[Federal Register Volume 83, Number 98 (Monday, May 21, 2018)]
[Proposed Rules]
[Pages 23534-23569]
[FR Doc No: 2018-10559]

Vol. 83

Monday,

No. 98

May 21, 2018

Part II

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1926

Cranes and Derricks in Construction: Operator Qualification; Proposed
Rule

Federal Register / Vol. 83 , No. 98 / Monday, May 21, 2018 / Proposed
Rules

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

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

Cranes and Derricks in Construction: Operator Qualification

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: OSHA proposes to update its standard for cranes and derricks
in construction by permanently extending and clarifying each employer's
duty to ensure the competency of crane operators through required
training, certification or licensing, and evaluation. OSHA is also
proposing to remove an existing provision that requires different
levels of certification based on rated lifting capacity of equipment.
This proposal would clarify that while testing organizations are not
required to issue certifications distinguished by rated capacities,
they are permitted to do so. Finally, it would establish minimum
requirements for determining operator competency. OSHA believes that
this proposal would maintain safety and health protections for workers
while reducing employers' compliance burdens.

DATES:
    Comments: Submit comments to this proposed rule, including comments
to the information collection requirements (described under the section
titled ``Agency Determinations''), hearing requests, and other
information by June 20, 2018. All submissions must bear a postmark or
provide other evidence of the date submitted.
    Informal public hearing: A hearing can be requested by following
the procedures listed under ADDRESSES. If a hearing is requested, OSHA
will announce the hearing on its website, www.osha.gov, and publish a
hearing notice in the Federal Register.

ADDRESSES: Submit comments, hearing requests, and other material,
identified by Docket No. OSHA-2007-0066, using any of the following
methods:
    Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically at http://www.regulations.gov, the Federal e-Rulemaking Portal. This docket may
include several Federal Register notices for active rulemakings;
therefore it is necessary to select the correct notice, or its ID
number, to submit comments for this rulemaking. After accessing the
docket (OSHA-2007-0066), check the ``proposed rule'' box in the column
headed ``Document Type,'' find the document posted on the date of
publication of this document, and click the ``Submit a Comment'' link.
Additional instructions for submitting comments are available on the
http://www.regulations.gov homepage.
    Facsimile: OSHA allows facsimile transmission of comments that are
ten pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at<PHONE_NUMBER>. OSHA does not
require submission of hard copies of these documents. For additional
attachments that supplement comments submitted by facsimile (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Technical Data Center, Room N-3653, OSHA, U.S.
Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210.
These attachments must clearly identify the sender's name, the date,
subject, and the docket number (OSHA-2007-0066).
    Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, RIN No. 1218-AC86, Technical Data Center, Room N-
3653, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW,
Washington, DC 20210; telephone:<PHONE_NUMBER>, TTY number: (877) 889-
5627. Contact the OSHA Docket Office for information about security
procedures concerning delivery of materials by express delivery, hand
delivery, and messenger service. The Docket Office will accept
deliveries (express delivery, hand delivery, messenger service) during
the Docket Office's normal business hours, 10:00 a.m. to 3:00 p.m., ET.
    Information Collection Requirements: OSHA welcomes comments on the
information collection requirements contained in this rule on the same
basis as for any other aspect of the rule. Interested parties may also
submit comments about the information collection requirements directly
to the Office of Information and Regulatory Affairs, Attn: OMB Desk
Officer for DOL-OSHA (RIN 1218-AC96), Office of Management and Budget,
Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395-
6881 (this is not a toll-free number), email:
[email protected]. See Paperwork Reduction Act section of
this preamble for particular areas of interest.
    Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Cranes and Derricks in Construction: Operator
Qualification), and the docket number (OSHA-2007-0066). Absent
copyright protections or other restrictions, OSHA will place comments
and other material, including any personal information, in the public
docket without revision, and the comments and other material will be
available online at http://www.regulations.gov. Therefore, commenters
should not submit statements they do not want made available to the
public, or submit comments that contain personal information (either
about themselves or others) such as Social Security numbers, birth
dates, and medical data.
    Docket: To read or download comments or other material in the
electronic docket, go to http://www.regulations.gov or to the OSHA
Docket Office at the above address. Some information submitted (e.g.,
copyrighted material) is not available publicly to read or download
through this website. All submissions, including copyrighted material,
are available for inspection at the OSHA Docket Office. Contact the
OSHA Docket Office for assistance in locating docket submissions.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    A. Operator Competency Requirements
    B. Operator Certification Requirement
    C. Certification by Crane Rated Lifting Capacity
    D. Post-Rulemaking Concerns
    E. Extending the Effective Dates for the Employer Duty and
Certification
    F. Discussions With the Construction Industry Stakeholders
    G. Consulting ACCSH--Draft Proposal for Crane Operator
Requirements
    H. National Consensus Standards
    I. The Need for a Rule
    J. Significant Risk
III. Summary and Explanation of the Proposed Amendments to Subpart
CC
IV. Agency Determinations
    A. Legal Authority

