proposed
Sec.  1926.1427 would apply to derricks. However, under paragraph (q)
of proposed Sec. Sec.  1926.1436 Derricks, Sec.  1926.1427 would not
apply to derricks. This is explained in more detail below in the
discussion on proposed Sec.  1926.1436.
    Operator qualification/certification was the only section of the C-
DAC document for which there were dissenting committee members (as
noted above, two members dissented: Mr. Murphy and Mr. Steele). In his
letter, Mr. Murphy addressed a number of issues associated with this
subject, such as questioning the need for, and practicality of,
limiting an employer's operator qualification/certification options to
those that require the involvement of independent third parties. There
was considerable discussion by C-DAC on this subject and its many
associated issues, including the degree of portability of a
qualification/certification. The Agency requests public comment on
these issues.

Physical Qualifications and Substance Abuse Testing

Physical Qualifications

    Section 5-3.1 of ANSI B30.5-1968 contains criteria for operator
vision and hearing, disqualification for a ``history of epilepsy'' or a
``disabling heart condition,'' and a general statement that ``when he
is physically or mentally unfit, an operator shall not engage in the
operation of his equipment.'' Subpart N at Sec.  1926.550(b)(2) states
that ``all crawler, truck, or locomotive cranes in use shall meet the
applicable requirements for design, inspection, construction, testing,
maintenance and operation as prescribed in the ANSI B30.5-1968 * * *.''
    In a May 8, 1981 letter of interpretation to Mr. A. Bennett Hill
Jr. (OSHA-2007-0066-0016), OSHA stated that:

    It is the interpretation of OSHA that the physical
qualifications requirements incorporated by reference in 29 CFR
1926.550 do not apply to operators of equipment covered by those
standards.

    In other words, OSHA interpreted the incorporation by reference in
Sec.  1926.550(b)(2) for ``operation'' as referring to how the crane
was to be operated, not to who was operating it. The Agency therefore
has taken the position that the incorporation by reference excludes the
physical criteria listed above.
    C-DAC considered whether to include in this proposed standard
provisions that would require equipment operators to meet particular
physical qualifications. After considering various possible approaches,
including those in current industry consensus standards, the Committee
decided that it would be very difficult, and likely unnecessary, to
identify minimum physical requirements that would be appropriate.
    First, the physical demands of equipment vary significantly
depending on the type and, in some cases, age of the equipment. For
example, some equipment is operated largely by electronic controls. In
contrast, older ``friction cranes'' have pedal controls that can
require significant strength and stamina to operate. Some equipment is
air conditioned whereas other equipment is not. A requirement regarding
physical qualifications would have to account for these types of
differences.
    Second, establishing physical qualifications that would
appropriately account for the effect of medical conditions would be a
complex undertaking. The Committee ultimately determined that, in light
of its members' experience that accidents caused by problems associated
with the operator's physical/medical condition are rare, the issue of
physical qualifications did not need to be addressed by this standard.

Substance Abuse Testing

    The Committee also considered whether to include mandatory
substance abuse testing for equipment operators and others, such as
signal persons, whose jobs affect safety. OSHA informed the Committee
that the case law requires that any substance abuse testing
requirements included in the proposal would have to meet constitutional
safeguards.\70\ Because the

U.S. Department of Transportation (DOT) already has substance abuse
requirements and designed them to meet these safeguards, C-DAC
considered whether to incorporate DOT regulations on controlled
substance testing, Title 49 CFR part 382 and Title 49 CFR part 40, into
the proposed rule.
---------------------------------------------------------------------------

    \70\ See Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct.
1402 (1989) and International Brotherhood of Teamsters v. Department
of Transportation, 932 F.2d 1292 (9th Cir. 1991).
---------------------------------------------------------------------------

    The DOT regulations govern commercial drivers and are designed to
protect public highway safety. Under these requirements an employer is
required to establish a program for substance abuse testing. This
program must include an employer's policy statement, supervisory
education and training, controlled substances and (optional) alcohol
testing program, evaluation of driver, and recording keeping. Under the
DOT requirements the controlled substances and alcohol testing program
must include six different types of testing, which include: Pre-
employment, reasonable suspicion, post-accident, random, return to duty
and follow up testing.
    After researching the DOT regulations and several discussions with
DOT representatives, OSHA presented information to C-DAC on the
procedural and substantive aspects of the DOT regulations, including
the administrative requirements, the types of testing by employers, and
optional alcohol testing. Committee members discussed implementation
and enforcement concerns such as an employer's inability to ``stand
down'' a crane operator based on an unconfirmed test result, until a
positive result is verified by a medical review officer. The parallel
DOT requirement prohibits an employer from:

temporarily removing an employee from the performance of a safety-
sensitive function based only on a report from a laboratory to the
MRO (medical review officer) of a confirmed positive test for a drug
or drug metabolite, an adulterated test, or a substituted test,
before the MRO has completed verification of the test result.

    Committee members were concerned that including a substance testing
provision in this standard would restrict an employer's ability to
suspend an operator who tested positive pending confirmation of the
result. Committee members believed that many employers already have
voluntarily instituted substance abuse testing programs. They believed
that employers are able to judge whether an operator who tested
positive presents a risk to workers on the site and should be able to
remove an operator immediately if, in the employer's judgment, the
operator presents such a risk.
    In short, the Committee balanced the potential benefits from a
requirement for substance abuse testing that would have more
restrictive procedures against the fact that many employers already
have their own programs in place that, in C-DAC's view, may be more
protective than what could be enacted as an OSHA requirement. C-DAC
concluded that it would be better not to include a substance abuse
requirement.

Section 1428 Signal Person Qualifications

    As discussed under Sec.  1926.1419, Signals--general requirements,
the safety of equipment operations depends in many situations on
signals given to the operator. It is critical that the operator
understand the signals given, and the signal person must therefore be
able to give clear, accurate and appropriate signals that unambiguously
convey the needed information to the operator. The Committee was
concerned that some signal persons are not able to recognize the
hazards involved with certain crane operations, do not, in some cases,
understand what it is that the crane needs to do to accomplish the
task, and do not know how to give the appropriate signals. This poses
hazards, such as struck-by and crushed-by hazards, due to either
miscommunication or the communication of instructions that are
inappropriate.
    An example of the type of accident that can be caused by
miscommunication from not knowing the appropriate signals is as
follows: The signal person intends to indicate to the operator to hoist
up, since the load needs to be raised straight up. However, the signal
person uses the standard signal for booming up in the mistaken belief
that this signal is for hoisting up. A struck-by or crushed-by incident
could result because, when booming up, the load will move laterally as
well as vertically.
    A failure to understand what it is that the crane needs to do to
accomplish a task can also lead to struck-by or crushed-by incidents.
For example, as a crane booms down, boom deflection tends to increase,
which has the effect of lowering the load more than if there were no
boom deflection. If the signal person is unfamiliar with this boom
characteristic, he or she may fail to signal in time for the load to
stop at the correct point or may cause the load to descend too quickly.
    The Committee concluded that to prevent such accidents it is
necessary to establish qualification criteria that would have to be met
in order for an individual to serve as a signal person (that criteria
is set out in proposed Sec.  1926.1428(c), discussed below). The
employer would have the option of using one of two methods for ensuring
that these criteria were met. Under Option (1) (proposed Sec.
1926.1428(a)(1)), the signal person would have documentation from a
third party qualified evaluator showing that the evaluator had
determined that the signal person meets the requirements of Sec.
1926.1428(c).
    This qualification would be portable, that is, any employer could
rely on such documentation to show that a signal person meets the
criteria. C-DAC believed that such portability would be appropriate
because of the independence and expertise of the third party evaluator.
    Under Option (2) (proposed Sec.  1926.1428(a)(2)), an employer's
own qualified evaluator would have determined that a signal person
meets the qualification requirements. Since such a determination would
not be done by an independent entity, other employers would not have a
basis to assume that the assessment had been done correctly. Therefore,
a qualification under this option would not be portable; other
employers would not be permitted to rely upon it to show that the
signal person meets these requirements.
    The term ``qualified evaluator'' used in proposed Sec.
1926.1428(a)(2) is defined in proposed Sec.  1926.1401 as ``a person
employed by the signal person's employer who has demonstrated that he/
she is competent in accurately assessing whether individuals meet the
Qualification Requirements in this Subpart for a signal person.'' In
reviewing the C-DAC document, the Agency realized that the Committee
had not provided a definition for the term ``third party qualified
evaluator,'' which is used in proposed Sec.  1926.1428(a)(1). OSHA has
therefore added the following definition for this term:

