OSHA defines a qualified person as one ``who, by possession of a
recognized degree, certificate, or professional standing, or who by
extensive knowledge, training and experience, successfully demonstrated
the ability to solve/resolve problems relating to the subject matter,
the work, or the project.'' However, even under the previous standard
OSHA did not intend for the possession of a certificate to be enough
for an individual to be a trainer--the previous standard also required
knowledge of the equipment's controls. Relying on the definition of
``qualified person'' in the crane standard as the lone criteria for
trainers would mean that anyone possessing a certificate would
automatically be a ``qualified person,'' regardless of their knowledge
of any of the controls or other aspects of the equipment to be
operated. OSHA will retain its proposed language.
    The remainder of paragraph (b)(4) does not contain any substantive
changes from the previous rule, did not receive any comments, and is
promulgated as proposed. Paragraph (b)(4)(ii) prohibits the trainer
from performing any task that detracts from his or her ability to
monitor the operator-in-training. It is identical to previous paragraph
(f)(3)(iii).
    Paragraph (b)(4)(iii) requires the operator's trainer and the
operator-in-training to be in each other's direct line of sight, and
that they communicate verbally or with hand signals. This requirement
is substantively the same as previous paragraph (f)(3)(iv), with minor
simplifying changes. The revised standard relocates this provision to
an independent subparagraph to clarify that the employer has the
ultimate responsibility for ensuring compliance with this requirement.
This revised paragraph also retains an exception for tower cranes so
that the trainer and operator-in-training must be in direct
communication with each other, but are not required to maintain a
direct line of sight because the height of the operator's station may
make it infeasible. (See also, the discussion of previous paragraph
(f)(3)(iv) in the preamble to the 2010 final crane rule at 75 FR
48024.) This exclusion in this final rule is also substantively the
same as paragraph (f)(3)(iv) of the 2010 crane rule, with minor
simplifying language changes.
    Paragraph (b)(4)(iv) requires that an operator-in-training be
monitored while operating the equipment at all times except for short
breaks and retains the conditions specifying monitoring under paragraph
(f)(4) of the 2010 crane rule. Paragraph (b)(4)(iv)(A) requires that a
trainer's break while the operator-in-training runs the crane can last
no longer than 15 minutes and can occur no more than once per hour.
Paragraph (b)(4)(iv)(B) requires the employer to ensure that the
trainer and operator-in-training communicate about the tasks, if any,
that can and cannot be performed in the trainer's absence while on
break. Paragraph (b)(4)(iv)(C) limits tasks performed during the
trainer's break to only those that are within the abilities of the
operator-in-training.
    Paragraph (b)(5) requires the employer to provide retraining when,
based on the performance of the operator or an assessment of the
operator's knowledge, there is an indication that retraining is
necessary. This language is identical to the requirement in previous
Sec.  1926.1430(g)(2) but is included in paragraph (b) to consolidate
all substantive training requirements to the extent practical for
operators covered under Sec.  1926.1427. Because the requirements of
Sec.  1926.1430(g) apply more broadly to all employees covered by this
standard, however, OSHA is not deleting that requirement from Sec.
1926.1430(g). Thus, identical language will appear in two different
paragraphs of the final standard. This retraining requirement is
consistent with the retraining described as already implemented by
employers who spoke with OSHA during interviews and site visits (see
Reports # 1, 2, 3, 15, 18, 19, 22, 26 of ID-0673). Note that the need
for retraining under paragraph (b)(5) would also trigger the
requirement for re-evaluation under paragraph (f)(7) (see also preamble
discussion below of paragraph (f)--Evaluation).
    OSHA received one substantive comment proposing revisions to the
retraining requirements. The commenter recommends incorporating
language from the Powered Industrial Trucks standard that states when
retraining is necessary, including unsafe operation, an accident or
near-miss, a failed evaluation, or insufficiency of training (ID-1719).
OSHA does not believe this is necessary because the revised retraining
requirements allow the employer to determine whether an operator needs
additional training based on their performance and their knowledge.
This final rule not only requires that retraining be triggered based on
an operator's performance, but it also requires an employer to conduct
retraining if the operator indicates it is necessary (see revised Sec.
1926.1427(b)(5)). OSHA concludes that this approach gives employers
more flexibility in determining when retraining is needed to ensure
safety.
    One commenter also noted that OSHA uses the words ``retraining''
and ``refresher training'' interchangeably in proposed paragraph (b)(5)
without defining either term, and requested clarification (ID-1719).
Another commenter agreed that additional clarification would be
helpful.\18\ In response to such comments, OSHA will replace the term
``refresher training'' with ``retraining''.
---------------------------------------------------------------------------

    \18\ ``OSHA discusses in detail an employer's obligation to
provide ongoing training as necessary when an operator's experience
expands or is assigned to operate new equipment or perform new
tasks. However, this concept is not explicitly stated anywhere in
the proposed regulatory text. Only refresher training, required when
indicated by deficiencies in the employee's demonstrations of crane
knowledge and equipment operation, is present in proposed paragraphs
(b)(5) and (f)(5), which do not apply to new equipment or an
expansion of experience. If OSHA's intent is to clarify an
employer's obligation to provide ongoing training, we believe the
proposed regulatory text fails to make this clear.'' (ID-1801). In
response to the comment that OSHA does not explicitly include
ongoing training provisions in the regulatory text, the agency
disagrees. This requirement extends from the duty in paragraph
(b)(1) that employers must train operators to ensure they have the
knowledge, skills, and ability to recognize and avert risk necessary
to operate the equipment safely for assigned work. This ongoing
training requirement need not be restated elsewhere in the
regulatory text.
---------------------------------------------------------------------------

Paragraph (c) Operator Certification and Licensing.

    At the ACCSH meeting on March 31-April 1, 2015, ACCSH members
unanimously recommended that OSHA move forward with a rulemaking that
retains certification and permanently extends the employer's duty to
ensure the competency of operators (OSHA-2015-0002-0037). Paragraph (c)
retains the certification and licensing structure of the 2010 crane
standard with only a few minor modifications intended to improve
comprehension of certification/licensing requirements.
    First, OSHA moved the military qualification provisions of previous
Sec.  1926.1427(e)(4) to the exception in paragraph (a), as noted
earlier.
    Second, OSHA removed the reference to an ``option'' with respect to
mandatory compliance with previous state and local licensing
requirements.

When a state or local government issues operator licenses for equipment
covered under subpart CC, and that government licensing program meets
the requirements specified in the standard, then employers must ensure
that equipment operators are properly licensed when working in the
state or local jurisdiction, even if the operator is also certified by
a nationally accredited certification organization. However, the state
or local license would satisfy OSHA's certification requirement: OSHA
will not require an operator who obtains such a state or local license
to also obtain a separate certification from a nationally accredited
certification organization or an employer-audited program.
    The content of revised paragraph (c)(1) is virtually identical to
provisions in Sec.  1926.1427(e)(2) of the 2010 crane rule, with one
exception: Revised (c)(1)(v). For a more detailed explanation of the
other provisions in this paragraph, see the preamble discussion of
Sec.  1926.1427(e)(2) in the 2010 crane rule at 75 FR 48021-23 (August
9, 2010).
    As in the 2010 crane standard, this final rule includes minimum
``federal floor'' criteria for state and local crane operator
licensing. If a license does not meet the minimum ``federal floor''
criteria specified in OSHA's crane standard (see revised Sec.
1427(c)(1) and (j)), then the state or locality could still enforce its
own licensing requirements, but employers operating cranes for
construction within that jurisdiction could not rely on that license to
satisfy OSHA's operator certification requirement. The employer must
then comply with one of the other options for certification/
qualification specified by this final rule. In the NPRM, OSHA proposed
amending Sec.  1926.1427(c)(1)(v) to add a new requirement to the
``federal floor'': The license must specify the ``type, or type and
capacity'' of equipment for which the license is applicable. The
purpose of this proposed change was to make it easier to determine
whether the licensing procedure required the operator to have knowledge
about the ``type'' of crane to be operated, as required by OSHA's
standard in Sec.  1926.1427(j)(1).
    OSHA received three comments (ID-1611, 1779, 1824) warning that
inserting any additional requirements into the ``federal floor'' for
state or local licenses could make it more likely that some states or
localities would not meet that ``federal floor.'' For employers in
jurisdictions where the state or local licensing program did not comply
with the federal floor, they would need to ensure that their operators
were not only licensed as required by the state or locality but also
certified through a third-party program or audited employer program in
order to comply with OSHA's standard. One commenter expressed concern
that OSHA's proposed change would result in ``duplicative or multiple
layers of identical certification requirements'' for employers, and
that a change designed primarily to facilitate compliance (rather than
to add a substantive safety requirement) would not warrant the
potential impact for employers (ID-1779). ``Provided that the state or
local licensing requirement is in fact equivalent or more stringent
than the OSHA expectation of determining competency,'' the commenter
stated, ``then duplicative certification is unduly burdensome,
especially for small businesses'' (Id.).
    OSHA is sensitive to concerns raised about unnecessary regulatory
duplication, particularly when the purpose of the change is to
facilitate compliance rather than adding a new safety measure. To avoid
needless burden, OSHA has decided not to implement the proposed change.
Proposed paragraph (c)(1)(v) has been removed and proposed paragraph
(c)(1)(vi) is designated (c)(1)(v).
    The remainder of the requirements of paragraph (c)(1) are
substantively the same as those in Sec.  1926.1427(a)(1), (a)(2), and
(e) of the previous rule, except that OSHA combined the requirements of
those three paragraphs into one paragraph and clarified some of the
language to facilitate better comprehension of state or local
government entity requirements. Paragraph (c) restates more clearly the
requirement in previous paragraph (a)(1) that the employer must ensure
operators are certified and licensed. Paragraph (c)(1) substantially
incorporates the requirements of previous paragraph (a)(1)(i) and
combines it with the licensing criteria in previous paragraph
(e)(2)(i)-(iv). Paragraph (c)(1)(v) is substantially the same as
previous paragraph (e)(3)(ii).
    Paragraph (c)(2) specifies the certification requirements for two
remaining situations: The construction occurs in a state or local
jurisdiction that does not require licensing of equipment operators, or
the construction occurs in a state or local jurisdiction where the
licensing program does not meet the ``federal floor'' of requirements
established in this standard. In each of those situations, the operator
would have to be certified in accordance with paragraph (d) (third-
party certification) or (e) (audited employer program) of this section.
Paragraph (c)(2) is identical to previous Sec.  1926.1427(a)(2), except
that it references only the paragraphs containing criteria for
certification by an accredited testing organization and an audited
employer program--and not the option for qualification by the U.S.
military which is addressed as a scope exclusion in Paragraph (a)(3).
Revised paragraphs (d) and (e), discussed later, correspond to previous
paragraphs Sec.  1926.1427 (b) and (c), respectively.
    Paragraph (c)(3) requires employers to provide at no cost to
employees the certification or licensing required by Sec.  1926.1427.
This revised requirement is almost identical to that of Sec.
1926.1427(a)(4) of the previous rule, except that it has been revised
to clarify that it applies to all operators certified or licensed after
the effective date of the new standard, not just those operators who
were ``employed by the employer on November 8, 2010,'' as previous
Sec.  1926.1427(a)(4) stated.\19\ This revision is in line with, and
will be enforced similarly to, other OSHA provisions that require
employers to provide personal protective equipment, medical
examinations, or other functions at no cost to the employees. The
requirement would also be consistent with the way in which OSHA
assessed costs in the 2010 economic analysis. In the final economic
analysis of subpart CC, OSHA modeled all of the costs for compliance
with the previous certification requirements as if all employers always
paid for the certifications/licenses they provide for operators. Note,
however, that this provision does not mandate an employer to maintain
its employment of an employee/operator who cannot pass certification
testing or who is not a good operator candidate. Furthermore, an
employee who does not possess a certification may still be allowed by
the employer to operate a crane, but only as an operator-in-training
and through the employer's compliance with all requirements of
paragraph (b) of this section.
---------------------------------------------------------------------------

    \19\ As in previous Sec.  1926.1427(a)(4), revised paragraph
(c)(3) does not require employers to cover the costs to employees of
licensing that does not conform to the requirements of Sec.
1926.1427.
---------------------------------------------------------------------------

    Paragraph (c)(4) retains, without change, the content of previous
Sec.  1926.1427(g), which states that a testing entity is permitted to
provide training as well as testing services as long as the criteria of
the applicable accrediting agency (in the option selected) for an
organization providing both services are met.

