(h)(1) in the final rule.
Paragraph (h)(2) Erecting, Climbing, and Dismantling
    Proposed Sec.  1926.1423(g)(2) (redesignated Sec.  1926.1423(h)(2)
in the final rule) specified that, for erecting/dismantling work,
employers must provide, and ensure the use of, fall protection
equipment for employees who are on a walking/working surface with an
unprotected side or edge more than 15 feet above a lower level. (See
the discussion of that provision in 73 FR 59803, Oct. 9, 2008.) OSHA
noted in the proposed rule that C-DAC did not include the exceptions
that were included in proposed Sec.  1926.1423(g)(1) for when the
employee is at or near draw-works (when the equipment is running), in
the cab, or on the deck. The Agency stated that it was unaware of any
reason why those exceptions would not be equally applicable for Sec.
1926.1423(g)(2), and asked for public comment on this issue (see 73 FR
59803, Oct. 9, 2008).
    OSHA received responses from three commenters, all of whom stated
that this exception should be added to the final rule. (ID-0187.1; -
0205.1; -0213.1.) Accordingly, OSHA has included the exception in Sec.
1926.1423(h)(2) of the final rule.
Paragraph (i) [Reserved.]
Paragraph (j) Anchoring to the Load Line
    Paragraph (j) of this section permits an employer, under prescribed
conditions, to anchor a fall arrest system to the hook or other part of
a load line of a crane or derrick. Previously, Sec.  1926.502(d)(23) of
subpart M prohibited personal fall arrest systems to be attached to
``hoists except as specified in other subparts of this part.'' Former
Sec.  1926.550 in subpart N did not contain any provisions specifically
addressing this issue. Therefore, since the hook or other part of a
load line is connected to a hoist in the crane or for the derrick,
attaching a personal fall arrest system in this manner had been
prohibited by subpart M.
    Prior to this rulemaking, OSHA received inquiries asking whether a
crane's hook or load line may be used as an anchorage point for fall
protection. Using a crane for such purpose would be particularly useful
in many situations, especially where establishing a suitable anchor
point would be otherwise very difficult. OSHA asked C-DAC to consider
whether there is any reason to prohibit using a crane or derrick for
such purpose. C-DAC determined that the hook or load line of a crane
could be used safely as an anchor point under the conditions set forth
in paragraph (j).\103\
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    \103\ OSHA modified the language from the proposed rule so that
final paragraph (j) of this section refers to a ``personal fall
arrest system'' rather than a ``fall arrest system.'' This
modification was made for the purpose of clarity to use the terms
defined in Sec.  1926.1401, Definitions, and to maintain consistency
in the construction standards.
---------------------------------------------------------------------------

    Paragraph (j)(1) allows the hook or load line to be used as an
anchorage point when a qualified person has determined that the set-up
and rated capacity of the crane/derrick (including the hook, load line
and rigging) meets or exceeds the requirements in Sec.
1926.502(d)(15). C-DAC concluded that, as long as the crane or derrick
has sufficient capacity to meet those criteria, there is no reason to
prohibit its use for this purpose.
    C-DAC did conclude, however, that the expertise of a qualified
person is required to determine whether specific criteria are met when
anchoring to the hook or load line. The criteria in Sec.
1926.502(d)(15) were developed to ensure that fall protection
anchorages provide adequate employee protection. Anchorages used for
personal fall arrest systems must be capable of supporting at least
5,000 pounds or designed, installed, and used as part of a complete
personal fall arrest system which maintains a safety factor of at least
two. A number of factors related to the crane's capacity in the
particular configuration and set-up involved would need to be
considered, including, in some cases, the angle of the fall arrest
lanyard to the boom if a fall were to occur. In addition, the qualified
person would need to determine whether the set-up is such that it would
not cause an equipment failure, such as a broken cable or chain, for
the load line to serve as an anchorage for a personal fall arrest
system. These determinations necessarily would include consideration of
the characteristics of the particular equipment involved and the
limitations of its operation. OSHA agrees that a qualified person must
determine whether the criteria are met, and has included that
requirement in paragraph (j)(1).
    Paragraph (j)(2) requires that the equipment operator be at the
work site and informed that the equipment is being used to anchor a
personal fall arrest system. This would ensure that the operator is
available to make any necessary adjustments, such as moving the boom or
load lines. Further, in the event of an emergency that results in a
tied-off employee being suspended from the hook or load line, the
operator would be available to bring the worker to the ground safely.
    OSHA received three comments on the provisions relating to
anchoring to the load line, and one member of the public submitted
written testimony on the provisions prior to the hearing on the
proposed rule. Two of the commenters responded positively to the
provisions (ID-0155.1; -0203.1) and one commenter stated the provisions
were a necessary improvement that would allow employers to provide fall
protection in the narrow circumstances where there are no viable
options other than the crane hook (ID-0203.1).
    The third commenter was opposed to the provisions and stated that
anchoring to the load line should be prohibited. (ID-0178.1.) This
commenter stated that cranes are only engineered to lift straight up
and straight down and that retracting a hook at any other angle may jam
or break the cable or chain, which would result in a dropped load. OSHA
concludes paragraph (j) addresses this concern for the reasons
discussed below.
    Written testimony submitted prior to the hearing expressed the
concern that, under Sec.  1926.1417(e), which allows a suspended load
to be left unattended by the equipment operator under certain
conditions, an employee's personal fall arrest system could be anchored
to a load line at the same time a load is unattended. (ID-0333.2.) This
party suggested that the rule make clear that fall protection should
never be anchored to the load line when the load is unattended.
    OSHA disagrees. In fact, the intent of Sec.  1926.1423(j) is to
allow an employee's personal fall arrest system to be anchored to the
load line only when there is no load suspended from the line. This is
implicit in the requirement of paragraph (j)(1) that the qualified
person determine that the set-up and rated capacity (including the
hook, load line, and rigging) meets or exceeds the requirements of
Sec.  1926.502(d)(15). If it

were permissible for there to be a suspended load, the parenthetical
would include the word ``load,'' for the weight of any load would
certainly affect the ability of the hook or load line to serve as a
fall protection anchorage. To make the rule's intent clear, OSHA is
adding paragraph (j)(3), which states that no load may be suspended
from the load line, as an additional condition that must be met when
anchoring a personal fall arrest system to the hook or load line.
Paragraph (k) Training
    In the preamble to the proposed rule, the Agency requested comments
on its proposed training requirements. One commenter pointed out that a
requirement for fall protection training had not been included in the
proposed rule and is needed. (ID-0178.1.) While training is already
required under Sec.  1926.21(b)(2),\104\ OSHA has determined that
including a more specific training requirement regarding fall
protection in subpart CC will highlight the requirement and facilitate
compliance.
---------------------------------------------------------------------------

    \104\ That provision states: ``The employer shall 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.''
---------------------------------------------------------------------------

    Therefore, in the final rule, paragraph (k) has been added to this
section. It requires employers to ensure that each employee who may be
exposed to a fall hazard while on, or hoisted by, equipment covered by
this subpart is trained on the requirements in subpart CC that address
fall protection and the applicable requirements of Sec. Sec.  1926.500
and 1926.502 in subpart M. This provision supplements other applicable
training provisions in Sec.  1926.1430 (see discussion below of Sec.
1926.1430, Training). As noted above, OSHA has made a conforming
amendment to Sec.  1926.500(a)(4) to make clear that the fall
protection training requirements in Sec.  1926.503 of subpart M do not
apply to fall protection systems used to comply with subpart CC. As a
result, the training requirements applicable to Sec.  1926.1423 are
found exclusively in Sec.  1926.1423(k).
General Comment
    OSHA received a comment from a safety association generally
objecting to the adequacy of the fall protection required under this
section. (ID-0178.1.) The commenter stated that OSHA should reference
certain ANSI/ASSE standards addressing fall protection in construction
work, including: ANSI/ASSE A10.32--2004, Fall Protection Systems for
Construction and Demolition Operations; ANSI/ASSE A10.18--2007, Safety
Requirements for Temporary Roof and Floor Holes, Wall Openings,
Stairways, and Other Unprotected Edges; and ANSI/ASSE A10.28--1998 (R
2004), Safety Requirements for Work Platforms Suspended from Cranes or
Derricks. However, the commenter has not pointed to which particular
provisions of these consensus standards it believes are appropriately
included in this rule or that it believes would better effectuate the
purpose of this section than those developed by C-DAC.
    As discussed above, C-DAC determined that fall protection from
cranes and derricks presented unique problems and that this section
should address those problems while only incorporating limited
provisions of OSHA's general fall protection standard in subpart M.
Upon reviewing the record, including the comments submitted by the
commenter and others on the specific provisions contained in the
proposal, OSHA continues to conclude this approach is appropriate.
Absent additional information as to why OSHA should adopt or reference
provisions in the standard the commenter has cited, OSHA is unable to
assess whether any such provisions would better address fall protection
issues than the provisions of this final rule.
Section 1926.1424 Work Area Control
    Section 1926.1424(a) addresses the hazard of employees being
struck, pinched or crushed within the swing radius of the equipment's
rotating superstructure. Paragraph (a)(1) states that the precautions
in paragraph (a)(2) must be taken when there are accessible areas in
which the equipment's rotating superstructure (whether permanently or
temporarily mounted) poses a reasonably foreseeable risk of either: (i)
striking and injuring an employee; or (ii) pinching/crushing an
employee against another part of the equipment or another object.
Paragraph (a)(1) is adopted as proposed.
    Included in Sec.  1926.1401, Definitions of this rule is the
definition for ``upperworks'', which C-DAC identified as a synonym for
the term ``superstructure'', used in the regulatory text of paragraph
(a)(1) of this section, as well as the term ``upperstructure''.
    However, two commenters noted that the proposed definition for
``upperworks'' did not take into consideration the fact that many
rough-terrain cranes have the engine mounted in the carrier, or lower
carriage of the crane, instead of the superstructure. (ID-0292.1; -
0131.1.) In response, OSHA modified the definition of ``upperworks'' to
acknowledge that the presence of an engine is not always a defining
characteristic of that portion of the crane.
    Under paragraph (a)(2), the employer is required to institute two
measures to prevent employees from entering these hazard areas.
Specifically, under paragraph (a)(2)(i), the employer must train
employees assigned to work on or near the equipment in how to recognize
these areas.
    Paragraph (a)(2)(ii) requires the employer to erect and maintain
control lines, warning lines, railings, or similar barriers to mark the
boundaries of the hazard areas, but contains an exception when such a
precaution is infeasible. If it is neither feasible to erect such
barriers on the ground nor on the equipment, the employer is required
to mark the danger zone with a combination of warning signs and high
visibility markings on the equipment that identify the hazard areas. In
addition, the employer must train employees to understand what those
markings signify.
    OSHA received comments advocating an exemption for cranes used in
the railroad industry, especially cranes moving along a track. (ID-
0170.1; -0176.1; -0342.) One commenter suggested that the requirement
for barriers was impractical for cranes moving along a track, as the
barriers would have to be continually reset.
    These objections to the requirement for barriers are not
persuasive. First, the requirement for barriers is not a new
requirement. Former Sec.  1926.550(a)(9) required barricades to prevent
employees from being struck or crushed by the crane, including the
swing radius of the rear of the rotating superstructure. The railroad
employers did not provide any evidence that they were unable to comply
with the previous requirement.
    Second, the rule already anticipates that for certain equipment a
traditional type of barrier might not be practical and instead permits
the use of a barrier that attaches directly to, and will move with, the
equipment.
    Finally, paragraph (a)(2)(ii) of this section permits the employer
to identify these hazard areas with warning signs and high visibility
markings on the equipment when it is not feasible to erect a barrier on
the ground or the equipment.
    Therefore, paragraph (a)(2) is being promulgated as proposed.
    To prevent struck-by and crushed-by injuries and fatalities,
paragraph (a)(3) is designed to help protect employees who must
sometimes enter the hazard area to