An entity that, due to its independence and expertise, has
demonstrated that it is competent in accurately assessing whether
individuals meet the Qualification Requirements in this Subpart for
a signal person.

    The Agency requests public comment on whether this is an
appropriate definition for this term.
    Under proposed paragraph (a)(3), the documentation for whichever
Option is used (that is, Option (1) or (2)) of this section, would have
to be available while the signal person is employed by the employer.
With respect to an

employer using Option (1) of this section, the signal person's
documentation from the third party qualified evaluator would have to be
available. The Committee believed that this documentation is essential
for this to be a viable and effective Option. Under this option the
employer would be permitted to rely on someone else's assessment of the
signal person rather than its own. In such a circumstance such
documentation is essential for this to be a reliable means of assuring
the signal person has the requisite ability.
    In reviewing these provisions, the Agency noted that C-DAC used the
term ``available,'' rather than ``available at the site.'' It is OSHA's
understanding that C-DAC's intent was that the documentation be
available at the site by, for example, the documentation being
physically present at the site or through use of an on-site computer.
For clarity, OSHA is planning on changing the term ``available'' to
``available at the site.'' OSHA requests public comment on this issue.
    In addition, in reviewing the C-DAC draft of Option (2) of this
section, the Agency noted that it does not explicitly state that
documentation of the signal person's qualification by this method is
required. However, proposed Sec.  1926.1428(a)(3) states that ``the
documentation for whichever Option is used shall be available * * *.''
It is not clear to the Agency if C-DAC intended to require
documentation under Option (2) as it did for Option (1), or if it only
intended that any documentation the employer chose to create under
Option (2) would have to be made available.
    One reason to require documentation under Option (2) is the
Committee's concern that, at present, the operator's employer has no
ready means of determining if the signal person (who is typically a
different employer's employee) has the necessary knowledge and skill
for signaling until after hoisting operations have begun. In other
words, a problem with the signal person's ability may not become
evident to the operator until a hazardous situation has already arisen.
Requiring documentation, which would have to be available at the site,
would enable that determination be made before hoisting operations
begin.
    Requiring documentation under Option (2) of this section would
address C-DAC's concern. Therefore, the Agency has expanded the first
sentence of the C-DAC version of proposed Sec.  1926.1428(a)(2) to
clarify that documentation would be required under Option (2). The
proposed paragraph now reads, with the added language highlighted:

    (2) Option (2)--Employer's qualified evaluator. The employer has
its qualified evaluator assess the individual and determine that the
individual meets the Qualification requirements (see Sec.
1926.1428(c)) and provides documentation of that determination. An
assessment by an employer's qualified evaluator under this Option is
not portable--other employers are not permitted to use it to meet
the requirements of this section.

    The Agency requests public comment on whether this revision is
appropriate.
    Proposed paragraph (b) addresses circumstances in which a signal
person who had been qualified under Sec.  1926.1428(a) subsequently
acts in a manner that indicates that he or she may not meet the
qualification requirements. Such an indication would result, for
example, where the use of Standard Method signals have been agreed to
but the signal person does not give a Standard Method signal. Another
example would be where the signal person gives inappropriate signals
(such as indicating to the operator to boom up when the action that is
needed is to hoist up).
    In such circumstances the employer would be prohibited from
allowing the individual to continue working as a signal person until he
or she is re-trained and has been requalified in accordance with
proposed Sec.  1926.1428(a).
    Proposed paragraph (c) sets forth the qualification requirements
for signal persons. Proposed paragraph (c)(1) would require that the
signal person know and understand whatever signal method will be used
for that particular job site.
    In addition, if hand signals are used, the signal person must know
and understand the Standard Method for hand signals. Hand signals are
widely used in this industry. As discussed above with respect to
proposed Sec.  1926.1419(c), C-DAC believed that accidents due to
miscommunication could be reduced if there were more widespread use of
standardized hand signals. C-DAC concluded that this provision would
promote greater use of standardized hand signals through the use of the
Standard Method.\71\
---------------------------------------------------------------------------

    \71\ As discussed above with respect to proposed 1926.1419(c),
there are circumstances when it would be permissible to use hand
signals other than the Standard Method signals. Also, under proposed
Sec.  1926.1419, signals other than hand signals could be used.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2) would help prevent miscommunication
between the signal person and the crane operator by requiring the
signal person to be competent in the application of whatever signals
are used.
    Proposed paragraph (c)(3) would require the signal person to have a
basic understanding of crane operation and limitations, including crane
dynamics involved in swinging and stopping loads and boom deflection
from hoisting loads. As explained above in the beginning of this
discussion of proposed Sec.  1926.1428, it is critical that a signal
person understand how the crane and load will move in response to the
various signals he or she gives so that the signal person will give the
most appropriate signals and reduce the occurrence of struck-by,
crushed-by and other hazards.
    Proposed paragraph (c)(4) specifies that signal persons must know
and understand the relevant requirements in proposed Sec. Sec.
1926.1419-1926.1422, which address the types of signals that may be
used and the circumstances surrounding their use, and the requirements
of proposed Sec.  1926.1428. C-DAC included the phrase ``relevant
requirements'' to make clear that a signal person's qualification could
be limited with regards to the use of a particular type of signal and
associated information.

    For example: A crane operation is going to use Standard Method
hand signals. The signal person knows and understands all aspects of
proposed Sec.  1926.1419 that are relevant when using hand signals,
as well as Sec.  1926.1422, Signals--hand signal chart. In addition,
the signal person meets the proposed requirements in proposed Sec.
1926.1428(c)(1) and (2) with respect to the use of Standard Method
hand signals. The signal person also has the knowledge necessary to
meet the provision in proposed Sec.  1926.1428(c)(3), and
demonstrates through a verbal or written test, and through a
practical test, that he/she has this knowledge and capabilities.
However, the signal person is unfamiliar with the contents of
proposed Sec.  1926.1420, Signals--radio, telephone or other
electronic transmission of signals, or of proposed Sec.  1926.1421,
Signals--voice signals--additional requirements.
    In this example, it would be appropriate for the signal person
to be qualified under either Option (1) or Option (2) (see proposed
1926.1428(a)) so long as that qualification was limited to signaling
with Standard Method hand signals. Since the signal person would be
qualified only for Standard Method signaling, there would be no need
for that person to have the knowledge or capabilities associated
with other types of signaling. In such a situation employers,
though, would be precluded from using such a person if other types
of signals were to be used.

