[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Rules and Regulations]
[Pages 56198-56247]
[FR Doc No: 2018-24481]

Vol. 83

Friday,

No. 218

November 9, 2018

Part III

Department of Labor

-----------------------------------------------------------------------

Occupational Safety and Health Administration

29 CFR Part 1926

Cranes and Derricks in Construction: Operator Qualification; Final Rule

Federal Register / Vol. 83 , No. 218 / Friday, November 9, 2018 /
Rules and Regulations

-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]
RIN 1218-AC96

Cranes and Derricks in Construction: Operator Qualification

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: OSHA is updating the agency's standard for cranes and derricks
in construction by clarifying each employer's duty to ensure the
competency of crane operators through training, certification or
licensing, and evaluation. OSHA is also altering a provision that
required different levels of certification based on the rated lifting
capacity of equipment. While testing organizations are not required to
issue certifications distinguished by rated capacities, they are
permitted to do so, and employers may accept them or continue to rely
on certifications based on crane type alone. Finally, this rule
establishes minimum requirements for determining operator competency.
This final rule will maintain safety and health protections for workers
while reducing compliance burdens.

DATES: Effective date: This final rule is effective on December 10,
2018, except the amendments to 29 CFR 1926.1427(a) and (f) (evaluation
and documentation requirements), which are effective February 7, 2019.
    Compliance date: See Section C., Paperwork Reduction Act, of this
document regarding dates of compliance with collections of information
in this final rule.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the agency
designates Edmund C. Baird, Acting Associate Solicitor of Labor for
Occupational Safety and Health, Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210, to receive petitions for review of the final rule.
    Docket: To read or download material in the electronic docket for
this rulemaking, go to http://www.regulations.gov or to the OSHA Docket
Office at Technical Data Center, Room N-3653, OSHA, U.S. Department of
Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
(202) 693-2350, TTY number<PHONE_NUMBER>. Some information submitted
(e.g., copyrighted material) is not available publicly to read or
download through this website. All submissions, including copyrighted
material, are available for inspection at the OSHA Docket Office.
Contact the OSHA Docket Office for assistance in locating docket
submissions.

FOR FURTHER INFORMATION CONTACT:
    General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone:<PHONE_NUMBER>; email:
[email protected].
    Technical inquiries: Mr. Vernon Preston, Directorate of
Construction; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
[email protected].
    Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    A. Operator Competency Requirements
    B. Operator Certification Requirement
    C. Certification by Crane Rated Lifting Capacity
    D. Post-2010 Rulemaking Concerns
    E. Discussions with the Construction Industry Stakeholders
    F. Consulting ACCSH-Draft Proposal for Crane Operator
    Requirements
    G. Promulgation of Notice of Proposed Rulemaking
    H. National Consensus Standards
    I. The Need for a Rule
    J. Significant Risk
III. Summary and Explanation of the Amendments to Subpart CC
IV. Agency Determinations
    A. Legal Authority
    B. Final Economic Analysis and Final Regulatory Flexibility Act
Analysis
    C. Paperwork Reduction Act
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act of 1995
    G. Consultation and Coordination with Indian Tribal Governments
    H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

I. Executive Summary

    OSHA is amending 29 CFR 1926 subpart CC to revise sections that
address crane operator training, certification/licensing,\1\ and
competency. The purposes of these amendments are to alter the
requirement that crane-operator certification be based on equipment
``type and capacity,'' instead permitting certification based on
equipment ``type'' or ``type and capacity''; continue requiring
training of operators; clarify and continue the employer duty to
evaluate operators for their ability to safely operate equipment
covered by subpart CC; and require documentation of that evaluation.
---------------------------------------------------------------------------

    \1\ The term ``certification/licensing'' covers each of the
certification options in the proposed rule (third-party
certification or an audited employer certification program) as well
as state or local operator licensing requirements. Operators
employed by the U.S. military are also addressed in this standard
and must be ``qualified'' by the military. OSHA is not making any
substantive changes to the military qualification provision.
---------------------------------------------------------------------------

    This rule alters the requirement that crane operators be certified
by equipment ``type and capacity,'' which, based on the record, creates
regulatory burden without additional safety benefit and artificially
limits the potential for crane operators to obtain certification.
Allowing certification by equipment ``type'' or ``type and capacity''
removes a regulatory burden that did not create an additional safety
benefit.
    This rule continues to require operator training. It likewise
clarifies and continues the employer duty to evaluate operators for
their ability to safely use equipment. Just as an employee's driver's
license does not guarantee the employee's ability to drive all vehicles
safely in all conditions an employer may require, crane-operator
certification alone does not ensure that an operator has sufficient
knowledge and skill to safely use all equipment. The record makes clear
that employers need to evaluate operators and provide training when
needed to ensure that they can safely operate cranes in a variety of
circumstances. Similarly, and also consistent with many employers'
current practices, employer evaluation of a crane operator's experience
and competency with respect to the particular equipment assigned is
essential to ensuring the safe operation of cranes on construction
sites. This final rule accordingly continues the common-sense
requirements that employers train operators and assess their competence
and ability to work safely.
    OSHA's final economic impact analysis determined that the most
significant costs of the changes to the standard are associated with
the requirements to perform the operator competency evaluation,
document the evaluations, and provide any additional training needed by
operators. OSHA estimates employers impacted by this rule employ
approximately 117,130 crane operators. OSHA accordingly estimates the
annual cost to the industry

will be $1,481,000 for the performance of operator competency
evaluations, $62,000 for documenting those evaluations, and $94,000 for
any additional training needed for operators. OSHA's estimate of the
total annual cost of compliance is $1,637,000.
    OSHA also expects some cost savings from the changes to the rule.
In particular, OSHA estimates a large one-time cost savings of
$25,678,000 from dropping the requirement that crane operators be
certified by capacity because that change eliminates the need for a
very large number of operators to get an additional certification. OSHA
also estimates that a small number of ongoing annual certifications due
to an operator moving to a higher capacity crane would also no longer
be needed, producing an additional annual cost savings of $426,000.
These various elements lead, at a 3 percent discount rate over 10
years, to net annual cost savings of $1,752,000. At a discount rate of
7 percent there are annual cost savings of $2,388,000.
    The agency has concluded that, on average, the impact of costs on
employers will be low because most employers are currently providing
some degree of operator training and performing operator competency
evaluations to comply with the previous 29 CFR 1926.1427(k), and were
previously doing so to comply with Sec. Sec.  1926.550, 1926.20(b)(4),
and 1926.21(b)(2). Employers who currently provide insufficient
training will incur new compliance costs. Although OSHA anticipates
that a few employers might incur significant new costs, the agency has
concluded that, for purposes of the Regulatory Flexibility Act, the
changes to the standard will not have a significant economic impact on
a substantial number of small entities.
    The agency has also determined that the final rule is
technologically feasible because many employers already comply with all
the provisions of the revised rule and the revised rule would not
require any new technology. In addition, because the vast majority of
employers already invest the resources necessary to comply with the
provisions of the revised standard, the agency concludes that the
revised standard is economically feasible.

II. Background

    Explanation of record citations in this document.
    References in parentheses in this preamble are to exhibits or
transcripts in the docket for this rulemaking. Documents from the
subpart CC--Cranes and Derricks in Construction rulemaking record are
available under Docket OSHA-2007-0066 on the Federal eRulemaking Portal
at http://www.regulations.gov or in the OSHA Docket Office. The term
``ID'' refers to the column labeled ``ID'' under Docket No. OSHA-2007-
0066 on http://www.regulations.gov. This column lists individual
records in the docket. This notice will identify each of these records
only by the last four digits of the record, such as ``ID-0032'' for
OSHA-2007-0066-0032. Identification of records from dockets other than
records in OSHA-2007-0066 will be by their full ID number.

A. Operator Competency Requirements

    OSHA promulgated a new standard for cranes and derricks in
construction, referred to in the Background section as the ``2010 crane
standard,'' on November 10, 2010 (75 FR 47905). It was based on a
proposal drafted as the result of negotiated rulemaking and issued on
October 9, 2008 (73 FR 59714). Under this cranes standard, except for
employees of the U.S. military and the operation of some specified
equipment, employers were required to allow only certified operators to
operate equipment after November 10, 2014.\2\ In lieu of certification,
the rule also allowed operators to operate cranes if licensed by state
or local governments whose programs met certain minimum requirements.
---------------------------------------------------------------------------

    \2\ The term ``equipment'' was used in the cranes standard's
regulatory text because the rule covers cranes, derricks and other
types of equipment. When OSHA uses ``cranes'' in this preamble, it
is meant to apply to all covered equipment.
---------------------------------------------------------------------------

    This cranes standard included a four-year, phased-in effective date
for the certification requirements. That phase-in period was intended
to provide time for existing accredited testing organizations to
develop programs that complied with the standard's requirements; for
operators and employers to prepare for certification testing; and for
more testing organizations to become accredited to make certifications
available for the operation of the wide variety of cranes used in
construction. During the phase-in period, employers were required to
continue complying with two broad provisions: to ensure that crane
operators were competent to operate the equipment safely and, if
necessary, to train and evaluate employees who did not have the
required knowledge or ability to operate the equipment safely (Sec.
1926.1427(k)(2)(i) and (ii)) (``employer duties''). These employer
duties are essentially the same as those required by Sec.
1926.20(b)(4) and Sec.  1926.21(b)(2), which are discussed in more
detail in the ``Operator Certification Requirement'' section that
follows.

B. Operator Certification Requirement

    In 1979, OSHA published 29 CFR 1926.550, which specified
requirements for crane and derrick operation that were adopted from
existing consensus standards. Among these requirements was an
employer's duty to comply with manufacturer specifications and
limitations (Sec.  1926.550(a)(1)). In addition, employers were subject
to general requirements elsewhere in the OSHA construction safety
standards that required employers to permit only those employees
``qualified by training or experience'' to operate equipment (Sec.
1926.20(b)(4)) and to ``instruct each employee in the recognition and
avoidance of unsafe conditions'' (Sec.  1926.21(b)(2)). However, crane
incidents continued to be a significant cause of injuries and
fatalities in the construction industry over the next few decades. In
response, industry stakeholders called on OSHA to update its existing
construction crane standard, including addressing advances in equipment
technology and industry-recognized work practices.
    Between 1998 and 2003, OSHA's Advisory Committee for Construction
Safety and Health (ACCSH) tasked a workgroup with studying crane issues
and ultimately recommended that OSHA revise the construction crane
standard through negotiated rulemaking. The ACCSH workgroup reviewed
the requirements of the most recent American Society of Mechanical
Engineers (ASME)/American National Standard Institute (ANSI) B30 series
standards applicable to various types of cranes and recommended that
OSHA include work practices and protections from the ASME/ANSI B30
series standards in the new crane standard to the extent possible. The
workgroup's recommendations included a request that OSHA require
training and qualification provisions specific to crane operators, such
as those of the ANSI B30 series, to supplant and augment the general
provisions under Sec. Sec.  1926.21(b)(2) and 1926.20(b)(4) (see ACCSH
transcript Docket ID OSHA-ACCSH2002-2-2006-0194; pp. 129-135).
    In 2003, OSHA commenced rulemaking by establishing a federal
advisory committee, the Cranes and Derricks Negotiated Rulemaking
Advisory Committee (C-DAC), to develop a proposal through consensus
(see OSHA-S030-2006-0663-0639). The committee comprised industry
stakeholders including employer users of cranes, crane manufacturers
and