Paragraph (d)--Certification by an Accredited Crane Operator Testing
Organization.

    As noted above, paragraph (c)(2) provides two options for
certification: Compliance with paragraph (d) (third-party
certification) or paragraph (e) (audited employer program). Compliance
with the requirements of paragraph (d) is the option that OSHA expects
the vast majority of employers to use. Paragraph (d) retains, with some
non-substantive language clarification and two exceptions discussed
below, the requirements of previous paragraph Sec.  1926.1427(b) and is
unchanged from the proposal.
    First, the most significant change is that paragraph (d)(1)(ii)(B)
replaces the references to certification by ``type and capacity'' that
appeared in previous paragraph (b)(1)(ii)(B) with ``type, or type and
capacity,'' as recommended by ACCSH (see OSHA-2015-0002-0037 pg. 71).
OSHA has therefore also reworded previous paragraph Sec.
1926.1427(b)(1)(ii)(B) to remove the requirement that an operator's
certificate list a lifting capacity for which the operator was
certified. The need for these changes is explained in the ``Need for a
Rule'' section of this preamble. These revisions remove the requirement
to obtain a certification for a designated crane capacity, but also
clarify in the regulatory text that OSHA considers testing
organizations whose programs provide certifications that specify ``type
and capacity'' equally acceptable.
    The ``type, or type and capacity'' language was requested by Crane
Institute Certification and recommended by ACCSH. Several other
commenters also made this request (OSHA-2015-0002-0036). The language
has been included in the final rule to make clear that while all
certifying bodies must certify by type of crane for their
certifications to meet OSHA's requirements, testing organizations may
also choose to specify for their certifications different levels of
rated lifting capacity of cranes.
    As explained in the section Elimination of the Requirement to
Certify Based on Capacity of Crane of this final rule, almost all the
comments received relating to the proposed removal of the requirement
to certify by capacity were in favor of its removal. The commenters
were split, however, on whether OSHA should keep the ``type, or type
and capacity'' language in the regulatory text. One of those commenters
specifically requested OSHA to keep the proposed language because many
of its members ``currently require certification by type and capacity,
and have expressed that they find both types of certification to be
beneficial to establishing a baseline operator competency,'' and added
that this language ``will help alleviate confusion about the changes to
the requirement and allow employers to maintain their current
certification requirements as they see fit'' (ID-1735). The one
commenter who opposed OSHA's decision to remove the requirement for
certification by capacity concluded that if OSHA did remove that
requirement, then ACCSH's recommended language of ``type, or type and
capacity'' should stay in the rule (ID-1235).
    The agency also received comments requesting that OSHA not include
the language ``or type and capacity'' in the standard. Two of these
comments were submitted by certification bodies that currently provide
certification by type only. Both believe removing this language will
add clarity and reduce confusions among the regulated community (ID-
1755 and 1816). One of them is concerned that keeping the language will
inaccurately convey that ``the only options for certification are
either (a) by type, or (b) by type and capacity,'' whereas ``testing
organizations may in fact seek to consider factors other than `type' ''
or capacity when developing operator certification programs (ID-1755).
A different commenter believes removing the reference to capacity
``does not restrict crane certifying bodies from certifying according
to capacity should they so choose'' (ID-1611). Another commenter
suggested OSHA revise the proposed language to require certification
``by type and/or type and capacity'' (ID-1828).
    OSHA has decided to retain the proposed ``type, or type and
capacity'' language for paragraph (d)(1)(ii)(B) because it makes it
clear that the agency will accept certifications that are otherwise
compliant with the standard from any of the four accredited
certification bodies of which OSHA is aware. OSHA does not believe that
including this language will lead to confusion in the industry because,
currently, certifications are offered by type or type and capacity.
None of the comments recommending the removal of certification
expressed any confusion about including this language.\20\
---------------------------------------------------------------------------

    \20\ The requested revision that the language read ``by type
and/or type and capacity'' creates confusion because it could be
read as requiring an employer to have either a certification by
``type'' or ``type and capacity'' or to have two certifications--one
by ``type'' and another by ``type and capacity.'' OSHA's revised
language makes clear that, for a certification to be compliant with
OSHA standards, the certification must, at the very least, include
the type of crane on which the operator was certified. Furthermore,
retaining this language is responsive to the recommendation from
ACCSH.
---------------------------------------------------------------------------

    Second, the revision does not include the reference in previous
Sec.  1926.1427(b)(2) to an employee being ``deemed qualified'' to
operate equipment under certain conditions if no accredited testing
organization offers certification examinations for a specific type of
equipment. A credentialing organization suggested that OSHA ``remove
misconceptions regarding what it means to be `certified' '' by
replacing ``deemed certified'' with ``deemed to have complied with the
certification requirements of this section'' because it is ``more
precise while remaining entirely consistent with the language currently
proposed by OSHA'' (ID-1668). OSHA agrees with the commenter and is
revising the regulatory text to adopt their suggested language. This
change is intended to avoid the misconception that an operator could be
considered competent to safely operate equipment without also being
evaluated and determined competent by the operator's employer.\21\
---------------------------------------------------------------------------

    \21\ OSHA had included the ``deemed qualified'' language simply
as a means of clarifying that an operator would be considered
qualified to operate a crane of the same capacity or less than the
one on which the operator was tested. The use of ``qualified''
instead of ``certified'' at that time was meant to reflect the
varying paths to compliance with the standard: Certification through
a third party or employer-audited program, or other qualification
through a state or licensing program or meeting the requirements
specified by the U.S. military. In this final rule, OSHA has
clarified the language by replacing ``deemed qualified'' with
``deemed to have complied with the certification requirements of
this section.''
---------------------------------------------------------------------------

    All other provisions in paragraph (d) are unchanged from previous
paragraph (b), and discussion and justification of these provisions can
be found in the preamble to the 2010 final cranes rule (75 FR 48017).
    A labor union commented that paragraph (d)(2) should be revised to
establish a benchmark for the types of cranes for which a separate
certification is required. They argue that without a benchmark, OSHA
will be ``effectively delegating to an accredited testing organizations
responsibility for determining the number of types of cranes for which
a separate certification is required . . . .'' This concerns the
organization because ``for-profit testing organizations, which benefit
financially from an increased number of mandatory certifications, have
an incentive to develop testing for additional types of crane,
regardless of whether extra testing will improve safety'' (ID-1719).
They propose that operators of

equipment for which there is no certification must still be certified
on the equipment most similar to the equipment they will operate, but
only if a national consensus standard does not recommend a separate
certification for the equipment. In explaining their reliance on
national consensus standards for making this determination, they point
to the National Commission for the Certification of Crane Operator's
(NCCCO) Crane Type Advisory Group, a group that has yet to publish a
standard but is considering ``the skill sets required to operate
various types of cranes for which separate certifications are not
offered and a comparison of those skill sets to determine if they are
already encompassed in existing testing (ID-1719).
    OSHA explained its rationale in the preamble of the 2010 cranes
rule for including similar language in previous Sec.  1926.1427(b)(2).
When OSHA was informed that there were not certification tests for a
number of cranes, it decided to add ``flexibility in the certification
requirement to deal with specialized types of cranes or newly developed
equipment for which certification examinations might not be
available.'' (75 FR 48018). To do this, OSHA applied C-DAC's proposed
requirement for dedicated pile drivers--that operators be certified on
the equipment most similar to the equipment they operated if there was
no available certification test for the equipment they operated. OSHA
has not adopted the recommendation of the labor union (ID-1719) because
the agency does not believe it is in the best position to determine the
various types of cranes for which certifications should be necessary.
It would be unwise for OSHA to consider a major change to the standard
before the NCCCO Crane Type Advisory Group concludes its work, which
could include a consensus standard that identifies crane types that
require a similar skillset and knowledge to operate.
    OSHA requested comment on whether it should delete the requirement
for operator recertification every five years, which was proposed as
Sec.  1926.1427(d)(4). OSHA mostly received comments in support of
retaining the recertification requirement. One certification
organization was not convinced that retraining and re-evaluation are
sufficient substitutes for recertification. The commenter contrasted
the retraining and re-evaluation requirements with recertification,
asserting that:

    Recertification procedures of an accredited certification
program are, by their nature, subject to standardized psychometric
rigor and impartiality. By incorporating the rigorous test
development and administration standards required by accrediting
bodies, recertification requirements provide substantial benefits
that are likely to enhance public confidence and improve safety at
the worksite.

(ID-1755). Similarly, a different commenter warned:

    Remanding the recertification process to the discretion of
employers will result in inconsistencies in how operators are
assessed on their continuing knowledge and skills as well as an
increased risk of endangering the public. As operators move between
employers, there will be confusion in the marketplace about skill
levels, the potential need for costly retraining, and increased
safety concerns.

(ID-1668). A consultant added that ``[r]ecertifying by 3rd party is
completely unbiased,'' and focuses on new information that may not be
conveyed during an evaluation (ID-1764). Another commenter expressed
concern about relying on retraining in lieu of recertification, arguing
that ``a training program does not indicate skill mastery or competency
as measured against a defensible set of standards set through an
industry-wide process'' (ID-1150).
    Many commenters agreed that recertification was necessary to
continue establishing a baseline knowledge of crane operation (ID-1150,
1719, 1744, 1755, 1768, 1816, 1828). For example, one commenter stated
certification is an ongoing process and recertification is necessary
for an operator to maintain the knowledge and skills necessary for safe
crane operation because ``unused skills atrophy and there are ever-
evolving technological changes in newly-manufactured cranes and
periodic regulatory changes'' (ID-1719). To this point, a certification
body submitted comments that at least 3,755 certified operators have
failed their recertification exams, operators that ``[i]f OSHA were to
delete the requirement for operator recertification every five years .
. . would be legally able to continue operating cranes--even though an
independent, third-party assessment would have determined them to lack
the baseline competence to do so'' (ID-1755).
    Additionally, many of the comments supportive of keeping the
recertification requirement pointed out accreditation organizations
ANSI and NCCA require recertification as part of an accredited
certification program (ID-1150, 1668, 1719, 1744, 1755, 1794, 1816,
1828). An affiliate of one of these organizations commented that ISO
17024, a consensus standard ``recognized by several federal agencies as
a requirement for credentialing organizations that offer
certification,'' requires recertification (ID-1150). Another comment
noted that many states and localities also require recertification of
crane operators (ID-1719).
    Some supporters of the recertification requirement recommended that
OSHA also require a set number of hours an operator must spend gaining
experience with the crane prior to recertifying. One of these
commenters explained that each certification body requires an operator
to document 1,000 hours of ``crane-related experience'' in the five
years prior to recertification and, accordingly, recommended that OSHA
require operators attempting to recertify to meet this standard (ID-
1816). During its 2010 rulemaking, OSHA considered and rejected a
nearly identical request for seat-hour-requirements (75 FR 48019).
    The record amply demonstrates the sufficiency of the accreditation
process that must be passed for a testing organization to become
accredited. That process is designed to ensure that accredited testing
organizations use a sufficiently reliable process for certifying
operators. The record also shows that such a mechanism is an effective
one for determining operator competence . . . . There is insufficient
information in the record to include an additional requirement for
1,000 hours of ``crane related experience . . . .'' The commenter does
not specify what should be included in ``crane related experience,'' or
why 1,000 hours would be the appropriate amount of such experience for
this purpose.'' (75 FR 48019). The commenter has not presented any new
evidence to persuade OSHA to change its position. If all accrediting
bodies did require the certification bodies they accredit to include a
minimum amount of time for ``crane related experience,'' then the
commenter would not need to ask OSHA to mandate that requirement. Even
after nearly a decade following OSHA's consideration of that point in
the 2010 rulemaking, the prominent accrediting bodies that accredit the
four major crane certification organizations have not imposed this
approach. OSHA continues to rely on the accreditation process to
determine whether, based on analytics and careful scientific study of
the issue, recertification requires a prescribed number of hours
gaining experience with the equipment. If the accrediting bodies
determine it is necessary, then they will presumably require the
certification organizations to