    Proposed paragraph (c)(5) would require that the signal person pass
knowledge and practical tests to demonstrate that he or she meets the
qualification requirements. It would allow the knowledge test to be
either verbal or written. Reading or writing is

not normally necessary when working as a signal person. Therefore, C-
DAC believed that administering the knowledge test verbally, without a
separate demonstration of literacy, should be permitted.

Section 1429 Qualifications of Maintenance and Repair Workers

    This proposed section addresses the qualifications that the workers
who maintain and repair cranes/derricks must possess. Subpart N of this
part currently contains no provisions concerning the qualifications of
maintenance and repair workers.
    The Committee had two basic concerns regarding maintenance and
repair work. First, it was aware of accidents that had occurred when
the equipment that was being maintained or repaired was operated
improperly. For example, a maintenance worker who booms down a mobile
hydraulic crane to one side without following the manufacturer's
instructions for deploying outriggers may overturn the equipment. C-DAC
believed that placing restrictions on equipment operations during such
work would help prevent such accidents.
    Second, the Committee sought to avoid hazards that can result from
maintenance and repair work that is done improperly by ensuring that
maintenance and repair workers are sufficiently qualified to perform
their work. For example, if a load-bearing component is removed for
maintenance or repair and re-installed incorrectly, unintended movement
of the load or even a collapse could occur during operations.
Paragraph 1429(a)
    The Committee was aware that maintenance and repair workers
sometimes need to operate equipment in order to perform maintenance,
inspect or verify the performance of the equipment. This work typically
involves operating the equipment to get access to components, diagnose
problems and check repairs.
    C-DAC did not believe it necessary for maintenance, inspection and
repair personnel to meet the requirements in proposed Sec.  1926.1427,
Operator qualification and certification, when operating equipment for
such purposes. The operations involved for these purposes are almost
always done without a load on the hook. The only instance when there is
a load on the hook is if the equipment is load tested. However, even
when load testing, the operation is very limited, since the load is not
moved about as it would be during crane operations.
    While such limited operation does not, in C-DAC's view, necessitate
the maintenance, inspection or repair personnel to meet the proposed
Sec.  1926.1427 requirements, a failure to operate the equipment
properly even in these limited circumstances can result in accidents
from, for example, unintended movement or tip-over. Therefore, this
proposed paragraph would permit maintenance and repair workers to
operate equipment during their work only under specific restrictions
designed to ensure safety.
    Specifically, under proposed paragraph (a)(1), maintenance and
repair workers would be permitted to operate the equipment only to the
extent necessary to perform maintenance, inspect or verify the
performance of the equipment. Under this provision, maintenance and
repair workers would not be permitted to operate the equipment during
regular operations.
    Proposed paragraph (a)(2) would require the maintenance and repair
worker who operates equipment to either (i) do so under the direct
supervision of an operator who meets the requirements of Sec.
1926.1427, Operator qualification and certification, or (ii) be
familiar with the operation, safe limitations, characteristics and
hazards associated with the type of equipment involved.
Paragraph 1429(b)
    Proposed paragraph (b) provides that maintenance and repair
personnel must meet the definition of a qualified person with respect
to the equipment and maintenance/repair tasks they perform. Proposed
Sec.  1926.1401 defines ``qualified person'' as ``a person who, by
possession of a recognized degree, certificate, or professional
standing, or who by extensive knowledge, training, and experience,
successfully demonstrated the ability to solve/resolve problems
relating to the work, the subject matter, or the project.'' In light of
the safety hazards that could result from maintenance and repairs that
are performed improperly, C-DAC believed that it was necessary for
maintenance and repair workers to meet the ``qualified person''
criteria.
    The Committee believed that many current maintenance and repair
workers have received comprehensive, in-depth, on-the-job training from
highly experienced supervisors and/or co-workers and have become highly
experienced themselves. Because of such extensive training, long
experience and high level of knowledge, the term ``qualified persons''
under this provision would include such workers under the prong for
``extensive knowledge, training, and experience.''

1430 Training

    This proposed section both references training criteria that would
be required by other sections of this subpart and sets forth training
criteria and requirements not otherwise included in the proposed
standard. Additionally, paragraph Sec.  1926.1430(g) of this section
would require employers to evaluate employees' understanding of the
training. The following chart summarizes the location of the training
requirements in this proposed rule:

------------------------------------------------------------------------
                 Paragraph                      Training requirement
------------------------------------------------------------------------
Sec.   1926.1408(g).......................  Power line safety: The
                                             operator and crew assigned
                                             to work with the equipment,
                                             including spotters, must be
                                             trained in specified topics
                                             relevant to power line
                                             safety.
Sec.   1926.1424(a)(2)....................  Swing radius hazards:
                                             Employees assigned to work
                                             on or near the equipment
                                             must be trained to
                                             recognize struck-by and
                                             pinch/crush hazard areas of
                                             rotating superstructures.
                                             Also, where the employer
                                             protects against swing
                                             radius hazards by using
                                             warning signs and high
                                             visibility markings, the
                                             employer must train
                                             employees to understand
                                             what the markings signify.
Sec.   1926.1437(c)(2)(ii)................  Swing radius hazards
                                             (floating cranes): Where
                                             the employer protects
                                             against swing radius
                                             hazards on floating cranes
                                             by using warning signs and
                                             high visibility markings,
                                             the employer must train
                                             employees to understand
                                             what the markings signify.
Sec.   1926.1430(e).......................  Crush/pinch points:
                                             Employees who work with
                                             equipment must be
                                             instructed to keep clear of
                                             holes, crush/pinch points,
                                             and the hazards addressed
                                             in Sec.   1926.1424.
Sec.   1926.1430(f).......................  Tag-out: Operators and other
                                             employees authorized to
                                             start/energize equipment or
                                             operate equipment controls
                                             (such as maintenance and
                                             repair workers), shall be
                                             trained in the tag-out
                                             procedures in Sec.
                                             1926.1417(f).
Sec.   1926.1430(d).......................  Competent and Qualified
                                             Persons: Competent persons
                                             and qualified persons must
                                             be trained in the
                                             requirements of this
                                             subpart applicable to their
                                             respective roles.