suppliers, labor organizations, an operator training and testing
organization, a crane maintenance and repair organization, and
insurers. C-DAC met eleven times between July 30, 2003, and July 9,
2004, and produced a consensus document that OSHA proposed for comment.
Like the ACCSH workgroup, C-DAC acknowledged that the qualification and
training requirements of Sec. Sec.  1926.20(b)(4) and 1926.21(b)(2)
were ineffective, and it proposed that OSHA require written and
practical testing of crane operators (73 FR 59810). C-DAC also
concluded that significant advances in crane/derrick safety would not
be achieved without operator testing verified by accredited, third-
party testing. Therefore, per C-DAC's recommendation, OSHA's proposal
included a requirement for operator certification by ``type and
capacity'' of the equipment in lieu of the previous general requirement
that employers ensure their operators were competent to operate the
machinery. However, OSHA proposed to retain the general employer duty
during a four-year phase-in period for the operator certification (see
discussion of Sec.  1926.1427(k) at 73 FR 59938).
    On October 12, 2006, ACCSH supported the C-DAC consensus document
and recommended that OSHA use it as the basis of a proposed rule (see
Docket ID OSHA-ACCSH2006-1-2006-0198-003).
    On October 17, 2006, the Small Business Advocacy Review Panel
(SBAR) submitted its final report on OSHA's draft proposal (OSHA-S030A-
2006-0664-0019). The SBAR recommendations included a suggestion that
OSHA solicit comment on whether ``equipment capacity and type'' needed
clarification, which OSHA did (see 73 FR 59725). Regarding operator
training, many Small Entity Representatives (SERs) thought the C-DAC's
training requirements were too broad and should be focused on the
equipment the operator will use and the operations to be performed. Two
SERs recommended OSHA's powered industrial truck standard as a model
for crane operator training requirements.
    OSHA published its proposal on October 9, 2008 (73 FR 59714) and
received over 350 public comments. The comments discussed a wide range
of topics addressed by the crane standard. In response to requests from
several public commenters, OSHA conducted a public hearing in March
2009. None of the commenters or hearing participants asked OSHA to
remove the requirement that operators be certified by equipment
capacity in addition to type. There were a few stakeholders who
expressed some concern about the proposal to phase-out the employer
duty and replace it with the requirement for employers to ensure
operator competence through third-party testing (see ID-0341-March 19,
2009, page 41 and ID-0445). However, most stakeholders overwhelmingly
supported the certification requirements in the rule as proposed.
    On November 8, 2010, the final rule for cranes and derricks in
construction, including requirements for crane operator certification,
became effective. The original date by which all operators must be
certified was November 10, 2014, but OSHA subsequently extended that
date to November 10, 2017 (79 FR 57785 (September 26, 2014)) and then
further extended it to November 10, 2018 (82 FR 51986 (November 9,
2017)). Prior to the amendments to the standard contained in this
current final rule, the separate employer duty to evaluate operators
was to cease on the date when operator certification was required.

C. Certification by Crane Rated Lifting Capacity

    The 2010 crane standard required operators to become certified and
permitted four options for doing so, one of which is certification by a
third-party organization. A third-party certification is portable (a
new employer can rely on it), but in relying upon a third-party
certification as confirmation of an operator's knowledge and operating
skills, employers need to know what kind of equipment the certification
applies to when making determinations about which equipment an operator
can operate at the worksite. Therefore, C-DAC recommended the
requirement, which was included in the 2010 final rule, that third-
party certification must indicate the equipment types and the rated
capacities that an individual is certified to operate. The other
certification options, which are not portable, do not require
certification by capacity.
    To address the concerns that testing organizations might offer
certification for a variety of crane capacities but yet not offer a
certification for the particular capacity of crane matching the
equipment to which operators would be assigned, OSHA added subparagraph
Sec.  1926.1427(b)(2) to the 2010 crane standard. That paragraph
clarified that the certification must list the type and rated lifting
capacity of the crane in which the operator was tested, and for
purposes of complying with the 2010 crane standard the operator would
be ``deemed qualified'' to operate cranes of the same type that have
equal or lower rated lifting capacity of the crane in which they were
tested. During the rulemaking process for the 2010 crane standard, none
of the commenters asked OSHA to remove the requirement that operators
be certified by equipment capacity in addition to type.

D. Post-2010 Rulemaking Concerns

    In OSHA outreach sessions following the publication of the 2010
crane standard, two accredited testing organizations that offered
certifications by type but not capacity, as well as other stakeholders,
questioned the need for specifying rated lifting capacities of
equipment on their certifications to comply with the new 2010 crane
standard. They expressed concern that meeting the capacity requirement
would require significant changes from their previous certification
practices without resulting in any real safety benefit because they
believed that certification by capacity is not a meaningful component
of operator certification testing. They asserted that employers already
take steps to ensure that even certified operators are capable of
safely operating the cranes at their worksites, regardless of the rated
lifting capacities of those cranes. Thus, these testing organizations
expressed the view that the certification by capacity requirement is
unnecessary.
    Those two testing organizations and many other stakeholders also
expressed surprise and concern that on November 10, 2014, when OSHA's
operator certification requirements were to take effect, the temporary
requirements of Sec.  1926.1427(k)(2)--the employer duty to ensure that
operators are competent-- would no longer be in effect and a similar
requirement under 29 CFR 1926.20(b)(4), qualification and experience,
would not apply. A number of stakeholders described this as a step
backwards in safety.
    OSHA also heard from many stakeholders that the employer should
play a direct role in ensuring that their operators are competent
because a standardized test cannot replicate all of the conditions that
operators will need to safely navigate on the jobsite. They indicated
that the employer typically has more information than a certifying
organization to ensure that an operator has the skills, knowledge, and
judgment required for safely completing a particular assignment on a
particular crane. Many stakeholders likened operator certification to a
learner's permit to drive a car. They cautioned that certification
should be one of several factors to be weighed by an employer before
allowing an employee to operate a crane.

E. Pre-NPRM Discussions With the Construction Industry Stakeholders

Discussions With Companies, Unions, and Organizations That Train,
Assess, and/or Contract Crane Operators
    In order to gather factual information for this rulemaking, OSHA
conducted more than 40 site visits, conference calls, and meetings with
stakeholders between June 6, 2013, and March 27, 2015, regarding their
experiences with training, evaluating, and ensuring the competency of
crane operators. Among these stakeholders were:
     3 crane rental companies [1 large (more than 100 cranes),
1 medium (more than 20 cranes), 1 small (fewer than 20 cranes)]
     10 construction companies that own/operate cranes
[homebuilders, tank builders, propane delivery, steel erector]
     3 large construction/operator training companies
     5 crane manufacturers
     3 construction labor unions
     2 safety consultants/trainers
     4 state agencies
     British Columbia's qualification program
     1 sole proprietor/owner operator homebuilding company
     3 crane insurers
     3 certification testing bodies and accrediting entities
    During discussions with stakeholders, OSHA personnel took notes
that were consolidated into draft reports, which were provided to the
employer or organization for their corrections or comment before the
reports were finalized. Twenty-eight of the discussions were drafted
into written reports. The other conversations were not documented
because they were either informal or the organization's representatives
did not want their comments to be cited in the rulemaking record other
than being referenced anecdotally. The twenty-eight reports, as well as
a detailed summary of the reports, are in the docket for this
rulemaking (ID-0673). Overall, the stakeholders described their
business models for bringing cranes to construction sites, operator
competency programs, methods for ensuring that cranes brought to the
worksite are safely run by competent operators, and views on the use of
operator certification in their operator competency programs.

F. Consulting ACCSH--Draft Proposal for Crane Operator Requirements

    OSHA presented draft revisions to the 2010 cranes standard to the
Advisory Committee for Construction Safety and Health (ACCSH) at a
special meeting conducted March 31 and April 1, 2015, in Washington,
DC. In response, ACCSH recommended that OSHA (OSHA-2015-0002-0037):
     Move forward with the certification requirement and pursue
employer qualification of crane operators.
     Clarify the requirement for certification so that
certification can be by type, or by type and capacity.
     Reconsider the language in the draft revisions that
appears to require the employer to observe the operator operate the
crane in each and every configuration to determine whether the operator
was competent.
     Use the text submitted by William Smith (OSHA-2015-0002-
0051) as a substitute for the draft language on evaluation in the draft
revisions.\3\
---------------------------------------------------------------------------

    \3\ William Smith, commenting as a private citizen, presented
revisions to 29 CFR 1926.1427(a) by the Coalition for Crane Operator
Safety (OSHA-2015-0002-0051). The document recommended revising
Sec.  1926.1427(a) by adding provisions that an operator must meet
OSHA's qualified person standard and mandating training if an
operator cannot safely operate the equipment. In Sec.  1926.1427(b),
he recommended removing the language that an operator will be deemed
qualified if he or she is certified. Throughout Sec.  1926.1427, he
recommended removing references to capacity.
---------------------------------------------------------------------------

     Delete the annual re-evaluation provision in the draft
revisions, and instead consider employer re-evaluations that coincide
with the re-certification period.
     Consider adding a provision that if the operator operates
the equipment in an unsafe manner, the operator must be re-evaluated by
the employer.

G. Promulgation of Notice of Proposed Rulemaking

    OSHA published a proposed rule on May 21, 2018 (83 FR 23534), and
subsequently extended the comment period by an additional 15 days (83
FR 28562). The agency received over 1,200 public comments before the
comment period closed on July 5, 2018.

H. National Consensus Standards

    In adopting a standard, section 6(b)(8) of the Occupational Safety
and Health (OSH) Act (29 U.S.C. 651 et seq.) requires OSHA to consider
national consensus standards, and where the agency decides to depart
from the requirements of a national consensus standard, it must explain
why the departure better effectuates the purposes of the Act. As OSHA
explained when adopting the updated crane rule in 2010, the ASME B30
Standard is a series of voluntary consensus standards that apply to
most of the types of equipment, including cranes and derricks, covered
by subpart CC as a whole (75 FR 48129-48130). The B30 standards each
have chapters that address the operation of the equipment, which
typically include a section on crane operator qualification and crane
operator responsibilities (ID-0002, 0003, 0004, 0005, 0006, 0007, 0027,
0028). OSHA considered those provisions in drafting the proposed rule.
Similarly, OSHA considered the general requirements of ANSI/American
Society of Safety Professionals (ASSP) Z490.1,\4\ which generally
addresses the requirements of occupational safety and health training.
---------------------------------------------------------------------------

    \4\ The American Society of Safety Engineers (ASSE) changed the
name of the organization to the American Society of Safety
Professionals (ASSP).
---------------------------------------------------------------------------

    An association of occupational safety and health professionals
asked OSHA to revise the 2010 crane standard to incorporate by
reference the Z490.1 standard and the ``soon to be published A10
Standard for Construction and Demolition training'' (ID-1824). The
commenter specifically requested that OSHA require that ``any
occupational safety and health training program recognized in the rule
must meet the requirements in the ANSI/ASSP Z490.1 Standard and/or the
soon to be published A10 Standard for Construction and Demolition
Training'' (Id.). The commenter also requested that ``any training
accreditation organization recognized in the proposed rule,'' and any
training curricula, also meet the requirements of those consensus
standards (Id.).
    OSHA is not incorporating either standard by reference in this
rulemaking. First, OSHA cannot legally incorporate by reference a
standard that has not yet been published. Second, the training
requirements of ANSI/ASSE Z490.1 outline a general training program
that is not specific to cranes. After years of interactions with
stakeholders, OSHA believes that its revised training requirements will
be more relevant to employers of crane operators. Third, given the
comprehensive nature of ANSI/ASSE Z490.1, it does not appear to provide
the same level of flexibility as OSHA's standard. OSHA developed this
final rule with enough flexibility so that employers in the crane
industry could adapt existing practices to comply with the standard and
ensure safety in a variety of contexts.
    The final rule takes many of the underlying concepts regarding
operator qualification that are consistent across the B30 standards and
ANSI/ASSE Z490.1, and it places them in one standard. This allows
employers and crane operators to look to one place for OSHA
requirements for operator competence and safety, rather than throughout
fourteen relevant B30

standards. OSHA's standard re-frames the provisions of those standards
as enforceable employer duties, as the OSH Act requires, rather than as
employee responsibilities or non-mandatory suggestions.
    OSHA believes the revisions in this final rule to the 2010 cranes
standard will better effectuate the purposes of the OSH Act than any
applicable national consensus standard because the revisions
consolidate all crane operator qualification requirements for ease of
reference and integrate the permanent operator evaluation and
documentation requirements into the standard, along with the existing
training requirements and certification requirement, in a manner that
OSHA can enforce under the Act.