include it as part of their testing criteria. The agency believes there
is insufficient evidence in the record to support such a new
requirement, especially one that may be very onerous on crane operators
who may not have the opportunity to gain 1,000 hours experience with
the equipment.
    Another commenter recommended language that would allow a minimum
number of hours of crane experience to substitute for the practical
recertification test, also citing the 1,000 hours of ``industry
experience'' as a threshold accredited testing organizations accept in
place of retaking the practical test (ID-1719). The commenter also
cites state laws that require recertification, but those requirements
vary vastly. For example, while California requires operators to
recertify every five years and have 1,000 hours operating experience on
the crane for which recertification is sought, Washington only requires
that a certification be renewed to ensure operators maintain qualified
operator status (ID-1719). Similarly, a different commenter opposed a
recertification requirement because ``if an operator has been operating
safely for five years, there is no need to recertify'' (ID-1615). The
commenter continued, stating ``most employers provide their operators
with updates on new equipment and changes to government regulations''
(ID-1615).
    OSHA is not persuaded that merely gaining ``industry experience''
for a certain number of hours, without any true measure of the safety
of operation during that period, or operating ``safely'' for five
years, should replace a third-party validation of the operator's
knowledge, skills, and abilities. Besides the vagaries of ``crane
experience'' and ``industry experience'' already noted in response to
the prior commenter, as well as the subjective nature of ``operating
safely,'' OSHA notes the previously discussed comments from the
certification organization about the importance of staying abreast of
``ever-evolving technological changes in newly-manufactured cranes and
periodic regulatory changes,'' as well as the 3,755 certified operators
who failed their recertification exams but would otherwise have been
legally able to continue operating cranes (ID-1755). Even if ``most''
employers do actually provide their operators with updates on equipment
and changes in regulations, it is not clear that the operators
comprehend those changes, and it does not take into account the
operators who are not fortunate enough to work for employers that
provide these updates. The fact that an operator has logged 1,000 hours
or five years in the cab of a crane, even without injury, does not mean
that the operator is aware of technological and regulatory changes that
have occurred during that period, that the operator has operated
without near misses or other issues, or that the next hazard the
operator faces will not result in injury.
    Another commenter urged removal of the recertification requirement,
stating that recertification is unnecessary because it is duplicative
of the refresher training provided to crane operators at regular
intervals in their industry (ID-1631). As OSHA explained in the 2010
rulemaking, ``the rulemaking record shows that a training requirement
alone is insufficient to ensure that crane operators have the requisite
level of competence,'' and cannot substitute for third-party validation
of the operator's comprehension of that training (75 FR 48013).
    OSHA agrees with the comments submitted in support of retaining the
recertification requirement. As the agency has previously concluded,
certification is a necessary component for safe crane operation.
Recertification establishes a standardized, baseline knowledge of
equipment operation for operators and indicates to an employer that a
certified operator has at least a certain knowledge of how to operate a
crane. Recertification helps to ensure that an operator does not lose
this baseline knowledge over time. It also helps to ensure continuing
education for certified operators so they are aware of any regulatory
changes that impact their work. The agency believes there are some
employers that would find it difficult to make sure their operators are
up to date on changes to equipment and updates to regulations that
affect their operation unless they had the ability to have their
operators recertified. Therefore, OSHA is retaining the requirement for
recertification as proposed.

Paragraph (e) Audited Employer Program

    The substantive content of paragraph (e) is the same as previous
Sec.  1926.1427(c), and it is promulgated as proposed. It sets out the
parameters for a nonportable certification program administered by the
employer and audited by a third party. The changes to the regulatory
text for the audited employer program are the removal of the word
``qualification'' and the replacement of three cross references with
updated references to their new locations in the revised standard.
    OSHA has removed reference to ``qualification'' from the heading of
the paragraph. It has been removed to avoid the misconception by some
that the term signaled full competency, rather than its intended
meaning as an equivalent to certification. The employer-audited program
will continue to be an alternative to certification by an independent
third party.
    Three cross references have also been changed. First, the reference
in previous Sec.  1926.1427(c)(1)(i) to ``paragraph (b)'' was revised
to ``paragraph (d)'' in the updated rule. Second, the reference in
previous Sec.  1926.1427(c)(1)(ii)(A) to ``paragraph (b)'' was revised
to ``paragraph (d).'' Finally, the reference in previous Sec.
1926.1427(c)(4) to ``paragraphs (c)(1) and (2)'' was revised to
``paragraphs (e)(1) and (2).'' OSHA did not receive any comments to the
proposed changes to this paragraph.\22\
---------------------------------------------------------------------------

    \22\ OSHA received one comment asking the agency to make the
audited employer program ``more feasible,'' by ``expand[ing] its
definition of `auditor' so that more accredited auditing
organizations are available as resources to meet the requirements of
this option,'' even asking OSHA to designate staff to audit employer
programs (ID-1647). The commenter asserted that OSHA's standard
requires an audited employer program to use tests developed by an
accredited crane operator testing organization and to obtain
approval from an auditor certified by an accredited crane operator
testing organization to evaluate these tests. The commenter stated
that this creates ``a conflict of interest for the crane operator
testing organization to the detriment of the audited employer
program option. As long as all auditing must go through one of these
three organizations, there is little incentive for them to approve
or audit an employer program since such auditing would remove
certification candidates from their own programs'' (ID-1647).
     In the NPRM, OSHA explained that it was proposing only minimal
changes to the audited-employer program provisions--the removal of
``qualification'' and the updating of cross-references--and
requested commented on the ``proposed variations from the existing
Sec.  1926.1427(c).'' The comment discussed above is not responsive
to that request because its suggestion is outside the scope of the
proposed variations from existing Sec.  1926.1427(c). Furthermore,
OSHA proposed and finalized this requirement in the 2010 cranes
standard based largely on C-DAC's recommendation ``that independent,
third-party involvement was needed to ensure the reliability and
integrity of any testing program.'' (75 FR 48020). Relying on the
written and practical tests developed by an accredited crane
operating testing organization or an auditor's approval that these
tests meet industry recognized criteria ensures that operators
certified under this section have the baseline knowledge of safe
crane operation.
---------------------------------------------------------------------------

    Finally, in Sec.  1926.1427(e)(5), OSHA explains what an employer
must do in the event an auditor discovers a significant deficiency in
an employer's operator qualification program. OSHA considers a
significant deficiency anything that would result in an employer-
audited program being noncompliant. For example, failure to meet
requirements listed in Sec.  1926.1427(e)(1)-(4) would result in a

significant deficiency that would trigger the requirements in Sec.
1926.1427(e)(5).

Paragraph (f) Evaluation

    Paragraph (f) sets out specific requirements that employers must
follow to conduct an operator evaluation, including evaluation
criteria, minimum qualifications for the person conducting the
evaluation, documentation, and re-evaluation requirements.
    The rationale for the evaluation requirement is explained earlier
in the ``Need for a Rule'' section of this preamble; the discussion
here focuses on OSHA's rationale for when and how the evaluations will
be conducted. OSHA's goal in paragraph (f) is to give employers
flexibility to conduct evaluations in the course of normal business,
but at the same time to provide enough specificity to ensure that an
evaluation satisfies the minimum criteria necessary for the safe
operation of cranes by operators.
    Paragraph (f)(1) requires employers to evaluate their operators and
specifies the two goals of the evaluation: Ensure that the operator has
(1) the ability to safely perform the assigned work, and (2) the
necessary skills, knowledge, and ability to recognize and avert risks
in order to safely operate the actual equipment that will be used.
These performance-based evaluations are intended to be more directly
focused on the operator's ability to perform assigned work than the
general knowledge and skills tested during the certification process.
In paragraph (f)(1)(i), OSHA provides a list of performance-based
criteria to ensure that the evaluation encompasses various aspects of
the equipment, such as safety devices, operational aids, software, and
the size and configuration of the equipment. Paragraph (f)(1)(ii)
focuses on the importance of the operator's ability to perform specific
tasks, such as blind lifts, personnel hoisting, and multi-crane lifts.
    In developing the performance-based evaluation criteria, OSHA
considered the training requirements in the powered industrial truck
operator training standard at subpart O--Motor Vehicles, Mechanized
Equipment, and Marine Operations, Sec.  1926.602(d), which incorporates
the requirements of Sec.  1910.178(l). That standard requires the
employer to evaluate a powered industrial truck operator's performance
as it relates to several topics at least once every three years.
Powered industrial trucks share many of the same operating hazards as
cranes, such as those related to ground conditions, load limits, and
hazards in the area surrounding the equipment. But powered industrial
trucks are generally far less complex, smaller, and less hazardous
pieces of equipment in terms of the extent to which they expose other
employees to their risks.
    Almost all employers who spoke with OSHA said that, when they
observe operators handling loads at construction worksites, they can
tell whether the operators appear competent (Reports #1, 2, 3, 6, 8, 9,
10, 11, 12, 14, 15, 16, 18, 19, 22, 23, 26, 27, 28 of ID-0673). These
employers are accustomed to assessing operator skills because having
competent operators that can safely and productively handle loads
quickly, smoothly, and without corrections, eliminates injuries and
reduces costs.
    A number of commenters provided suggestions about the language of
the evaluation requirement in Sec.  1926.1427(f). Commenters expressed
support for providing flexibility for employers, as opposed to trying
to specify a definitive list of evaluation criteria in the regulatory
text. As OSHA explained in the NPRM, it would be very difficult, if not
impossible, to specify in regulatory text a definitive list of minimum
equipment characteristics that an operator competency evaluation must
cover to ensure operators are competent to safely operate equipment in
all of its possible configurations. However, there was significant
disagreement among commenters about the extent of the flexibility and
guidance that OSHA should provide.
    Three industry associations supported the language proposed by
OSHA. One of these commenters found the proposed language
``sufficiently flexible'' because it contains phrases such as
``includes but is not limited to'' and ``including, if applicable''
(ID-1611). A different commenter praised OSHA's proposed text and urged
the agency to ``maintain this flexibility in the final rule so that
employers have the ability to continue their existing programs or craft
new programs that meet the needs of their company's workplace'' (ID-
1735). Another of those commenters appreciated the fact that the
language is ``general and not exhaustive'' because ``[a]ny attempt to
develop an exhaustive list of factors runs the risk of including
factors that are not relevant, leaving out factors that are important,
and `freezing' the list in time requiring a rulemaking process to
update the list as technology develops and industry practice changes .
. . the employer should have the discretion to develop its own list of
factors affecting an operator's ability to safely operate equipment''
(ID-1779).
    AGC of Texas (ID-1615), expressed concern that OSHA's proposed
language would require too many evaluations:

    As written this requirement is infeasible. Cranes have multiple
configurations (counterweight, attachments, boom configurations
etc.) as well as capacities based on these and the radius of any
given lift. It is not possible to evaluate an operator on each
potential configuration that could be encountered throughout the
day. Set up/configuration will vary dependent on the work involved
and will be job specific so this will vary from job to job. Rarely
if ever would the required components for every possible
configuration of any given crane be available on a job . . . . The
(f) Evaluation section of the rule as written makes it nearly
impossible for an employer to evaluate operators on each machine and
it's [sic] many different capacities and configurations prior to any
given lift in a timely and efficient manner.