Sec.   1926.1430(g)(2)....................  Refresher training
                                             (general): Refresher
                                             training in relevant topics
                                             shall be provided when the
                                             employee's conduct or an
                                             evaluation of the
                                             employee's knowledge
                                             indicates that retraining
                                             is necessary.
Sec.   1926.1430(b).......................  Signal person training:
                                             Employees who will be
                                             assigned to work as signal
                                             persons who do not meet the
                                             requirements of Sec.
                                             1926.1428(c) shall be
                                             trained in the areas
                                             addressed in that
                                             paragraph.
Sec.   1926.1428(b).......................  Signal person re-training: A
                                             signal person whose actions
                                             indicate that he or she
                                             does not meet the
                                             qualification requirements
                                             of Sec.   1926.1428 must be
                                             retrained before being
                                             allowed to continue to work
                                             as a signal person.
Sec.   1926.1427(f)(2)(i).................  Operator trainee/apprentice:
                                             Before a trainee/apprentice
                                             is assigned to operate
                                             equipment, the employee
                                             must be provided with
                                             sufficient training for
                                             operating the equipment
                                             safely under the
                                             limitations established
                                             under Sec.   1926.1427.
Sec.   1926.1427(k).......................  Operator training during
                                             phase-in period: An
                                             employee assigned to
                                             operate the equipment
                                             during the phase-in period
                                             of Sec.   1926.1427 who
                                             does not have the knowledge
                                             or ability to operate the
                                             equipment safely must be
                                             provided with necessary
                                             training prior to operating
                                             the equipment.
Sec.   1926.1430(c)(1)....................  Operator training for
                                             qualification or
                                             certification: Operators
                                             who have not yet been
                                             qualified or certified
                                             under Sec.   1926.1427 must
                                             be trained in the areas
                                             addressed in Sec.
                                             1926.1427(j). An operator
                                             who does not pass a
                                             qualification or
                                             certification test must be
                                             retrained as necessary.
Sec.   1926.1430(c)(2)(i).................  Operator training--boom
                                             hoist brake test: Operators
                                             must be trained to
                                             determine if the boom hoist
                                             brake needs to be adjusted
                                             or repaired by first
                                             raising the boom a short
                                             distance and testing the
                                             brake.
Sec.   1926.1430(c)(2)(ii)................  Operator training--emergency
                                             procedures (halting
                                             unintended movement): Where
                                             a manufacturer's emergency
                                             procedures for halting
                                             unintended equipment
                                             movement are available,
                                             operators must be trained
                                             in those procedures.
Sec.   1926.1441(e).......................  Operator training (2,000
                                             pound maximum rated
                                             capacity): Operators of
                                             equipment with a rated
                                             hoisting-lifting capacity
                                             of 2,000 pounds or less
                                             must be trained in the safe
                                             operation of the equipment
                                             the operator is using.
------------------------------------------------------------------------

    The Committee believed that both training and testing of certain
employees are critical to the safety of equipment use on construction
sites.\72\ With respect to training, the Committee concluded that there
is a need to improve upon the current general requirement for
construction industry training established by Sec.  1926.21, Safety
training and education, which requires the employer to (1) ``establish
and supervise programs for the education and training of employers and
employees in the recognition, avoidance and prevention of unsafe
conditions in employments covered by the [OSH] Act,'' Sec.  1926.21(a),
and (2) ``instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to
illness or injury,'' Sec.  1926.21(b).
---------------------------------------------------------------------------

    \72\ With respect to operator testing, as discussed in
connection with Sec.  1926.1427, Operator qualification and
certification, this proposed standard places special emphasis on
ensuring that equipment operators have acquired the knowledge and
skills necessary to operate their equipment safely. This proposed
standard also includes specific assessment requirements for signal
persons (see proposed Sec.  1926.1428(a)).
---------------------------------------------------------------------------

    C-DAC found that more specific provisions were needed to ensure
that employees are able to work safely with and around cranes. First,
greater specificity would highlight the particular tasks (and the
hazards associated with them) for which certain types of training are
necessary. Second, training tailored to the specific hazards faced by
particular employees would be an efficient and effective means of
preventing injury.
    Proposed paragraph (a), Overhead powerlines, states that employees
must be trained as outlined at proposed Sec.  1926.1408(g) (see the
explanation of hazards and training requirements in the discussion of
proposed Sec.  1926.1408(g)).
    Under proposed paragraph (b), Signal persons, employees who will be
assigned to work as signal persons who need training in order to meet
the requirements of Sec.  1926.1428(c) must be trained in the areas
addressed in that paragraph. As discussed in relation to proposed Sec.
1926.1428(c), each employee who will serve as a signal person must pass
a verbal or written test and a practical test demonstrating the
required knowledge and skills. Any such employee who does not pass
those tests must receive additional training in the areas of
deficiency.
    Proposed paragraph (c), Operators, provides, at proposed paragraph
(c)(1), that an equipment operator who is neither qualified nor
certified under Sec.  1926.1427, Operator qualification and
certification, would be required to be trained in the areas addressed
in Sec.  1926.1427(j).
    This proposed paragraph applies to operators who will need to be
qualified or certified under Sec.  1926.1427 but who are not yet
qualified or certified or who have lost their qualification or
certification. Operators in this category would include those who,
during the four-year phase-in period of Sec.  1926.1427, would not yet
be required to be qualified or certified. Also in this category would
be employees who the employer has decided will be assigned to work as
operators and will need to be qualified or certified under Sec.
1926.1427, as well as operators who need such training in order to
become re-qualified or re-certified, or who failed to pass a
qualification or certification test.
    Proposed paragraph (c)(2) would require operators to be trained in
two practices. Paragraph (c)(2)(i) would require training in the
testing of the boom hoist brake on friction equipment prior to moving a
boom off a support to determine whether the brake requires adjustment
or repair. The purpose of this procedure is to ensure that the brake is
sufficient before the boom is at too great an angle or height. Using
this procedure, if the brake is deficient, the boom will fall only a
very short distance. This provides an additional safety practice
related to the hazards resulting from an uncontrolled boom. Moving the
boom when the brake is not working properly can result in uncontrolled
lowering of the boom, which can endanger workers in the proximity of
the hoisting equipment.
    Proposed paragraph (c)(2)(ii) would require the operator to be
trained in the manufacturer's emergency procedures, when available, for
stopping unintended equipment movement. This provides another level of
protection to minimize employee injury resulting from unintended
equipment movement. The Committee recognized that manufacturer's
emergency procedures for halting unintended equipment movement may not
always be available and therefore this training would be required only
when the procedures are available.
    The C-DAC version of Sec.  1926.1430(c)(2) began: ``In addition to
training in the areas addressed in Sec.  1926.1427(j), operators shall
be trained