I. The Need for a Rule

    Based on the information collected from stakeholders and the
recommendations of ACCSH, OSHA proposed to amend 29 CFR part 1926
subpart CC by revising sections that address crane operator training,
certification/licensing, and competency. The purposes of the amendments
are to clarify and continue training requirements for operators; to
alter the requirement that crane-operator certification be based on
equipment ``type and capacity,'' instead permitting certification based
on equipment ``type'' or ``type and capacity''; to clarify and continue
an employer's duty to evaluate operators and operators-in-training for
their ability to safely operate assigned equipment covered by subpart
CC; and to require that employers document the evaluation. OSHA is also
reorganizing and clarifying the operator certification requirements in
Sec.  1926.1427.
    Throughout this document OSHA refers to the ``previous'' or
``prior'' rule or standard as meaning 29 CFR part 1926 generally, Sec.
1926.1427, or the paragraphs therein, as promulgated in 2010 and
revised prior to this rulemaking. Discussion of the ``revised'' or
``amended'' standard refers to the amended standard as finalized
through this rulemaking.

Employer's Duty To Evaluate Its Operators

    In the NPRM for this rulemaking, OSHA proposed a permanent employer
duty to evaluate operators that would not expire on the date
certification is required. For the reasons discussed below, this final
rule revises the prior 2010 crane standard to add that permanent
employer evaluation duty. The key difference between this revision and
the previous version is that the revision permanently maintains the
employer's duty to evaluate its operators, and provides greater
specificity as to what that duty entails in order to provide a clear
and enforceable standard.
    In the NPRM, OSHA requested comment on making the employer
evaluation a permanent requirement in addition to certification. The
agency received supportive comments for keeping the employer evaluation
requirement in conjunction with certification (ID-0719, 1235, 1611,
1619, 1719, 1735, 1744, 1768). Generally, these comments supported
making the employer duty permanent because certification alone is
insufficient for an operator to competently operate the crane safely in
a variety of workplace conditions, and the employer is in the best
position to evaluate an operator's ability to use the specific crane
for the specific tasks the employer assigns. As one of these commenters
stated, ``[t]he intent should be to ensure that operators are fully
qualified to be perform their tasks no matter what certifications they
may hold and only the employer can ensure that,'' (ID-0719).
    These comments are consistent with the feedback OSHA received from
stakeholders prior to publication of the NPRM (ID-0673). In those
discussions, most employers stated that they value third-party
certification, but do not treat it as sufficient, by itself, to
establish competency. Every employer with whom OSHA spoke stated that
the employer's role in ensuring the competency of crane operators
should be allowed to continue. All of the company representatives
stated that they would not let an operator run any of their cranes
based solely on his/her possession of an operator's certifications (see
e.g. Report #1, 4, 6, 9, 11, 12, 16, 18, 20, 21, 22, 25 of ID-0673).
Several industry representatives told OSHA that regardless of what
OSHA's crane standard requires, construction and insurance industry
influences would prevent many employers of crane operators from relying
solely on certification to verify the competence of their crane
operators (see e.g. Report #2, 3, 15, 19 of ID-0673). OSHA confirmed
from these discussions that, regardless of whether an operator has a
certification, all of the employers contacted evaluate their operators
to ensure competency (see e.g. Reports #1, 2, 3, 6, 8, 9, 10, 11, 12,
14, 15, 16, 18, 19, 22, 23, 26, 27, 28 of ID-0673). All stakeholders
said it is essential that the operator's employer determine whether the
operator is competent to safely operate a crane for a particular
construction activity (see e.g. Report #1, 3, 4, 6, 7, 10, 12, 18, 20,
21, 22, 25, 28).
    OSHA received no comments on the proposed rule that opposed making
the employer duty permanent through an evaluation requirement. The
agency received comments recommending revisions to the evaluation
requirement. Those comments are addressed below in the discussion of
Paragraph (f)--Evaluation.
    Under the 2010 crane standard, the employer duty to ensure operator
competence (Sec.  1926.1427(k)(2)(i)) ends in November 2018, after
which operator certification would be the only required way to assess
operator safety qualification. There were no other requirements for
operator safety qualifications beyond certification after that date.
Under the revised standard, the employer's evaluation is established as
a critical element to ensure safe equipment operations on construction
worksites. Third-party certification is portable so that operators do
not need to be re-certified just because they switch employers;
employers can rely on previous training the operator has received from
other employers (or labor organizations) because the revised standard
requires that every employer evaluate an employee first as an operator-
in-training before permitting him or her to operate equipment without
oversight. The evaluation process is performance-oriented and discussed
in more detail in the explanation for revised Sec.  1926.1427(f).
    During its testimony in support of retaining an employer duty to
assess operators, the International Union of Operating Engineers (IUOE)
stated that removal of that duty would endanger operators and workers
in the vicinity of cranes, ``[c]rane operators would be in a far worse
position than they were before issuance of the final rule in August
2010'' (ID-0486). William Smith of Nations Builders Insurance Services
(NCCCO board member and C-DAC member) agreed, commenting that
``[l]eaving the rule as written [with certification but without a
continued employer duty after the initial deadline of November, 2014]
would take us back in time not forward in protecting lives'' (ID-0474).
A U.S. crane manufacturer stated that the lack of employer evaluation
of an operator would be a problem, and certification is a foundation,
but should not be a substitute for an employer competency evaluation.
(Report #4 of ID-0673).
    An employer's evaluation assesses different operator skills than
certification tests. The reports from stakeholders prior to publication
of the proposed rule showed that most stakeholders viewed certification
only as a verification of an operator's basic

operating skills and crane knowledge such as reading load charts,
recognizing basic crane hazards, inspecting the equipment, knowledge of
applicable regulations, and familiarity with basic crane functions to
control the boom and load line (ID-0673). The rulemaking record
includes a list of activities from the IUOE that require specific
skills that are not evaluated during the certification practical exam,
but can be covered during an employer evaluation. These activities
include inspecting the equipment; assessing unstable loads; hoisting
loads of irregular size; operation from a barge; personnel hoisting;
rigging the load; leveling the crane; hoisting in tight spaces where
there is greater opportunity for damaging parts of the crane other than
the load line; making judgments about wind speed and other
environmental factors that can impact the performance of the equipment;
performing multiple crane lifts; traveling with or without a load;
operating near power lines; hoisting light loads; and hoisting blind
picks where the operator cannot see the load (see, e.g., Docket ID-
0527, p. 3). IUOE has also noted that different skills are required to
operate equipment with different attachments and identified in
particular the unique skills required to operate with clam bucket or
drag line attachments (Id.). By way of contrast, the IUOE stated that
the operator certification practical test covers only basic operation
functions (hoisting and lowering a load and guiding it through a
course), and ``does not test on the breadth of activities that are
involved in the operation of cranes'' (Id.). Local 49 of the IUOE
added: ``It is understood in the industry that it is not economically
feasible to simulate on a training site all scenarios that arise on a
construction site and that training and evaluations of training must
occur on an ongoing basis'' (ID-1719). Without the employer duty to
evaluate operators on the equipment to which they are assigned, an
employer could permit a certified operator to operate tower cranes and
other large equipment in any configuration with any number of
attachments without determining if the operator possesses the requisite
knowledge and skills necessary to ensure safety and address the issues
identified by IUOE and others.
    Some employers described certification as a ``learner's permit''
(ID-0539, Reports #15, 26 of ID-0673), and a number of employers with
whom OSHA spoke stated that they would not allow a certified operator
to use their equipment without first also evaluating the operator to
verify competence (Reports #1, 6, 18, 20, 22 of ID-0673). The Executive
Director of the IUOE's certification program stated that he does ``not
know any contractors . . . at least the union contractors that we're
associated with, who fail to make sure that their people are
qualified'' (OSHA-2015-0002-0036). A trade association commented that
``[t]he record makes clear . . . that the fact that an employee has
been certified as competent to operate a crane does not mean that the
employee is qualified to operate the employer's particular equipment''
(ID-1768). A training company representative stated that operators with
very little experience can acquire a sufficient basis of knowledge of
the crane to pass a certification exam without being truly qualified to
operate independently and safely on a construction worksite (Report #21
of ID-0673). Two stakeholders expressed concern that relying solely on
certification could be dangerous because it would create a false sense
of qualification, leading some contractors to be less vigilant in
evaluating the competence of operators to safely operate equipment for
all of their tasks (Reports #9, 11 of ID-0673).
    In addition to the commenters identified earlier as supporting an
evaluation requirement, OSHA had already heard from many stakeholders
that the employer should play a direct role in ensuring that their
operators are competent (ID-0539, Reports #1, 2, 3, 4, 6, 9, 10, 11,
12, 14, 15, 16, 18, 19, 20, 21, 22, 25, 26 of ID-0673). A commenter
asserted that extending the employer duty is ``logical'' because the
employer should ``have the ability to make an evaluation of an
operator's ability to operate equipment in a safe and responsible
manner'' (ID-1779). One commenter stated many of its members believe
``certification itself is not sufficient to establishing crane operator
competency, and believe that employers must initially evaluate and
continue to re-evaluate their crane operators to determine their
ability to safely operate a crane'' (ID-1735). Because a standardized
test cannot replicate all of the conditions that operators must safely
navigate on the jobsite, the employer is typically in a better position
than a certifying organization to fully evaluate an operator to ensure
that he or she has the skills, knowledge, and ability to recognize and
avert risks required for a particular assignment on a particular crane.
Just as an employee's driver's license would not guarantee the
employee's ability to drive all vehicles safely in all conditions an
employer may require, crane operator certification alone does not
ensure that an operator has sufficient knowledge and skill to safely
use equipment.
    Many stakeholders indicated that in their experience operator
competency needed to be crane-specific (Reports #1, 2, 3, 4, 6, 16, 19,
21 of ID-0673). A comment to the proposed rule supporting a permanent
employer duty stated ``employers have a duty to evaluate all crane
operators to ensure that they are qualified to perform the assigned
work on the type and model used'' (ID-1719). Similarly, a certification
body believes that ``[i]t's always been the employer's duty to qualify
an operator for the specific crane and task'' (ID-1235). Some of the
stakeholders raised concerns about the importance of these different
crane characteristics in discussing whether OSHA should require
certification to be by type and capacity or just by type. For example,
one employer told OSHA that certification could be by type alone,
provided the employer was responsible for evaluating operator
competency on assigned equipment (Report #1 of ID-0673). A crane
operator training company that OSHA interviewed noted that no one
certification test could ever capture all of the types, configurations,
and capacities of cranes and the activities they may be used to perform
at the jobsite. Therefore, it is important that the employer typically
verify the operator's skill level through an experienced assessor
(Report #20 of ID-0673).
    As OSHA noted in the NPRM, an extensive analysis of crane accidents
published by HAAG Engineering in 2014 concluded that crane incidents
are more likely to be reduced if a company ensures that an operator
possesses equipment-specific skills and knowledge in addition to
certification:

    The certification process ensures that an operator has
demonstrated a core knowledge set of the principles of cranes and
crane operations, OSHA regulations, and ASME standards requirements
. . . has successfully demonstrated both knowledge and the physical
skill set to operate a type of crane. . . .
    Comparing responsibility failure trends between crane types
gives strong evidence that crane model-specific training is an
overwhelmingly good idea. . . . In order for the industry to
theoretically provide a quality certification for each model crane,
the process would take decades just to develop certifications for
existing model cranes, and with new models coming out every year,
that development process would also be never-ending. Each time a new
model crane was released, its use would be prohibited until a
qualified certification process was developed if model-specific
certification was required. Model specific qualification is an issue
that cannot and should not be done by the

certification process, but should be done through training and
examination by the individual company and corresponding operator in
addition to earning type-specific certifications which ensure the
knowledge and skill sets discussed above.
    Understanding of crane principles, general crane
characteristics, individual responsibilities, and national standard
guidelines is the basis for certification; however, an operator's
familiarity with the particular unit is invaluable in the goal to
reduce operator associated incidents.\5\
---------------------------------------------------------------------------

    \5\ Wiethron, Jim D., Crane Accidents: A Study of Causes &
Trends to Create a Safer Work Environment, 1983-2013, pp. 105-106
(HAAG Engineering, 2014)