    OSHA understands the concern about an excessive number of
evaluations, but the agency disagrees that its revised standard would
require the frequency of evaluation suggested by the commenter. For
example, the standard does not require operators to be evaluated on
``every possible configuration of any given crane.'' Later in this
preamble section OSHA provides additional guidance about when
evaluations are required, and when they are not.
    Associated General Contractors (AGC, ID 1801) expressed its
preference for retaining the existing language in Sec.  1926.1427(k).
The Specialized Carriers & Rigging Association (SC&RA) agreed,
asserting that ``[t]here is no supporting evidence indicating employers
are not fulfilling their obligations to train and evaluate their
operators for the cranes to which they are assigned. As such, there is
no need for further clarification, requirements or language'' (ID-
1828). SC&RA went on to advocate for slightly different language (see
the discussion of the ACCSH proposal in the next paragraphs).
    As OSHA explained in the NPRM, the agency does not agree that the
employer duty under prior Sec.  1926.1427(k) provided sufficient
direction to employers. That language was intended originally only as a
temporary measure to preserve the pre-2010 status quo pending the
application of the certification requirement and was drawn from the
language in Sec.  1926.20(b)(4) (``The employer shall permit only those
employees qualified by training or experience to operate equipment and
machinery''). Part of the genesis for the 2010 final rule was that OSHA
had concerns about relying primarily on the general guidance in Sec.
1926.20(b)(4) rather than more clearly defined measures specific to
crane operators, noting that C-DAC had

implicitly deemed it insufficient for operator safety by recommending a
new standard.
    The Coalition for Crane Operator Safety (ID-1744), a group of
national labor, construction management, equipment manufacturers and
distributors, insurance underwriters and accredited certification
organizations, and two of its members writing separately (Specialized
Carriers & Rigging Association, ID 1828 and William Smith, ID 1623), as
well as the North America's Building Trades Union (ID-1768), advocated
for OSHA to adopt ACCSH-recommended language. ACCSH recommended that
OSHA replace the entire evaluation requirement with an employer duty to
``ensure that operators of equipment covered by this standard meet the
definition of a qualified person in Sec.  1926.1401 to operate the
equipment safely.'' These commenters did not respond, however, to
OSHA's explanation in the NPRM (83 FR 23556) that this approach would
fail to accomplish the purpose of additional evaluation beyond
certification. Relying on the definition of a ``qualified person,''
which can be met in some cases solely through ``possession of a . . .
certificate,'' would return the standard to the inadequate
``certification only'' approach that prompted the same commenters to
urge OSHA to propose the permanent employer evaluation duty in the
first place (ID-0670). Under this approach, an operator would become
both certified and a ``qualified person'' through the completion of a
certification test. Nor did the commenters respond to OSHA's
explanation that the ACCSH language fails to provide employers with
``sufficient specifics to ensure operator competence,'' including the
``specific step[s]'' that an employer must take to ``qualify''
operators.
    Mr. Smith also expressed concern that the evaluation OSHA proposed
``is flawed because there are no standards for the industry to follow
in the evaluation therefore each evaluator will do it differently. The
results will be ambiguous at best because there is no baseline to
consider for qualifications'' (ID-1623). OSHA recognizes that employer
evaluations may not be uniform. That is the tradeoff for allowing the
flexibility that OSHA has allowed employers in the standard. However,
OSHA expects that the criteria it has included in the regulatory text,
as well as the examples it provides in this preamble, will provide
meaningful markers for effective evaluations to ensure safety. OSHA
also notes that this commenter's concern about insufficient
specification of criteria in the regulatory text supports, rather than
contradicts, OSHA's decision not to adopt the more simplified
regulatory text proposed by ACCSH that he recommends.
    AGC (ID-1801) offered alternative regulatory text that modified and
combined paragraphs (f)(1)(i) and (ii) into a single paragraph (f)(1)
stating, ``Through an evaluation, the employer must ensure that each
operator demonstrates the skills, knowledge, and ability necessary to
operate the equipment safely for the assigned work or task.''
    While OSHA views this approach as more workable than relying on the
definition of a ``qualified person'' because it retains the goals of
the evaluation, the agency is concerned that this alternative still
lacks the level of specificity necessary to provide effective guidance
to employers.
    One local chapter of a member of the Crane Safety Coalition, the
International Union of Operating Engineers (IUOE Local 49) (ID-1719),
provided a separate comment that included a different alternative that
OSHA believes would be a better bridge between the ACCSH proposal and
OSHA's proposed text. In its comment, IUOE acknowledged OSHA's prior
rationale for rejecting the ``qualified person'' approach and responded
with a combination of the ACCSH recommendation and OSHA's proposed
text:

     Evaluation. Through an evaluation, the employer must
ensure that each operator is qualified by a demonstration of: * * *
[The skills, knowledge, and the ability to recognize and avert risk
necessary to operate the equipment safely, including . . . . The
ability to perform the hoisting activities required for assigned
work, including . . . .]

    This alternative is similar to the ACCSH recommendation because it
still contains the requirement that the operator be qualified, but
avoids OSHA's concern about relying on the term ``qualified person''
with a requirement to ensure that ``each operator is qualified by a
demonstration of . . . .'' OSHA is adopting this compromise language in
the final rule because it incorporates part of the language recommended
by ACCSH while still preserving the criteria that provides guidance to
employers. OSHA notes that while ``qualified'' is not defined in the
cranes standard, there is a definition of that term in Sec.  1926.32
that applies generally to construction and that definition also equates
the possession of a certificate with being ``qualified.'' OSHA is
therefore adding a new paragraph Sec.  1926.1427(f)(3) to clarify that
the definition of ``qualified'' in Sec.  1926.32 does not apply to
Sec.  1926.1427(f). Unlike the ACCSH recommendation that relied on the
definition of ``qualified person'' in Sec.  1401 for its substance, the
use of ``qualified by a demonstration of'' does not necessitate a
separate definition of ``qualified'' because the remainder of paragraph
(f)(1) provides a functional definition.
    IUOE's alternative also eliminates the requirement to evaluate the
operator's ``judgment'' and as a result helps to address the following
objection raised by AGC concerning the term (ID-1801):

    First, the term is not used in any other OSHA standard or
requirement that we are aware of. * * * Second, an operator's proper
judgement is almost impossible to discern during the evaluation
process and there are a variety of factors that could impair an
individual's judgement which are unrelated to their assigned work
and operational ability. Lastly, this could be a catch-all in the
event of an incident as an operator's judgement could always be
cited as a factor.

    The American Public Power Association shared similar concerns:

    As a practical matter, employers will be evaluating operator
judgement when the evaluation is taking place. However, we are
concerned that the term ``judgment'' if contained in the Final Rule
will lead to unintended consequences, especially in an enforcement
context.

(ID-1779). The Associated General Contractors of Texas (AGC of Texas),
commenting separately, suggested that OSHA replace judgment with
``competence,'' which would include the ``authorization to take prompt
corrective measures'' (ID-1615).
    In the earlier quotation of the IUOE text, ``judgment'' was
replaced with ``ability to recognize and avert risk.'' OSHA has adopted
this change in the final rule. This approach focuses on one part of the
definition of judgment previously identified by OSHA. In the NPRM, OSHA
explained that ``judgment'' referred to not only an operator's ability
to apply the knowledge and skill that he or she possess, but also ``an
operator's ability to recognize risky or unusual conditions that call
for additional action such as re-evaluating a lift plan, stopping work,
or asking for the help of another competent and/or qualified person''
(83 FR 23550). OSHA had also explained that the term ``judgment''
connotes the ``successfully demonstrated ability'' of a ``qualified
person,'' as defined by OSHA's standards in Sec.  1926.1401, ``to
solve/resolve problems relating to the subject matter, the work, or the
project'' and the capability of a ``competent person'' to identify
``previous and predictable hazards'' (Id.). OSHA is implementing this
language instead of referring to a

``competent person'' because that term is used elsewhere in the
standard and for this purpose OSHA prefers the emphasis on the ability
of an operator to identify and avert risk rather than focusing on his
or her authority.
    Adopting IUOE's more focused version of this component of the
evaluation also addresses AGC's point that employers may have
difficulty examining an operator's judgment on a wide variety of
subjects during the evaluation process. During an evaluation, the
operator must demonstrate his or her ability to recognize and avert
risks.
    For example when operating a floating crane, an experienced
operator should recognize that a change in tidal ranges could affect
the boom angles at which work must be performed, potentially affecting
the safety of hoisting operations during particular times of day.
Another example is when an operator appropriately recognizes that a
different crane will be needed because the ground conditions at a
particular jobsite prevent him or her from setting up the current crane
at the only locations where picks with that crane would be safe. A
knowledgeable operator would also know that even though the current
crane can boom out sufficiently from an alternate set-up position, the
weight of the loads will easily exceed that permitted by the load chart
at that boom length and radius. Another crane will be needed for that
job if the alternate set-up area must be used. Another example of an
operator's ability to recognize and avert risk would be when an
operator knows to consider the wind speed and direction when
determining where on the jobsite air turbulence is likely and may
torque broad loads, making them more unstable. An experienced operator
can also demonstrate the ability to recognize and avert risk by
engaging site authorities, such as the project manager, site
supervisor, or project engineer, during the planning of the project's
progression. It is then that the operator can recommend plans for
utilizing the crane more efficiently and making safer picks, such as
those that are in plain view, not adjacent to power lines, and not over
people or other structures.
    One commenter requested that OSHA replace the employer's duty to
``ensure'' that the operator possesses the requisite skills, knowledge,
and ability to recognize and avert risk with a simpler duty ``to take
reasonable measures to evaluate operators' ability to operate equipment
in a safe manner'' (ID-1779). OSHA is not adopting this change for two
reasons. First, OSHA views this reduced duty as an unnecessary and
significant departure from OSHA's common practice of requiring
employers ``to ensure'' compliance with performance standards. OSHA
notes, for example, that 29 CFR 1926.1400(f) includes a similar mandate
in the scope of the cranes standard, requiring employers to establish,
communicate, and enforce work rules ``to ensure compliance with such
provisions.'' Similarly in Sec.  1926.1402(c)(1), OSHA requires
controlling entities to ``ensure that ground preparations necessary to
meet the requirements'' of the standard are met. For crane assembly and
disassembly near power lines, OSHA provides one compliance option in
which employers must ``ensure'' that no part of the equipment, load
line or load gets closer than 20 feet to a power line (Sec.
1926.1407(a)(2)).
    Second, OSHA is concerned that the suggested language would be so
vague as to potentially render the entire duty ineffective and
unenforceable. Employers might, for example, perceive a requirement to
``take reasonable measures to evaluate'' operators as requiring no more
than appointing an evaluator. Because OSHA has framed the evaluation
requirement as a flexible performance measure as requested by
stakeholders and commenters, it is particularly important that the
employer have a duty to satisfy the performance requirement, not just
take steps towards doing so.
    For the reasons identified in the previous discussion, the revised
rule retains the performance-based character of the previous evaluation
requirements in Sec.  1926.1427(k)(2)(i), but makes clear that the
operator must possess the necessary skills and knowledge to operate
``the equipment'' safely, as well as the ability to recognize and avert
risk in order to operate the equipment safely. Those skills, knowledge,
and abilities must be relevant to the actual equipment that will be
operated. While the specifications and characteristics of equipment and
operations can be learned in a classroom setting, the application of
equipment operation and hoisting techniques can only be fully learned
from hands-on experience at worksites. For example, the operator must
not only know what each control does and where it is located, but also
be able to demonstrate how and when to use particular controls or
operational aids.
    Much of the subject matter on which the operators must be evaluated
is specified in the testing criteria listed in paragraph (j), but it is
critical to ensuring safety that the employer evaluation is equipment-
and task-specific. For example, an experienced and certified operator
may have previously demonstrated the ability to lift a crate of
materials onto a roof using one crane. However, if the company gets a
new crane that has different controls, the employer would need to
evaluate the operator's knowledge and skill at using the new controls
in the new crane (note that the employer would not need to re-evaluate
the operator's general knowledge about crane operations). The
employer's evaluation could focus exclusively on the operator's
familiarity with the controls in their different locations. As another
example, if an inexperienced operator has already been evaluated for
operation of a new model of crane, but has only used that equipment to
hoist packaged materials, the employer would likely need to evaluate
the operator's ability to control a wrecking ball attachment before
allowing that operator to use the wrecking ball in a demolition project
(note that the employer would not need to re-evaluate that operator's
knowledge of the controls or general operation of the crane).
    A commenter from the insurance industry expressed concern about the
impact of the rule on employers that work in the Petro Chemical and
Refinery industries who use Union halls to ``ramp up when 30 to 75
crane operators are needed for a shut/down turnaround on a 30 day
period.'' These employers would, the commenter asserted, ``have to
evaluate and set up every crane to be used in the refinery and evaluate
each newly hired operator prior to the job and before letting them work
in the plant'' (ID-1623). OSHA disagrees. An operator could be
evaluated on a single crane and then allowed to operate other equipment
that do not require substantially different skills, knowledge, or
abilities to identify and avert risk. OSHA also notes that the American
Fuel & Petrochemical Manufacturers, which describes itself as ``a
national trade association comprising virtually all U.S. refining and
petrochemical manufacturing capacity,'' also submitted comments on the
rule but did not raise similar concerns about the evaluation
requirements (ID-1628). Neither comment explained how the use of cranes
at refineries and petrochemical plants would constitute construction
work.
    Stakeholders who spoke with OSHA said that most employers are
already able to determine the subject matter and crane knowledge that
their operators need to safely perform hoisting activities with their
cranes (Reports #2, 3, 4, 9, 11, 15, 18, 21, 26, 28 of ID-0673).
However, not all employers do so. OSHA's requirements should encourage