    B. Preliminary Economic Analysis and Regulatory Flexibility
Analysis
    C. Paperwork Reduction Act
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Consultation and Coordination With Indian Tribal Governments
    H. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

I. Executive Summary

    OSHA proposes to amend 29 CFR 1926 subpart CC to revise sections
that address crane operator training, certification/licensing,\1\ and
competency. The purposes of these amendments are to: Require
comprehensive training of operators; remove certification by capacity
from certification requirements; clarify and permanently extend the
employer duty to evaluate potential operators for their ability to
safely operate equipment covered by subpart CC; and require
documentation of that evaluation.
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    \1\ The term ``certification/licensing'' covers each of
certification options in the proposed rule (third-party
certification or an audited employer certification program) as well
as state or local operator licensing requirements.
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    This proposed rule is based on extensive feedback received from the
construction industry, which can be found in the docket, who informed
OSHA that merely ensuring crane operators are certified does not verify
that certified operators have sufficient crane knowledge and operating
skills to safely perform crane operations at construction sites. OSHA
heard testimony and collected other evidence that indicates an
employer's evaluation of a crane operator's experience and competency
is essential to ensuring the safe operation of cranes on construction
sites. Similarly, this evidence confirmed that employers must continue
to provide operators with comprehensive training, which supplements the
kind of training needed to obtain certification.
    OSHA's preliminary economic impact analysis determined that the
most significant costs of the proposal are associated with the
requirements to perform the operator competency evaluation, document
the evaluations, and provide any additional training needed by
operators. OSHA estimates employers impacted by this proposed rule
employ approximately 117,130 crane operators. OSHA accordingly
estimates the annual cost to the industry would be $1,425,133 for the
performance of operator competency evaluations, $59,479 for documenting
those evaluations, and $90,649 for any additional training needed for
operators. OSHA's preliminary estimate of the total annual cost of
compliance is $1,583,169.
    OSHA also expects some cost savings from the proposed rule. In
particular, OSHA estimates a large one-time cost savings of $25,560,840
from dropping the requirement that crane operators be certified by
capacity because that change would eliminate the need for a very large
number of operators to get an additional certification. OSHA also
estimates that a small number of ongoing annual certifications due to
an operator moving to a higher capacity crane would also no longer be
needed, producing an additional annual cost savings of $414,172. These
various elements lead, at a 3 percent discount rate over 10 years, to
net annual cost savings of $1,827,513. At a discount rate of 7 percent
there are annual cost savings of $2,468,595.
    The Agency has preliminarily concluded that, on average, the impact
of costs on employers would be low, because most employers are
currently providing some degree of operator training and performing
operator competency evaluations to comply with existing 29 CFR
1926.1427(k), and were previously doing so to comply with Sec. Sec.
1926.550, 1926.20(b)(4), and 1926.21(b)(2). Employers who currently
provide insufficient training would incur new costs to comply. Although
OSHA anticipates that a few employers might incur significant new
costs, the Agency has preliminarily concluded that, for purposes of the
Regulatory Flexibility Act, the proposed rule would not have a
significant economic impact on a substantial number of small entities.
    The Agency has preliminarily determined that the proposal is
technologically feasible because many employers already comply with all
the provisions of the proposed rule and the proposed rule would not
require any new technology. In addition, since the vast majority of
employers already invest the resources necessary to comply with the
provisions of the proposed standard, the Agency preliminarily concludes
that the proposed standard is economically feasible.

II. Background

    Explanation of record citations in this document. References in
parentheses in this preamble are to exhibits or transcripts in the
docket for this rulemaking. Documents from the subpart CC--Cranes and
Derricks in Construction rulemaking record are available under Docket
OSHA-2007-0066 on the Federal eRulemaking Portal at http://www.regulations.gov or in the OSHA Docket Office. The term ``ID''
refers to the column labeled ``ID'' under Docket No. OSHA-2007-0066 on
http://www.regulations.gov. This column lists individual records in the
docket. This notice will identify each of these records only by the
last three digits of the record, such as ``ID-0032'' for OSHA-2007-
0066-0032. Identification of records from dockets other than records in
OSHA-2007-0066 will be by their full ID number. In addition, the
transcript for the public hearing OSHA held on May 19, 2014, for the
rulemaking that extended the certification deadline by three years, are
identified by the docket under Docket No. OSHA-2007-0066-0521. To aid
readers in locating citations to the transcripts, this notice refers to
these citations using the abbreviation ``Tr.'' and the corresponding
page numbers (e.g., ID-0521, Tr. pp. 10-15).