perform work, by ensuring that there is adequate communication and
coordination between the operator and the employee in the danger area.
    Under paragraph (a)(3)(i), before an employee goes in that area the
employee (or someone instructed by the employee) has to ensure that the
operator is informed that the employee is going to that location. This
is an essential first step in preventing the operator from moving the
superstructure and causing injury to that employee. This provision is
adopted without change from the proposal.
    Paragraph (a)(3)(ii)(A) of this section of the proposed rule stated
that the operator was prohibited from rotating the superstructure
unless and until he/she gave a warning that the employee in the hazard
area understood as a signal that the superstructure was about to be
rotated. This was intended to give the employee time to get to a safe
area. Alternatively, under proposed paragraph (a)(3)(ii)(B), the
operator could rotate the superstructure if he/she was informed, in
accordance with a prearranged system of communication, that the
employee who was in the hazard area had moved to a safe position.
    Several commenters suggested that the compliance option in proposed
paragraph (a)(3)(ii)(A) was insufficient to guarantee the safety of the
employee in the hazard area. (See, e.g., ID-0122.0.) A similar issue
was discussed in connection with Sec.  1926.1404(e) of the final rule.
Section 1926.1404(e) addresses employees in the swing radius area or
crush/caught-in-between zone during the assembly/disassembly process.
(See discussion of Sec.  1926.1404(e) for additional information.)
    For the reasons discussed with regard to the issue raised under
Sec.  1926.1404(e), OSHA has removed proposed paragraph (a)(3)(ii)(A)
from this section, revised proposed paragraph (a)(3)(ii)(B), and
renumbered it paragraph (a)(3)(ii).
    Paragraph (a)(3)(ii) requires the operator to get information that
the employee has cleared the hazard area before rotating the
superstructure. The method of communication must be one that is pre-
arranged. Examples of such a system are provided in the discussion of
Sec.  1926.1404(e) above.
    For a full discussion of C-DAC's rationale for the provisions in
paragraph (a), see the preamble to the proposed rule (73 FR 59803-
59804, Oct. 9, 2008).
    Proposed paragraph (b) of this section addressed situations where
multiple pieces of equipment are located in such proximity that their
working radii overlap. Such situations pose the danger of employees
being pinched/crushed between the equipment and being injured as a
result of unintended movement or collapse when pieces of equipment
collide. To prevent such accidents, the proposal required the
controlling entity to coordinate the operations of these pieces of
equipment. In the event that there was no controlling entity, the
proposal required the employers operating the equipment to institute a
coordination system.
    A commenter asked that Sec.  1926.1424(b) be deleted, or
alternatively, that an exemption be created for employers in the home
building industry. (ID-0232.1.) However, this commenter did not provide
evidence that equipment coordination is any less necessary on a
residential job site than it is on other construction job sites.
Another representative of the building industry also objected to
imposing obligations on a ``controlling entity,'' but did not dispute
the necessity of equipment coordination on construction job sites. (ID-
0214.1.) C-DAC concluded that the controlling entity, to the extent
there is one, is in the best position to take responsibility for the
coordination required by paragraph (b). OSHA has not been persuaded
otherwise.
    Both commenters nominated members which served on the negotiated
rulemaking committee. Neither of their respective nominees dissented on
these provisions during the negotiated rulemaking meetings and neither
organization has explained why its position is different from that of
its nominated member. In light of this inconsistency, OSHA has given
diminished weight to these comments.
    The C-DAC language for proposed paragraph (b) did not address a
situation in which only one employer is responsible for the operation
of multiple pieces of equipment. OSHA requested comment about revising
the C-DAC language to make clear that such an employer would be
required to institute a coordination system. No comments were received
on this issue. OSHA has therefore revised paragraph (b) to address
situations where one employer is operating multiple pieces of
equipment, without a controlling entity at the jobsite.
Section 1926.1425 Keeping Clear of the Load
    This section addresses the hazards posed to employees from being
struck or crushed by the load. (See the preamble to the proposed rule
for a full discussion of C-DAC's rationale for the provisions in this
section (73 FR at 59805-59806, Oct. 9, 2008).)
Paragraph (a)
    Paragraph (a) of this section requires the employer to use
available hoisting routes that minimize employee exposure to hoisted
loads to the extent consistent with public safety. No comments were
received on this provision; it is promulgated as proposed.
Paragraph (b)
    Paragraph (b) of this section specifies that employees cannot be in
the fall zone when the equipment operator is not moving a suspended
load, with limited exceptions as described in paragraphs (b)(1)-(3).
    Fall zone is defined in Sec.  1926.1401 as ``the area (including
but not limited to the area directly beneath the load) in which it is
reasonably foreseeable that partially or completely suspended materials
could fall in the event of an accident.'' The fall zone thus includes
both the area directly under the load as well as other areas into which
it is reasonably foreseeable that suspended materials could fall. For
example, if wind is causing the load to swing, the employer would need
to consider the extent to which the load is swinging or may swing in
determining the extent of the fall zone. Another example is where a
bundle of materials is suspended, and some loose materials at the top
of the bundle may slide off sideways. In such a case those materials
would foreseeably fall outside the area directly beneath the load.
    Paragraph (b)(1) permits employees engaged in hooking, unhooking or
guiding a load to be within the fall zone while engaged in these
activities. No comments were received on this paragraph; it is
promulgated as proposed.
    Paragraph (b)(2) permits employees engaged in the initial
attachment of the load to a component or structure to be within the
fall zone. One example of this activity is: A subassembly of steel
members is hoisted for attachment to a structure. When initially
attaching the lower portion of that subassembly, an employee is within
the fall zone of the load. In this example, the employee engaged in the
initial attachment of the subassembly to the structure would be
permitted to be within the fall zone; that work cannot be done
otherwise. No comments were received on this paragraph; it is
promulgated as proposed.
    Paragraph (b)(3) allows workers to be present in the fall zone when
operating a concrete hopper or concrete bucket. The employee operating
the hopper or bucket is necessarily in the fall zone

since the hopper or bucket is suspended while the employee operates the
releasing mechanism.
    One commenter suggested adding a requirement that there be a
competent supervisor for these operations and a requirement for
employee training for activities covered by paragraph (b)(3). (ID-
0120.1.) However, that commenter did not provide an explanation of how
this would increase safety for the employee or any support for such
additional requirements. Nor did the commenter identify any reason why
the activities covered by paragraph (b)(3) would require different or
additional supervision or training requirements than the activities
covered by paragraphs (b)(1) or (b)(2). C-DAC did not recommend any
additional supervision or training requirements for paragraph (b)(3),
and OSHA is not persuaded that there is a safety justification for
deviating from C-DAC's determination. Therefore, this paragraph is
promulgated as proposed.
    A representative of the building industry suggested in its comment
that an exception should be added for dedicated spotters and fall
monitors. (ID-0232.1.) This marks a change from the position of that
organization's nominated representative during the negotiated
rulemaking. (See discussion of this organization's comments under
paragraph (c) of this section.) C-DAC did not conclude that an
exception for spotters and fall monitors was warranted, and the NAHB
did not present evidence to persuade OSHA otherwise. OSHA defers to the
expertise of the Committee and this paragraph is promulgated as
proposed.
Paragraph (c)
    Paragraph (c) of this section deals with the work activities
addressed in Sec. Sec.  1926.1425(b)(1) and (b)(2). These requirements
were necessary to ensure employee safety, given the additional risks
posed while employees are performing those tasks in the fall zone.
    Paragraph (c)(1) requires that the load be rigged to prevent
unintentional displacement, so that workers in the fall zone are less
likely to be struck by shifting materials. No comments were received on
this paragraph; it is promulgated as proposed.
    Paragraph (c)(2) requires the use of hooks with self-closing
latches or their equivalent, to prevent accidental failure of the
hooks. However, the use of ``J'' type hooks is permitted for setting
wooden trusses. This exception is designed to enable the truss to be
unhooked without the need for an employee to go out on the truss. This
avoids the additional exposure to fall hazards that would otherwise
occur from going out on the truss to release a latched hook.
    OSHA received a comment from the building industry requesting that
the exception permitting the use of J-hooks when lifting trusses be
extended to lifting wall panels as well; it asserts that the same
additional exposure to fall hazards would be present. (ID-0232.1.)
    This commenter nominated a member who served on the negotiated
rulemaking committee. The member did not dissent during the negotiated
rulemaking to this provision. The commenter has not explained why it
has changed its position on this issue or why its current position
differs from that of its nominated member. In light of this
inconsistency, OSHA has given diminished weight to its comment.\105\
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    \105\ A further basis for according diminished weight to this
comment is that this commenter had a direct channel for presenting
its interests to the committee--its nominee member--and a
presumptive ability to direct its member's negotiating position.
When such an organization submits negative comments to the proposed
rule opposing both its own member's negotiating position and the
committee's consensus, it undermines the negotiating process in a
similar manner as when a member contravenes the ground rules. The
integrity of the negotiating process is central to effectuating the
purpose of the Negotiated Rulemaking Act of 1990.
    The Agency also notes that, in future negotiated rulemakings,
one of the factors that it plans to consider in assessing
nominations submitted by organizations is whether the nominee can
demonstrate that he/she has documented authority to bind the
organization to agreements and the position the nominee takes in
such negotiated rulemaking.
---------------------------------------------------------------------------

    In addition, OSHA notes that there are two important distinctions
between setting roof trusses and setting wall panels. First, there is
no need for a worker to be exposed to a fall hazard to detach a hook
with a self-closing latch from a wall panel. Once the wall panel has
been set, a worker can readily reach the hook from a ladder on the
interior side of the panel. Second, wall panels typically often weigh
more than wooden roof trusses; they pose both struck-by and crushed-by
risks to workers if the hook becomes prematurely detached from the
load. Such unintended detachment is more likely to occur with a J-hook
because it lacks a hook gate.
    One commenter suggested that the exception for J-hooks should
include requirements for training and rigging. (ID-0218.1.) This
commenter acknowledged that the use of J-hooks is prevalent in the
industry, and indicated that the specialized training and rigging
requirements it was proposing were intended to protect the component
being lifted. The commenter did not suggest that its proposed
requirements would enhance employee safety. Therefore, this paragraph
is promulgated as proposed.
    Paragraph (c)(3) requires the use of a qualified rigger \106\ in
the rigging of materials in the situations addressed by paragraph (c).
Proper rigging reduces the risk for workers who must perform work in
the fall zone. No comments were received on this provision; it is
promulgated as proposed.
---------------------------------------------------------------------------

    \106\ Section 1926.1401 defines a ``qualified rigger'' as a
rigger who meets the criteria for a qualified person.
---------------------------------------------------------------------------

Paragraph (d) Receiving a Load
    Paragraph (d) prohibits all employees except those needed to
receive a load from being in the fall zone when it is being landed. No
comments were received on this provision; it is promulgated as
proposed.
Paragraph (e)
    Paragraph (e) concerns tilt-up and tilt-down operations. In these
operations, one end of a component, such as a precast panel, is either
raised, tilting the component up, usually from a horizontal position
(often on the ground) to a vertical position; or lowered, tilting the
component down, usually from a vertical position to a horizontal
position on the ground or other surface. Note that the requirements in
this paragraph do not apply when receiving a load.
    As with any other suspended load, it is dangerous to be directly
beneath the load because of the possibility of a failure or error that
would cause the load to fall or be accidentally lowered onto an
employee. To minimize the risk of such accidents, paragraph (e)(1) of
this section provides that no employee must be directly under the load
during a tilt-up or tilt-down operation. Section 1926.1401 defines
``directly under the load'' to mean ``a part or all of an employee is
directly beneath the load.'' No comments concerning this provision were
received; therefore, it is promulgated as proposed.
    While paragraph (e)(1) prohibits employees directly under the load,
paragraph (e)(2) of this section provides an allowance for employees to
be in the fall zone (but not directly under the load), when those
employees are ``essential to the operation'' during a tilt up or tilt
down operation.
    In the preamble to the proposed rule, the Agency provided a list of
activities it determined to typically be infeasible to do outside the
fall zone and therefore an employee would be in the fall zone for these
activities. The Agency requested public comment on whether there were
additional activities that