in the following practices.'' This wording implied that all operators
must be trained in the topics listed in Sec.  1926.1427(j). However,
Sec.  1926.1427(j) is not a training requirement but sets forth
criteria that must be addressed in a qualification or certification
test. Operators who are sufficiently knowledgeable in these topics
through prior training and/or experience need not receive additional
training under this proposed standard. To avoid any confusion in this
regard, OSHA has changed C-DAC's wording to read, in proposed Sec.
1926.1430(c)(2): ``Operators shall be trained in the following
practices.''
    The SBREFA Panel recommended that OSHA seek public comment on
several issues related to operator training. Several Small Entity
Representatives (SERs) believed that the training requirements in the
proposed standard are too broad and should instead be keyed to the
particular operations the operator performs and the particular
equipment he/she operates. The SBREFA Panel also recommended that OSHA
consider and ask for public comment on whether a more limited operator
training program would be appropriate for operations based on the
capacity and type of equipment and nature of operations.
    The Panel noted that proposed Sec.  1926.1427(j)(1)(i) requires
operator training in ``the information necessary for safe operation of
the specific type of equipment the individual will operate'' and
understood this to address the SERs' concern that operators of smaller
capacity equipment used in less complex operations should require less
training than those operators of higher capacity, complex equipment
used in more complex situations. The Panel recommended that OSHA seek
public comment on whether this point should be made more clearly, and
OSHA welcomes such comment.
    The Panel further recommended that OSHA consider and ask for public
comment as to whether the supervisor responsible for oversight for an
operator in the pre-qualification period described at Sec.
1926.1427(f) should have additional training beyond that required at
Sec.  1926.1427(f)(2)(iii)(B). The discussion was focused on the issue
of whether the supervisor should be trained to be able to take over the
controls, if necessary, while supervising the operator in the pre-
qualification period.
    As the proposed rule is written, when the supervisor is not a
certified operator, he/she must be certified on the written portion of
the test and be familiar with the proper use of the equipment's
controls; the supervisor is not required to have passed a practical
operating test. In accordance with the Panel's recommendation, OSHA
requests comment on whether the supervisor needs additional training in
this regard than the proposal would require.
    Paragraph (d), Competent persons and qualified persons, would
require that competent persons and qualified persons be trained
regarding the requirements of this Subpart applicable to their
respective roles. See Sec.  1926.1401, Definitions, for a description
of what is necessary to be a competent person or a qualified person.
    A person assigned by an employer to be a ``competent person'' or
``qualified person'' under this proposed rule must already have had a
certain level of training (or, in the case of a competent person,
training or experience) in order to meet the criteria applicable to
such a designation. This paragraph does not address such training--it
would not require the employer to provide the training needed for an
employee to meet those criteria in order to become a competent or
qualified person. The sole purpose of this paragraph is to require the
employer to ensure that both competent persons and qualified persons
are trained on the requirements of this Subpart that are applicable to
the person's role and responsibility. For example, a ``competent
person'' assigned to conduct shift inspections under Sec.  1926.1412(d)
must be trained under proposed Sec.  1926.1430(d) in the required
elements of a shift inspection. This training is necessary to ensure
the competent person or qualified person is aware of his/her
responsibility under this subpart for finding/correcting hazardous
conditions.
    Proposed paragraph (e), Crush/pinch points, provides that employees
who work with equipment covered by this Subpart must be instructed to
stay clear of holes, crush/pinch points and the hazards that are
addressed in Sec.  1926.1424, Work area control. See the discussion of
hazards and requirements in the discussion of proposed Sec.  1926.1424.
    Proposed paragraph (f), Tag-out, states that operators and other
employees authorized to start or energize equipment or operate
equipment controls (such as maintenance and repair workers) must be
trained according to the tag-out procedures in Sec.  1926.1417(f). See
the discussion of tag-out procedures discussed in proposed Sec.
1926.1417(f).
    Proposed paragraph (g), Training administration, would require that
employers ensure employees understand required training and provide
refresher training when necessary. Specifically, proposed Sec.
1926.1430(g)(1) would require that the employee be evaluated to verify
that he/she understands the information provided in training required
by this Subpart. The Committee determined that training without any
follow-up measure to determine understanding or effectiveness would not
achieve the goal of a safe work environment.
    Proposed paragraph (g)(2) would require the employer to provide
refresher training of an employee when, based on evaluation or employee
conduct, it is indicated that retraining is needed.

Section 1431 Hoisting Personnel

    Cranes and derricks are designed to move materials, not personnel.
However, situations arise when a crane or derrick can be the safest
means to move employees to their work area and/or to hold them in
position while they do their work.
    Although there are situations when using a crane or derrick to lift
personnel to work areas is the safest means of accomplishing the task,
there are inherent dangers in such an operation because of the heights,
equipment and environment involved. A number of workers have been
killed and seriously injured while being lifted by a crane or derrick
when the equipment's lifting mechanism malfunctioned and they did not
have adequate fall protection. The height to which the workers are
lifted means that any instability in their supporting platform creates
a serious fall hazard. See 53 FR 29116, 29117-18 (Aug. 2, 1988)
(discussing accidents that occurred when cranes were used to lift
personnel). Because of that risk, in 1988 OSHA added regulations to
subpart N of this part to both limit the use of cranes for lifting
personnel and increase employee protection when it is necessary to use
cranes for this purpose. See 29 CFR 1926.550(g), Crane or derrick
suspended personnel platforms.
    Because of the inherent hazards such operations present, OSHA
currently permits cranes and derricks to be used to lift personnel only
``when the erection, use, and dismantling of conventional means of
reaching the worksite, such as a personnel hoist, ladder, stairway,
aerial lift, elevating work platform or scaffold, would be more
hazardous, or is not possible because of structural design or worksite
conditions.'' 29 CFR 1926.550(g)(2). When a crane or derrick is used to
lift personnel, a personnel platform that complies with requirements in
Sec.  1926.550(g) must be used.
    The Committee concluded that the current subpart N standards
governing