    (83 FR 23541). No commenters challenged this assessment of the
significance of equipment-specific evaluations.
    The evaluation requirement is a mechanism to help ensure that
operators possess the skill to account for and safely use the
variations within even a single type of crane; without the evaluation
requirement there would be no distinction between the competency
required to operate the same type that has differing controls. It is
OSHA's intent with the revised standard, including the evaluation, to
avoid accidents such as the Deep South collapse, in which an operator
was assigned to a crane of a type for which he was certified, but the
controls and operations were significantly different from those with
which he was familiar. Operator error factored into the collapse of the
crane, killing four people. The reviewing court upheld the Occupational
Safety and Health Review Commission's finding that the operator was not
qualified to operate that crane. The Commission noted that the crane
that collapsed was ``significantly different'' from the cranes that the
operator had previously operated and that the operator had not had
previous experience with the crane in a similar configuration (see Deep
S. Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff'd
Deep S. Crane & Rigging Co. v. Harris, 535 F. App'x 386, 390 (5th Cir.
2013)).
    The evaluation requirement is also necessary to ensure safety as
the crane industry moves away from traditional training models. A crane
insurance representative stated that the industry is moving away from
assigning two employees to work on a crane, where the less experienced
employee is mentored by the other, to where only one person is assigned
to work on a crane, and expressed concern that this shift may impact
the availability of sufficiently qualified operators and the safety of
the industry (Report #25 of ID-0673). Such an approach increases the
importance of an employer evaluation requirement because informal
monitoring would be less frequent. Requiring certification by crane
type or type and capacity, and retaining the employer duty to evaluate
operators should help to ensure that crane operators have sufficient
training to maintain safety when two employees are no longer assigned
to work on a crane. The previous certification requirement ensures
baseline knowledge and skills to operate a crane, while retaining the
employer duty to evaluate operators provides some assurance that the
operator can safely handle the specifics of operating particular
equipment and performing more challenging tasks in a variety of
contexts.
    The only concerns that commenters on the proposed rule expressed
about the evaluation requirement focused on the specifics of the
requirement, not the proposition that an employer should have a duty to
ensure operator competency. OSHA discusses the specific requirements of
the evaluation more fully in the preamble explanation of revised Sec.
1926.1427(f). It is also important to note that OSHA is not creating a
totally new duty. All employers were required to assess their operators
prior to the 2010 crane rulemaking, continued to have such a duty under
the previous Sec.  1926.1427(k), and none of the commenters raised any
hardships caused by an employer duty to assess operators. To promote
consistency and effectiveness and ensure safety, this rulemaking simply
clarifies what that evaluation involves and makes the duty permanent.
    OSHA requested comment on whether there are more effective ways of
ensuring that operators are fully qualified to use cranes for the
specific activities that they will be required to complete.
Specifically, OSHA asked whether ``independent third-party
evaluations'' should be required (83 FR 23542). One commenter
responded, opposing such a requirement on the grounds that third-party
evaluators might not be commercially available and, even if available,
would not be more effective than evaluations conducted by the
operator's employer (ID-1615).
    A different commenter suggested that OSHA should implement an
``operator training program such as an oiler was in the past'' so that
``the training is complemented with knowledge of the machine he will be
operating . . . seat time will give knowledge of the load charts to
understand the difference between structural, tipping capacity's [sic]
from a trained operator'' (ID-698). OSHA envisions the revised rule
functioning in a flexible manner that will lead to the results the
commenter describes: A combination of training and experiential
learning that ensures that the operator can safely operate the
equipment to which he or she is assigned.
    OSHA considered several alternative approaches to the provisions in
paragraph (f) adopted through this rulemaking, but concluded that those
alternatives would not be as effective as the adopted measures in
ensuring crane operator competency and safety. The first approach was
to remove the phase-out of the employer duty without providing further
guidance or criteria. As discussed later in the preamble section for
paragraph (f), OSHA believes that evaluations of operator competency
are critical to safe crane operations and that proposing a general
requirement for this purpose, without providing additional criteria,
would be inadequate.
    The second approach considered was adopting the ACCSH
recommendation to use the Coalition for Crane Operator Safety's
language requiring employers to ensure that operators ``meet the
definition of a qualified person'' before operating the equipment. As
explained later in the preamble discussion of paragraph (f), OSHA is
adopting a compromise version of this regulatory text as proposed by a
commenter. OSHA is concerned that the ACCSH recommendation, like the
general duty under Sec.  1926.21(b)(4), fails to provide sufficient
specifics to ensure operator competence. Moreover, the ability to
``resolve problems,'' which is a key component in the definition of a
``qualified person,'' only captures one aspect of what safe crane
operation entails. And by relying on the definition of a ``qualified
person,'' which can be met in some cases solely through ``possession of
a . . . certificate,'' the whole point of having some additional
assurance of operator competency beyond operator certification would be
lost: An operator could still conceivably become both certified and a
qualified person through the completion of a single certification test.
For these reasons, OSHA believes that this final rule better
establishes the employer's obligation to ensure crane operator
competency.
    In the third approach, OSHA explored the practicality of modeling a
crane operator evaluation process on one implemented in the provinces
of Canada. In those provinces, a quasi-governmental agency tracks the
base level of certification and operating

experiences of the operators in an internet database. For example, the
British Columbia system has at least three different levels of
``qualification,'' and employers are responsible for observing,
evaluating, and ensuring the operators are competent to perform the
work required at each level (ID-0672). OSHA concluded, however, that
this level of oversight would be impractical on a national scale in the
United States. The expertise needed to develop and maintain a system
that works for the entire regulated community across the United States,
and to verify the information in such a system, would be substantial.
Moreover, even after providing certification for its operators,
employers in Canada still have the obligation to ensure the competency
of operators to safely perform assigned work, which is similar to the
operator evaluation requirements of this final rule.
    Based on all of the reasons in the foregoing discussion, OSHA
concludes that it will improve crane safety to continue and make
permanent the requirement for employers to evaluate their operators and
operators-in-training in addition to ensuring that they are properly
certified. Employer evaluation increases safety by focusing on specific
knowledge and skills that operators need for the safe use of particular
equipment for particular tasks in a variety of contexts. The specific
evaluation requirements are set out in paragraph Sec.  1926.1427(f) and
are explained later in this document in the preamble discussion of that
paragraph.
Elimination of the Requirement To Certify Based on Capacity of Crane
    As discussed above, OSHA proposed altering the requirement for
different certifications based on different lifting capacities of
equipment after receiving feedback that the capacity requirement does
not provide a significant safety benefit because the lifting capacity
of the equipment is not a meaningful component of operator
certification testing. In its request for comments on this issue, the
agency specifically asked for information that demonstrated the safety
benefits of certification by capacity.
    OSHA received one comment claiming that ``[r]etaining capacity will
require more stringent testing resulting in an increase in crane
safety, thus fewer accidents,'' (ID-1235), but this commenter did not
provide any evidence of how certification by capacity increases safety
or reduces accidents. OSHA received a comment from an association
stating that its members were split on this issue, but the association
did not share why some of its members opposed the removal of capacity
(ID-1824). Another association commented that it ``concurs with the
proposed rule'' and suggested that it would be ``better than the
current rule,'' but the rest of its comment on this point was not clear
(ID-1632). Without further explanation, that commenter added that it
supported certification organizations having a choice and ``believes it
would be best for the safety of crane operations to certify by type and
capacity'' (Id.). However, the commenter did not offer any information
about the safety benefits of certification by capacity.
    While testing organizations differed over whether a certification
by capacity provided any useful information to an employer, most
commenters agreed that capacity is just one factor to be considered in
the employer's overall evaluation of the operator's ability. The
majority of commenters that responded to this issue support removing
the certification by capacity requirement (ID-0690, 0703, 0719, 1611,
1616, 1619, 1628, 1632, 1719, 1735, 1744, 1755, 1764, 1768, 1801, 1816,
1826, 1828). A certification body commented that ``virtually unanimity
exists in the industry that certification by `capacity' should be
eliminated from the regulatory requirement'' (ID-1816). Another
certification body echoed that point, stating that ``The industry has
been clear in its comments that, whereas equipment ``type'' is critical
when delineating knowledge and skill, equipment ``capacity'' is just
one of many other factors (like configuration) to be considered in the
employer's overall evaluation of an operator's ability'' (ID-1755).
    The majority of comments responding to this request did not know of
any safety benefits related to certification by capacity (ID-1615,
1628, 1755, 1768). One comment claimed that capacity ``did very little
to advance the safe operation of cranes at construction jobsites'' (ID-
1619). Two certification bodies that offer certification by capacity
did not offer any safety evidence to the agency in public hearings or
stakeholder meetings (ID-1719). Referring to consensus standards and
industry best practices, one commenter noted that ASME B30.5 ``does not
describe testing or examination by capacity,'' and the organization
``is not aware of any state or local regulatory body . . . that
requires certification or licensing by both type and capacity'' (ID-
1816).
    In addition to many commenters stating that certification by
capacity has no demonstrable safety benefit, many also consider the
requirement to be burdensome (ID-0616, 0690, 0703, 0719, 1619). One of
these commenters stated that they paid for their operator to be
certified, but the operator only passed the test for cranes up to a
capacity of 21 tons and was forced to also take an entirely different
exam for cranes up to 75 tons in order to operate a crane of 23 tons,
just over the capacity limit of the lower test (ID-0616). A different
commenter concluded that some of their members find the capacity
requirement ``unwieldy and exceptionally burdensome'' (ID-1824). One
commenter explained that if the OSHA capacity requirement went into
effect, ``approximately 83% of those possessing certification'' would
not be compliant with the 2010 cranes standard (ID-1801).
    One commenter believes ``[t]he industry has been clear . . .
``capacity'' is just one of many other factors (like configuration) to
be considered in the employer's overall evaluation of an operator's
ability'' (ID-1755). One commenter agreed with OSHA that the employer
evaluation was the appropriate time to consider the crane's capacity
among other factors (see discussion of Sec.  1926.1427(f)(1) later in
this document) (ID-1735).
    Based on this record and the continued employer duty to evaluate
operators, which provides an additional means for ensuring that the
operator can safely use equipment for the range of tasks assigned, OSHA
has determined that employee certification by capacity of crane should
no longer be required; rather, it may be an option for those employers
who wish to use it. Employers can comply with the third-party
certification requirements of OSHA's crane standard by ensuring that
their operators are certified by an accredited organization by type of
crane or, alternatively, by both type of crane and by capacity.
J. Significant Risk
    Section 3(8) of the OSH Act requires that OSHA standards be
``reasonably necessary or appropriate to provide safe or healthful
employment'' (29 U.S.C. 652(8)), which the Supreme Court has
interpreted as requiring OSHA to show that ``significant risks are
present and can be eliminated or lessened by a change in practices''
(Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642
(1980) (plurality opinion) (``Benzene'')). The Court clarified that
OSHA has considerable latitude in defining significant risk and in
determining the significance of any particular risk, noting that ``[i]t
is the Agency's responsibility to determine, in the first instance,
what it considers to be

a `significant' risk'' (Benzene, 448 U.S. at 655).
    Although OSHA makes significant risk findings for both health and
safety standards, the methodology used to evaluate risk in safety
rulemakings is more straightforward. Unlike the risks related to health
hazards, which ``may not be evident until a worker has been exposed for
long periods of time to particular substances,'' the risks associated
with safety hazards such as crane tipovers, electrocution, and striking
or crushing workers with a hoisted load, ``are generally immediate and
obvious.'' Benzene, 448 U.S. at 649, n.54. The final rule for OSHA's
2010 cranes standard contained an extensive analysis in which the
agency examined fatality and injury data available in 2008 and
concluded that employees working in or around cranes and derricks face
a significant risk of death or serious injury (see 75 FR 48093).
    When, as here, OSHA has previously determined that its standard
substantially reduces a significant risk, it is unnecessary for the
agency to make additional findings on risk for every provision of that
standard (see, e.g., Public Citizen Health Research Group v. Tyson, 796
F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the argument that OSHA
must ``find that each and every aspect of its standard eliminates a
significant risk''). Rather, once OSHA makes a general significant risk
finding in support of a standard, the next question is whether a
particular requirement is reasonably related to the purpose of the
standard as a whole. (Asbestos Information Ass'n/N. Am. v. Reich, 117
F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Secretary of
Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (DC Cir. 1980)).
    As explained elsewhere in this preamble, this final rule meets this
test. OSHA previously concluded that the 2010 crane standard would
substantially reduce risk through a combination of mandatory operator
certification and other requirements, but OSHA did not claim that the
standard would eliminate the significant risk entirely. The employer
evaluation is reasonably related to the reduction of significant risk
because it reduces employee exposure to the previously identified
hazards. It reflects current industry best practices and helps to
ensure the employee has the skills and knowledge to operate the crane
safely during the lifts to which he or she is assigned.\6\
---------------------------------------------------------------------------