would be infeasible to do from outside the fall zone, and whether it
would be appropriate to add a definition of ``essential to the
operation'' to the standard.
    One commenter responded, asserting that the phrase ``essential to
the operation'' does not need to be defined. (ID-0205.1.)
    No commenters disagreed with the three scenarios listed in the
preamble to the proposed rule describing instances where an employee is
``essential to the operation'' and must be within the fall zone.
However, one commenter suggested adding to the list the activities of
making initial connections and securing bracing. (ID-0205.1.)
    OSHA believes that those two additional tasks--making initial
connections and securing bracing--fall within part of the third
scenario listed in the proposed rule preamble (i.e., to ``* * *
initially attach [the load] to another component or structure'').
    For clarity, OSHA has decided to modify paragraph (e)(2) by adding
the operations listed in the proposed rule and including the
recommendation of the commenter.
    One comment suggested that there might be some conflict between the
NOTE in this section, Sec.  1926.1426, and Sec.  1926.1433(b)(4). The
discussion of that comment may be found in the portion of the preamble
addressing Sec.  1926.1426 of the final rule.
Section 1926.1426 Free Fall and Controlled Load Lowering
    This section addresses the hazards that can arise from free fall of
the boom (live boom) during lifts. Live booms are those in which the
rate of lowering can be controlled only by a brake; a failure of the
brake will result in a free fall (i.e., unrestricted lowering) of the
boom. In contrast, for equipment that has a boom that is not ``live,''
there is a mechanism or device other than the brake which slows the
boom's lowering speed.
    The uncontrolled lowering of a boom could result in an accident
which could injure or kill workers in proximity to the load or hoisting
equipment. This section prohibits use of live booms in most
circumstances. An exception is provided in limited conditions that do
not pose hazards for employees with respect to the use of older
equipment manufactured before October 31, 1984. See discussion in Sec.
1926.1426(a)(2)(i) below.
    Additionally, this section specifies the circumstances under which
free fall of the load line is prohibited at Sec.  1926.1426(d).
Paragraph (a) Boom Free Fall Prohibitions
    Under paragraph (a)(1) of this section, the use of equipment in
which the boom is designed to free fall is prohibited under six
specified conditions.
    Paragraph (a)(1)(i) prohibits the use of a live boom when an
employee is in the fall zone of the boom or load (see the explanation
of ``fall zone'' in the discussion above of Sec.  1926.1425(b)).
Section 1926.1425, Keeping clear of the load, of this standard
recognizes that there are some situations in which certain employees
need to be positioned in the fall zone to perform their assigned
duties. However, when equipment with a live boom is in use, the
likelihood that an employee would sustain a serious injury or be killed
by a free fall is very high when an employee is in the fall zone of the
boom or load.
    Paragraph (a)(1)(ii) prohibits use of a live boom when an employee
is being hoisted by equipment. If a hoisted employee was dropped in an
uncontrolled fall, the likelihood of a serious injury would be high.
    No comments were received for paragraphs (a)(1)(i) or (ii); they
are promulgated as proposed.
    Paragraph (a)(1)(iii) as set forth in the proposed rule, would have
prohibited the use of a live boom where the load or boom is directly
over a power line, or over any part of the area extending the Table A
of proposed Sec.  1926.1408 clearance distance to each side of the
power line. The diagram below illustrates a situation in which a load
on a live boom is over the area extending the Table A clearance
distance to each side of the power line:
[GRAPHIC] [TIFF OMITTED] TR09AU10.000

    As discussed above in relation to Sec. Sec.  1926.1407 through
1926.1411, equipment making electrical contact with power lines is one
of the primary causes of equipment-related deaths on construction sites
and, to prevent such contact, those sections would require equipment to
maintain minimum distances from power lines.
    In the proposed rule, OSHA determines that there are circumstances
where neither the boom nor the load are directly over the power line or
Table A clearance distance, but where the power line or the Table A
clearance distance is within the fall path of the boom or load. This
circumstance is depicted in the following illustrations:

[GRAPHIC] [TIFF OMITTED] TR09AU10.001

[GRAPHIC] [TIFF OMITTED] TR09AU10.002

    In Illustration A, neither the boom nor the load is above the power
line or any part of the Table A zone. However, if the boom were to
fall, the boom would cross into the Table A zone. In Illustration B,
neither the boom nor load is above the power line or any part of the
Table A zone. However, if the boom were to fall, the load would cross
into the Table A zone.
    OSHA requested comment in the proposed rule as to whether Sec.
1926.1426(a)(1)(iii) should be modified to also prohibit the equipment
from being positioned such that the fall path of the boom or load would
breach the Table A of Sec.  1926.1408 clearance distance. This
requirement was proposed to prevent the boom, hoist line, or load from
contacting an energized power line and carrying the electric current
back through the equipment. One commenter, in two comments, agreed with
the proposed change. (ID-0052.0; -0092.1.) No commenters disagreed.
    Therefore, OSHA has modified Sec.  1926.1426(a)(1)(iii) to prohibit
free fall (live boom) where the power line or the Table A clearance
distance is within the fall path of the boom or the load.
    Paragraph (a)(1)(iv) prohibits use of a live boom where the load is
over a shaft. Employees in a shaft receiving a load are at high risk of
death or injury from a free falling boom as the shaft severely limits
the ability to avoid the falling boom. Because this hazard only exists
when there is an employee in the shaft, OSHA has specified in Sec.
1926.1426(a)(1)(iv) of the final rule that the live boom prohibition
only applies when at least one employee is in the shaft. This language
is different from the language of Sec.  1926.1426(a)(1)(v), regarding
cofferdams, because a shaft is typically a smaller work space than a
cofferdam, thus, a shaft under a load is necessarily in the fall zone
of the boom or the load.
    Paragraph (a)(1)(v) prohibits free fall of a boom when the load is
over a cofferdam, except where there are no employees in the fall zone
of the boom or load. Much like employees who must receive a suspended
load in a shaft, employees have limited ability to escape a free
falling boom or load in a cofferdam. However, cofferdams are typically
much larger work spaces than shafts, the fall zone of a falling boom or
load may only affect one part of the cofferdam. Therefore, this
provision only applies when employees are in the fall zone of the boom
or load.
    OSHA noted an ambiguity in proposed Sec.  1926.1426(a)(1)(v). The
exception referred only to ``the fall zone''; OSHA determines that--to
make this provision consistent with Sec.  1926.1426(a)(1)(i)
(prohibiting the use of live booms when an employee is in the fall zone
of the boom or the load)--the words ``of the boom or load'' should be
added to the language proposed for Sec.  1926.1426(a)(1)(v).
    Paragraph (a)(1)(vi) prohibits use of a live boom for lifting
operations in a refinery or tank farm. A free falling boom could strike
pipes or a tank in a refinery or tank farm. Such accidental impact
could cause a release of toxic materials or conflagration. No comments

were received for this provision; it is promulgated as proposed.
    Paragraph (a)(2) of this section is the exclusive list of
conditions under which the use of cranes with live booms is permitted.
C-DAC found that cranes with live booms can be used safely under some
circumstances and did not determine that the cost of replacing or
retrofitting all such equipment is justified as long as the use of live
boom equipment is limited to these conditions. However, none of the
conditions outlined in Sec.  1926.1426(a)(1) may be present.
    Paragraph (a)(2)(i) allows the use of equipment with a live boom if
that equipment was manufactured prior to October 31, 1984, and none of
the circumstances listed in Sec.  1926.1426(a)(1) are present. ANSI
B30.5 first prohibited live booms in the 1972 version and reiterated
the prohibition in the 1982 edition, which was published on October 31,
1983, and became effective on October 31, 1984.
    OSHA concludes that manufacturers would have begun to phase out
live-boom equipment when ANSI first prohibited its use in 1972 and that
few, if any, live boom equipment would have been manufactured after
October 31, 1984. Moreover, during this period, hydraulic hoisting
equipment, the design of which typically precluded boom free fall even
in its early designs, became more prevalent.
    In light of these factors, the Agency concludes that most equipment
manufactured after October 31, 1984, would not have live booms. Section
1926.1426(a)(2) thus allows the older live boom equipment to be phased
out safely by restricting its use to situations in which none of the
circumstances listed in Sec.  1926.1426(a)(1) are present. However,
OSHA added a new provision to this paragraph that considers live-boom
equipment manufactured on or after October 31, 1984, and meeting the
requirements of paragraph (b) of this section, not to be subject to the
limitations of paragraph (a) of this section. OSHA considers such
equipment, when so modified, to be as safe as any equipment modified
under the requirements of paragraph (b).
    Paragraph (a)(2)(ii) allows use of a live boom if the equipment is
a floating crane/derrick or is a land crane/derrick on a vessel/
flotation device and none of the circumstances listed in Sec.
1926.1426(a)(1) are present. The Committee found, and OSHA agrees, that
equipment used on the water commonly has a live boom because the
dynamics of load transfer while on water (from side to side), as well
as unexpected wave action can cause rapid changes in list and trim,
which sometimes necessitates that the operator have a free fall boom
system to compensate for these effects. Non-live systems are not fast
enough for this purpose. At the public hearing, a witness from the
maritime industry said that the ``unique tasks [associated with
operating cranes on the water] have often required and will continue to
require a modification of existing cranes and derricks so that they can
safely accomplish these specialized applications.'' (ID-0345.41.)
    As a result, the Agency concludes that there is no need to modify
this provision; it is promulgated as proposed.
    One commenter suggested there is a conflict between the Sec.
1926.1426(a) allowance for the limited use of free falling booms and
Sec.  1926.1433(b)(4) incorporation of the ASME standard prohibition on
the use of free falling booms. (ID-0053.1.)
    Section 5-1.3.1 of ASME B30.5-2004 has a paragraph (b), which
contains its own text, as well as two subsidiary paragraphs, enumerated
(1) and (2), each of which also contains text. The ASME prohibition
against live booms is in the text of paragraph (b) of ASME B30.5-2004
sec. 5-1.3.1. Free fall is not mentioned in subsidiary paragraphs
(b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1.
    Section 1926.1433 incorporates the concepts in only subsidiary
paragraphs (b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1; it does
not incorporate the portions of paragraph (b) of ASME B30.5-2004 sec.
5-1.3.1 that would conflict with Sec.  1926.1433. There is, therefore,
no conflict between Sec. Sec.  1926.1426(a) and 1926.1433(b)(4).
    Paragraph Sec.  1926.1426(a)(2) is promulgated as proposed.
Paragraph (b) Preventing Boom Free Fall
    Paragraph (b) of this section establishes criteria for the boom
hoist on equipment with a boom designed to free fall. Paragraphs (b)(1)
through (b)(4) specify the mechanisms or devices that a boom hoist can
utilize as a secondary means to prevent boom free fall when the primary
system fails. C-DAC determined that each of these were effective means
of preventing boom free fall, and OSHA agrees. The addition of a listed
secondary mechanism or device to prevent the fall of the boom changes
the characteristics of equipment designed with a live boom, decreasing
the risk of injury to employees. Therefore, if equipment has a boom
hoist with a secondary mechanism or device listed in paragraphs (b)(1)
through (4), it is not considered a live boom for purposes of the
limitations of (a) of this section. No comments were received on these
provisions; they are promulgated as proposed.
Paragraph (c) Preventing Uncontrolled Retraction
    Paragraph (c) of this section requires hydraulic telescoping booms
(which are also referred to as hydraulic extensible booms) to have an
integrally mounted holding device to prevent the boom from retracting
in the event of hydraulic failure.
    The C-DAC draft of this provision stated that the purpose of this
device was ``to prevent boom movement in the event of hydraulic
failure.'' OSHA determines that this language was unintentionally broad
in that it refers to any ``boom movement.'' In the proposed rule, OSHA
modified the language to state that the purpose of the integrally
mounted holding device is ``to prevent the boom from retracting'' in
the event of hydraulic failure and requested public comment on this
change.
    Two commenters agreed with the modification and no commenters
disagreed. (ID-0205.1; -0213.1.) The text of Sec.  1926.1426(c) is
therefore promulgated as proposed.
Paragraph (d) Load Line Free Fall
    Paragraph (d) of this section lists the circumstances under which
free fall of the load line hoist is prohibited, and controlled load
lowering must be used. ``Free fall (of the load line)'' is defined in
Sec.  1926.1401 to mean ``where only the brake is used to regulate the
descent of the load line (the drive mechanism is not used to drive the
load down faster or retard its lowering).'' ``Free fall'' is contrasted
with ``controlled load lowering,'' which Sec.  1926.1401 defines as
``lowering a load by means of a mechanical hoist drum device that
allows a hoisted load to be lowered with maximum control using the gear
train or hydraulic components of the hoist mechanism. Controlled load
lowering requires the use of the hoist drive motor, rather than the
load hoist brake, to lower the load.''
    As with free fall of the boom, free fall of the load line hoist
presents a struck-by hazard to employees. One difference is that free
fall of the load line endangers a smaller area than boom free fall.
When a boom free falls, its tip (and any attached load) moves both
downward and outward. Because the load will be moving in at least two
directions simultaneously, the area that will be affected by the fall
is larger than the affected area from a load line free fall.