personnel hoisting by equipment have resulted in a reduction of
accidents and determined that their fundamental substance should be
maintained in the proposed standard. Accordingly, the Committee
proposal largely continues the current requirements of subpart N, Sec.
1926.550(g). Some changes have been made to provide additional safety
and to eliminate ambiguity. Requirements specific to certain
activities, such as personnel hoisting in pile-driving operations,
drill shafts, storage tanks and marine transfer have been added. The
discussion below focuses on these changes and additions.
    One of the resources the Committee consulted in developing this
proposed paragraph was ASME B30.23-1998, ``Personnel Lifting Systems.''
Since the Committee finished its work, that industry consensus standard
was superseded by ASME B30.23-2005. OSHA has compared the two versions
and found no substantive differences in the provisions that correspond
to paragraphs in this proposal. Where the ASME standard is cited in
this section, the citations will refer to the 2005 version.
    OSHA stresses that the proposed provisions in this section would be
additional requirements that must be met when equipment is used to lift
personnel. During such use, all other applicable requirements of this
proposed standard would also be required to be met.
Paragraph 1431(a)
    This proposed paragraph states that equipment may be used to hoist
personnel only when all other means of reaching the work area would
present a greater hazard or would not be possible because of the
project's structural design or worksite conditions. The same limitation
is currently found in Subpart N's Sec.  1926.550(g)(2). It reflects
OSHA's longstanding recognition that using cranes and derricks to lift
personnel is inherently hazardous and should only be done when it is
either the least hazardous means or when, in light of the configuration
of the worksite, it is the only means of performing required work.
    This proposed paragraph differs from the current Sec.
1926.550(g)(2) by substituting the word ``equipment'' for ``crane or
derrick.'' The terms ``crane'' and ``derrick'' do not represent the
full spectrum of equipment that would be covered by this standard. See
Sec.  1926.1400, Scope for a description of the equipment covered by
this Subpart.
    Additionally, this proposed paragraph would not apply to work
covered by 29 CFR part 1926 subpart R, Steel Erection. Subpart R, at
Sec.  1926.753(c)(4), allows the use of equipment to hoist personnel in
a platform that complies with Sec.  1926.550 without the need for a
showing that other means of reaching the work area would create a
greater hazard or are impossible. This provision was included in
Subpart R because steel connectors must often work at high locations
before there is a solid structure to stand on and where a personnel
platform suspended from a crane is the safest place for them to work.
OSHA's reasons for including this exception in Subpart R are discussed
in detail in the preamble to the steel erection standard, 66 FR 5196,
5209 (Jan. 18, 2001).
Paragraph 1431(b) Use of Personnel Platform
    This proposed paragraph would generally require the use of a
personnel platform when hoisting employees and require that criteria
specified in proposed Sec.  1926.1431(e) be met for such platforms. It
also provides for exceptions to the use of personnel platforms that are
not currently allowed by Sec.  1926.550(g)(2).
    For reasons discussed above, proposed Sec.  1926.1431(b)(1) would
generally require that a personnel platform be used when hoisting
employees and that the platform meet the requirements of Sec.
1926.1431(e) of this proposed section. As discussed below, the
requirements of Sec.  1926.1431(e) are comparable to requirements
currently found in Sec.  1926.550(g).
    Proposed paragraph (b)(2), Exceptions, sets forth the construction
activities in which hoisting personnel without using a personnel
platform would be allowed because, in the Committee's view, use of a
personnel platform might be infeasible or more hazardous than an
alternative means of hoisting personnel. These activities are: Hoisting
employees into and out of drill shafts 8 feet and smaller in diameter,
pile driving operations, marine worksites, storage tanks (steel or
concrete), and shaft operations and chimney operations. This proposed
section contains specific requirements for hoisting personnel during
these operations at Sec.  1926.1431(o), (p), (r), and (s) that provide
for alternatives to the use of a personnel platform. For drill shafts,
pile driving operations, storage tanks, and shaft and chimney
operations, which present access restrictions, the alternative to a
personnel platform would be a boatswain's chair. For marine worksites,
it would be a marine hoisted personnel transfer device, which is
designed to facilitate exit in the event it enters the water.
    For the purposes of this proposed standard, a ``marine worksite''
is a construction worksite that is located in, on or above the water
(see proposed Sec.  1926.1401, Definitions). The Committee determined
it was necessary to clearly define this term since marine worksite
conditions and hazards differ significantly from non-marine worksites.
In particular, with respect to equipment covered by this section, the
marine worksite presents unique hazards for equipment stability and
environmental conditions affecting operations.
    Section 1926.1401 defines a ``marine hoisted personnel transfer
device'' as a device, such as a ``transfer net'' used to hoist an
employee to or from a marine worksite that is designed to protect the
employee during a marine transfer and that allows for rapid entry/exit
from the device. Such devices do not include a boatswain's chair when
hoisted by equipment covered by this standard. The Committee determined
it was necessary to clearly specify the type of device that will or
will not be considered a marine hoisted personnel transfer device for
this standard, as marine worksites involve unique conditions and
hazards with respect to hoisting employees. The Committee determined
that it was necessary to require a device designed for such conditions
while allowing flexibility so the employer may select the most
appropriate device based on the site and working conditions.
    Each of the exceptions is discussed below under the particular
paragraph that addresses it. Subpart N of this part does not currently
address these worksite activities (nor does ASME B30.23-2005 address
these particular topics).
Paragraph 1431(c) Equipment Set-Up
    This paragraph sets forth the basic criteria for equipment set-up
for personnel hoisting. The requirements continue and refine those
currently in Subpart N's Sec.  1926.550(g)(3)(i)(D).
    Proposed paragraph (c)(1) would require the equipment to be on
level, firm and stable footing. It differs from the current standard at
Sec.  1926.550(g)(3)(i)(D) in that a qualified person must determine if
the footing is ``sufficiently firm and stable.'' Stable footing is
essential to minimize the hazard of the equipment tipping while
hoisting personnel. ASME B30.23-3.2.2(a)(4)-2005 has a similar
requirement, with the operator of the equipment determining equipment
to be level within one percent during set-up

and hoisting operations. The Committee believed that the danger of
equipment potentially tipping when hoisting personnel justifies the
need for a qualified person to examine and approve the equipment's
stability. See Sec.  1926.1401, Definitions for the criteria for a
qualified person.
    Proposed paragraph (c)(2) specifies that each outrigger be both
extended and locked. The amount of extension must be the same and also
be in accordance with the manufacturer's specifications. This is
similar to the current requirement of Sec.  1926.550(g)(3)(i)(D);
however, the current requirement that outriggers be ``fully deployed''
has been changed to require that outriggers be equally extended and in
accordance with manufacturer's procedures and load charts. Equal
extension eliminates the hazard of the operator forgetting that one or
more outriggers has a shorter extension and swinging into that area
with a load that exceeds the crane's capacity in that area. The
Committee determined that a requirement of full extension of all
outriggers would not be appropriate for all worksite conditions. Nor is
it necessary, as long as partial extension is within the manufacturer's
procedures; the critical factor is to have each outrigger extended
equally, whether it is a full or shorter extension.
    Proper placement and deployment of outriggers is essential to
prevent the hazard of equipment tipping while hoisting personnel.
Paragraph 1431(d) Equipment Criteria
    This paragraph sets forth requirements for the equipment used to
hoist personnel. These requirements refine and expand the equipment
requirements currently in Subpart N.
    Proposed paragraph (d)(1): Capacity: use of suspended personnel
platform, would continue the requirement at Sec.  1926.550(g)(3)(i)(E)
to limit the total load to 50 per cent of the equipment's rated
capacity. It would clarify the current standard by specifying that the
total load includes the hook, load line, and rigging. The 50 percent
capacity limit would not apply during equipment proof testing.
    The 50 percent limit reflects that using this equipment to hoist
personnel requires additional safety precautions than when lifting
materials. The limit provides for an extra margin of safety to prevent
overloading the equipment, which could cause tip-over or structural
collapse.
    Proposed paragraph (d)(2), Capacity: use of boom-attached personnel
platforms, establishes the load limit at 50 percent of rated capacity
for platforms that are attached to the boom. It also provides an
exception to the 50 percent capacity limit during equipment proof
testing. The same reasons for the 50 percent limit in Sec.
1926.1431(d)(1) also apply here.
    The Committee considered prohibiting the use of boom attached
personnel platforms for hoisting personnel. However, the Committee
concluded that it was unaware of any reason to prohibit their use. As
discussed above under Sec.  1926.1400, Scope, Committee members were
concerned that boom-attached platforms may present additional hazards
not addressed in this proposed standard, and OSHA is requesting comment
on whether additional requirements should apply when using them.
    In reviewing the C-DAC consensus document, the Agency determined
that the Committee did not address the issue of capacity when no
personnel platform is used. Since there are several situations where no
platform will be used at all (these are listed in proposed Sec.
1926.1431(b)(2) of this section), the Agency believes that a capacity
limit similar to those set by the Committee when using a personnel
platform is needed. Therefore, OSHA has added proposed Sec.
1926.1431(d)(3), Capacity: hoisting personnel without a personnel
platform, which establishes the load limit at 50 percent of rated
capacity. In calculating the load, the weight of the personnel,
including the hook, load line, rigging and any other equipment that
imposes a load must be included. The addition of this proposed
paragraph has resulted in the renumbering of the remaining paragraphs
in proposed Sec.  1926.1431(d) (as compared to the numbering in the C-
DAC document).
    Proposed paragraph (d)(4) would require engaging all the
equipment's locking or braking devices when the platform has reached
its stationary work position. The purpose is to minimize sudden and
unintended movement or tipping of the platform when employees have
reached the work area.
    This differs from current provision Sec.  1926.550(g)(3)(i)(C) in
Subpart N in that the proposed provision adds a requirement to use
operator actuated secondary braking/locking features, when available,
in addition to other braking systems. This is similar to sections
1.2.2(f) and 3.2.2(a)(19) of ASME B30.23-2005 for automatic brake
systems and setting of brakes before work begins from the platform.
    The subsections of proposed paragraph (d)(5), Devices, would
require certain safety devices for equipment addressed by this proposed
section.
    Proposed paragraph (d)(5)(i) would address the requirements for
equipment with a variable angle boom. Such equipment would be required
to be equipped with both a boom angle indicator and boom hoist limiting
device (except for derricks). Use of these devices minimizes the
potential for hoisting personnel at an unsafe angle, which could result
in the platform or equipment tipping.
    A boom angle indicator is currently required in Sec.
1926.550(g)(3)(ii)(A). Proposed Sec.  1926.1431(d)(4)(i) would add a
requirement for a boom hoist limiting device. The Committee believed
that both a boom angle indicator and a boom hoist limiting device are
necessary to prevent the boom from being moved to unsafe angles. A boom
hoist limiting device would be required when hoisting personnel, even
though it would not otherwise be required for equipment manufactured
before December 17, 1969 under proposed Sec.  1926.1416(d)(1) (see
discussion of proposed Sec.  1926.1416(d)--Operational aids). This
reflects the need for equipment used to hoist personnel to have
additional safety features.
    Proposed paragraph (d)(5)(i) would not apply to derricks. This is
consistent with C-DAC's recommendation that boom hoist limiting devices
and boom angle indicators not be required on derricks. See proposed
Sec.  1926.1436(f), which addresses operational aids for derricks. As
discussed below, the Committee believed that these devices were not
needed on derricks because the current practice in the industry of
marking the boom hoist cable of derricks with visible caution and stop
marks corresponding to maximum and minimum allowable boom angles is a
safe work practice. Accordingly, paragraph Sec.  1926.1436(f) permits
employers to use this practice. Alternatively, it permits employers to
use an electronic or other device that either signals the operator in
time to prevent the boom from moving past its minimum and maximum
angles or automatically prevents such movement.
    Proposed paragraph (d)(5)(ii) would address the requirements for
equipment, including derricks, when a luffing jib is used for personnel
hoisting. This paragraph would require all equipment to have both a jib
angle indicator and jib hoist limiting device. Use of these devices
minimizes the likelihood of platform tipping and equipment failure.
    Neither the current Subpart N nor ASME B30.23-2005 addresses the
use of luffing jibs for personnel hoisting. The Committee believed that
this proposed requirement is needed to help improve