consistency throughout the industry in confirming the basic knowledge,
operating skills, and abilities of all operators in construction work,
as well as ensure that all operator evaluations cover subject matter
that is specific to the equipment used and the construction activities
performed.
    Paragraph (f)(1)(i) also specifies that the operator's knowledge,
skills, and ability to identify and avert risk must be ``specific to
the safety devices, operational aids, software, and the size and
configuration of the equipment.'' This list of equipment
characteristics, which stakeholders identified as critical for safe
operation (Reports #1, 4, 5, 6, 10, 11, 18, 19, 20, 21, and 25 of ID-
0673), is not comprehensive, but provides employers with some basic
characteristics of equipment that might require different levels of
knowledge and operating skills. For example, the employer must verify
that the operator knows enough about how the safety devices,
operational aides, and software work on a particular crane. The
operator must be able to apply that knowledge to recognize when the
particular characteristics of the equipment may contribute to
potentially unsafe conditions or operations and to determine how to
proceed safely. Such a determination might include using particular
operating skills to safely land or maintain a suspended load if an
operational aid malfunctions during use, or simply refusing to hoist
the load until a safety issue is addressed.
    OSHA is including equipment software in this list because many
stakeholders noted that operators must have the skills to use a
computerized operating system if the crane has one (Reports #2, 4, 18,
21 of ID-0673) and that specific operating systems (Reports #4, 9, 13,
18, 19, 21, 22, 24 of ID-0673) or cranes by different manufacturers
(Reports #4, 6, 13, 16, 18, 21, 24 of ID-0673) can require different
skills or knowledge. Indeed, newer cranes often have integrated
computer systems to protect workers and the crane. Operators must
understand how these systems prevent damage to the crane that could
impair safe operation of the crane, especially if the crane can be
operated with the system turned off. That is not the only issue with
newer cranes that may require evaluation. One construction company that
also provides crane operator training noted that the materials used to
make some new cranes can be more ``brittle,'' meaning that they have
reduced safety factors and allow for less room for error (Report #21 of
ID-0673). Exceeding these operating tolerances can lead to structural
equipment failure such as a crane collapse or tipover, so evaluating
operators is critical to ensure that they understand how to avoid
exceeding specified tolerances.
    OSHA is including boom length in the list of characteristics
because longer booms may require specialized depth perception skills or
may be harder to control (Reports #2, 3, 22 of ID-0673). OSHA notes
that at least one certification testing organization uses different
boom lengths as a proxy for changing the capacity of the crane because
the boom length can have a significant impact on the performance of the
crane (see OSHA-2007-0066-0521, p. 268-69).
    The stakeholders OSHA interviewed also identified crane
configurations (Reports #4, 6, 11, 18, 19, 20, 21, 22, 25 of ID-0673);
the use of attachments (Reports #6, 18, 19, 20 of ID-0673); and the use
specific safety devices and operational aids such as those listed in
Sec.  1926.1416 Operational aids (Report #21 of ID-0673) as important
crane characteristics that can require unique skills, knowledge, or the
ability to recognize and avert risks.
    In proposed paragraph Sec.  1926.1427(f)(1)(i) (83 FR 23568), OSHA
specified that the ``size and configuration'' of cranes, including
lifting capacity, as well as boom length, attachments, use of a luffing
jib, and counterweight set up, are important considerations in the safe
operation of cranes. AGC of Texas specifically objected to the
inclusion of ``lifting capacity'' in the listed evaluation criteria,
noting that the capacity of a crane changes nearly every time an
operator makes a lift because there are so many factors that affect the
determination of what the capacity of the crane will include: The
configurations of the crane (counterweight, attachments, boom
configurations, etc.), radius, boom length, and boom angle. AGC of
Texas wrote:

    It is not possible to evaluate an operator on each potential
configuration that could be encountered throughout the day. Set up/
configuration will vary dependent on the work involved and will be
job specific so this will vary from job to job. Rarely if ever would
the required components for every possible configuration of any
given crane be available on a job. E.G >500-ton lattice boom crane
that has a max boom length of 200' may be configured for 100 feet of
boom and enough counterweight to have 375 tons of capacity as that
is all that is required for the scope or scopes of work involved.
The components (boom and additional counterweight etc.) necessary to
configure the crane for a 500-ton capacity and 200 feet of boom
would not be available * * * Capacity is a function of many factors
and not actual operation of the crane. Its effect on safe operation
is taken into account with proper lift planning.

(ID-1615). That commenter suggested that if removal of ``lifting
capacity'' was not possible, then OSHA should substitute: ``The ability
to determine capacity based on the configuration of the crane, the
load, and deductions as required by the manufacturer.'' William Smith
appeared to disagree, stating: ``The capacity issue is mute [sic] since
there is no requirement for a load to be placed on the crane'' (ID-
1623).
    OSHA has retained the language that lifting capacity is a component
of ``size and configuration'' to be assessed during an evaluation. In
response to removing the capacity from the certification requirement,
some stakeholders explained that capacity as it relates to crane
operation is better assessed by the employer (Report #20 of ID-0673,
ID-1735, 1755). The revised rule does not require employers to evaluate
their operators in every possible configuration of equipment or
combination of configuration and boom length, etc., that would factor
into a crane's capacity. Additional evaluations are only required when
the operator's existing skills, knowledge, or ability to identify and
avert risk are not sufficient for that operator to operate the
equipment in a new model, configuration, etc.
    OSHA requested comment on items listed in paragraph (f)(1)(i).
Besides the objection to the inclusion of ``lifting capacity,'' one
commenter suggested a different approach:

    A performance-based assessment of an operator's ability to
inspect (operational not detailed mechanical) and set up the crane
for operation (to include the LMI); to utilize the manuals/load
charts for determining capacities and to operate/handle a load, as
well as a ``seat test'' to determine safe operating capabilities is
all that is needed to evaluate an operator.

(ID-1615). While OSHA had previously rejected requests that the agency
include minimum seat hours in the standard, OSHA expects that some
``seat test'' time is implicit in the items already listed in paragraph
(f)(1). Similarly, the ability to utilize the manual and load chart is
required for certification, and the use of a particular manual or chart
is inherent in possessing the skills and knowledge to operate a
particular piece of equipment safely. As discussed in the NPRM, OSHA is
not including specific references to assembly and disassembly or
inspections because those are already addressed in other sections of
subpart CC. Operators may not be assigned to perform these activities
unless they are trained to safely perform activities in

accordance with the applicable sections of subpart CC.
    The lists in paragraphs (f)(1)(i) and (ii) are not exhaustive, so
in addition to the items listed there, employers must consider still
other differences that may be important to the safe operation of the
equipment. For example, an operator who previously demonstrated
competence in operating a small crane to hoist materials to and off of
buildings being demolished does not necessarily have the knowledge and
operating skills needed to safely swing a wrecking ball to demolish the
same building. The physics of swinging a wrecking ball into a building,
which can lead to equipment failure due to side loading or shock
loading the boom, are different from smoothly controlling a load, which
does not present these hazards. Similarly, an operator who has operated
a crane in support of pile driving work, using pile driving
attachments, does not necessarily have the skills necessary to smoothly
control and place steel members suspended by multi-lift rigging or to
safely control a suspended personnel platform.
    Paragraph (f)(1)(ii) requires the employer to evaluate the
operator's ability to perform hoisting activities required for assigned
work, including, if applicable, special skills needed for activities
like blind lifts, personnel hoisting, or lifts involving more than one
crane. This list of activities is not exclusive, but rather provides
examples of lifts for which an employer must evaluate the operator's
ability. The words ``if applicable'' are used to indicate that
employers must evaluate operators only for the types of lifts they will
perform and not all possible variants of hoisting procedures.
    As noted earlier, OSHA considered the training requirements of the
powered industrial truck standard (Sec.  1910.178(l)) as a model when
developing the evaluation requirements in the proposed standard. The
powered industrial truck standard requires that employers evaluate an
operator's ability to perform job-specific tasks that include
``workplace-related topics,'' and refresher training when there are
changes in a workplace condition that could affect safe operation of
the truck (Sec.  1910.178(l)). Paragraph (f)(1)(ii) similarly requires
the evaluation of an operator to cover the workplace aspects of the
operator's job, including the specific hoisting activities that he or
she will perform.
    Stakeholders who spoke with OSHA asserted that the performance of
different types of work sometimes requires different skill sets. Many
employers currently evaluate their operators based not only on their
knowledge and skills regarding specific characteristics of the
equipment, but also on their operators' ability to perform specific
tasks with the equipment (Reports #1, 2, 3, 4, 6, 9, 10, 13, 15, 16,
18, 19, 20, 21, 22, 23, 26 of ID-0673). Several of those stakeholders
noted specific examples of operational challenges that may require
additional operator skills to ensure safe operations. One crane rental
company stated that if an operator who spends a year on a large project
with repetitive work is then moved to a different job that involves
different lifts and set-ups every day, that individual may not be
competent to do some of that kind of work (Report #6 of ID-0673). A
residential construction employer stated that residential jobs can be
especially challenging to crane operators because lifts may have to be
performed on previously disturbed soil, which can cause the cranes to
lose stability and may necessitate special preparations and operations
under some worksite conditions. However, this employer also said that
residential construction crane operators might not gain necessary
experience performing blind lifts or lifting heavy/unstable loads that
may be typical to operating a crane on commercial projects (Report #16
of ID-0673). A larger construction employer stated that it includes
job-specific components in its evaluation of operators to ensure that
operators have the ability to work on/around underground utilities and
power lines (Report #18 of ID-0673). Finally, a crane operator training
company noted that operators may require significant practice to
develop the ability to control a dragline or perform operations with a
clamshell or bucket attachment (Report #20 of ID-0673).
    OSHA requested comment on all aspects of proposed paragraph
(f)(1)(ii). One commenter requested clarification on the requirement to
evaluate the ``ability to perform hoisting activities required for
assigned work:''

    The terms task-specific and assigned tasks, in our opinion, can
potentially be interpreted to mean jobsite-specific training. If
this is the intent, compliance with this proposed provision would be
very onerous as operators may encounter jobsite conditions that are
similar but not identical to the conditions for which they have been
previously trained. In addition to the jobsite conditions being
different, the loads which may be required to be hoisted may also be
different. For example, a tower crane operator on a building project
may lift materials and loads ranging from bundles of steel to
bundles of plywood. * * * operators can be required to hoist a
variety of materials and perform various lifts for the project such
as hoisting concrete buckets or formwork, conducting blind picks, or
picks below grade.

(ID-1801). As discussed earlier, the standard does not require separate
evaluations for every conceivable difference in equipment or task.
OSHA's intent is that the employer identify the substantive differences
that require new skills, knowledge, or abilities that the operator has
not already demonstrated during a previous evaluation. The standard
does not require a new evaluation of the same tasks at a different
jobsite unless the new jobsite requires the operator to have new
skills, knowledge, or abilities. Absent special circumstances (very
long pieces that would change the dynamics of a lift, significantly
different bundling methods, etc.), OSHA expects that a certified tower
crane operator who has been evaluated lifting a bundle of steel would
also be qualified to lift a bundle of plywood. The employer would not
need to re-evaluate the operator because lifting a bundle of lumber
does not require any significant new skill, knowledge, or ability that
the operator had not already demonstrated by lifting a bundle of steel.
    OSHA did not receive any other comments specifically addressing
paragraph (f)(1)(ii) (other than the requests for broad revisions of
(f)(1) discussed earlier) and is promulgating that paragraph as
proposed.
    OSHA is adding a new paragraph (f)(2), which was not in the
proposal, in response to several commenters raising concerns about the
process of evaluating experienced operators during the transition
period as the new evaluation and documentation requirements in the
final rule take effect. Several commenters (ID-1623 and ID-1828)
suggested ``grandfathering'' (exempting) currently certified operators
from the evaluation requirements. One of these commenters explained:

    The challenge for the industry is that operators working for the
same or several employers that have 15, 20, 25, even 30 years in the
business and every crane that they have operated has not been
documented. This is the impracticable and infeasible part of the
rule where a Grandfather Clause may be required for all currently
certified operators and any new operator entering the industry after
the date of enforcement goes through a documentation process to move
forward and make sense of the rule.