    \6\ The removal of the requirement for certification by crane
lifting capacity is not implicated in this significant risk
discussion because it removes a requirement and does not impose any
new duties.
---------------------------------------------------------------------------

    The agency notes that there is ample evidence in the record that
workers could continue to be exposed to the hazards that OSHA sought to
reduce through the 2010 cranes standard. OSHA relied on fatality data
available in 2008 when it promulgated the crane standard, but
unfortunately crane-related fatalities have continued to occur.
According to the Census of Fatal Occupational Injuries, 47 crane
operators were killed between 2011 and 2014 (this does not include
accidents with non-fatal injuries or crane incidents causing fatalities
or injuries to workers other than the crane operator).\7\
---------------------------------------------------------------------------

    \7\ Bureau of Labor Statistics, Census of Fatal Occupational
Injuries (2011 forward), Fatalities to Crane and Tower Operators,
series ID FWU50X53702X8PN00, available at http://www.bls.gov/iif/data.htm.
---------------------------------------------------------------------------

    Another useful data source is a report by an engineering forensics
firm, HAAG Engineering, of a large dataset of crane accidents that it
has investigated over a period of 30 years (Wiethorn, 2014, the ``HAAG
Report'') (ID-0674). The final dataset has 507 incidents, covering all
types of cranes and accidents. This dataset is likely biased towards
larger accidents since these are more likely to warrant significant
investigation for insurance and litigation issues. But while it is not
a representative sample of all crane accidents, it is a large sample
and may be suggestive of more general trends. The HAAG report states
that of 141 employee fatalities among its reported crane incidents, 28
were operators, meaning there were approximately 4 times more non-
operator employees killed than operators from crane accidents in this
sample ((141-28)/28=4.03).\8\ Similarly for injuries, out of 267
employee injuries, 29 were to operators, so that there were 8.2 non-
operator injuries for every operator injury ((267-29)/29=8.2).\9\ These
two categories are not mutually exclusive (there are often injuries
when there is a fatality).
---------------------------------------------------------------------------

    \8\ The HAAG report, p. 31.
    \9\ Id.
---------------------------------------------------------------------------

    As noted in more detail in the ``Benefits'' section of the Final
Economic Analysis for this rule, three recent fatalities in particular
illustrate the dangers from improper equipment operation that could be
prevented by the evaluations included in this amendment to the
standard. In one instance, the crane operator was not familiar with the
controls of the equipment. In another incident, an operator hoisting
pipes longer than he had previously hoisted used an improper boom
angle, indicating that he did not possess adequate knowledge and skills
to address the additional challenges of the task he was required to
perform. In the third incident, a fatality occurred when an employee
operated a new, unfamiliar machine with controls in different locations
than the machines with which the operator was accustomed. While the
employee's use of that equipment arose from unexpected circumstances,
the result nonetheless demonstrates the risk inherent with operating a
crane without a method to ensure the operator knows how to operate new
equipment where there are differences in control locations and
functions.
    None of the commenters disagreed that OSHA does not need to make a
separate determination of significant risk, nor did anyone challenge
the relevance of any of the fatalities noted by OSHA. As explained in
the ``Background'' and ``Need for Rulemaking'' sections of the
preamble, commenters have raised serious concerns that the current
level of risk would increase if OSHA did not continue the employer duty
to ensure operator competency on the actual equipment they operate. The
nearly unanimous message to OSHA is that crane operator certification
is designed to ensure a basic level of general operating competency,
but is not by itself sufficient to ensure that operators have the
necessary skills and knowledge to operate all assigned equipment or to
perform all assigned tasks safely in all workplace conditions.

III. Summary and Explanation of the Amendments to Subpart CC

Discussion of the Final Rule's Organization and General Terms Used in
Its Summary and Explanation

    The following discussion summarizes and explains each new or
revised provision in this final rule and the substantive differences
between the revised and previous versions of OSHA's crane operator
requirements in subpart CC of 29 CFR part 1926. As a general matter,
OSHA has reorganized this section of the rule to improve comprehension
of the requirements. In the ``Background'' section of this notice, OSHA
summarizes the rationale for making permanent the employer duty to
evaluate operators and removing the requirement for certification by
equipment capacity.

Paragraph (a)--Duty To Train, Certify or License, and Evaluate
Operators

    Paragraph (a) sets out the employer's responsibility to ensure that
each operator completes three steps before the employer permits the
operator to

operate equipment covered by subpart CC without continuous supervision.
In the regulatory text, OSHA refers to this entire three-step process
as ``qualification.'' Each operator must be trained to do the crane
activities that will be performed, be certified/licensed in accordance
with subpart CC, and be evaluated on his or her competence to safely
operate the equipment that will be used. In addition, paragraph (a)
sets out exceptions to these requirements for certain equipment, as
well as continuing to note that qualifications issued by the U.S.
Military to its non-uniformed employees satisfy OSHA's crane standard
(OSHA continues to apply the term ``qualification'' within the final
rule for operators working for the U.S. military, as it did in the
previous version of the rule). The new approach provides a clearer
structure than the previous format of the standard, which was not
designed to accommodate both certification and evaluation.
    In addition, the final rule makes clear that post-certification
training is required. OSHA adopted this change because the previous
version of the standard focused on pre-certification training. The
final rule outlines the ongoing training necessary for certified
operators to learn to operate new equipment or perform new tasks. The
new final rule contemplates operators still needing additional training
after they are certified, such as training to operate a new type of
crane, perform new tasks, or handle new controls in a crane that differ
from previous models they have operated. The employer is obligated to
train employees, as necessary, even after they are certified, until the
employer has evaluated them in accordance with paragraph (f). The
training components are otherwise nearly the same under both the
previous and revised versions of the standard.
    As under the previous version of the standard, (see prior Sec.
1926.1430(g)(2)), refresher training would also be required when
indicated by deficiencies in the employee's demonstrations of crane
knowledge or equipment operation.
    The current certification/licensing requirement, which is the
centerpiece of the previous operator requirements, remains largely
unchanged under the revised standard, with the exception that different
certifications for different capacities of cranes would no longer be
required. The reference to ``certified/licensed'' is intended to
encompass each of the certification options in the standard (third-
party certification or an audited employer certification program) as
well as state or local operator licensing requirements.
    Several commenters requested that OSHA remove the existing
requirement for operator certification from the standard (see, e.g.,
ID-1605, 1615, 1821, 1826). These commenters faulted OSHA for failing
to re-justify the requirement for operator certification or did not
think it should be applied to their specific industry.
    However, operator certification was central to the 2010 final rule,
which was based on the industry stakeholder recommendations through a
negotiated rulemaking. Comment was requested on the proposal in that
rulemaking, and OSHA held several days of hearings on the proposal.
OSHA published the rationale and justification for the inclusion of the
certification requirement in the standard in the 2010 preamble, and so
there was no need to re-explain the agency's lengthy analysis in this
new rulemaking. In the NPRM for this rulemaking OSHA did not signal
that it was considering removing certification: To the contrary, one of
the main purposes of the rulemaking was to implement a change to the
certification requirement (removing capacity) in recognition of the
limited safety benefits of that requirement. This would reduce needless
regulatory burden and ensure that the employers of a majority of
operators would be able to comply with the certification requirement.
OSHA also proposed to clarify and make permanent other employer
evaluation duties, but those were proposed in addition to the operator
certification requirements and the proposal re-organized the standard
to encompass both.
    With certification already a requirement of the standard, the main
issue in this rulemaking besides the content of the certificate was the
additional employer evaluation requirement. One commenter claimed that
OSHA's ``policy shift'' to include additional employer evaluation
duties in the current rulemaking ``demonstrates that even it does not
believe that certification is necessary to verify basic crane operating
skills and knowledge needed to safely operate the equipment'' (ID-1605,
p. 2). OSHA disagrees. OSHA accepted the construction industry
stakeholders' recommendation for a third-party certification
requirement in 2010 after OSHA's previous construction cranes standard,
which included a generic duty for employers to assess operators but no
independent certification of the operator's knowledge or abilities,
appeared ineffective in reducing fatalities and injuries caused by
crane operator errors. OSHA proposed the employer evaluation in this
current rulemaking as an addition to certification, not as an
alternative to certification, because those provisions are intended to
work in tandem as explained in more detail elsewhere in this preamble.
The certification provides an independent assessment of general
baseline knowledge and skill and the employer evaluation focuses on
specific knowledge and skills needed for the safe operation of
particular equipment for particular tasks.
    OSHA also disagrees with the claim that adoption of a permanent
requirement for employer evaluation of operators undercuts the need for
certification (see also ID-1821). Many of the industry stakeholders who
participated on the negotiated rulemaking committee (C-DAC) who
recommended independent operator certification saw a need to verify
baseline crane operating knowledge and skills, and OSHA incorporated
that recommended requirement into its standard after public comment and
extensive analysis, as explained at length in its 2010 final rule and
accompanying preamble (75 FR 47905). But following that rulemaking,
industry stakeholders noted a distinction between the basic operating
knowledge and skill needed to pass a certification examination, on the
one hand, and on the other the knowledge and skill needed to safely
operate specific equipment to complete a specific task on a
construction site. Employers had traditionally addressed this
distinction when complying with OSHA's general construction requirement
in Sec.  1926.20(b)(4) (``The employer shall permit only those
employees qualified by training or experience to operate equipment and
machinery''). But the inclusion of specific operator training and
certification requirements in the 2010 standard supplanted that general
requirement, apparently to the surprise of some former C-DAC members,
who then began advocating for a replacement (see e.g. ID-0539). With
additional information from industry, the agency has taken action
through this rulemaking to prevent individuals from performing
construction work using even the types of machinery for which they are
certified until employers confirm that they are sufficiently familiar
with the particular machines they will operate and the specific tasks
they will perform in order to ensure safety.\10\
---------------------------------------------------------------------------

    \10\ The employer evaluation requirements should also allay
stakeholder concerns about the removal of the requirement for
certification by different crane capacities, which OSHA had
previously incorporated as a means of addressing significant
differences between machinery within a single type of crane.