the safety of crane and derrick operations.
    Proposed paragraph (d)(5)(iii) would require a telescoping boom to
either have a device indicating the boom's extended length or measuring
marks that are clear and visible to the equipment operator. This would
allow the operator to easily ascertain the extension length in order to
stay within safe operating parameters. This requirement would address
the hazard of equipment or platform tipping or equipment failure that
can result when a telescoping boom is extended beyond appropriate
operating parameters. Currently, Sec.  1926.550(g)(3)(ii)(B) permits,
as an alternative to equipping the boom with a device to indicate the
boom's extended length, an ``accurate determination'' to be made of the
load radius to be used prior to hoisting personnel. Proposed Sec.
1926.1431(d)(5)(iii)'s provision for measuring marks on the boom would
enable this determination to be made accurately if the boom is not
equipped with a device indicating its extended length.
    Proposed paragraph (d)(5)(iv), Anti-two-block, would require a
device that automatically prevents contact between a component on the
hoist line (load block, overhaul block, etc.) with the boom tip, which
can damage or sever the load line or cause other forms of equipment
failure. This contact between the hoist line component and the boom tip
is referred to as two-blocking. The purpose of the anti-two-blocking
device is to prevent this condition, which can result in a sudden drop
of the personnel platform. See the discussion of two-blocking in
proposed Sec.  1926.1416, Operational aids.
    Paragraph (d)(5)(iv) is similar to current Sec.
1926.550(g)(3)(ii)(C) and adds an exception for pile driving
operations. The proposed requirement would not apply when hoisting
personnel in pile driving operations due to the fact the vibration of
the pile driving activity makes use of an anti-two-block device
ineffective.
    In reviewing this portion of the C-DAC document, the Agency has
noted that the use of alternative measures for preventing two-blocking
during pile driving operations would be required under proposed Sec.
1926.1431(p)(2). However, the C-DAC language for proposed provision
Sec.  1926.1431(d)(5)(iv) did not refer to the requirement for
alternative measures. Therefore, OSHA has added a reference to the
exception in Sec.  1926.1431(d)(5)(iv) advising the reader that
alternative measures are required under Sec.  1926.1431(p)(2).
    Proposed paragraph (d)(5)(v), Controlled load lowering, would
require a system or device on the load line hoist drum that positively
regulates the lowering speed. It would require this system to be used
when hoisting personnel, in addition to a load line hoist brake. The
purpose is to minimize the likelihood of free fall of the personnel
that could lead to hitting the ground from a sudden fast descent.
Additionally, the proposed paragraph would note that free fall of the
load line hoist is prohibited and use of equipment in which the boom
hoist mechanism can free fall is prohibited. Refer to proposed Sec.
1926.1426, Free fall/controlled load lowering, for additional
information.
    Currently, 1926.550(g)(3)(ii)(D) similarly requires a system or
device that positively regulates the lowering speed. Proposed Sec.
1926.1431(d)(5)(v) would explicitly specify that the system must be
used when hoisting personnel.
    Proposed paragraph (d)(5)(vi), Proper operation required, specifies
that personnel hoisting would only occur when and if all the devices
required in Sec.  1926.1431(d)(5)(i) through (v) are in proper working
order. It would also mandate that if a required device stops working
while personnel are being hoisted, all personnel hoisting operations
must be stopped and not resumed until all devices are working properly.
Alternative measures would not be allowed.
    The purpose of this paragraph is to clearly establish that
personnel hoisting may only be done when all necessary safety devices
are working properly. The hazards addressed by this requirement
include: structural failure, equipment tipping, dropping personnel, and
platform tipping. These are severe hazards, so safeguards to prevent
them are clearly needed.
    This paragraph does not have a specific corollary in the current
Subpart N, although the Subpart N provisions that require safety
devices implies that they be working properly. Sections 3.2.2(a)(23)
and 1.2.2 of ASME B30.23-2005 are comparable to this requirement.
    Proposed paragraph (d)(6) would prohibit the use of a personnel
platform directly attached to a luffing jib. Thus, only a suspended
type of personnel platform may be used on a luffing jib. The Committee
determined that it would be dangerous to use a boom-attached personnel
platform if attached to a luffing jib and that a complete prohibition
of use of a boom-attached personnel platform to a luffing jib is
appropriate.
Paragraph 1431(e) Personnel Platform Criteria
    This proposed paragraph would establish the minimum criteria for a
personnel platform. The criteria are similar to those currently in 29
CFR part 1926 subpart N's Sec.  1926.550(g)(4)(i) and (ii). However,
Sec.  1926.1431(e)(2) would add the requirement that the connection
system keep the platform within 10 degrees of level and Sec.
1926.1431(e)(10) would add a visibility requirement for the overhead
protective cover to the personnel platform.
    Proposed paragraph (e)(1) would require that both the platform and
its attachment/suspension system be designed by a qualified person who
understands structural design and be designed for the particular
function of personnel hoisting. The purpose of this paragraph is to
clearly stipulate that the platform must be designed for employee
safety. This would address the hazards of structural failure of the
platform, failure of the attachment/suspension system, and preclude the
use of designs that would be inappropriate for hoisting people. This is
similar to the current 29 CFR part 1926 subpart N's Sec.
1926.550(g)(4)(i)(A), which states that either a ``qualified engineer
or a qualified person competent in structural design'' shall design the
platform, but clarifies that even if the platform is designed by a
qualified engineer, that engineer must understand structural design.
See Sec.  1926.1401, Definitions, for the definition of ``qualified
person.''
    Proposed paragraph (e)(2) would require the system used to connect
the personnel platform to the equipment to be within 10 degrees of
level. This would address the hazard of platform tipping by maintaining
the platform close to level. This requirement is not currently in
subpart N.
    Proposed paragraph (e)(3) would require the platform designer to
consider the movement of employees on the platform and design the
suspension system to minimize platform tipping from such movement. The
purpose is to design the platform in such a way as to limit the
likelihood of platform tipping while employees are working from the
platform. This continues the requirement of subpart N's Sec.
1926.550(g)(4)(i)(B).
    Proposed paragraph (e)(4) would require the platform to support its
own weight plus a minimum of five times the maximum intended load
without failure. This limit would provide an adequate margin of safety
for employee protection from structural failure of the platform. The
guardrail system and personal fall arrest system anchorages