(ID-1828). While the comment focuses on the documentation aspect of the
new rule (see later discussion of Sec.  1926.1427(f)(6)), the comment
also raises the question whether employers will need to re-evaluate
every operator. Under the new language in Sec.  1926.1427(f)(2), the
answer is ``no.''

For operators already employed by an employer, paragraph (f)(2) allows
that employer to rely on its ``previous assessments of the operator in
lieu of conducting a new evaluation'' of that operator. OSHA's final
rule does not require employers to make each existing operator re-sit
for formal re-evaluations on all applicable equipment and perform
different tasks when the employer has already previously assessed that
operator prior to the effective date of the rule and determined that he
or she is qualified to safely operate such equipment for certain tasks.
    Several terms may require additional explanation. For the purposes
of Sec.  1926.1427(f)(2), an ``operator'' encompasses anyone who has
been operating equipment covered by this subpart, including operators
in training, such that the employer has had an opportunity to assess
the operator's performance on the relevant equipment and tasks and has
determined the operator can safely perform on those equipment and
tasks. The reference to ``its previous assessments'' is intended to
ensure that the operator was previously assessed, even if that
assessment was not previously documented in accordance with new Sec.
1926.1427(f)(6), and that the operator's employer (or its agent)
conducted the assessment. The employer cannot rely on recommendations
or evaluations from a previous employer. It is important that the
employer have its own factual basis for its determination that the
operator has the skills, knowledge, and ability to identify and avert
risk necessary to operate particular equipment safely for particular
tasks. But that factual basis does not require a previous formal
evaluation by the employer's current evaluator. For example, the
current evaluator might not have observed an operator's previous 25
years of work. In such a case, the employer would satisfy the
requirements of paragraph (f)(2) if it noted that the operator had
operated specified equipment safely for that employer. OSHA has
provided a corresponding exception in the documentation requirements of
Sec.  1926.1427(f)(6), which is discussed later in this preamble.
    OSHA prefers this approach to any ``grandfather'' approach that
would completely exempt existing operators from all evaluation. Such an
exemption would not accomplish the purpose of providing a baseline of
operator qualification against which an employer could compare future
equipment and assignments to determine if they require new skills,
knowledge, or the ability to identify and avert risks. Furthermore,
completely exempting existing operators from all evaluation would not
achieve a primary objective of the rulemaking: With respect to future
assignments, there would be no employer duty to ensure that these
operators have the skills, knowledge, and ability to safely operate
assigned equipment for assigned tasks in a variety of contexts. Such an
exemption would be a step backwards from the prior temporary employer
duty in Sec.  1926.1427(k), which did not provide any exemption for
previously employed operators.
    Paragraph (f)(4) establishes minimum criteria for the person who
performs the required evaluation of an operator-in-training. The
evaluation must be conducted by an individual who possesses the
knowledge, training, and experience necessary to assess operators. This
standard affords some flexibility to employers as they seek to ensure
operator safety. An evaluator could be, for example, a current or
former operator who is also trained to assess equipment operators. The
key, however, much like the criteria for the person performing training
and evaluation of operators under the powered industrial truck operator
training standard (Sec.  1910.178(1)(2)(iii)), is that the evaluator
possess the requisite knowledge, training, and experience for assessing
an operator's knowledge, skill, and ability to recognize and avert
risk. Such knowledge, training, and experience is not necessarily the
same as the knowledge, training, and experience to perform the
particular construction operations or processes oneself.
    Stakeholders spoke with OSHA at site visits and meetings about how
they comply with the employer duty described in Sec.
1926.1427(k)(2)(i) in the prior standard. Several of those companies
specifically employ individuals to assess operators (Reports #18, 22 of
ID-0673). A large construction company with a very robust and formal
evaluation process has ``Authorized Examiners'' who perform evaluations
of operator applicants for the company. These are personnel with
significant experience and training, including completion of crane
operator certification and rigger courses (Report #18 of ID-0673). In
many other cases, the evaluations are performed by other personnel such
as experienced riggers, maintenance personnel, signal personnel, or
tradesmen who have demonstrated the necessary experience or training to
conduct this assessment (Reports #1, 2, 3, 6, 15, 16, 20, 23 of ID-
0673). Day-to-day assessment of an operator's performance may be
conducted by a qualified person who is often a manager or foreman at
the job site. (Reports #1, 3, 6, 18 of ID-0673). A seasoned operator
who has been designated by the employer to mentor an operator-in-
training may also make determinations about when an operator-in-
training is ready to perform certain tasks, and may weigh in on the
evaluation or confirm that an individual is ready to operate without
monitoring (see, e.g., Report #2 of ID-0673).
    Stakeholders who spoke with OSHA offered competing recommendations
about whether OSHA should require that evaluators be certified as
operators. Several employers who spoke with OSHA stated that an
individual may have the ability to evaluate an operator without being a
certified operator (Reports #1, 6, 18, 20, 26 of ID-0673). They
indicated that evaluators may be safety managers or other senior
employees with significant experience working around cranes, but who
might not currently be certified (see, e.g., Reports #1, 6, 18, 26 of
ID-0673). Others may be specifically trained to evaluate operators. But
at the May 2015 ACCSH meeting, several representatives from the crane
industry asserted that evaluators should be certified (OSHA-2015-0002-
0036).
    Based on information obtained from the stakeholders, OSHA opted in
the proposal to maintain employer flexibility in choosing who may
perform the required evaluation as long as those evaluators have, or
develop, the requisite assessment knowledge and experience. OSHA noted
that the national consensus standard for cranes (ASME B30.5-2014 Mobile
and Locomotive Cranes, Chapter 5-3) does not require or recommend that
evaluators of operators must be certified by third-party testing
entities; a ``designated'' person who qualifies operators must be a
qualified person by experience and training but need not be certified
(B30.5, section 5-3.1.2(e)). Similarly, previous Sec.
1926.1427(f)(3)(ii) required that the trainer of an operator-in-
training must have passed at least the written part of a certification
test, but did not require that the trainer must be an operator or
certified. Additionally, employers who spoke with OSHA and publicly
commented at the March 2015 ACCSH meeting expressed the view that
passing the written portion of a certification test alone does not mean
an individual has the ability to effectively evaluate the competency of
an operator (OSHA-2015-0002-0036). But along with other crane-related
experiences, OSHA believes that, if a person has passed the written
portion of the

certification test, it should be taken into account when deciding if
that person has the knowledge and abilities necessary to evaluate crane
operators.
    OSHA requested public comments on the proposed criteria, including
whether OSHA should require that the evaluator be an operator, have
been an operator, or at least have passed the written portion of
certification testing. There was disagreement among the commenters on
this issue. An insurance company representative expressed the view that
evaluators must be both former operators and a trainer in accordance
with Sec.  1926.1427(b) (ID-1623). NCCCO proposed certification for
operators, or alternatively that evaluators should be required at least
to have passed the written part of a certification test and have
familiarity with the equipment's controls, consistent with the
requirements previously required for trainers under the prior standard
(ID-1755). Certification, that commenter explained, ``should be
regarded as an appropriately necessary condition of establishing such
competence and ensuring a `baseline' of knowledge and skills:''

    Requiring that an evaluator have a baseline of knowledge and
skills as an operator is likely, not only to improve the quality of
evaluations, but also to increase safety during any evaluation in
the event the operator-in-training engages in an unsafe act and the
evaluator must intervene. Since November 10, 2010, when the crane
Rule became effective, no fewer than 685 candidates have been
prohibited from continuing with their practical exams after engaging
in unsafe acts as recorded by NCCCO Practical Examiners during
practical exams. Had the Examiners not also been certified
operators, with the training and experience to recognize hazardous
and potentially dangerous crane operations, these unsafe acts that
might have been allowed to continue, with consequent property
damage, personal injury, or worse.

(Id.).
    Two other commenters disagreed. One commenter urged OSHA to ``grant
employer flexibility in choosing who may perform the required
evaluation'' and to ``leave the decision as to who may evaluate, and
the qualifications of the evaluator, to the employer'' because the
employer is in a better position to ensure that an operator is
competent to complete an assignment safely (ID-1779). Another commenter
agreed that the evaluator need not be certified, nor a former operator:
``With a clearly defined evaluation process, an individual who is
qualified, or competent in crane safety and operation would be able to
assess an operator'' (ID-1615).
    OSHA is not requiring that evaluators must be certified or have
previous experience as an operator. While experience as an operator and
certification might be helpful, C-DAC did not recommend either for
trainers and OSHA is not requiring it in the final rule because it does
not think it is necessary to hold evaluators to a higher standard than
C-DAC recommended for trainers. As stated in the NPRM, OSHA heard from
stakeholders who have successfully involved a variety of personnel in
the evaluation of operators, including riggers, maintenance personnel,
signal personnel, tradesmen, managers, and foremen who have
demonstrated the necessary experience to conduct this assessment. These
personnel are typically not certified to operate cranes (See Reports
#1, 2, 3, 6, 15, 16, 18, 20, 23 of ID-0673). Based on the record, OSHA
does not wish to prevent these kinds of personnel from performing
effective evaluations.
    OSHA acknowledges the certification organization's concern about
safety during the evaluation (ID-1755), but the agency believes the
standard already addresses that concern. An operator-in-training must
remain under the supervision of a person who meets the definition of a
``trainer,'' which includes ``the knowledge, training, and experience
necessary to direct the operator-in-training on the equipment in use''
(Sec.  1926.1427(b)(4)(i)(B) (emphasis added)). Because the operator-
in-training cannot move out of that status until the completion of an
evaluation, a trainer is required at the evaluation if the evaluator
does not also meet the definition of a trainer (see later discussion
about trainer also serving as evaluator).
    As OSHA explained in the NPRM, paragraph (f)(4) will allow
employers the flexibility to contract with a third-party agent to
conduct evaluations if the employer does not maintain the expertise on
staff, or to identify existing staff who may not have operator
experience but are capable of conducting an evaluation. OSHA wants to
allow employers to continue using effective and safe solutions that
they have already identified and are currently in use. For example,
OSHA spoke with an employer that took steps to qualify its first
operator without having an experienced mentor-operator on staff. This
was accomplished by enrolling the operator-in-training in several
outside classes, including a crane manufacturer's training and training
with the local union, and then arranging for an experienced union
operator to mentor the operator-in-training. Later, when the employer
hired additional operators-in-training, the first operator, now
experienced, was able to serve as the trainer and evaluator (Report #16
of ID-0673).
    A sole proprietor OSHA spoke with followed a similar path when he
first started operating cranes for a former employer by seeking out the
mentorship of an experienced operator before beginning to operate
independently. When the company later hired other operators, this
individual trained new operators and supervised them for at least a
month before evaluating them (Report #23 of ID-0673).
    One commenter suggested that OSHA clarify that it is the employer
of the operator who ultimately bears the responsibility for ensuring
that the operator is evaluated. The commenter stated ``if a crane
operator has been made available through a third party and the third
party also owns the crane, then [the operator] effectively works for
the third party and thus, the third party should be responsible for the
evaluation'' (ID-1615). A different commenter requested that OSHA add
language to paragraph (f)(5) to clarify that an ``employer may not
relinquish its duties under these paragraphs [by] delegating them to a
third-party:''

    The evaluator must be an employee or agent of the employer.
Employers that assign evaluations to an agent retain the duty to
ensure that the requirements in paragraph (f) are satisfied.