A. Operator Competency Requirements

    OSHA promulgated a new standard for cranes and derricks in
construction, referred to in the Background section as the ``new cranes
standard,'' on November 10, 2010 (75 FR 47905). It was based on a
proposal drafted as the result of negotiated rulemaking and issued on
October 9, 2008 (73 FR 59714). Under the new cranes standard, except
for employees of the U.S. military and the operation of some specified
equipment, employers were required to allow only certified operators to
operate equipment after November 10, 2014.\2\ In lieu of certification,
the rule also allowed operators to operate cranes if licensed by state
or local governments whose programs met certain minimum requirements.
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    \2\ The term ``equipment'' was used in the cranes standard's
regulatory text because the rule covers cranes, derricks and other
types of equipment. When OSHA uses ``cranes'' in this preamble, it
is meant to apply to all covered equipment.
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    The new cranes standard included a four-year, phased-in effective
date for the certification requirements. That phase-in period was
intended to provide time for existing accredited testing organizations
to develop programs that complied with the requirements; for operators
and employers to prepare for certification testing; and for more
testing organizations to become accredited to make certifications
available for the operation of the wide variety of cranes used in
construction. During the phase-in period, employers were required to
continue complying with two broad provisions: To ensure that crane
operators were competent to operate the equipment safely and, if
necessary, to train and evaluate employees who did

not have the required knowledge or ability to operate the equipment
safely (Sec.  1926.1427(k)(2)(i) and (ii)) (``employer duties''). These
employer duties are essentially the same as those required by Sec.
1926.20(b)(4) and Sec.  1926.21(b)(2), which are discussed in more
detail in the ``Operator Certification Requirement'' section that
follows.