---------------------------------------------------------------------------

    OSHA also disagrees with the assertion that OSHA had previously
stated that certification would, by itself, eliminate unqualified
operators, and that OSHA further stated that the ``intent of
certification . . . was clear all along: The test would demonstrate the
operator's technical knowledge specific to the equipment--meaning
certification equated to qualification'' (ID-1605). In support of the
claim, the commenter selectively quoted language in the regulatory text
in previous Sec.  1926.1427(b)(2) that operators would be ``deemed
qualified'' to operate equipment once certified. However, OSHA used
``deemed'' in the description ``deemed qualified'' in the previous
Sec.  1926.1427(b)(2), as well as separate references to certification
and qualification as alternatives, to avoid the impression that
certification resulted in a fully qualified operator.\11\ As OSHA
previously explained in the NPRM, OSHA only used the term ``deemed
qualified'' to recognize under a single rubric the full spectrum of
options for complying with OSHA's standard: Certification, military
authorization, state-licensing, and ``qualification by an audited
employer program.'' (See 83 FR 23549, n. 10.)
---------------------------------------------------------------------------

    \11\ In providing an overview of the function of the
requirements of section 1427, OSHA used the terms ``certification''
and ``qualification'' separately in describing the process for
compliance: ``In the final rule, paragraph (a) of this section
specifies that the employer must ensure that the operator . . . is
either qualified or certified to operate the equipment in accordance
with the provisions of this section. . . .'' Also, in describing the
alternative permitted under 1427(b), OSHA stated in the 2010 final
rule: ``As noted above, the proposed rule provided four options for
a crane operator to be qualified or certified.'' 75 FR 48017.
---------------------------------------------------------------------------

    Many commenters requested exemptions from the operator
certification requirements or the entire rule. These comments, which
included several mass mailings of identical or nearly identical
comments, focused on exemptions for the use of cranes in three
industries: Delivery and installation of propane tanks; using equipment
attached to scaffolding to hoist loads up to the scaffolding; and using
equipment to install signs (see, e.g., ID-1184, 1631, 1830).\12\ OSHA
noted in the proposed rule that broad requests for exemptions from
existing requirements were beyond the scope of this rulemaking, but
requested comment on whether there should be exemptions from the
revised employer evaluation requirements (83 FR 23544). Thus,
exemptions from the revised employer evaluation requirements were the
only exemptions OSHA proposed in the NPRM.
---------------------------------------------------------------------------

    \12\ One commenter from the pre-cast concrete industry requested
an exemption from the certification requirements for operators of
knuckleboom cranes, noting that these cranes ``are present in a
large number of precast concrete plants'' (ID-1047). The commenter
continued that ``[a]dding a national certification requirement for
knuckle-boom cranes would not likely have an impact on improving
safety within the plant . . . This assessment is backed by data from
the Bureau of Labor and Statistics, which identifies general
industry, of which the precast concrete industry is a part, as
accounting for a significantly lower rate of workplace accidents
involving cranes than the private construction industry.'' The
commenter described the burden on ``these small manufacturers'' and
also stated: ``While some precast concrete plants have crane
operators who would need to be certified on other classes of cranes,
there are likely thousands of plant personnel who operate only a
knuckle-boom style of crane.'' Taken together, the references to the
employers as manufacturers engaged in general industry work, the use
of the cranes in ``the plant,'' and their presence in a ``large
number of . . . plants,'' the commenter seems to misinterpret OSHA's
construction crane rule as applicable to that industry's general
industry activities. The operator certification requirement only
applies when equipment is used for construction work, not for the
manufacture of pre-cast concrete in a manufacturing plant. A
different commenter (ID-1190) also requested an exemption for ``pre-
cast concrete manufacturers'' and referred to ``drivers'' requiring
certification. OSHA has previously clarified that manufacturers who
simply deliver their products to the ground on a construction site
are not considered to have engaged in construction activity, so the
drivers in that scenario would not require certification under
OSHA's construction cranes standard.
     A different commenter, without identifying his industry, asked
for an exemption for ``small truck mounted booms'' under the theory
that employers, rather than pay for operators to be certified, would
simply ``eliminate these valuable tools that will ultimately lead to
more back injuries because proper tools are not available to the
employee'' (ID-1373). OSHA notes that its standard already exempts
from the certification requirement operators of ``equipment with a
maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds
or less'' (revised 29 CFR 1926.1427(a)(2).
     A third commenter noted his opposition to operator
certification because ``I believe that there are only three entities
that are recognized for this outside of the Operating Engineers for
union shops. OSHA . . . must provide a clear process for employers
to seek accreditation that is independent of the currently
accredited entities'' (ID-0704). OSHA's standard does not restrict
the number of third-party certifying entities or their accrediting
bodies. OSHA's standard also allows individual employers to comply
with the certification requirement by certifying their own employees
through a program audited by a third-party (see revised 29 CFR
1926.1427(e)).
---------------------------------------------------------------------------

    To the extent that commenters from these industries addressed
employer evaluations of operators, they suggested that they were
already performing the types of evaluations that would be required by
the revised standard.\13\ Indeed, despite the fact that employers in
these industries have been required to perform some sort of operator
assessment for the last eight years under Sec.  1926.1427(k), they
provided no examples of hardship or obstacles that have arisen during
these assessments that would indicate that the new evaluation
requirements would also pose an undue burden. OSHA is therefore not
persuaded that employers in these industries should be exempt from the
requirement to evaluate operators. Other than for operators of sideboom
cranes, derricks, or equipment with a lifting capacity of less than two
tons, the evaluation requirements in the new standard apply to all
operators.\14\
---------------------------------------------------------------------------

    \13\ For example, a representative of the propane industry
explained that ``experienced propane field technicians provide
hands-on training to new employees in coordination with or
subsequent to review of written training materials'' (ID-1631).
Their industry also ``utilizes competency training materials that
provide training on the use of cranes to deliver and retrieve a
propane container,'' and ``utilizes the crane training materials
along with other industry-developed training materials to provide
new training before an employee is assigned a new responsibility as
well as at regular intervals to serve as refresher training'' (ID-
1631). A representative of the precast concrete industry explained
that their organization's ``engineers have visited hundreds of
plants and have observed . . . owners ensuring operators
competency'' (ID-1047). The rationale for the employer evaluation
seems equally applicable to these industries and the commenters do
not provide any persuasive evidence disputing that it is important
that employers evaluate operators to assess whether they have the
knowledge and skills to safely operate the equipment which they are
assigned to use to perform construction tasks.
    \14\ One of the same group of commenters also suggested, if
removal of certification is not an option, that OSHA consider
allowing ``one certification based on function,'' such as a single
certification for operators of propane delivery cranes (as opposed
to a certification for each type of crane) (ID-1631). A different
commenter requested that OSHA remove the existing exemption from the
certification requirements for cranes with a lifting capacity lower
than 2,000 pounds (Sec.  1926.1427(a)(3)), asserting that these
smaller cranes can also pose safety hazards (ID-1475). Neither of
these requests address any of the changes proposed in the NPRM and
are therefore outside the scope of the rulemaking.
---------------------------------------------------------------------------

    The third element in the introductory text of revised paragraph (a)
refers to the employer's duty to assess the operator to ensure that an
operator has the skills, knowledge, and ability to recognize and avert
risks to operate equipment safely. The updated duty to evaluate
operators is similar to the duty in the prior version of the standard
at Sec.  1926.1427(k)(2)(i), which specified that employers must ensure
that operators are able to operate equipment safely. That employer duty
in the 2010 crane standard was scheduled to be phased out once the
operator certification requirements become effective on November 10,
2018. In the final rule, OSHA is permanently retaining an employer
assessment duty but has re-located it to paragraph (a) to increase
comprehension of the standard's requirements. The revised standard also
includes requirements for the individual who performs the evaluation
and requirements for

documenting the evaluation. It retains the previous duty for employers
to re-evaluate operators when necessary (see previous Sec.
1926.1430(g)(2)), but moves the requirement to the evaluation section
to improve comprehension of the requirements (see full discussion of
revised paragraph (f)--Evaluation below.)
    Paragraphs (a)(1) to (3) provide limited exceptions to the general
requirement in paragraph (a) that operators must be trained, certified,
and evaluated before operating equipment.
    Paragraph (a)(1) permits an employee to operate equipment as an
``operator-in-training'' prior to being certified and evaluated,
provided that he or she is supervised and operates the equipment in
accordance with the training requirements in paragraph (b). This is the
only means by which an individual may operate equipment prior to being
trained, certified, and evaluated as competent to do so. This exception
is substantively similar to the provision in the previous crane
standard at Sec.  1926.1427(a), which permitted uncertified operators
to operate equipment only when the employer complied with the
requirements specified under previous Sec.  1926.1427(f)--Pre-
qualification/certification training period. The revised standard also
permits certified/licensed operators to operate equipment as operators-
in-training before successfully completing an evaluation. For example,
this provision allows experienced and certified operators to become
accustomed to performing new crane operations or operating somewhat
different equipment while being evaluated by the employer for that
purpose. It also allows a newly hired operator to run the equipment
while a new employer gauges the operator's crane knowledge, operating
skills, and training needs. In addition, experienced operators who are
not certified may operate the equipment when all operator-in-training
requirements are met.
    The standard recognizes that on-the-job training is an important
component of gaining the practical operating experience necessary to
safely operate a crane and to pass a competency evaluation. Other
employers agreed that, depending on a number of factors, determining
the competency of a new, inexperienced operator to become an
independent, safe, and efficient operator is a process that can vary in
time depending in part on having a crane available and demand for the
crane services (e.g., Reports # 2, 11 of ID-0673). This competency
process is often informal and integrated in day-to-day work, with
operators-in-training working closely with experienced operators in on-
the-job training who mentor them and show them how to use equipment
(Reports # 1, 2, 3, 6, 11, 15, 16, 18, 19, 23 of ID-0673). Operators
receive experience not only in the cab, but also in many tasks or
operations related to hoisting, such as rigging, assembly/disassembly
or set-up, or inspections. Moreover, many employers who train new
operators require them to complete operator certification at the
beginning, or in the middle of, their training program, while employer
evaluation of competency is generally a later step in the process and
may occur many times over an operator's career. Therefore, OSHA
believes that permitting an operator-in-training to operate equipment
under the conditions specified in paragraph (b) is appropriate and
necessary to ensure the safety of operators-in-training while they
train for competency evaluations by employers.
    In addition, revised paragraph (a)(1) expressly states that an
operator-in-training may only operate equipment under supervision to
ensure that employers understand that supervision is a mandatory
component of operating in accordance with revised paragraph (b), and
therefore also required under this exception. Because the previous
crane standard also required operators-in-training to be supervised,
adding that requirement to paragraph (a) is a non-substantive,
clarifying amendment (see paragraph (b) for a more thorough discussion
of on-the-job and general training requirements).
    OSHA did not propose any substantive changes to the existing
exemptions for derricks, sideboom cranes, and equipment with a maximum
manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less
from the training and supervision requirements in revised paragraph (b)
and the certification/licensing requirements in revised paragraphs (c)
and (d).
    OSHA did propose a change to the regulatory text in Sec.
1926.1427(a)(2). While the prior regulatory text in Sec.  1926.1427(a)
had excepted operators of this group of equipment from only the
``Operator qualification or certification'' requirements of section
Sec.  1926.1427, corresponding scope provisions in Sec.  1926.1436(q)
(derricks), Sec.  1926.1440(a) (sideboom cranes), and Sec.
1926.1441(a) (cranes with capacity of a ton or less) each specify that
none of the requirements of Sec.  1926.1427 apply to operators of those
types of equipment. Therefore, OSHA proposed in the NPRM to better
align Sec.  1926.1427 with Sec. Sec.  1926.1436, 1926.1440, and
1926.1441. However OSHA proposed to apply the new employer evaluation
requirement to operators of these types of equipment, so the proposed
language of Sec.  1926.1427(a)(2) included an exception from only the
certification ``and training'' requirements of Sec.  1926.1427 (see
also the discussion of the proposed amendments to Sec. Sec.  1926.1436,
1926.1440, and 1926.1441). In light of OSHA's decision not to apply the
new evaluation and documentation requirements to operators of this
group of equipment (see discussion of revised paragraph Sec.
1926.1427(f) later in this preamble) OSHA has revised the paragraph to
preserve the previous categorical exclusion for this group of equipment
from all of the requirements in Sec.  1926.1427.
    In the NPRM, OSHA also proposed a new note to Sec.  1926.1427(a)(2)
to specify that operators of sideboom cranes must comply with Sec.
1926.1430, which contains the general training requirements in the
cranes standard. Sideboom cranes were not previously exempted from the
training requirements in Sec.  1926.1430, but training is not expressly
addressed in the section of the standard dedicated to these cranes,
Sec.  1926.1440. OSHA, therefore, proposed this note to clarify the
training requirements that operators of this equipment had to meet.
OSHA is retaining the note in the final rule. OSHA did not receive any
comments on the note in proposed paragraph (a)(2).
    Paragraph (a)(3) preserves a previous provision that states that
non-uniformed personnel employed and qualified as operators by the U.S.
military meet the licensing/certification requirements of Sec.
1926.1427. OSHA moved this provision from the other certification/
qualifications options because it operates as an exception: It
specifies that no certification/licensing or training obligation for
construction employers is needed beyond verifying that the employee is
employed by, and qualified by, the military. For the purpose of
confirming that a military operator has the basic crane knowledge and
operating skills required through licensing and certification, OSHA
defers to the operator qualification process of the U.S. military as
the employer. All of the provisions of the crane standard apply when an
operator operates equipment for an employer other than the U.S.
military.
    OSHA requested comment on whether the relocation of this provision
was appropriate and whether it is clear that this is an exclusion from
all qualification and training requirements of this standard, not just
certification.