would not be subject to this requirement but instead would be subject
to proposed Sec.  1926.1431(e)(6). This continues a requirement in
proposed Sec.  1926.550(g)(4)(i)(C).
    Proposed paragraph (e)(5) would require that welding of any part of
the platform or its component parts be performed by a welder who is
certified and familiar with the weld grades, types and material
specified in the particular platform's design. This requirement is
designed to prevent structural failure of the platform due to improper
welding.
    ``Certified welder'' is defined in Sec.  1926.1401 as ``a welder
that meets the nationally recognized certification requirements that
are applicable to the task being performed.'' The requirement for a
``certified'' welder modifies the current requirement of Subpart N's
Sec.  1926.550(g)(4)(ii)(H), which requires a ``qualified'' welder. It
is similar to section 1.2.1(b)(2) of ASME B30.23-2005 welding standards
for personnel platforms. The Committee believed that because proper
platform welding is so critical to employee safety, it is necessary for
the welding to be done by a certified welder.
    Proposed paragraph (e)(6) would detail the requirements of the
platform for guardrails, fall arrest anchorage points and enclosure of
the platform between the toeboard and mid-rail. Proper guardrails and
fall arrest anchorage points are critical fall protection devices, and
the required platform enclosure is needed to protect employees below
from falling objects.
    Proposed paragraph (e)(6) adds to the current requirements of 29
CFR part 1926 subpart N's Sec.  1926.550(g)(4)(ii)(A) in specifying
that ``points to which personal fall arrest systems are attached must
meet the anchorage requirements in 29 CFR part 1926 subpart M.'' This
is similar to the guardrail and anchorage specifications in sections
1.1.1(b)(2) and (3) of ASME B30.23-2005. This would update the
requirements for the anchorage so that the same degree of protection
currently required under Subpart M would be required under this
standard.
    Proposed paragraph (e)(7) would require the placement of a grab
rail within the entire perimeter of the personnel platform except for
access gates/doors, where a grab rail would be impractical. The grab
rail provides a place for the employee to hold onto while in the
platform instead of using a guardrail as a hand hold. Use of the
guardrail for this purpose exposes the employee's hand to being smashed
by external objects. This would modify the current requirement of
Subpart N's Sec.  1926.550(g)(4)(ii)(B) by clarifying that grab rails
are not required on the access gates/door. It is similar to ASME
B30.23-1.1.1(b)(4)-2005.
    Proposed paragraphs (e)(8)(i) and (ii), Access gates/doors, would
specify that access gates/doors be designed to not swing outward and
must also have a mechanism that will keep the gate/door from being
opened unintentionally. A door that swings outward or opens
unexpectedly puts the employee at risk of fall from the platform. This
modifies the current requirements of Subpart N's Sec.
1926.550(g)(4)(ii)(C) and (D) by requiring that access doors not swing
outward at any time and expands the list of types of gates/doors to
include ``swinging, sliding, folding, or other types.'' Section
1.1.1(b)(8) of ASME B30.23-2005 has similar requirements for access
gates.
    Proposed paragraph (e)(9) would require adequate headroom to allow
employees to stand upright in the personnel platform. This would
provide adequate space for the employee to work from the platform while
keeping his/her entire body within the platform, and would also
contribute to greater stability during platform movement. This
continues the current requirement at Sec.  1925.550(g)(4)(ii)(E).
    Proposed paragraph (e)(10) would require an overhead protective
cover attached to the platform when an employee is exposed to falling
objects. It would mandate that the overhead cover of the platform be of
such material and design to provide visibility for both the operator
and the employees on the platform, while maintaining adequate
protection from falling objects. The reference to a wire mesh with \1/
2\ inch openings is an example of a type of material and design that
could be used for the platform cover. The nature of the worksite
conditions and foreseeable falling objects would determine the type of
material and design to provide the necessary protection for the
platform occupants. Full overhead protection (i.e., no visibility
through the protective cover) would be allowed when conditions are such
that a full protective cover is necessary to protect employees from
falling objects. The visibility requirement is similar to section
1.1.1(b)(11) of ASME B30.23-2005. This proposed paragraph would change
current Sec.  1926.550(g)(4)(ii)(F) by clarifying the type of overhead
protection that is required.
    Proposed paragraph (e)(10) explicitly states that the protection
provided by the cover would be supplemental to the protection provided
by hard hats--the use of hard hats would not obviate the requirement
for the cover. While a hard hat provides some protection to an
employee's head from overhead hazards, it does not protect the rest of
an employee's body from such hazards.
    Proposed paragraph (e)(11) would require that all edges of the
platform be smooth enough to prevent injury. The purpose is to protect
the employee from injuries such as lacerations and puncture wounds. A
similar requirement is found in Subpart N's Sec.
1926.550(g)(4)(ii)(G).
    Proposed paragraph (e)(12) would require conspicuously posting a
plate or other permanent written notice on the personnel platform
listing the weight of the platform itself and the platform's rated load
capacity. The purpose is to make employees aware of the platform's
limits to prevent overloading, which could result in structural failure
of the platform or equipment, and to facilitate compliance with Sec.
1926.1431(f)(1), which prohibits loading the platform in excess of its
rated capacity.
    Proposed paragraph (e)(12) would modify the current requirement of
Subpart N's Sec.  1926.550(g)(4)(ii)(I) by deleting the phrase ``or
maximum intended load.'' That phrase was included in Subpart N because
platforms made on the worksite did not have a manufacturer's rated
capacity. However, under proposed Sec.  1926.1431(e)(1), all personnel
platforms would be required to be designed by a qualified person
familiar with structural design, and such a person will be able to
determine the rated capacity for the platform.
Paragraph 1431(f) Personnel Platform Loading
    Proposed paragraph (f)(1) would prohibit loading the platform in
excess of its rated load capacity. Proposed Sec.  1926.1431(f)(1)
differs from current Sec.  1926.550(g)(4)(ii)(A) by deleting a
provision stating that if a personnel platform does not have a rated
load capacity it shall not be loaded in excess of its maximum intended