    In contrast, if a load line free falls, the load will tend to fall
in a relatively straight path downward (as long as the boom is not
being moved and the load is not significantly affected by winds). Thus
the area affected will typically be smaller. As a result the
prohibitions for load line free fall are less than those affiliated
with boom free fall. No comments were received on paragraphs (d)(1) or
(d)(2); they are promulgated as proposed.
    Proposed paragraph (d)(3) stated that the use of load line hoist
free fall is prohibited when the load is directly over a power line, or
over any part of the area extending the Table A clearance distance to
each side of the power line. OSHA requested comment on whether proposed
Sec.  1926.1426(d)(3) should be modified to also prohibit the equipment
from being positioned where the fall path of the load would breach the
Table A clearance distance. One commenter, in two comments agreed with
the change and no commenters disagreed. (ID-0052.0; -0092.1.)
    Since this modification is consistent with the purpose of the
provision, OSHA has included this revised language in the final rule;
Sec.  1926.1426(d)(3) to prohibit load line free fall where the power
line or the Table A clearance distance is within the fall path of the
load.
    Proposed paragraph (d)(4) stated that load line free fall is
prohibited when the load is over a shaft or cofferdam. OSHA noted that,
unlike the prohibition against live booms in Sec.  1926.1426(a)(1)(v),
proposed paragraph (d)(4) contained no exception regarding cofferdams
in which there are no employees in the fall zone. OSHA requested
comment on whether proposed Sec.  1926.1426(d)(4) should include the
same exception included in Sec.  1926.1426(a)(1)(v). Two commenters
agreed with the modification and no commenters disagreed. (ID-0205; -
0213.) Because the fall zone of a free falling load line is typically a
smaller area than the fall zone of a free falling boom, the Agency is
unaware of any reason to include the exception in Sec.
1926.1426(a)(1)(v) for live booms but omit it for load free fall.
Therefore, in the final rule, OSHA has modified the language in
proposed Sec.  1926.1426(d) by separately addressing shafts and
cofferdams, and adding an exception for the latter.
Section 1926.1427 Operator Qualification and Certification Introduction
    Section 1926.1427 addresses the safety problems that result if
equipment operators lack the knowledge and skills necessary to perform
their duties safely. In C-DAC's collective experience, operator error
plays a role in a significant percentage of fatal and other serious
crane accidents because operators are not familiar with the precautions
needed to protect against hazards such as power line contact, crane
overloading and collapse, and loss of control of the load. C-DAC
concluded that a verified testing process is essential for ensuring
that crane operators have the requisite knowledge and skills and that
requiring crane operators to successfully complete such a process would
be an effective and efficient way to reduce crane-related accidents.
    In the proposed rule, OSHA noted that C-DAC's finding in this
regard was supported by a study conducted over a 34-year period (1969-
2002) by the Construction Safety Association of Ontario that showed a
substantial decrease in crane and rigging fatalities in Ontario
beginning in 1979, when mandatory training and certification
requirements for Ontario crane operators went into effect. (ID-0009.)
In the ten-year period from 1969 through 1978, before Ontario's
requirements went into effect, 85 Ontario construction workers suffered
crane and rigging fatalities, amounting to 8.5 per year, or 19.8% of
all construction fatalities in Ontario. In the 24-year period from 1979
through 2002, there were 51 crane and rigging fatalities, or slightly
more than two per year. For this period, crane and rigging fatalities
equaled 9.6% of all Ontario construction fatalities. In the 12-year
period from 1991 through 2002, the total number of crane and rigging
fatalities was 9, or fewer than one per year. During this period, crane
and rigging fatalities amounted to 4.1% of total construction
fatalities. This study supports C-DAC's conclusion that third-party
certification is an effective means of promoting safe crane
operations.\107\
---------------------------------------------------------------------------

    \107\ The Ontario system requires prospective or current crane
operators (referred to in Ontario as ``hoisting engineers'') to
either successfully complete an apprenticeship program or
demonstrate sufficient previous experience before seeking
certification as a hoisting engineer. The apprenticeship program
includes in-school training in a number of topics determined by the
Ministry of Education, a practical examination administered at
Ministry-designated sites, and a written examination administered by
the Ministry. Upon passing this examination and proving completion
of the requisite work hours, an apprentice receives a certificate of
qualification as one of three types of hoisting engineer from the
Ministry. (ID-0010.)
    Hoisting engineers already qualified elsewhere must also obtain
a certification from the Ministry to operate cranes in the province.
These candidates must sit for the written examination and complete
the practical skills assessment required for qualification of
apprentices, but may demonstrate sufficient previous experience
instead of completing the number of work/training hours required by
the apprenticeship program, to receive a certificate of
qualification from the Ministry in one of the three hoisting
engineer categories. (ID-0011.)
---------------------------------------------------------------------------

    The rulemaking record contains additional support for C-DAC's
conclusion. A study of crane accidents in California both before and
after that State adopted a mandatory certification requirement shows a
significant drop in crane-related fatalities and injuries after the
certification requirement went into effect on May 31, 2005. (ID-
0205.1.) For the three years prior to that date, California experienced
ten fatal accidents, while in the next three years, only two fatal
accidents occurred. The number of injury cases declined from 30 to 13
over the same two periods. The California data supports that from
Ontario and demonstrates that significant safety benefits can be
expected from a requirement for third-party certification.
    The rulemaking record also contains substantial evidence regarding
the need for continued application of State and local laws. As several
commenters explained, State and local licensing requirements are backed
by the police power of that government. For example, New York law
states that the operation of a crane without a valid license in New
York City is a misdemeanor punishable by fines and imprisonment. (NYC
Administrative Code Sec. Sec.  28-405.1; 28-203.1.) Moreover, states
have the power to revoke previously issued licenses under appropriate
circumstances. (ID-0171.1.) In contrast, OSHA's enforcement of
certification or other qualification requirements would be limited in
most cases to a citation to an employer. Based on the record as a
whole, the Agency concludes that cooperative Federal-State enforcement
will increase the effectiveness of the new standard. See also
discussion of federalism in section V.D of this preamble.
    The certification requirements in the final rule are therefore
designed to work in conjunction with State and local laws, and to
afford employers several options for ensuring operator abilities in
areas where there are no State or local operator licensing
requirements. For operation of equipment within jurisdictions where a
State or locality licenses crane operators, and the government entity's
licensing program meets certain criteria, OSHA is requiring operators
(with the exception of operators that are employees of and operating
equipment for the U.S. military) to be licensed by that government
entity. For operation in other areas, employers will have three

options for certification or qualification of their operators. Each of
these options will be explained and discussed in detail below. They
are:
    1. Be certified by passing an examination administered by an
accredited testing organization.
    2. Be qualified through the employer's in-house, but independently
audited, testing program.
    3. Be qualified by the United States military.
    While OSHA is requiring compliance with State and local licensing
laws immediately upon the effective date of this standard in
recognition of the existing force and effect of those laws, OSHA is not
requiring certification or qualification under the three options listed
above until four years from the effective date of this standard.
Moreover, there are limited exceptions to all of the licensing and
certification requirements, as specified in Sec.  1926.1427(a). Even
after the four-year phase-in period of the general certification
requirements, OSHA will continue to allow non-certified operators to
operate the equipment as operators-in-training in accordance with Sec.
1926.1427(f), discussed below.
    Of the three options available in the absence of State or local
licensing laws, Option (3) of this section is available only to the
United States military for qualification of its employees. Further, as
discussed below, a number of commenters stated that Option (2) of this
section was not viable for many employers. However, Option (1) of this
section is available to all employers and will be the one that is most
widely used. Therefore, most of the public comments and evidence
presented at the hearing addressed Option (1).
    At the hearing, a witness for an accredited testing organization
testified that the certification process embodied in Option (1)
originated in the 1990s when private industry groups began an effort to
improve crane safety. The witness explained that the industry
representatives involved with the organization are drawn from such
groups as contractors, crane rental firms, labor unions, owners, steel
erectors, manufacturers, construction firms, training consultants, and
insurance companies. (ID-0343.) The witness also explained that exam
management committees meet throughout the year to ensure the continuing
fairness and integrity of the testing process. Finally, the witness
explained that certification promotes safety by ensuring that the
training an individual has received has succeeded in giving that
individual the knowledge and skills to operate a crane safely. (ID-
0343.)
    Many commenters and witnesses at the public hearing expressed
support for the proposed rule's approach of requiring third party
verification of an operator's qualifications and for the range of
options presented. A national safety organization expressed support for
the provision to ensure qualification and certification of operators.
(ID-0178.1.) A trade association stated that third party oversight was
critical to create an effective and legitimate testing process and to
ensure that the training portion did not have undue influence on the
testing process. (ID-0205.1.)
    Similarly, another commenter supported the proposed Q/C
requirements, emphasizing the importance of independent certification
of an operator's skill and knowledge by an accredited nationally
recognized third-party entity or organization. (ID-0169.1.) Similar
views were expressed by other commenters. (ID-0158.1; -0160.1; -0173.1;
-0192.1; -0196.0; -0211.1; -0212.1; -0220.1; -0225.1; -0228.1; -
0241.1.)
    A number of witnesses at the public hearing also supported the
proposed requirement for third-party verification. A representative
from a crane rental company said that, although they incur additional
cost to prove certification, they consider that cost an investment in
the safety of their employees. (ID-0344.) A major crane user observed
both certified and non-certified operators and found that the certified
operators operated far more safely because of the more comprehensive
training required to become certified. (ID-0344.)
    An insurance company representative and former crane operator
stated that his company believes that employers who certify their
operators have fewer accidents and that, as a result, his firm offers
companies it insures a ten percent discount if they have their
operators certified. (ID-0343.) The representative believed that the
cost of certification was modest when compared to the cost of
accidents. (ID-0343.) A representative from a crane rental company
testified that preparing for the certification process allowed his
company to improve their operators' knowledge and ability to operate
cranes safely. (ID-0343.) A representative from a steel erection
company agreed that certification is important to both insurance
companies and employers because certification gives employers peace of
mind and reduces insurance costs. (ID-0344.)
    Some commenters and witnesses opposed the proposed rule's
requirement for qualification or certification of operators. A trade
association commented that the requirements would not improve safety
more than having trained, qualified operators because many of the
operators in recent accidents were certified. (ID-0151.1.) The
commenter also questioned whether sufficient analysis had been done to
show that the proposed requirements would improve the safety of crane
operations. This commenter believed that the current requirement (Sec.
1926.20(b)(4)) for equipment operators to be qualified by training or
experience was sufficient. A witness from a similar trade association
expressed a similar view, stating that training, not certification, is
the answer to safe crane operations. (ID-0343.)
    A representative of the building industry thought the requirements
were too restrictive and stated that OSHA failed to show that the
limited requirements would substantially reduces the risk of accidents
while other alternatives would not. (ID-0232.1.) The commenter asked
that its members have the option to self-evaluate their operators after
they have gone through a specified training program in lieu of the
third-party certification that would be required under proposed Option
(1) of this section for cranes of less than 35 ton capacity with a boom
length no greater than 120 feet. A witness who appeared on behalf of
the commenter criticized the proposal for imposing the same
requirements on employers engaged in residential construction as those
in commercial construction and said training and certification
requirements should be crane and industry specific. (ID-0341.)
    Another trade association similarly recommended that its members be
given the ability to self-certify their operators. (ID-0218.1.) A small
business representative asked OSHA to assess whether it is feasible to
allow small employers to ``self-certify'' that an operator is trained
and competent to operate the equipment and perform the tasks being
conducted.\108\ (ID-0147.1.) A trade association suggested that OSHA
consider the feasibility of allowing small employers to ``self-
certify'' that their operators are trained and competent to operate the
equipment and perform their assigned tasks. (ID-0187.1.) Another trade
association believed that mandatory self-certification was a feasible
option for operators of what it characterized as ``light-duty'' cranes
used by its members. (ID-0189.1.)
---------------------------------------------------------------------------

    \108\ The commenter, however, also acknowledged that there are
small businesses that are in favor of third-party certification.
(ID-0147.1.)
---------------------------------------------------------------------------