OSHA did not receive any comments on the introductory text or
restructuring of paragraph (a) (other than the requests for additional
exceptions, as addressed earlier). OSHA is therefore adopting the
changes as proposed.

Paragraph (b) Operator Training.

    The requirement for employers to train and evaluate operators
before permitting them to operate equipment is contained in paragraph
(a). Paragraph (b) now sets forth minimum requirements for training,
specifies requirements for trainers, and establishes limitations on the
scope of activities for operators-in-training. This paragraph specifies
the conditions under which an individual may operate a crane prior to
acquiring certification or successfully completing an employer
evaluation. These training provisions are intended to provide a safe
avenue for employees to gain experience operating cranes in a variety
of circumstances.
    The training requirements of revised paragraph (b) are largely the
same as the previous rule but also clarify that employers must continue
to address operator training needs after the operator has been
certified and demonstrated competency through employer evaluation on
specific equipment. Paragraph (b) further clarifies that the employer's
training duty is both equipment-specific and task-specific, and extends
until the employer has satisfactorily evaluated the operator-in-
training in accordance with paragraph (f)--Evaluation, or if any
retraining or subsequent training is required to perform the assigned
tasks. The revised standard recognizes that even a certified and
evaluated operator may need additional training to safely operate new
equipment or perform significantly different types of lifts. Therefore,
the employer's duty to train remains an ongoing responsibility that
must be met as the operator's experiences expand. The prior version of
the standard was not as clear (except with respect to when an
individual's deficient operating performance or crane knowledge
triggers retraining) that the employer's duty to train extends beyond
when the individual is certified and evaluated. This updated paragraph
clarifies that the employer's duty to train is aimed at ensuring that
the employee can safely use the equipment that will be operated.
    Under the previous standard, OSHA divided the training requirements
between two sections. First, previous Sec.  1926.1427(f)--Pre-
qualification/certification training period, set forth the limited
conditions under which an operator-in-training could safely operate
equipment before being certified. Secondly, previous Sec.  1926.1430--
Training Requirements, brought together the triggers for operator
training requirements, including those for retraining. As discussed in
the explanation for this section, OSHA has removed the substantive
operator training requirements from Sec.  1926.1430 and replaced them
with a cross-reference to new Sec.  1926.1427(b) so that the substance
of the training requirements for operators, as well as all operator-in-
training requirements, are under one section. Relocating the
requirements of previous Sec.  1926.1427(f) to revised Sec.
1926.1427(b) also ensures that the organization of the crane operator
requirements corresponds with the order of a typical operator
competency program--i.e., initial training generally precedes
certification and an operator being determined competent by employer
evaluation.
    The introductory language to paragraph (b) in the NPRM required the
employer to ``provide each operator-in-training with sufficient
training, through a combination of formal and practical instruction, to
ensure that the operator-in-training develops the skills, knowledge,
and judgment necessary to operate the equipment safely for assigned
work.'' (83 FR 23567). OSHA is retaining this language in the final
rule except for one change. For reasons discussed later in response to
comments to paragraph (f), OSHA decided to remove the term ``judgment''
from that section and replace it with ``the ability to recognize and
avert risk.'' OSHA is making the same change in the training section.
OSHA proposed corresponding language in the training and evaluation
sections because an operator-in-training should be trained and
evaluated to the same standard. In addition, this revised requirement
specifies that training must include a combination of formal and
practical instruction.
    OSHA notes that this paragraph (b) does not mean that employers
must provide novice-level or redundant training when they hire an
experienced operator as a new employee. An employee who is an
experienced operator may need far less training than a less experienced
employee. Employers must determine what level of practical and formal
training an operator-in-training would need under paragraph (b) to
ensure that they develop the skills, knowledge and ability to recognize
and avoid risks necessary for safe crane operation in a variety of
conditions. Ultimately, the training methods chosen by the employer
must be effective and responsive to each operator's training needs.
    One commenter, while urging OSHA to remove the requirement for
operator certification, also urged OSHA to ``limit the operator
training requirements to employer-based programs that can best be
customized to train operators on the specific equipment used at each
individual company'' (ID-1826). OSHA is not altering the training
requirements in paragraph (b), which require training on the subjects
listed in Sec.  1926.1427(j)(1) and (2). OSHA believes these
requirements provide enough flexibility to allow an employer to
efficiently customize its training programs. For example, the standard
continues to require the operator to have knowledge of ``the
information necessary for safe operation of the specific type of
equipment the individual will operate'' (Sec.  1926.1427(j)(1))
(emphasis added). There are some general requirements not tied to the
operation of particular machines, such as the requirement for training
on ``Procedures for preventing and responding to power line contact,''
that address serious hazards that vary by location, not equipment. The
mandated training criteria are longstanding requirements that were
adopted by OSHA on the recommendation of its negotiated rulemaking
committee because most were included in OSHA's pre-2010 cranes standard
(Sec.  1926.550) or were in industry consensus standards.
    A different commenter suggested that OSHA incorporate requirements
from the Powered Industrial Truck standard into the crane operator
training requirements. This recommendation included more prescriptive
language in the regulatory text language specific to training on the
controls and instrumentation of the equipment, the operator's manual,
and when further training is required (ID-1719). Although the commenter
acknowledges that ``the proposed rule offers clear guidance on the
subject matters that initial training must cover,'' it believes its
recommended revision is necessary to ``provide sufficient guidance on
the triggers for supplemental training and re-training/remedial
training'' (ID-1719).
    OSHA is not convinced that more prescriptive language for operator
training requirements is required. OSHA believes that the incorporation
of the paragraph (j), and subsequently Appendix C, provides employers
with thorough lists of subjects on which operators must be trained,
including elements such as the equipment's controls. OSHA concludes
that the more flexible, less prescriptive language

proposed for the training requirements is more appropriate for crane
operator training than the prescriptive list of elements offered by the
commenter.
    OSHA has not retained the introductory text in previous paragraph
(f), which required that a non-certified employee could only operate as
an operator-in-training within the limitations of paragraph (f). That
introductory text has now been supplanted by the language in revised
paragraphs Sec.  1926.1427(a)(1) and (b), without substantive change
other than the addition of the evaluation requirement.
    Most of the specific training requirements in paragraph (b) are
identical or similar to the previous training requirements. Paragraph
(b)(1) requires the employer to provide the operator-in-training with
instruction on the subjects in paragraph (j). This requirement is
identical to the requirement in previous Sec.  1926.1430(c)(1)--
Operators-in-Training for equipment where certification or
qualification is required by this subpart. However, under the revised
standard, even after the operator-in-training is determined competent
by employer evaluation, the employer's training duty can continue when
the operator operates new equipment or performs tasks that require new
skills or knowledge. An individual may be a fully certified and
evaluated operator with respect to one piece of equipment such that he
or she is allowed to operate that equipment independently, but
simultaneously be an operator-in-training (and thus subject to the
operating restrictions in the standard) with respect to different
equipment or tasks that require significantly different skills or
knowledge to ensure safety.
    Section 1926.1427(j)--Certification criteria, which remains
unchanged, specifies the mandatory subject matter for third-party
licensing and certification, as recommended by C-DAC. It requires a
written and a practical test. Paragraph (j)(1)(i) specifies areas of
information that must be covered by the written certification test for
the type of crane that an individual will operate, such as controls,
operational/performance characteristics, load calculations, and ground
conditions. This paragraph also references a more comprehensive list of
areas of technical knowledge in Appendix C--Operator Certification:
Written Examination: Technical Knowledge Criteria. Paragraph (j)(2)
identifies the operating skill areas that must be covered by the
practical certification test.
    OSHA concludes that operators-in-training must continue to receive
training in the subject matter identified in this section as
recommended by C-DAC. However, as proposed, OSHA relocated the training
requirement in Sec.  1926.1430(c)(1) to revised Sec.  1926.1427(b) so
that the requirements for operators-in-training may all be found in one
place. New language in revised Sec.  1926.1430--Training, discussed
separately below in this preamble, references Sec.  1926.1427(a) and
(b) rather than repeat the same requirement.
    Paragraph (b)(2) requires the employer to ensure that a trainer
continuously monitors operators-in-training during all crane
operations. This requirement is identical to the previous requirement
for continuous monitoring under previous paragraph (f)(3).
    Paragraph (b)(3) requires the employer to assign the operator-in-
training only tasks that are within his or her ability. This
requirement is substantively identical to the requirement under
previous paragraph (f)(2). OSHA made minor changes to the language of
this requirement to clarify that it is the employer's duty to assign
tasks to the operator-in-training.
    OSHA also relocated the requirements of previous paragraph (f)(1).
The previous paragraph (f)(1) required the employer to provide each
operator-in-training with training sufficient to operate safely under
the limitations of previous paragraph (f). Its requirements are
retained in revised paragraphs (b)(1) and (3), which state that the
operator-in-training must be trained on the subject matter specified in
paragraph (j) of this section and may only perform tasks that are
within his or her abilities.
    Paragraph (b)(3) retains a revised version of the limitations
specified in previous paragraph (f)(5), which precluded operators-in-
training from operating equipment next to energized power lines; from
hoisting personnel; or from performing multiple-equipment lifts, multi-
lift rigging operations, or lifts over shafts, cofferdams or in a tank
farm. OSHA previously determined in the 2010 final rule that these
equipment operations and worksite conditions are too complex, or
present such heightened risks, that it would be unreasonably dangerous
if an operator-in-training were to operate the equipment in these
circumstances (75 FR 48024). However, in the NPRM OSHA announced that
it would consider revising these limitations because they may have the
effect of preventing operators from gaining the experience necessary to
conduct these lifts.
    OSHA received comments supportive of removing these limitations on
operators-in-training. A labor union commented that these tasks
``should not be prohibited'' because ``an operator must be trained in
how to safely perform them'' (ID-1615). Another commenter, in urging
OSHA to remove operation in tank farms from the list, argued that
``[t]he continuous monitoring requirement specified in the Rule along
with other safe work practices (e.g., work permits, joint jobsite
visits, etc.) are sufficient to identify and mitigate hazards that an
operator-in-training may encounter in a tank farm'' (ID-1647). OSHA did
not receive additional comments on this issue.
    In response to these comments, OSHA revised the language of the
regulatory text to provide a measured expansion of the prior rule that
removes the prohibition as requested by the commenters. Operators-in-
training will now be allowed to perform these lifts, but only if they
have been certified in accordance with Sec.  1926.1427(c). The 2010
crane standard only allowed an operator to perform these lifts after
becoming certified, so OSHA is preserving the status quo in that
respect. OSHA continues to agree with C-DAC that these lifts are too
complex and potentially dangerous to be attempted by an operator
candidate who may lack the basic knowledge and skills required for
general crane operation. But the prior regulatory text left no way
forward for even a certified operator to gain the experience necessary
to perform those functions safely, and did not leave room for an
employer to have an operator evaluated on these tasks in accordance
with revised Sec.  1926.1427(f). This language change therefore
respects C-DAC's intent to prevent operators who have not acquired the
baseline knowledge of crane operation provided by certification from
performing these complex lifts, while allowing operators-in-training
the opportunity to train performing these lifts under the direction of
a trainer prior to being evaluated to perform these lifts as an
operator. Note that the employer must still train the operator on these
specialized lifts before allowing the operator to attempt them, even
under supervision, because paragraph (b)(3) only permits the employer
to assign tasks to an operator-in-training that are ``within the
operator-in-training's ability.''
    Paragraph (b)(4) prescribes minimum requirements for monitored
training of operators-in-training and trainers who monitor operators-
in-training. Revised (b)(4)(i) specifies requirements for the