(ID-1719). While this addition is arguably unnecessary because Sec.
1926.1427(f)(1) includes the introductory text ``the employer must
ensure,'' OSHA is adding the commenter's suggested text for
clarification and consistency with the requirements for a trainer in
Sec.  1926.1427(b)(4)(i)(A). OSHA requires operator trainers to be an
``employee or agent of the operator-in-training's employer'' (Id.).
    Several commenters requested additional guidance regarding
evaluators. One commenter asked for clarification about whether a
trainer can also serve as the evaluator, expressing support for the
idea because the ``process of properly training an operator-in-training
should not be drastically different from successfully evaluating that
same operator'' (ID-1801). Another commenter expressed support for
trainers to also potentially serve as evaluators, stating that ``the
employer should use its best judgment in identifying the suitable
criteria for evaluator qualifications for the particular task, jobsite,
and equipment at use for that employer'' (ID-1779). A different
commenter opposed allowing a single person to serve in both roles,
noting that national accrediting

standards bar the same person from performing both a training role and
an evaluation role out of concern that an evaluator may not effectively
evaluate of an operator the evaluator had trained:

    NCCCO proposes that trainers should be precluded from acting as
evaluators within the framework of the Rule. Alternatively, NCCCO
proposes that trainers should be precluded from acting as evaluators
with respect to any operator whom the evaluator has previously
trained. NCCCO submits that individuals responsible for training
operators are less likely to be in a position effectively to
evaluate operators for whom they provide training services. The
evaluation contemplated by the proposed Rule should provide an
independent assessment of the ``skills, knowledge, and judgment''
necessary to operate the equipment safely. If the training and
evaluation functions are combined and not separated, and if the
evaluator is called upon to exercise substantial judgment in
evaluating the subject or potential subject of training, then the
validity of the evaluation tool is likely to be compromised because
an evaluator may lack the requisite objectivity when conducting
assessments of operators who are former or potential trainees. * * *
By separating the training and evaluation functions, the proposed
Rule is more likely to result in outcomes that ensure the quality of
evaluations and improve worksite safety.

(ID-1755).
    OSHA understands the arguments against allowing trainers to act as
evaluators for operators that they trained, but declines to prohibit
this practice. It has not traditionally prohibited this type of
practice, where employers conduct trainings for employees and also
ensure that they comprehend that training. In this context, moreover,
the certification and evaluation requirements are intended to work in
tandem, and the certification requirement ensures that the operator has
demonstrated basic skills, knowledge, and abilities through an
objective, third-party examination process. OSHA also seeks to maintain
a flexible standard that will allow employers to continue current
practices where possible and minimize any additional cost or burden,
such as hiring additional staff, on employers and small firms. If OSHA
prohibited trainers from also serving as evaluators, employers would be
bound to a process in which a formal evaluation would take place only
after the completion of training. While that model is acceptable under
the standard, OSHA also intends to allow employers to maintain more
flexible models in which operators may be allowed to try new equipment,
configurations, or tasks under the guidance of a trainer as the
opportunities present themselves at the worksite. If the trainer also
meets the requirements of an evaluator, that person would be able to
determine when the trainee has demonstrated sufficient skill,
knowledge, and ability for particular equipment or tasks. The trainer/
evaluator could evaluate and document the trainee's success and move on
to other areas of training. This model may be particularly useful in
scenarios where an operator is expected to operate many different
pieces of equipment for many different tasks, using different
configurations or attachments, when there are significant differences
that would require additional skills, knowledge, or ability. A trainer
also serving as an evaluator would be able to evaluate the operator as
the operator gains experience with those different tasks,
configurations, and equipment differences; it could save significant
time and effort that would otherwise be required to replicate all of
those scenarios later in front of a different evaluator. Finally, by
allowing a trainer to also evaluate the operator in actual work
settings engaged in tasks that the operator will be expected to
perform, the evaluations might actually provide a more realistic gauge
of the operator's skills, knowledge, and ability than in a more sterile
evaluation setting. For all of those reasons, OSHA is not prohibiting
an operator's trainer from also serving as that operator's evaluator.
    One commenter asked how a small contractor could comply with the
evaluation requirement when ``hiring a crane'' for a single lift,
implying that the contractor does not have someone on staff who would
qualify as an evaluator (ID-1476). There are at least two methods of
compliance in that scenario. First, that contractor could select a firm
that offers the crane along with a qualified operator who has been
certified and evaluated by that firm. In that scenario the crane firm
would be operator's employer and have the responsibility to ensure that
the operator is certified and evaluated. Second, the contractor could
hire a certified operator and contract with an outside party to
evaluate the operator.\23\
---------------------------------------------------------------------------

    \23\ The same commenter (ID-1476) asked about the role of
Construction Manager in this requirement under multi-employer
projects. OSHA notes that the commenter did not include enough
information to allow for a response because, for example, the
construction manager might or might not be an employee of the
operator's employer and may or may not have the required
qualifications to serve as an evaluator.
---------------------------------------------------------------------------

    A ``bare rental'' company that rents cranes without an operator
asked for clarification about its duties under OSHA's standard:

    Who will be responsible for signing off on the operator's
document of evaluation? As the owner of the crane that we rent it to
a company, we do not know who they will select to operate the crane,
and from a legal stand point we do not want to sign off on somebody
we do not know.

(ID-1495). In that scenario, the crane rental company is not the
employer of the operator and will not be on site or otherwise be
controlling the operator. OSHA's standard does not require that crane
rental company to ensure that the operator of its crane is certified or
evaluated. That would be the responsibility of the employer of the
operator.
    Paragraph (f)(5) permits the employer to allow an operator to
operate equipment other than the specific equipment on which the
operator was evaluated, as long as the employer can demonstrate that
the new equipment does not require substantially different skills,
knowledge, or abilities to operate. An additional evaluation would be
required before an operator would be allowed to operate equipment that
requires substantially different skills, knowledge, or abilities to
operate.
    OSHA believes this approach addresses the concerns of some
stakeholders about unnecessary competency evaluations while ensuring
appropriate evaluations of operators. Many stakeholders warned that
unnecessary competency evaluations could be very time consuming and
burdensome without providing any real safety benefit. Many employers
who spoke with OSHA during meetings and site visits explained, for
example, that they assign operators to run the same crane every day, or
to operate a crane from a specific group of the company's cranes that
are all very similar (Reports #1, 2, 3, 6, 13, 16, 19 of ID-0673).
Others said that they permit their operators to run similar cranes
interchangeably (see Report #15 of ID-0673). But other stakeholders
indicated that they already follow practices that may exceed what OSHA
is requiring. One large construction company, for example, requires its
operators to go through a formal evaluation for any different equipment
that the operators are assigned to run, even if the operators have
already demonstrated competency, through an evaluation, to operate
other similar equipment (Report #11 of ID-0673). Another large national
construction firm provides supplemental testing for different crane
configurations (Report #18 of ID-0673). And one stakeholder at the
March 2015 ACCSH meeting explained that it requires a ``seat check,''
an evaluation that may take a day or two, ``every time that operator
goes to a new machine . . . [w]e want to do the walk around

inspection. We want to test him on what he's absorbed when we walked
around . . . includ[ing] safety checks, prestart and post-start'' (see
OSHA-2015-0002-0036, pg. 232-239).
    As previously explained, OSHA does not intend to require the
additional evaluation of operators when it is not necessary, such as
when there are minor differences between equipment models of the same
type that do not necessitate substantially different skills, knowledge,
or abilities to operate the crane safely. As discussed earlier in
reference to the general requirements in Sec.  1926.1427(f)(1), OSHA's
evaluation requirements will provide employers some flexibility when
determining whether an additional evaluation is required.
    This flexibility is necessarily cabined, however, by the employer's
duty to ensure that its operator's skills, knowledge, and ability to
recognize and avert risk are sufficient for safe operation at the
jobsite. Some employers explained to OSHA that they often need
operators to operate very different sizes and configurations of the
type of equipment (or equipment of a different type) on which they
evaluated the operator, to perform various tasks (see Reports #2, 4, 6,
and 22 of ID-0673). Even an experienced operator, when assigned to
operate a different crane, may need time operating the equipment under
supervision to become familiar with how to safely operate it. One
owner/operator stated that when he used different cranes in the past,
even if they were all boom trucks built by the same manufacturer, he
needed a substantial amount of time to familiarize himself with the
significant differences between the cranes before he had the skills,
knowledge, and ability to recognize and avoid risks necessary to safely
operate them (Report #23 of ID-0673). OSHA concludes that it is
reasonable that the employer may need to conduct an additional
evaluation of the operator before determining that the operator is
competent to safely run a different piece of equipment alone (Reports
#3, 6, 16, 22 of ID-0673).
    One commenter (ID-1615) requested clarification of the meaning of
``that the employer can demonstrate'' in Sec.  1926.1427(f)(5), which
relieves the employer of the need for additional evaluation for other
equipment that the ``employer can demonstrate does not require
substantially different skills, knowledge, or ability to recognize and
avert risk to operate.'' Specifically, the commenter asked whether an
additional evaluation would be necessary for operation of two specific
crane models: A 50-ton rough terrain hydraulic crane and a 60-ton rough
terrain hydraulic crane, which the commenter stated are ``identical in
operation, but different in capacity.''
    In requiring that employers demonstrate that the different
equipment does not require substantially different skills, knowledge,
or ability to identify and avert risk, OSHA intends that the employer
will be able to justify the basis for its determination. An example of
this justification could include an employer consulting an operator who
has experience safely operating both pieces of equipment and could
provide feedback about the differences in operation, or the employer
could cite discussions with equipment manufacturers about the
differences between models as justification for the basis of its
determination. In response to the commenter, it is not likely that this
change in capacity would require the employer to conduct an additional
evaluation as long as the cranes are operated in similar configurations
and other aspects of the crane (such as the computer operating systems,
spatial arrangement of controls, control functions, safety devices,
operational aides, mode of travel, and function of the equipment) are
similar. However, changes in the configuration such as the use of
different attachments (e.g., wrecking ball versus a clamshell),
significant changes in boom length, or the addition of counterweights
are a few examples of differences that may require an additional
evaluation. Similarly, design differences like the location and
function of the controls (e.g., the boom hoist control is located where
the line hoist control was located on the other equipment) may also
require the operator to become familiarized with these changes and some
other limited evaluation of the operator's grasp of these changes. An
evaluator meeting the requirements of Sec.  1926.1427(f)(5) must be
able to make these determinations, but can consult other appropriate
individuals like the crane manufacturer or additional operators
experienced with the equipment. Ultimately, if the difference in the
controls and functions of the equipment is significant enough that the
operator's unfamiliarity with the equipment may create a hazardous
condition, then the employer must conduct an additional evaluation.
    One of the certification entities, NCCCO, requested that OSHA
``clarify the proposed Sec.  1926.1427(f)(3) to indicate that the
employer is only determining whether additional evaluation is necessary
for different equipment, and that the employer's approval to operate
``other equipment'' may be given only if the operator is also certified
or deemed to have complied with the certification requirements for type
of the other equipment at issue'' (ID-1755). OSHA agrees that Sec.
1926.1427(f)(5) has no impact on the requirements for operator
certification. Regardless of the employer's determinations in the
evaluations required under Sec.  1926.1427(f), the employer must ensure
that the operator is certified or working as an operator-in-training.
    OSHA does not expect that the evaluation requirement will be overly
burdensome for employers, particularly with the flexibility provided in
paragraphs (f)(2) and (5). Although OSHA heard concerns from several
commenters that OSHA would require that an operator be evaluated on
every crane that their companies might use, or in every possible
configuration, OSHA has explained that its revised rule does not
require that. Furthermore, these commenters appear to have mistakenly
assumed that OSHA would require each evaluation to be in the form of a
time-consuming formal test rather than a much simpler observation of
the operator performing construction operations using the crane. The
required supplemental re-evaluation of a previously evaluated operator
can focus on the operator's abilities to handle the differences between
the new equipment and the one previously assigned; it would not require
a complete evaluation of all of the operator's skills, knowledge, and
abilities.
    In general, the determination whether a new evaluation is needed
turns on whether the safe operation of the new crane requires
additional skills, knowledge, or ability to recognize and avert risk.
For example, an employer may evaluate an operator and determine that he
or she has demonstrated the ability to safely operate a large crane in
a relatively complex configuration. If the employer determines that the
operator has the skills, knowledge, and ability to identify and avert
risk necessary to safely operate a smaller crane of the same type and
operating system, in a simpler configuration with a shorter boom, then
the operator would not need to be re-evaluated (assuming that the tasks
are similar). Similarly, a new evaluation may not be necessary for an
operator to operate a larger crane for the same task. Where the two
cranes are configured similarly, and they have similar controls
(including computer operating systems, spatial arrangement of controls,
and control functions), safety devices, operational aides, mode of
travel, and overall function, such that significant new skills,
knowledge, and