    An energy association argued that firms engaged in wind turbine

construction should be permitted to self-certify their crane
operators.- (ID-0329.1.) The commenter stated that construction of wind
turbines requires the use of the largest and most complex cranes
available, and that some of its members had found that some operators
certified by NCCCO were not truly qualified to operate those cranes. It
therefore believed that firms in its industry should be able to self-
qualify their crane operators, but objected to the need for employers
in its industry who use Option (2) of this section to be required to
use the services of an auditor. The commenter said it did not believe
that there would be properly trained and qualified people available to
audit the wind industry. Instead of requiring auditors, the commenter
suggested that OSHA add to the find rule additional, detailed criteria
that an employer-sponsored program must contain to be acceptable.
    OSHA rejects the suggestions of the commenters who argued that
employers should have the option of determining that their operators
are qualified without any form of third-party verification. Based on
the rulemaking record, OSHA is persuaded that the third-party
requirements in the proposed rule are an essential element in improving
crane safety. The members of C-DAC, who had vast collective experience
in all aspects of crane operations, reached a consensus (with two
members dissenting) \109\ that third-party verification was needed to
reduce the number of crane accidents and fatalities in the construction
industry. Their consensus was supported by a number of commenters,
including some employers who have already had their operators certified
through a third-party process and have found certification to be a
useful and cost-effective means of promoting safety.\110\ The reliance
of the insurance industry on third-party verification as such an
indicator of reduced risk that it warrants reduced premiums, is further
evidence of its value. Moreover, the fact that safety-conscious members
of private industry voluntarily helped to develop a third-party
certification process before there was a government mandate to do so is
further evidence that certification promotes safety.
---------------------------------------------------------------------------

    \109\ As explained in the Introduction, under C-DAC ground
rules, a ``consensus'' was reached on an issue if there were no more
than two non-Federal dissenters.
    \110\ It is also supported by the data from Ontario and
California showing that third-party certification can significantly
reduce crane-related fatalities and injuries, discussed below.
---------------------------------------------------------------------------

    As discussed earlier, a number of commenters urged OSHA to require
training rather than certification. But training alone is insufficient
without a means of verifying that each operator understands the
training well enough to operate safely and is sufficiently skilled to
implement what he/she has been taught. As Graham Brent, Executive
Director of NCCCO put it at the hearing, ``[c]ertification * * * is an
employer's, as well as the general public's, best assurance that the
required training has not only been effective, but that learning has
taken place during the training process.'' (ID-0343.) OSHA's current
training standard has not prevented the high number of crane-related
fatalities and serious injuries that have been occurring as a result of
improper operation.
    OSHA acknowledges that many employers have effective training
programs and highly competent crane operators. However, the rulemaking
record shows that a training requirement alone is insufficient to
ensure that crane operators have the requisite level of competence.
This was the opinion of the members of C-DAC and is shared by many of
the members of the public who commented on the proposed rule and who
testified at the public hearing.
    A representative of the building industry objects to OSHA's
reliance on the study by the Construction Safety Association of
Ontario, saying that it does not meet statutory and regulatory
information quality standards, including the Department of Labor's
Information Quality Guidelines.\111\ (ID-0232.1.) First, OSHA notes
that the Ontario study is only part of the record evidence on which the
Agency relies in promulgating this standard. In the preamble to the
proposed rule, OSHA stated that the Ontario study ``buttressed'' C-
DAC's experience and conclusions regarding the need for independent
testing of operator ability (see 73 FR 59810, Oct. 9, 2008). Second,
OSHA's reliance on that study does comply with the Department's
guidelines. Appendix II of the guidelines addresses the information
quality principles on which OSHA relies in setting health and safety
standards. For safety standards, such as this rule, OSHA must use ``the
best available statistical data from surveys of fatalities, injuries,
and illnesses, and the best available peer-reviewed science and
supporting studies that describe the nature of the safety risks being
addressed.'' OSHA determines that the Ontario study, though not peer-
reviewed, is the ``best available statistical data'' showing the
efficacy of third-party operator certification. The California study is
similarly supportive of the C-DAC conclusions.
---------------------------------------------------------------------------

    \111\ ``Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity of Information Disseminated by
the Department of Labor,'' (Oct. 1, 2002), available on the
Department of Labor's Web site.
---------------------------------------------------------------------------

    In other respects as well, OSHA has complied with the Department of
Labor's Information Quality Guidelines. The guidelines state that
``[t]he goal of a safety risk analysis is to describe the numbers,
rates, and causal nature of injuries related to the safety risks being
addressed.'' To meet this goal, OSHA historically has ``relied on
injury and illness statistics from BLS, combined with incident or
accident reports from enforcement activities, incident or accident
reports submitted to the record from the private or public sectors,
testimony of experts who have experience dealing with the safety risks
being addressed, and information and data supplied by organizations
that develop consensus safety standards.''
    In developing the proposed rule, and in issuing this final rule,
OSHA has relied on these types of evidence, including studies based on
BLS statistics and OSHA enforcement reports, as well as incident
reports from specific enforcement cases. (See 73 FR 59719-59723, Oct.
9, 2008.) On the specific question of the need for third-party
verification of a crane operator's qualifications, OSHA has relied
primarily on the opinions of experts with vast experience in crane
operations and the hazards presented by crane use, including the
members of C-DAC and construction industry employers who appeared at
the public hearing. OSHA is persuaded that third-party verification
will significantly reduce the number of crane-related injuries and is
confident that the information on which it relies to set this standard
is reliable, the best available, and meets the Department's guidelines.
    A trade association also questioned OSHA's reliance on the Ontario
study, suggesting that Ontario's ability to issue citations to
employees is the likely cause of Ontario's decrease in fatal crane
accidents. (ID-0151.1.) OSHA notes, however, that the Construction
Safety Association of Ontario attributed the decrease to increased
operator skill, not employee citations. (ID-0009.) OSHA determines that
the Construction Safety Association of Ontario was well-positioned to
evaluate why Ontario was able to achieve a dramatic reduction in crane-
related fatalities and accepts its opinion on the question. Moreover,
the employee citations permitted under Section 66 of Ontario's
Occupational Health and Safety Act did not take effect until 1990.
These employee citations

appear to function primarily as a deterrent to non-compliance with
Ontario's construction safety standards, as opposed to the operator
certification requirements that are intended to verify knowledge and
skills necessary for safe operation. In that regard, the civil fine
provisions are similar to the licensing requirements (separate from
certification) that Ontario had required prior to 1979. There is no
indication in the record that the fines provided a greater level of
deterrence than the government's pre-existing authority to sanction an
individual operator through the revocation of an operator's license.
    The representative of the building industry claimed that the rate
of accidents resulting from crane use in the residential construction
industry is too low to justify requiring homebuilders to comply with
the qualification/certification requirement in the proposed rule. The
commenter conducted a study, using fatality data from the Bureau of
Labor Statistics, which, according to the commenter, showed that 13 out
of 1385, or slightly less than 1%, of fatalities in the residential
construction industry from 2003-2006 were crane-related. (ID-0232.1.)
Because this percentage is substantially less than the more than 8% of
all construction fatalities that were found to be crane-related in the
Beavers study, the commenter suggests the risk of serious injury from
the smaller truck mounted telescopic boom cranes used in residential
construction is substantially less than the risk of injury from large
lattice boom and tower cranes used in commercial/industrial
construction. The commenter stated that a copy of its study was
attached to its comment and is available on its Web site. (ID-0232.1.)
In fact, a copy was not attached to its comment. OSHA has located a
document on the commenter's Web site entitled ``Residential
Construction Fatalities, 2003-2006'' that describes the causes of
fatalities in residential construction, but has found nothing in that
document to support the commenter's claim that only 13 of those
fatalities were crane-related.
    Nevertheless, even if the commenter could support its claim of 13
crane-related fatalities, its conclusion that cranes present little
risk of serious injury in residential construction does not follow.
First, OSHA determines that 13 crane-related fatalities in homebuilding
in a four year period is significant and well worth trying to reduce.
Moreover, the commenter's comparison of percentages is not persuasive.
The fact that a smaller percentage of fatalities are crane-related in
residential construction than in commercial/industrial construction may
simply reflect lower crane usage in residential construction. A witness
who appeared on behalf of the commenter at the public hearing,
testified that cranes are typically used on a residential construction
project between two and six hours to lift objects like roof and floor
trusses. (ID-0341.) The witness noted that for commercial construction,
a crane might be on the job from six months to two years. (ID-0341.) In
light of the brief percentage of time cranes are used in residential
construction compared to the percentage of time they are used in
commercial construction, it would be expected that the percentage of
accidents they cause will similarly be lower even if, while they are on
the job, they present the same or even a higher degree of risk.\112\
---------------------------------------------------------------------------

    \112\ Mr. Behlman testified that overhead power lines are ``very
seldom'' found on residential sites. (ID-0341.) However, the
document on NAHB's Web site showing the causes of residential
construction fatalities from 2003 to 2006 attributes 76 fatalities
to ``contact with overhead power lines.''
---------------------------------------------------------------------------

    OSHA also rejects the commenter's suggestion that homebuilders
should be permitted to self-certify their crane operators. The
commenter states that the vast majority of the building association's
single-family home builders are very small, with 61% building ten homes
or fewer. The witness stated at the hearing that the home building
industry has many small operations and a few very large players. (ID-
0341.) In OSHA's experience, most small construction firms would not
have the expertise to develop or administer the types of tests
necessary to reliably assess operator ability (see the discussion of
the criteria applied by nationally recognized accrediting entities to
accredit certification organizations).
    OSHA also does not conclude that such companies typically possess
the expertise to establish and implement the sophisticated type of
training program that the commenter suggests should be required for
employer self-certification. (ID-0232.1.) The same problem exists
throughout the construction industry, which includes numerous small
firms. Furthermore, as found by C-DAC, independent testing is essential
to ensure that operators have in fact attained the knowledge and
ability the training is supposed to impart.
    A number of commenters suggested that the proposed requirements
should be modified in various ways. Some suggested exempting certain
equipment from the qualification/certification requirement or requiring
a form of qualification/certification that the employer could implement
without resort to third-party verification. Others suggested expanding
the range of options available to the employer, in particular allowing
accredited educational institutions to certify operators. These
comments will be discussed below in the sections of the standard that
address the issues raised by the commenters.
Paragraph (a)
    In the final rule, paragraph (a) of this section specifies that the
employer must ensure that the operator of any equipment covered under
Sec.  1926.1400, with certain listed exceptions, is either qualified or
certified to operate the equipment in accordance with the provisions of
this section or is operating the equipment during a training period.
Paragraph (a)(1) requires compliance with State and local operator
licensing laws. For areas where State or local licensing is not
required, paragraph (a)(2) requires employers to use one of the three
options listed above to certify or qualify their operators. Paragraph
(a)(3) provides exceptions from all of Sec.  1926.1427's certification
and qualification requirements for operators of certain equipment,
regardless of whether State or local governments have licensing
requirements for operators of that equipment.\113\
---------------------------------------------------------------------------

    \113\ These State and local licensing requirements would remain
in effect. See discussion of preemption of State and local law under
federalism in section V.D of this preamble. OSHA is simply choosing
not to require compliance with any such licensing requirements for
that equipment.
---------------------------------------------------------------------------

Paragraph (a)(1) Compliance With State and Local Licensing Requirements
    The proposed rule included a fourth option to satisfy the operator
certification/qualification requirements of Sec.  1926.1427:
qualification through a government entity with a licensing program
meeting certain criteria. Several states submitted comments on the
proposed rule urging the Agency to preserve State and local operator
licensing laws. Some of these concerns are addressed in the discussion
of preemption under federalism in section V.D of this preamble. Two of
those commenters, each with its own statewide crane operator licensing
requirements, specifically requested that OSHA mandate compliance with
State requirements for crane operations within the jurisdiction of
those states (with the exception of operators who are employees of the
U.S. military). (ID-0171.1; -0237.) Three State governments argued
persuasively that if government licensing was presented merely as an
option, rather than required, many employers would simply by-pass these

licensing requirements in favor of less stringent, portable private
certification options. (ID-0171.1.) One State government also noted
that some states have proven, reliable licensing procedures already in
place. Where State and local licensing departments or offices are
already well established and staffed, and are already preventing deaths
or serious injuries through the use of effective licensing procedure,
there is little support in the record for disturbing them.
    In light of the commenter's compelling arguments and the policy
considerations noted above, the Agency is convinced that the
governmental licensing requirements should be mandatory, rather than
optional. In response, the Agency is revising paragraphs (a) and (e) of
Sec.  1926.1427 to mandate compliance with State and local operator
licensing laws that meet a ``Federal floor'' established in paragraphs
(e)(2) and (j) of this section.\114\
---------------------------------------------------------------------------