required trainer which are similar to requirements in paragraph (f)(3)
of the 2010 crane standard. Paragraph (b)(4)(i)(A), which requires that
the trainer must be an employee or agent of the operator-in-training's
employer, is identical to paragraph (f)(3)(i) of the 2010 crane
standard.
    Paragraph (b)(4)(i)(B) requires that the trainer must ``have the
knowledge, training, and experience necessary to direct the operator-
in-training on the equipment in use.'' This requirement is the same as
the proposal but is different from the requirements of paragraph Sec.
1926.1427(f)(3) of the 2010 crane standard, which required that a
trainer either be a certified operator or have passed the written part
of a certification test, and have familiarity with the equipment's
controls. This revision recognizes that some uncertified trainers may
have the knowledge and experience to be competent to teach or monitor
the equipment operations of an operator-in-training.
    In the NPRM, OSHA explained that it proposed this change for three
reasons. First, merely requiring that the trainer must have passed the
written part of a certification test is insufficient to confirm a
trainer's ability to train other operators. Paragraph (f)(3) of the
2010 crane rule presumed that all certified operators or individuals
who passed only written certification tests have the skills to monitor
an operator-in-training, but as explained above, certification alone is
insufficient to ensure that operators are competent to safely operate a
crane. Under the final rule, even after the basic crane knowledge and
operating skills of operators have been confirmed through certification
testing, employers must still determine through evaluation if operator
training already provided is sufficient or if more is necessary, based
on the complexity of equipment that will be used and activity that will
be performed. Thus, requiring an individual to pass a written
certification exam appears to be likewise insufficient as the sole
criterion for confirming a trainer's ability to monitor and train an
operator-in-training.
    Second, using certification as a required criterion for the trainer
could exclude individuals from the role who have extensive operating
experience and familiarity with the controls of the relevant equipment
but do not possess a certification. Under the trainer requirements of
the 2010 crane rule, an experienced but uncertified operator may have
been required to be monitored by a less experienced but certified
individual. In stark contrast, an uncertified person who has
significant experience operating the particular equipment used during
the training may have more insight into the function of its controls
and the nuances of its operation than someone who is certified for that
type of equipment but has never operated that particular equipment.
Allowing only certified operators in these training roles is also
inconsistent with the industry practice of pairing inexperienced
operators with experienced trainers who monitor the safety and
professional development of the inexperienced operator.
    Third, passing a written certification test is not a definitive
indicator of safe training practices in the industry and requiring
certification of all trainers could significantly alter many previous
work practices in the industry. Stakeholder feedback suggests that many
different employees or agents of an employer successfully fulfill the
role of a trainer but may not be certified. Some formal training might
be administered by an individual who is not certified but has extensive
knowledge of a particular make and model of crane. For example, some
crane manufacturers offer technical training to their customers
regarding the operation, maintenance, and troubleshooting of cranes
they sell (see Reports # 4, 5, 13 of ID-0673). On-the-job training is
often conducted by a seasoned crane operator with years of experience
(see Reports # 1, 2, 19, 23, 28 of ID-0673) or in some cases by a
retired operator (see Report # 26 of ID-0673). These operators may no
longer be certified. In addition, an employer might employ various non-
certified employees, such as an experienced safety manager, foreman, or
site manager, to monitor some work training activities, or an
experienced small business owner might fill the role of trainer in some
cases (see Reports # 1, 2, 15, 26 of ID-0673). And OSHA spoke with
three companies that offer other employers private training from
experienced operators who are not certified (see Reports # 20, 21, 22
of ID-0673). In sum, stakeholders reported that some individuals who
have the necessary knowledge, training, and experience but do not
possess a certification or have not passed the written certification
exam can, nevertheless, be successful trainers.
    In the proposed revision of this provision, OSHA proposed language
similar to the requirement in ASME B30.5 (2014) at 5-3.1.2(e) that
training must be performed by a ``designated person who, by experience
and training, fulfills the requirements of a qualified person.'' The
language is also similar to the ``qualified person'' definition that is
familiar to the construction industry. Under this language, employers
have some flexibility in determining the level of knowledge and
experience that the trainer must possess based on the skill level of
the operator-in-training and the nature of the activity performed.\15\
---------------------------------------------------------------------------

    \15\ OSHA expects that in many cases, the trainer will possess a
certification. However, this final rule allows the possibility that
the trainer's experience with the task and equipment used could be
sufficient for providing training even without the trainer
possessing a certification.
---------------------------------------------------------------------------

    OSHA received comments supporting the proposed changes to the
trainer criteria. A trade association agreed with the proposed language
because it provides employers with ``flexibility in determining the
level of knowledge and experience that the trainer must possess based
on the skill level of the operator-in-training and the nature of the
activity performed . . . even when the individual has not passed the
written certification exam, possesses an operator certification, or has
prior experience operating a crane'' (ID-1801). One commenter agreed
with OSHA that certification or passing the written part of the
certification test is not determinative of whether an individual can
train an operator-in-training, stating that it ``fails as a measure of
a trainer's competencies and capabilities'' (ID-1821). Similarly, a
comment supporting the proposed language asserted that ``[t]he current
requirement that trainers obtain certification or at least pass the
written portion of the certification requirement does not necessarily
correlate with the individual's ability to provide practical
instruction or impart valuable knowledge to other employees'' (ID-
1631).
    A different commenter supported the ``requirement that the trainer
should be a `qualified person,''' as defined in the cranes standard,
without other requirements (ID-1828). OSHA believes that the proposed
new language, which the commenter did not directly oppose, comes close
to that approach while still providing the additional focus on the
training.
    Several other commenters opposed the proposed change and preferred
that the trainers at least pass the written portion of the
certification exam. One commenter responded that trainers possessing
certification have been ``a long established standard and best practice
among the industry,'' and interprets ASME B30.5's term ``qualified
operator'' to mean ``one who possesses a certification for the type of
equipment for which he/she is instructing an operator-in-training''
(ID-1816). OSHA disagrees with that interpretation of

ASME B30.5 because that definition, like the definition of ``qualified
person'' in OSHA's cranes standard, clearly states that certification
is only one of two paths to become a qualified person.\16\
---------------------------------------------------------------------------

    \16\ See definition of ``qualified person'' in ASME B30.5 (2004)
(``by possession of a recognized degree in an applicable field or
certificate of professional standing, or who, by extensive
knowledge, framing, and experience . . .'') (emphasis added).
---------------------------------------------------------------------------

    That commenter also compared operator certification to a driver's
license and stated that ``one would not want a driving instructor who
herself does not possess a driver's license,'' (id.), but there may be
many reasons why an experienced crane operator may no longer possess a
valid certification. Many seasoned crane operators who have safely
operated cranes for decades have the knowledge, operating experience,
and ability to effectively train and direct an inexperienced operator
even though they never had a need to acquire a certification during the
course of their operating careers or let their certifications expire
after transitioning into new roles. Contrary to the commenter's
assertion, the seasoned operator may be preferred as a trainer because
of the greater experience, particularly if that experience is with the
particular equipment that will be operated. OSHA concludes that the
emphasis of the trainer qualifications should be on a person's ability
to train and direct an operator-in-training, rather than whether the
trainer possesses a certification.
    Another commenter stated that it is ``infeasible to consider how a
trainer or evaluator can determine an operators qualifications if they
have never operated a crane . . . OSHA should consider going to the
original definition they are using for the trainer'' (ID-1623). That
comment incorrectly assumes that trainers without a current
certification, or those who have not passed the written portion of a
certification exam, have not previously operated a crane. In some
cases, the trainers may be retired or semi-retired operators who are
fully capable of training other operators but who have not elected to
take an operator certification examination because they no longer
operate cranes. The record of the 2010 rulemaking and this rulemaking
also contains a number of statements indicating that some employers
have very experienced operators who have difficulty with written exams
(see, e.g., 73 FR 59816-59817). In some cases, the language or literacy
barriers that impede an experienced operator from passing a written
exam may have no relevance to that person's ability to instruct an
operator-in-training. OSHA does not agree that such a trainer should be
disqualified from training an operator so long as there is effective
communication between the operator-in-training and the trainer.\17\
---------------------------------------------------------------------------

    \17\ A different membership organization agreed with OSHA's
proposal and drew on its members' experience in using experienced
but un-certified instructors. The commenter considered OSHA's
revised language ``appropriate'' because members of their
organization often assign as trainers experienced operators who may
not have passed the written certification exam, but have more
experience with the equipment than some certified operators. (See
ID-1826). Not moving forward with the proposed language, this
commenter warned, ``would prevent certain operators who are highly
qualified, experienced and knowledgeable on certain equipment from
serving as trainers'' (ID-1826).
---------------------------------------------------------------------------

    One certification organization conceded that ``certification may
not be an appropriate `sole' criterion or a sufficient indication of
competence as a trainer,'' but contended that it is an ``appropriately
necessary condition of establishing such competence and ensuring a
`baseline' of knowledge and skills'' (ID-1755). That commenter
suggested that OSHA go further than the previous rule and require that
trainers be both certified and possess the requisite knowledge,
training, and experience.
    OSHA does not agree that it is necessary to go as far as the
commenter suggests in order to ensure that appropriate trainers are
instructing operators-in-training. As stated earlier, OSHA anticipates
that many trainers will be certified operators. As one commenter
noticed, the proposed language ``does not preclude employers from
following the existing trainer requirements if they so choose'' (ID-
1801). Moreover, a certification could provide partial evidence of the
knowledge, training, and experience necessary to train an operator-in-
training, but is not sufficient for verifying competency and safe crane
operation. The requirement for even a partially certified trainer would
come at the price of excluding the experienced trainers currently
relied on by the earlier commenter (ID-1826). The final rule will
preserve greater flexibility for the employer seeking to ensure safety
through available resources, and is also more closely aligned with the
existing industry guidance in ASME B30.5.
    One of the certification organizations asserted that ``[r]equiring
that a trainer have a baseline of knowledge and skills as an operator
is likely, not only to improve the quality of training, but also to
increase safety during training in the event the operator-in-training
engages in an unsafe act and the trainer is forced to intervene'' (ID-
1755). The agency agrees that it is important for the trainer to be
able to direct an operator-in-training should their operation
potentially result in an incident or near miss and has included that
requirement in the standard (``Have the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use''). But requiring that a trainer must have passed the
written part of the certification test does not indicate that a trainer
would be able to do more. OSHA's standard, both as revised and prior to
this revision, does not permit anyone other than a certified operator
to be at the controls absent supervision, so a trainer who has only
passed the written exam would not be permitted to operate the crane
without another person serving as a trainer to that person. It does not
follow that a person who has passed the written portion of the
certification exam, but not necessarily demonstrated any practical
skill at operating a crane, would be inherently better prepared to
correct an operator than a person who has the knowledge, training, and
experience necessary to direct the operator-in-training on the
equipment in use.
    It is true that a trainer who is a certified operator (and properly
evaluated under the new standard) would be permitted to sit in the cab
and take over the controls in the event of perceived unsafe action, but
there is no record that this is a common occurrence or has been shown
to be effective. In the absence of a clearer record on this point, OSHA
is hesitant to disturb C-DAC's judgment that requiring all trainers to
be fully certified operators was unnecessarily restrictive (see 75 FR
48024). In its 2008 NPRM explanation of the trainer requirements, which
were included without change in the final rule, OSHA acknowledged that
full certification was unnecessary and explained that the trainer's
knowledge of the particular equipment being operated was paramount to
certification:

    The Committee determined that a supervisor who had passed the
written portion of a certification test would not need to be
sufficiently proficient to pass the practical portion in order to
effectively supervise a trainee/apprentice. However, both in the
instance where the supervisor is certified and in the instance where
he/she is not certified but has passed the written portion of the
certification test, the Committee believed that it is necessary that
he/she be familiar with the proper use of the equipment's controls,
since such knowledge is essential to being able to effectively
supervise a trainee/apprentice.

    (73 FR 59815 (Oct. 9, 2008)). OSHA does not find any of the
comments persuasive enough to further restrict

employer options or to shift the focus away from the trainer's
knowledge of the equipment to be used by the operator-in-training.
    As stated previously, OSHA proposed language for its similarity to
language from ASME B30.5 and OSHA's qualified person standard, and the
flexibility it offers employers in choosing trainers for their crane
operators. OSHA considered simply requiring a trainer to be a
``qualified person,'' but relying solely on the definition of qualified
person as criteria for trainers presents a problem. In Sec.  1926.1401,