ability to identify and avert risk are not necessary to operate the
cane safely, then a new evaluation would not be required.
    A commenter asked whether additional evaluations would be required
if a crane and operator move to multiple locations (ID-1476). They
would not, assuming that the operator remains employed by the same
employer, the crane remains in the same configuration, and the operator
would not be performing different tasks that require significantly
different skills, knowledge, or ability to identify and avert risk.
Evaluations are specific to the operators, equipment, and tasks, but
are not dependent on location. However, if assigned work at multiple
locations requires an operator to have substantially different skills,
knowledge, or ability to recognize and avert risk, then an employer
must perform an evaluation of the operator to ensure he or she can
perform the assigned work.
    Paragraph (f)(6) requires the employer to document the evaluation
of each operator and to ensure that the documentation is available at
the worksite. OSHA, by requiring this documentation to be available at
the worksite in the NPRM, implied that the documentation must be
maintained by the employer for the duration of the operator's
employment. OSHA is adding language to this final rule that states
explicitly the documentation must be maintained while the operator is
employed by the employer. This language is similar to language in Sec.
1926.1428(a)(3) requiring employers to maintain documentation of a
signal person's evaluation while the signal person is employed by the
employer.
    This documentation requirement is also similar to documentation
requirements in other OSHA standards that require competency
evaluations, such as OSHA's powered industrial truck operator training
requirements (Sec.  1910.178). The documentation under Sec.
1926.1427(f)(6) must include: The operator's name, the evaluator's
name, the date of the evaluation, and the make, model, and
configuration of the equipment on which the operator was evaluated. But
the documentation would not need to be in any particular format.
Rather, employers would have the flexibility to capture this
information using their own existing systems or create documentation
that best meets the needs of their workplace. For example, employers
could issue operator cards that include this information, keep records
electronically in a database accessible at the worksite, develop logs
for each piece of equipment, or use any other method that memorializes
the mandatory information.
    The documentation requirement will ensure accountability and direct
the employer's attention to the critical aspects of operating the
assigned equipment that must be considered during the evaluation. The
documentation of the evaluation will record key baseline information
that an employer can use to help make subsequent determinations about
whether the operator is competent to operate particular equipment on
future projects. It will also provide a quick reference for site
supervisors, lift directors, and any employee, such as a hoist crew
member, whose safety is affected by crane operations. This information
can help prevent any misunderstandings about, or mischaracterization
of, an individual operator's established competency as determined by
the employer, as in the Deep South fatal incident. There, an operator
was assigned to operate a crane of a type for which he was certified,
but the controls and operations were substantially different from those
with which he was familiar. Had the employer conducted an evaluation
and documented it rather than relying only on information specified on
the operator's certification, this incident could have been prevented.
    The agency's discussions with stakeholders indicated that
information about operators is typically collected but not necessarily
for regulatory compliance purposes. Many employers who spoke with OSHA
during meetings and site visits explained that they maintain for their
own purposes a log or record to track operator experiences,
certifications, and performance evaluations. For example, at least two
employers reported that they issue cards to evaluated and competent
operators with information about those operators' qualifications.
(Reports #11, 18 of ID-0673). Others use written records to track
operators' performance, training, or other criteria. (Reports #1, 2, 3,
4 of ID-0673). And employers who own cranes and have long-term
operators must provide lengthy and detailed operator information to
their insurance providers.
    Many subcontractors, too, are becoming accustomed to maintaining a
written record of their operators' experience and evaluations. Some
employers explained that, on multi-employer construction sites,
subcontractors are often asked by general contractors, insurers, or
other employers on the site to provide documented information about
their operators, such as certifications and verifications of training
and ``qualification'' for the cranes operated. One crane rental company
noted that it keeps records for each operator, and that this kind of
information is often requested or required by customers. (Report #6 of
ID-0673). Another company told OSHA that it frequently provides written
information about its operators to contractors, even when not
requested. (Report #26 of ID-0673). A contractor that sometimes works
with subcontractors' operators noted that it maintains an in-house
database of those operators, site supervisors, and directors that it
has encountered on projects, with evaluations and notes about their
performance. (Report #22 of ID-0673). Another company that employs
operators as subcontractors keeps records of near misses involving its
subcontractors, as well as documentation of operators that the company
feels may not be qualified to operate equipment. (Report #14 of ID-
0673). Finally, OSHA notes that it is a common practice within the
construction industry for operators to carry certification cards
provided by the testing entities as proof of certification. The
documentation requirement of this paragraph will be even more useful in
communicating operator competency for employers who must consider crane
safety on multi-employer worksites.
    As previously discussed, paragraph (f) permits the employer to
evaluate the operator on one crane and then make a determination that
the operator is also competent to safely run other equipment that
requires the same level of operating skills, crane knowledge, and
ability to recognize and avert risk. This provision allows employers to
document these determinations collectively. For example, if an employer
with five cranes, possibly configured in slightly different ways,
determines that an operator's evaluation on Crane #2 also demonstrates
the operator's competency with respect to the other four cranes, the
employer could use a single document to record the operator's
competence to operate all five cranes. In fact, the documentation for
the original evaluation could simply be amended to state that it is
also applicable to identified equipment that does not require
substantially different skills, knowledge, or abilities. However, when
the operation of a crane requires a level of operating skills,
knowledge, or abilities that is significantly different from the crane
on which the operator was evaluated, a new evaluation must be carried
out and documented. Varying the facts in the earlier example, if two of
that employer's cranes include

computer software to control safety devices and the three other cranes
do not have such software but are otherwise similar, then an operator
already evaluated on a crane without the software would need to be
evaluated separately on the use of that software, with that evaluation
also documented. However, the evaluation can be limited to only making
determinations about the operator's ability to safely use the cranes
that rely on computer systems.
    Several commenters expressed concern that the documentation would
take too much time and effort, particularly if employers are required
to take time to separately evaluate and document each operator on each
potential piece of equipment, safety device, operational aid, software,
and the size and configuration of the equipment (see IDs 1611, 1615,
1623, 1801). One of these commenters asked OSHA not to require
employers to document the make, model, and configuration of the
equipment on which the operator was evaluated to ``further reinforce''
that operators are not required to be evaluated on every crane that
their companies might use, or every possible configuration'' (ID-1801).
    These concerns are misplaced because, as OSHA explained earlier,
the rule does not include any requirement that an operator must sit in
the cab of each crane the company owns to be evaluated and documented
as competent to run every make, model, or configuration of the
employer's equipment. Moreover, when evaluations are required, the
process of recording the specific information about the crane(s) in
which the operator was evaluated (including the make, model, and
configuration of the equipment) helps to avoid additional evaluations.
The required documentation provides the baseline against which the
employer can determine whether particular equipment used on future
projects can be safely operated by that operator because it would not
require substantially new skills, knowledge, or abilities. The make and
model of the equipment provides a fixed reference point for the
configuration and system of controls that are in particular machines as
well as particular designs of safety devices and operational aids, etc.
This information can be used in comparisons with other equipment that
the operator may be assigned to operate on future projects. If
employers do not preserve this information, it makes it more difficult
for them to determine whether an operator requires a new evaluation to
operate other equipment.
    Another commenter acknowledged some uncertainty about the impact of
the documentation on its members and acknowledged documentation as
``good corporate practice'' followed by its members, but nevertheless
asked OSHA to remove the documentation requirement:

    Our view is that record keeping for evaluations is a good
organizational practice, but should be not be a driver in a safety
standard as it may divert resources away from activities that
improve safety. Documentation and record keeping should be reserved
as good corporate practice and should not be a requirement of the
rule. * * * If documentation and record keeping are to remain a part
of this rule, OSHA should ensure than small businesses, as qualified
by SBREFA, are exempt in order to reduce undue burden on business
operations or detract from safe work practices.

(ID-1779). A different commenter stated that it would ``make sense for
an employer to track evaluations on operators, so they would know what
cranes an employee has been evaluated to operate and to provide
protection from liability,'' but then claimed that OSHA's documentation
requirement is ``purely punitive in nature'' and ``only benefits
OSHA.'' That commenter, however, offered no alternative means of
tracking other than documentation (ID-1615).
    These comments support OSHA's observation in the NPRM that many
responsible employers already have systems in place to evaluate their
operators and document that process; OSHA disagrees that the
documentation is merely a ``good corporate practice'' that diverts
resources from safety or a ``punitive'' measure that provides no
benefit to the employer. First, as discussed above, the documentation
is a critical means of tracking an operator's baseline qualifications
in order to avoid future evaluations. This documentation must be
available at the worksite in the event there is some uncertainty about
the operator's qualifications. OSHA notes that ``available at the
worksite'' includes accessing this information at the worksite via a
computer or other electronic means. Second, because not all employers
follow this ``good corporate practice,'' the documentation requirement
will help to ensure compliance with the standard. OSHA notes that
``available at the worksite'' includes accessing this information at
the worksite via a computer or other electronic means.
    Several commenters supported the documentation requirement. One
commenter described OSHA's proposed documentation requirements as
workable and providing sufficient flexibility to preserve existing
employer practices:

    ABC appreciates that this proposal does not create a new system
of documentation, and instead leaves employers the flexibility to
capture this information in a way that makes sense for their
workplace. * * * ABC members already have advanced operator
competency programs in place, which include their own system of
documentation, and therefore, any requirement from OSHA to document
this information in a standardized form would be duplicative and
unnecessary.

(ID-1735). The National Roofing Contractors Association expressed
support for the proposed rule, which included the documentation
requirement, as ``provid[ing] the necessary components to ensure the
safety of NRCA members' workers and others while not altering
significantly current compliance burdens members are obligated to
meet'' (ID-1619). The American Fuel & Petrochemical Manufacturers too
supported the rule, stating that OSHA's approach was ``aligned with''
their previous requests for documentation of the evaluations and making
that documentation available at the worksite (ID-1628).
    OSHA is retaining the documentation requirement for the reasons
discussed above. The agency views the documentation as critical to
identifying the baseline for future evaluations of operators, similar
to how documentation of monthly or annual inspections required under
Sec.  1926.1412 is used by a competent person or qualified person
during subsequent inspections as the basis for tracking potential
issues with the equipment and making determinations about whether that
equipment is suitable for planned tasks. OSHA has also concluded that
the documentation requirement includes enough flexibility to address
the concerns raised by commenters.
    In addition, OSHA is modifying the text of paragraph (f)(6) to
provide a corollary to the new provision in paragraph (f)(2)) that
allows employers to provide initial documentation for operators that
they are employing on the effective date of the rule, based on prior
evaluations of those operators by the employers--another evaluation of
those operators is not required for initial compliance with paragraph
(f)(2). Because paragraph (f)(6) requires the documentation of the
``completion of the evaluation,'' thereby implying that some evaluation
has occurred, OSHA is adding language to that paragraph to clarify how
employers following the new alternative approach in (f)(2) may satisfy
the documentation requirement. In such cases, employers need only
ensure that the documentation reflects the date of the employer's
determination

of the operator's ability to safely operate the ``make, model and
configuration of equipment on which the operator has previously
demonstrated competency.'' This documentation preserves the baseline
measure for these operators against which their future crane operations
can be measured. Again, the employer is only required to document the
make, model, and configuration of the equipment on which the employer
has previously assessed that operator. Employers are free to, but not
required to, list all of the makes, models, and configurations of all
of the equipment that the operator is permitted to operate. For
example, the employer may document that the operator has previously
demonstrated that he or she is qualified to operate Crane A, and then
also record that, based on that qualification to operate Crane A, the
operator is also qualified to perform the same tasks using the Cranes
B, C, and D. In that example, the employer does not have to record the
make and model of Cranes B, C, and D in order for the operator to
operate them as long as it is clear which cranes are referenced.
    Paragraph (f)(7) requires the employer to re-evaluate an operator
whenever the employer is required to retrain the operator under Sec.
1926.1427(b)(5). Section 1926.1427(b)(5) requires retraining if the
operator's performance or an evaluation of the operator's knowledge
indicate that retraining is necessary. OSHA intends this requirement to
ensure that when an employer becomes aware that an operator is not
competent in a necessary aspect of safe crane operation, the employer
provides additional training to the operator and re-evaluates the
operator. Re-evaluation is needed to ensure that the operator is