    \114\ This ``Federal floor'' refers to the minimum requirements
for license tests in Sec.  1926.1427(e)(2), and the minimum
knowledge and skills that must be tested as set forth in Sec.
1926.1427(j)(1) and (j)(2). Employers would not be required by OSHA
to comply with State or local government entity licensing
requirements that do not meet this ``Federal floor,'' but States and
local governments could still seek to enforce their own laws.
---------------------------------------------------------------------------

    This mandatory compliance is set forth in the introductory text of
Sec.  1926.1427(a)(1) and paragraph (a)(1)(i). OSHA has added Sec.
1926.1427(a)(1)(ii) to clarify that employees of the U.S. military who
have been certified or qualified to operate equipment pursuant to Sec.
1926.1427(d) would not also be required to obtain an operator's license
from a State or local government for construction work on behalf of the
military employer. By requiring compliance with State and local laws,
the Agency is also complying with Executive Order 13132, which urges
agencies to preserve the full force and effect to State and local laws.
(See 64 FR 43225, Aug. 10, 1999.)
    This decision is a logical outgrowth of the proposal. The proposal
identified a significant safety risk from improper operation of
equipment and proposed certification requirements as a means of
addressing that risk. Governmental licensing of crane operators has
existed alongside OSHA's prior crane rules at former Sec.  1926.550 for
many years, and C-DAC made them a significant component of the proposal
without any indication that the new standard would exempt employers
from compliance with those laws. The government licensing provision was
the subject of a number of comments, and was discussed during the
hearing in the context of comments requesting OSHA to make the
government licensing mandatory.
    The preamble to the proposed rule noted C-DAC's opinion that some
States have ``effective, reliable, licensing procedures'' (73 FR 59814,
Oct. 9, 2008). The preamble to the proposed rule also specifically
cited the Department of Transportation's requirement that commercial
drivers also carry State drivers licenses issued in accordance with
Federal standards (73 FR 59810). The DOT licensing was provided as an
example of how State licensing, when required as part of a general
Federal compliance scheme, has been ``used in the past to prevent fatal
and other serious accidents that result when operators lack the
knowledge and skills needed to operate safely.'' Id. The only other
example of successful third-party certification provided as a basis for
the certification requirement was another government licensing
requirement: Ontario's licensing requirements for crane operators. Id.
The combination of OSHA's exclusive reliance on these examples and the
government licensing provision in proposed Sec.  1926.1427(e) provided
clear notice that the government licensing provision might develop
along the lines of the examples. While several commenters submitted
comments supporting mandatory compliance with government licenses,
thereby indicating that at least these parties viewed the mandatory
compliance as a possible outcome of the rulemaking, none of the
commenters objected to the government licensing provision or questioned
the validity of their tests. The Agency's choice to make compliance
with paragraph (e) mandatory, rather than optional, flows logically
from the proposal, the comments, and the discussion at hearing. See
National Mining Ass'n v. Mine Safety and Health Admin., 512 F.3d 696,
699 (DC Cir. 2008) (noting that the logical outgrowth test takes into
account the comments, statements and proposals made during the notice-
and-comment period).
    The Agency's decision to mandate compliance with State and local
laws is not new. OSHA already relies on State licensing requirements in
its respirator standard when it provided for ``a licensed health care
professional'' to perform a medical evaluation of an employee's ability
to use a respiratory (see Sec.  1910.134(e)). This portion of the
standard was challenged and upheld in American Iron Steel and Steel
Institute v. OSHA, 182 F.3d 1261, 1278 (11th Cir. 1999). OSHA's choice
to mandate compliance with State or local law is also consistent with
the approach of other agencies. (See, e.g., Department of
Transportation regulations requiring State licensing of commercial
drivers, discussed in the preamble to the proposed rule at 73 FR 59810,
Oct. 9, 2008.)
Paragraph (a)(2) Options for Certification or Qualification Where
License Not Required by a Government Entity
    As noted above, where a State or local license is not required,
employers have three choices for certification of operators. Those
choices are set out in paragraphs (b) through (d) of this section and
discussed in detail below. It is important to note that these options
will not satisfy the requirements of Sec.  1926.1427 for operation of
equipment within a State or local government's jurisdiction when that
government entity has it's own licensing requirements that satisfy the
criteria in paragraphs (e) and (j) of this section.
Paragraph (a)(3) Exceptions
    The exceptions in the proposed rule were for types of equipment
that are specifically excluded from the qualification/certification
requirement under sections of this standard that pertain to that
equipment, including derricks (see Sec.  1926.1436), sideboom cranes
(see Sec.  1926.1440), and equipment with a rated hoisting/lifting
capacity of 2,000 pounds or less (see Sec.  1926.1441).
    A labor representative pointed out that the exception in Sec.
1926.1441 applies to equipment with a ``maximum manufacturer-rated''
hoisting/lifting capacity of 2,000 pounds or less, and it asked that
this same language be used in Sec.  1926.1427(a) to avoid suggesting
that the exception might apply to larger equipment when it is
configured to have a rated capacity of 2,000 pounds or less. (ID-0341.)
OSHA agrees that the suggested change better reflects the intent of the
provision and has modified the language of Sec.  1926.1427(a) in the
final rule by replacing the word ``rated'' with ``maximum rated.'' OSHA
notes that this change does not change the substantive requirements of
the rule in any manner.
    A number of commenters asked that additional types of equipment or
activities be exempted from Sec.  1926.1427's qualification/
certification requirement.
    A utility company recommended that cranes of 10,000 pound capacity
or less be excluded on the basis that most uses of these cranes are
highly repetitive and predictable. (ID-0144.1.) A trade association
suggested exempting cranes rated at less than 10 or 15 tons from the

requirement. (ID-0191.1.) It said that these types of cranes are often
used to deliver products to a jobsite or to place small rooftop HVAC
units on low rise buildings, and that they are used for simple lifts of
relatively light loads. This commenter also requested that OSHA add a
less restrictive certification level for cranes rated less than 30
tons, which it said are less complicated to assemble and set up and are
used during ``low risk'' lifts.
    Another trade association suggested that the threshold for
requiring qualification/certification should exclude the 5,000 to
10,000 pound capacity cranes that its members typically use. (ID-
0189.1.) It said that this equipment is relatively simple to operate,
that the signs its members install rarely exceed 2,000 pounds, and that
the equipment is used intermittently on the job and only for brief
periods of time.
    A third trade association believes that the size and scope of the
lifts its members make do not justify the qualification/certification
requirements in the proposed rule and suggested alternative
requirements for its members when they operate cranes of less than 35
ton capacity with a boom length no greater than 120 feet. (ID-0218.1.)
They ask that their members have the option to self-evaluate their
operators after they have gone through a specified training program
instead of the third-party certification that would be required under
proposed Option (1). A representative of the building industry made a
similar recommendation for cranes of less than 35 ton capacity with a
boom length no greater than 120 feet. (ID-0232.1.) A small business
representative suggested that OSHA consider exempting some small cranes
(based on vehicle weight or boom length) or routine lifts. (ID-0147.1.)
    A witness for a labor representative testified in opposition to
excluding equipment rated over 2,000 pounds by the manufacturer. He
stated that some low-capacity cranes have long booms and are used to
lift loads to great heights, particularly when there is not sufficient
space for a larger crane. (ID-0341.) According to the witness, safety
concerns presented by low capacity cranes with a long boom are as
serious as the concerns presented by high capacity cranes. (ID-0341.)
He added that the danger of power line contact was present regardless
of the capacity of the crane.
    A representative from a crane rental company also testified against
exempting low-capacity cranes from the qualification/certification
requirement. His company had a fleet of cranes ranging from 4 to 600
ton capacity, and in his experience the majority of accidents that his
customers experienced when they rented cranes but provided their own
operators occurred with cranes rated 35 tons or less. (ID-0344.) He was
aware of accidents on residential construction sites that resulted from
operating on unsuitable ground, not setting the outriggers properly,
and lifting too heavy a load for the crane's configuration,
deficiencies that he attributed to operators who did not appreciate the
hazards involved. (ID-0344.)
    OSHA has carefully considered the comments asking for additional
types of equipment to be exempted from the qualification/certification
requirements of Sec.  1926.1427. For the following reasons, OSHA
declines to add such exemptions to the final rule.
    The members of C-DAC, who had vast collective experience in all
aspects of crane operations, reached a consensus that third-party
verification was needed to reduce the number of crane accidents and
fatalities in the construction industry. They further determined that
such a requirement should apply to virtually all hoisting equipment,
with only the limited exceptions listed in the proposed rule. In
proposing to exempt equipment with a rated capacity of 2,000 pounds or
less, the Committee considered whether to establish a higher threshold
for the requirement but concluded that the operators of higher-capacity
cranes, including those in the 5,000-35,000 pound range that the
commenters ask to be exempted, needed to be well-qualified to reduce
the number of accidents involving such cranes. Ultimately, C-DAC
included the 2,000 pound cutoff to parallel ANSI B30.5 in this regard
(see 73 FR 59841, Oct. 9, 2008).
    The rulemaking record shows that many of the same hazards presented
by larger cranes are present for cranes in this capacity range,
including operating in proximity to power lines, the potential for
collapse if the crane is overloaded, and the need for adequate ground
conditions to ensure the crane's stability during operation. As a labor
representative testified, these smaller cranes may be used in tight
spaces where larger cranes cannot be used. An operator's loss of
control of the load in a tight space would present a serious safety
hazard, and the potential for operating in tight spaces highlights the
need for operators of even relatively low-capacity cranes to be highly
skilled.
    OSHA also rejects the suggestions by some commenters that
exemptions should be created for cranes that are typically used for
repetitive, predictable, intermittent, or light use.
    The principal difficulty with this suggestion is that the
underlying causes of crane-related fatalities and injuries are not
necessarily diminished in such situations. For example, the presence of
power lines presents an electrocution hazard in all situations,
irrespective of how the equipment is used. Proper ground conditions,
which can change during crane use, are also as necessary for those
types of uses as others, and all cranes can be overloaded if operated
improperly. The knowledge and skill needed for attaining operator
qualification/certification under this section is a prerequisite for
being able to successfully address these and other hazards.
    Furthermore, while an employer may initially plan to use a crane in
a repetitive or otherwise predictable manner, or to handle light loads,
unforeseen circumstances can arise that can alter those plans. Wind,
which can arise unexpectedly during a lift, can dramatically decrease
the capacity of a crane and increase the difficulty in properly
handling the load; a previously ``repetitive'' lift can change
unexpectedly when rain causes the ground supporting the crane to become
muddy and less able to support the crane; a rigging problem may arise
during one of the ``repetitive'' lifts, which could cause unexpected
load control problems during the lift; and hoisting a ``light'' load at
a low boom angle can pose similar overturning hazards to hoisting a
heavy load at a high boom angle. Nor are there fewer crane-related
hazards when a worker operates a crane only intermittently. For
example, that operator on one of those occasions may have to run the
crane near power lines, in the blind, with uneven winds, or at a low
boom angle; in such cases (as in many others) he/she needs to be as
fully capable as an operator who runs the crane regularly.
Paragraph (a)(4)
    The Agency is adding this paragraph to the final rule to clarify
that operator certification or qualification as required under this
section must be provided at no cost to employees who are already
employed by the employer on November 8, 2010. This clarification is
consistent with the Agency's revision of the training requirements
throughout subpart CC to expressly state that employers must provide
all training at no cost to employees. The clarification is consistent
with the Agency's treatment of costs for operator qualification and
certification in the

preliminary economic analysis provided in the preamble of the proposed
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification
training treated as cost to employer).)
    Based on the testimony of several witnesses at the hearing, OSHA
concludes that imposing the operator qualification and certification
costs on the employer will not be overly burdensome to the employer. At
the hearing, a representative from a crane rental company said that,
although his company incurs additional cost to provide certification,
his company considers that cost an investment in the safety of their
employees. (ID-0344.) An insurance company representative and former
crane operator stated that the cost of certification was modest when
compared to the cost of accidents. (ID-0343.) This witness also stated
that his company believes that employers who certify their operators
have fewer accidents and that, as a result, his firm offers companies
it insures a ten percent discount if they have their operators
certified. (ID-0343.) A representative from a steel erection company
agreed that certification is important to both insurance companies and
employers because certification gives employers peace of mind and
reduces insurance costs. (ID-0344.)
    In light of the need for clarification and witness support at the
hearing, OSHA is adding new paragraph (a)(4) to this section of the
final rule.
Paragraph (b) Option (1): Certification by an Accredited Crane Operator
Testing Organization
    As noted above, the proposed rule provided four options for a crane
operator to be qualified or certified. Option (1) of this section, in
which the employee becomes certified to operate equipment of a certain
type and capacity by passing an examination administered by an
accredited testing organization, is the most broadly available option,
and OSHA expects it to be the one that most employers use outside of
jurisdictions with State or local licensing requirements.
    Under Option (1), a crane operator becomes certified by a testing
organization that has itself been accredited by a ``nationally
recognized accrediting agency.'' Section 1926.1401 defines ``nationally
recognized accrediting agency'' as ``an organization that, due to its
independence and expertise, is widely recognized as competent to
accredit testing organizations.'' The use of a nationally recognized
accrediting agency to provide an independent, authoritative assurance
of a testing organization's competence is a well-established practice.
For example, for a number of years, the National Commission for
Certifying Agencies (NCCA), the accreditation body of the National
Organization for Competency Assurance (NOCA), has accredited testing
organizations in a wide variety of fields, including those that provide
crane operator certification. (ID-0021.) Also, in 2003, the American
National Standards Institute began accrediting personnel certification
entities. (ID-0022.)
    Under Sec.  1926.1427(b)(1)(i), for a testing organization to
become accredited, the accrediting agency must determine that the
testing organization's written testing materials, practical
examinations, test administration, grading, facilities/equipment and
personnel meet industry recognized criteria. The accrediting agency
must determine that the written testing materials and practical
examinations are well designed and sufficiently comprehensive that an
individual who achieves a passing grade has demonstrated the skills and
knowledge needed to operate the equipment safely. The accrediting
agency must also determine that the testing organization's
administration and grading ensure the integrity of the test so that the
individual's grade truly represents the knowledge and skill level of
that individual.
    A safety association believed that the criteria for accrediting
agencies in proposed Sec.  1926.1427(b)(1)(i) were not sufficiently
rigorous and suggested replacing that paragraph with a paragraph that
required the nationally recognized accrediting agency to use
certification criteria equal to or greater than that of the National
Commission of Certifying Agencies (NCCA), the Council of Engineering
and Scientific Specialty Boards (CESB), or ANSI/ISO/IEC 17024, General
Requirements for Bodies Operating Certification Systems of Persons.
(ID-0178.1.) This commenter expressed concern that, without this more
specific level of rigor, entities with little experience in
professional certification will be able to establish accrediting bodies
for certifications that do not adequately demonstrate professional
crane operator competence.
    An operator certification organization stated that NCCA and ANSI
are nationally recognized accrediting agencies and that others should
only be designated as such by OSHA after a comprehensive review of its
accrediting protocols. (ID-0382.1.) It suggested changing the
definition of ``nationally recognized accrediting agency'' in Sec.
1926.1401 to specify that the only accrediting agencies are ANSI, NCCA,
and any other organization designated by OSHA as competent to accredit
testing organizations.
    These commenters are concerned that an organization that applies
insufficiently stringent accrediting criteria might claim to be a
``nationally recognized accrediting agency'' and accredit testing
organizations that are less competent than those accredited by NCCA and
ANSI.
    OSHA determines that the commenters are correct in suggesting that
some additional specificity is needed in the definition to ensure that
only entities using sufficiently stringent accrediting criteria are
included. In the preamble to the proposed rule, OSHA identified two
organizations that it determined were examples of a ``nationally
recognized accrediting agency''--the National Commission for Certifying
Agencies (NCCA) and the American National Standards Institute (ANSI)
(see 73 FR 59811, Oct. 9, 2008). No commenters have suggested that
these are inappropriate examples of this term. Therefore, to provide
greater specificity, OSHA has modified the language used in the
proposed rule's definition to include references to NCCA and ANSI as
examples of organizations that meet the final rule definition in Sec.
1926.1401.
    Section 1926.1427(b)(1)(ii)(A) specifies that the written and
practical tests administered by the testing organization must, at a
minimum, assess the knowledge and skills listed in Sec. Sec.
1926.1427(j)(1) and (2). Those subjects are discussed below under Sec.
1926.1427(j).
    Paragraph (b)(1)(ii)(B) provides that the testing organization must
provide different levels of certification based on equipment capacity
and type. This requirement is designed to ensure that a certified
operator has the knowledge and skill needed to safely operate equipment
of the type and capacity the employee will actually be operating while
avoiding the need for employees to know how to operate more complex
equipment.
    In the proposed rule, OSHA gave examples of what this provision
means in practice. It stated, as one example, an employee who only
operates a hydraulic truck crane would not need to also have the
additional knowledge and skills necessary to operate a lattice boom
crawler crane. As another, it said that an employee who operates only a
22 ton capacity hydraulic truck crane would not need to also have the
additional knowledge and skills necessary to operate a 300 ton
hydraulic truck crane. The Agency further stated that

certification on a more complex type of equipment would typically
qualify an operator to operate lower-capacity equipment of the same
type, e.g., certification on a 300 ton hydraulic crane would qualify an
operator to operate a 22 ton hydraulic crane.
    None of the commenters opposed allowing operators certified to
operate at a given capacity from also operating lower-capacity
equipment of the same type. Two commenters recommended that ``type,''
for purposes of paragraph (b)(1)(ii)(B), be defined for mobile cranes
as they are defined in ASME B30.5. (ID-0205.1; -0213.1.) These
commenters also stated that ``qualifications (and certification) should
be driven by the knowledge and skill required to operate a piece of
equipment. When a body of knowledge or a particular skill set for a
particular `type' of crane changes, then so should the appropriate
category of certification/qualification.''
    The Agency concludes that a descriptive definition of ``type'' that
addresses the point raised by these commenters would better accomplish
the purpose of the term than tying it to specific examples of existing
technology. Therefore, OSHA has added a definition of the word ``type''
to Sec.  1926.1401 of the final rule.
    Examples of many of the various types of cranes currently in use
are described in the ANSI B30 series (see, for example, ASME B30.5-2004
for mobile cranes and ASME B30.3-2004 for construction tower cranes).
For example, in this context, truck-mounted telescoping boom cranes,
truck-mounted non-telescoping boom cranes, and crawler cranes are three
different ``types,'' since the specific bodies of knowledge and skills
needed for the safe operation of each category is different (although
they are not completely distinct--the knowledge and skill sets overlap
to some degree).
    Commenters and witnesses from the railroad industry believed that
certification based on ``equipment capacity and type'' did not address
unique conditions in their industry because current certification
examinations did not cover the types of cranes they use or the
circumstances under which they use them. A railroad company stated that
certification tests used by the two accredited testing organizations
require knowledge of skills that do not apply in the railroad industry.
(ID-0176.1.) A railroad association stated that railroads use cranes in
fundamentally different ways than construction companies and that
neither [currently] accredited testing organization has tests that
address the use of cranes on railroads. (ID-0170.1.) A representative
from another railroad company testified that some of the types of
cranes his railroad uses are fundamentally different from the typical
cranes used in the construction industry. Among the cranes that he said
are unique to the railroad industry are locomotive cranes and rubber-
tired cranes that can either run on the ground or travel on rails. (ID-
0342.) The representative stated that certification tests on typical
construction cranes were not suited to the types of cranes used in his
industry and asked that the rule offer the latitude for the industry to
train operators in a way that makes sense for railroads. (ID-0342.)
    The comments and testimony by the railroad industry representatives
suggest the need for some flexibility in the certification requirement
to deal with specialized types of cranes or newly developed equipment
for which certification examinations might not be available. Another
aspect of this problem was raised by an energy association, which said
that the cranes used in erecting wind turbines are the largest and most
complex available, and that certification for such equipment is not
currently available. (ID-0329.1.)
    C-DAC addressed one example of a type of equipment--dedicated pile
drivers--for which certification examinations were not available.
Section 1926.1439(e) of the proposed rule accommodated this problem by
providing that dedicated pile driver operators can be certified either
for operation of dedicated pile drivers or for equipment that is most
similar to dedicated pile drivers. OSHA concludes a similar approach is
appropriate for any equipment for which a certification is not
available. Accordingly, OSHA is adding Sec.  1926.1427(b)(2) to the
final rule, which allows an operator to be certified to operate a crane
if he or she is certified to operate a higher-capacity version of that
type of crane or, if no accredited certification entities offer
certification for that particular crane, if he or she is certified to
operate the type of crane most similar to the equipment in question.
    In light of this change, OSHA is deleting Sec.  1926.1439(e) from
the final rule as it is no longer necessary. Paragraph (b)(2) will also
facilitate employers' compliance with the requirements of Sec.
1926.1427 by making it clear that the operator's certificate must
indicate the particular type and capacity of crane for which the
operator was certified.
    As discussed in the proposed rule, during the SBREFA process,
several small entity representatives suggested that basing
certification on the type of crane might result in some capable
operators being denied certification. They described situations in
which an operator is knowledgeable and skillful with respect to one
particular model of crane but might be unable to obtain certification
based on equipment capacity and type. In response to this concern, OSHA
sought public comment on whether there should be a mechanism for an
operator to become certified on a particular model of crane.
    Some commenters supported such a mechanism. (ID-0145.1; -0151.1; -
0194.1; -0214.1.) Several commenters who opposed the suggestion stated
that such certification would likely not be available from testing
organizations, that employers who use Option (2) would find it costly
and impractical to develop tests for each model of crane, and that
testing based on crane model was not appropriate because the skill set
and knowledge required for safe operation are not model-dependent. (ID-
0175.2; -0205.1; -0213.1.) Witnesses at the hearing also opposed model-
specific certification. (ID-0341; -0343.)
    OSHA has concluded that expansion of the options to include
certification on a specific model of crane is not necessary. The body
of knowledge and skills required to be qualified/certified on a
particular model of crane is not less than that needed to be qualified/
certified for that model's type and capacity.
    It may well be that an operator seeking certification is confident
about operating the particular model of crane he/she has been operating
but is concerned about being tested on another model of the same type
of crane. To the extent this is a concern, OSHA notes that at least one
accredited testing organization allows the practical test to be
administered at the employer's worksite using the employer's own
equipment. (ID-0343.) With this type of practical test available,
operators who feel confident that they can become certified on a
particular model can be tested on that model, and such certification
will allow them to operate any model of the same type (as long as they
also pass the written test). Therefore, certification on a specific
model would be more restrictive than is necessary, and OSHA sees no
benefit from providing for such a certification. OSHA has therefore
retained the requirement that certification is based on the ``type'' of
crane.
    The SBREFA Panel also 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
requested 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.
    A number of commenters were in favor of a provision that would
allow certification in a limited set of circumstances. A labor
organization supported certification limited to the use of rail-bound
equipment used to install continuously welded rail and stick rail. (ID-
0145.1.) This commenter said that such operations involved dragging,
manipulating, and positioning rather than hoisting. Other commenters
also supported such a limited certification provision but did not
provide specific information about how to define those operations or
what aspects of the operations made them less risky than other crane
operations. (ID-0151.1; -0176.1; -0191.1; -0214.1.) Other commenters
opposed this type of ``restricted'' certification. (ID-0175.2; -0205.1;
-0213.1.) They said that the degree of risk in a given situation was
difficult to assess and could change due to unforeseen circumstances
arising on the job.
    OSHA agrees with the commenters who opposed allowing a limited form
of certification based on perceived risk levels. As explained earlier
in the discussion of this section, the Agency found the argument that
certification should not be required to operate cranes that are
typically used for repetitive, predictable, intermittent, or light use
to be unpersuasive. OSHA did so because such uses are likely to involve
many if not all of the same hazards present in other situations.
    Similar concerns apply to the concept of ``low risk'' operations.
First, even if such operations could be effectively identified, the
possibility of unforeseen events occurring during such a lift requires
that the operator have sufficient ability to handle such complications.
    Second, as noted above, apart from the suggestion regarding certain
railroad operations, no commenter offered a means of setting the
parameters for defining this concept. OSHA has therefore rejected the
concept of a limited, ``low risk'' qualification/certification.
    A labor organization recommended that OSHA require that applicants
for certification testing provide documentation that they have at least
1,000 hours of crane related on-the-job experience or training. (ID-
0341.) Such experience was necessary, in this commenter's view, because
neither the written nor practical exams tested an operator's ability to
handle unusual worksite conditions, such as adverse weather or working
on crowded jobsites, and did not test an operator's judgment.
    As explained above, OSHA has included the qualification/
certification requirement to serve as a mechanism to help ensure that
operators have attained the level of knowledge and skill necessary to
safely operate the equipment. The record amply demonstrates the
sufficiency of the accreditation process that must be passed for a
testing organization to become accredited. That process is designed to
ensure that accredited testing organizations use a sufficiently
reliable process for certifying operators. The record also shows that
such a mechanism is an effective one for determining operator
competence (the record includes the support of the commenter and its C-
DAC nominee for that mechanism).\115\
---------------------------------------------------------------------------

    \115\ OSHA also notes that the this commenter is, in this
regard, taking a position that is inconsistent with the one taken by
its C-DAC nominee, who had agreed to the C-DAC version of Sec.
1926.1427, which had no experience/training prerequisite. Nor has
this commenter explained why it has changed its position from that
of its C-DAC nominee. Due to this inconsistency in position, OSHA
accords reduced weight to this commenter's suggested change.
---------------------------------------------------------------------------

    There is insufficient information in the record to include an
additional requirement for 1,000 hours of ``crane related experience or
training.'' The commenter does not specify what should be included in
``crane related experience,'' or why 1,000 hours would be the
appropriate amount of such experience for this purpose. The commenter
also does not specify if meeting the 1,000 hour prerequisite by
``training'' should mean hands-on (criteria for such training is
delineated in Sec.  1926.1427(f)) or classroom type training. OSHA
notes that the other commenters supporting this section have not
recommended adding an experience or training prerequisite. The Agency
has therefore declined to accept this suggested change.\116\
---------------------------------------------------------------------------

    \116\ OSHA also notes that the commenter is, in this regard,
taking a position that is inconsistent with the one taken by its C-
DAC nominee, who had agreed to the C-DAC version of Sec.  1926.1427,
which had no experience/training prerequisite. Nor has the commenter
explained why it has changed its position from that of its C-DAC
nominee. Due to this inconsistency in position, OSHA accords reduced
weight to the commenter's suggested change.
---------------------------------------------------------------------------

    Section 1926.1427(b)(1)(iii) requires that the testing organization
have procedures for operators to re-apply and be re-tested in the event
an applicant fails a test. This would help ensure that if the employee
initially failed to pass the test, the employee would be able to retake
the test and still have the opportunity to obtain the certification.
Section 1926.1427(b)(1)(iii) also requires that the testing
organization have procedures for operators to re-apply and be re-tested
in the event an operator is decertified.
    Section 1926.1427(b)(1)(iv) specifies that the testing organization
must have procedures for re-certifying operators designed to ensure
that the operator continues to meet the requirements of Sec.
1926.1427(j). Under Sec.  1926.1427(b)(4), a certification is valid for
five years, after which the operator must again pass a certification
examination. Section 1926.1427(b)(1)(iv) is included so that
recertification procedures appropriate for those who have already been
certified will be available.
    Under Sec.  1926.1427(b)(1)(v), the testing organization's
accreditation must be renewed by the accrediting organization at least
every three years to ensure continuing quality of testing materials and
administration.
    No comments were received on Sec. Sec.  1926.1427(b)(1)(iii)-(v);
those provisions are promulgated as proposed.
    Under Sec.  1926.1427(b)(3) (previously designated Sec.
1926.1427(b)(2) in the proposed rule), a certification is ``portable,''
which means that a certificate issued under Option (1) would meet the
requirements of Sec.  1926.1427(a)(2) (when State or local jurisdiction
does not require operator licensing) until the certificate expires. In
the final rule, OSHA is specifying that meaning directly in Sec.
1926.1427(b)(3) rather than in a separate definition in Sec.
1926.1427(m), as proposed. C-DAC determined that certification under
this option should be portable because the testing organization is
fully independent of all employers who may employ a crane operator and
there is no reason to limit the certification to a particular employer.
OSHA agrees.
    Section 1926.1427(b)(4) (previously designated Sec.
1926.1427(b)(3) in the proposed rule) provides that a certification
under this paragraph is valid for exactly five years. The exact five
year period is intended to strike the

appropriate balance between ensuring that certified operators are re-
evaluated regularly, while reducing the burden of recertification on
operators.
    No comments were received on the text that is now in paragraphs
(b)(3) and (b)(4). As noted, the definition of ``portable'' has been
moved from proposed (m)(1) to final (b)(3).
Paragraph (c) Option (2): Qualification by an Audited Employer Program
    Paragraph (c) of this section sets out Option (2), in which the
employer determines, through its own audited testing program, that its
employee is qualified to operate the equipment. This option is designed
to enable employers to meet the Sec.  1926.1427 requirements through
their own in-house testing programs. As discussed above, however, C-DAC
determined that independent, third-party involvement was needed to
ensure the reliability and integrity of any testing program. Therefore,
to ensure that testing under Option (2) of this section is accurate and
reliable, Sec.  1926.1427(c)(1) requires that the tests must be
developed by either an accredited crane operator testing organization
(as described under Option (1)), or approved by an auditor who is
certified by an accredited crane operator testing organization. In
addition, the administration of the tests must be audited.
    If the employer chooses to use tests approved by an auditor, the
auditor must, under Sec.  1926.1427(c)(1)(ii)(A), be certified as a
test evaluator by an accredited testing organization. To ensure that
the auditor's evaluation is independent and impartial, Sec.
1926.1427(c)(1)(ii)(B) prohibits the auditor from being employed by the
employer seeking evaluation of its qualification program. Also, Sec.
1926.1427(c)(1)(ii)(C) requires the auditor to determine that the
program meets nationally recognized test development criteria and
adequately assesses the criteria in Sec.  1926.1427(j).
    The requirements for test administration that apply under Option
(2) of this section are set forth in Sec.  1926.1427(c)(2). These
requirements apply to both tests that have been developed by an
accredited crane operator testing organization or to those that have
been approved by an auditor. Section 1926.1427(c)(2)(i) requires that
the auditor find that the procedures for administering the test meet
nationally recognized test administration standards. This provision is
designed to ensure that the test results accurately reflect the
operator's performance on the test.
    Under Sec.  1926.1427(c)(2)(ii), the auditor must be certified to
evaluate the administration of the written and practical tests by an
accredited crane operator testing organization. Section
1926.1427(c)(2)(iii) prohibits the auditor from being employed by the
employer seeking the auditor's approval of its test administration
procedures.
    Proposed Sec.  1926.1427(c)(2)(iv) required that the audit be
conducted in accordance with nationally recognized auditing standards.
OSHA noted that the proposed rule, as drafted by C-DAC, required only
that the administration of the tests, and not the audit of the tests
themselves under paragraph (c)(1)(ii), would have to be conducted in
accordance with nationally recognized auditing standards. OSHA
determines that this was a drafting error and that the Committee
intended that the entire audit be conducted in accordance with
nationally recognized auditing standards. Therefore, the Agency
solicited public comment on whether a new Sec.  1926.1427(c)(1)(ii)(D),
reading as follows, should be added to Sec.  1926.1427(c)(1)(ii):

    (D) The audit shall be conducted in accordance with nationally
recognized auditing standards.

Several commenters stated that the regulatory text should remain
unchanged because, the commenters believed, the nationally recognized
accrediting agencies that accredit testing organizations do not review
the examinations for content but only for examination design,
administration, and maintenance. (ID-0175.1; -0205.1; -0211.1; -
0213.1.)
    The Agency concludes that the commenters have misunderstood OSHA's
intent in this regard. Under Option (1) of this section, Sec.
1926.1427(b)(1), the accrediting agency must evaluate the ``written
testing materials'' as well as the ``practical examinations, test
administration, grading, facilities/equipment and personnel'' to make
sure they all meet ``industry recognized criteria.'' The accrediting
agency therefore must evaluate the tests as well as their
administration to confirm that they meet industry recognized criteria.
    Just as the accrediting agency under Option (1) of this section
assesses written testing materials and the practical test for
compliance with industry recognized criteria, under Option (2) of this
section, as drafted by C-DAC and as written in the proposed rule, the
auditor must determine ``that the written and practical tests meet
nationally recognized test development criteria and are valid and
reliable in assessing the operator applicants * * *.'' (see Sec.
1926.1427(c)(1)(ii)(C)). No comments were received objecting to those
requirements.
    OSHA determines that C-DAC's intent in designing Option (2) was, in
essence, to have the auditor serve a role similar to that of the
accreditor in Option (1). The accreditor in Option (1) assesses the
tests as well as their administration to determine if they meet
``industry recognized criteria.'' As drafted by C-DAC, the auditor does
the same thing, both with respect to assessing the tests and their
administration.
    The problem identified by OSHA in the proposed rule relates to
auditing procedure, not testing criteria. For example, the records that
the auditor would generate and maintain, the procedures he/she would
use for obtaining documents that need to be examined to conduct the
audit, the thoroughness of the audit, and similar procedural matters
regarding the conduct of the audit need to accord with nationally
recognized auditing standards. Section 1926.1427(c)(1)(ii)(C) shows
that C-DAC concluded that it was important that the audit meet
nationally recognized auditing standards to help ensure the integrity
of the audit of the administration of the tests. OSHA determines that
it is equally important that the audit of the tests themselves meet
those same procedural criteria. Therefore, the Agency has added new
Sec.  1926.1427(c)(1)(ii)(D).
    Paragraph (c)(3) requires that the program be audited within three
months of its inception and every three years thereafter. The Agency
has added ``at least'' to the final rule to clarify that the auditor
has the flexibility to perform audits more regularly if it so chooses.
    Paragraph (c)(4) of this section requires the employer's program to
have testing procedures for re-qualification designed to ensure that
the operator continues to meet the technical knowledge and skills
requirement in Sec.  1926.1427(j). The re-qualification procedures must
be audited in accordance with Sec. Sec.  1926.1427(c)(1) and (c)(2).
    In the event an auditor discovers a deficiency in an employer's
operator qualification program, the employer must meet the requirements
set forth in paragraph (c)(5) of this section. Under paragraph
(c)(5)(i), no additional operators may be qualified until the auditor
determines that the deficiency has been corrected. Under paragraph
(c)(5)(ii), the program must be re-audited within 180 days of the
confirmation that the deficiency was corrected. Paragraph (c)(5)(iii)
requires

the auditor to file a report of any such deficiency with the
appropriate OSHA Regional Office within 15 days of discovery. In
addition, paragraph (c)(5)(iv) requires that records of the audits must
be maintained by the auditor for three years and must be made available
by the auditor at the request of the Secretary of Labor or a designated
representative. The auditor's maintenance of the records, and the
reporting requirement, are intended to preserve the independent
verification function of the auditor.
    Paragraph (c)(6)(i) specifies that a qualification under Option (2)
is not portable. As defined in Sec.  1926.1427(m)(2), ``not portable''
means that only the employer issuing the qualification may rely upon
it. OSHA has added that statement of meaning directly in paragraph
(c)(6)(i) in the final rule and has removed paragraph (m). C-DAC
determined that portability should be limited to certification under
Option (1) because the degree of consistency in adhering to the
requirements of this section is likely to be highest among accredited
crane operator testing organizations because they are fully independent
and their business interest depends on their continued accreditation.
Under paragraph (c)(6)(ii), a qualification under Option (2) is valid
for exactly five years.
    A trade association stated that qualification under Option (2) of
this section (as well as Options (3) and (4)) should, like
certification under Option (1), also be portable. (ID-0214.1.) The
commenter stated that there was no rational reason to adopt a rule
where portability is restricted to Option (1) certifications. However,
OSHA concludes that C-DAC's decision to accord full portability only to
a certification under Option (1) is sound. A certification issued under
Option (1) is based on tests that are completely independent of any
particular employer. Moreover, the commenter's nominee to C-DAC did not
dissent on this issue and the commenter has not explained the reason
for changing its position. OSHA gives reduced weight to comments by a
nominating organization that are inconsistent with the position its
nominee took on C-DAC.
    A utility company suggested that electric utilities be able to use
Option (2) without an independent auditor by allowing for an internal
audit of the employee training program based on annual employee
inspections, as allowed in Sec.  1910.269(a)(2). (ID-0342.) Granting
this request would permit electric utilities to self-certify their
operators. OSHA has rejected this option above and does so here for the
same reasons given earlier.
    Some commenters stated that Option (2) was impractical because
there are currently no individuals who are accredited to carry out the
duties of the auditor under the option (ID-0151.1; -0329.1.) OSHA
notes, however, that employers have four years from the effective date
of this standard to comply with Sec.  1926.1427, and the agency
anticipates that, if the demand exists for the services of accredited