B. Operator Certification Requirement

    In 1979, OSHA published 29 CFR 1926.550, which specified
requirements for crane and derrick operation that were adopted from
existing consensus standards. Among these requirements was an
employer's duty to comply with manufacturer specifications and
limitations (Sec.  1926.550(a)(1)). In addition, employers were subject
to general requirements elsewhere in the OSHA construction safety
standards that required employers to permit only those employees
``qualified by training or experience'' to operate equipment (Sec.
1926.20(b)(4)) and to ``instruct each employee in the recognition and
avoidance of unsafe conditions'' (Sec.  1926.21(b)(2)). However, crane
incidents continued to be a significant cause of injuries and
fatalities in the construction industry over the next few decades. In
response, industry stakeholders called on OSHA to update its existing
construction crane standard, including addressing advances in equipment
technology and industry-recognized work practices.
    Between 1998 and 2003, OSHA's Advisory Committee for Construction
Safety and Health (ACCSH) tasked a workgroup with studying crane issues
and ultimately recommended that OSHA revise the construction crane
standard through negotiated rulemaking. The ACCSH workgroup reviewed
the requirements of the most recent American Society of Mechanical
Engineers (ASME)/American National Standard Institute (ANSI) B30 series
standards applicable to various types of cranes and recommended that
OSHA include work practices and protections from the ASME/ANSI B30
series standards in the new crane standard to the extent possible. The
workgroup's recommendations included a request that OSHA require
training and qualification provisions specific to crane operators, such
as those of the ANSI B30 series, to supplant and augment the general
provisions under Sec. Sec.  1926.21(b)(2) and 1926.20(b)(4) (see ACCSH
transcript Docket ID OSHA-ACCSH2002-2-2006-0194; pp. 129-135).
    In 2003, OSHA commenced rulemaking by establishing a federal
advisory committee, the Cranes and Derricks Negotiated Rulemaking
Advisory Committee (C-DAC), to develop a proposal through consensus
(see OSHA-S030-2006-0663-0639). C-DAC met eleven times between July 30,
2003, and July 9, 2004, and produced a consensus document that OSHA
proposed for comment. Like the ACCSH workgroup, C-DAC acknowledged that
the qualification and training requirements of Sec. Sec.  1926.20(b)(4)
and1926.21(b)(2) were ineffective and it proposed that OSHA require
written and practical testing of crane operators (73 FR 59810). C-DAC
also concluded that significant advances in crane/derrick safety would
not be achieved without operator testing verified by accredited, third-
party testing. Therefore, per C-DAC's recommendation, OSHA's proposal
included a requirement for operator certification by ``type and
capacity'' of the equipment in lieu of the previous general requirement
that employers ensure their operators were competent to operate the
machinery. However, OSHA proposed to retain the general employer duty
during a four-year phase-in period for the operator certification (see
2008 proposal at Sec.  1926.1427(k)).
    On October 12, 2006, ACCSH supported the C-DAC consensus document
and recommended that OSHA use it as the basis of a proposed rule (see
Docket ID OSHA-ACCSH2006-1-2006-0198-003).
    On October 17, 2006, the Small Business Advocacy Review Panel
(SBAR) submitted its final report on OSHA's draft proposal (OSHA-S030A-
2006-0664-0019). The SBAR recommendations included a suggestion that
OSHA solicit comment on whether ``equipment capacity and type'' needed
clarification, which OSHA did (see 73 FR 59725). Regarding operator
training, many Small Entity Representatives (SERs) thought the C-DAC's
training requirements were too broad and should be focused on the
equipment the operator will use and the operations to be performed. Two
SERs recommended OSHA's powered industrial truck standard as a model
for crane operator training requirements.
    OSHA published its proposal on October 9, 2008 (73 FR 59714) and
received over 350 public comments. The comments discussed a wide range
of topics addressed by the crane standard. In response to requests from
several public commenters, OSHA conducted a public hearing in March
2009. None of the commenters or hearing participants asked OSHA to
remove the requirement that operators be certified by equipment
capacity in addition to type. There were a few stakeholders who
expressed some concern about the proposal to phase-out the employer
duty and replace it with the requirement for employers to ensure
operator competence through third-party testing (see Docket IDs OSHA-
2007-0066-0341--March 19, 2009, page 41 and OSHA-2007-0066-0445).
However, most stakeholders overwhelmingly supported the certification
requirements in the rule as proposed.
    On November 8, 2010, the final rule for cranes and derricks in
construction became effective, and it includes four ``options'' for
crane operator certification. Unless excluded from the requirements of
29 CFR 1926.1427, all operators must obtain at least one of the
following: A state or local license to operate cranes within a state or
local jurisdiction with acceptable requirements; a certification issued
by an accredited, third-party testing organization that meets OSHA
certification requirements; a qualification issued under an audited
employer program that meets OSHA's certification requirements; or a
qualification issued by the U.S. Military (see 29 CFR 1926.1427(b)
through (e)).

C. Certification by Crane Rated Lifting Capacity

    The final rule for cranes and derricks in construction required
operators to become certified and permitted four options for doing so,
one of which was certification by a third-party organization. A third-
party certification could be portable (a new employer could rely on
it), but in relying upon a third-party certification alone as
confirmation of an operator's knowledge and operating skills, all
employers must know to what kind of equipment the certification applies
when making determinations about which equipment an operator can
operate at the worksite. Therefore, C-DAC proposed the requirement,
which was included in the final rule, that third-party certification
must indicate the equipment types and the rated capacities that an
individual is certified to operate. The other certification options,
which are not portable, do not require certification by capacity.
    To address the concerns of testing organizations that were not
specifying the rated lifting capacities on certifications they issued,
OSHA added subparagraph Sec.  1926.1427(b)(2) to clarify that an
employer could comply with the capacity requirement if the
certification stated the type and rated lifting capacity of the crane
in which the operator was tested. For purposes of complying with the
new crane standard, the operator would be ``deemed

qualified'' to operate cranes of the same type, that have equal or
lower rated lifting capacity of the crane in which they were tested.

D. Post-Rulemaking Concerns

    In OSHA outreach sessions following the publication of the final
rule, two accredited testing organizations that did not offer
certifications by capacity questioned the need for specifying rated
lifting capacities of equipment on their certifications to comply with
the new crane standard. They expressed that meeting the capacity
requirement would require significant changes from their existing
certification practices without resulting in any real safety benefit.
They asserted that employers will still take steps to ensure that
certified operators are capable of safely operating the cranes at their
worksites, regardless of the rated lifting capacities of those cranes.
Thus, these testing organizations expressed the view that the
certification by capacity requirement is unnecessary.
    Those two testing organizations and many other stakeholders also
expressed surprise and concern that on November 10, 2014, when OSHA's
operator certification requirements were to take effect, the temporary
requirements of Sec.  1926.1427(k)(2)--the employer duty to ensure that
operators are competent--would no longer be in effect.
U.S. Small Business Administration (SBA) Roundtable
    SBA's Office of Advocacy held a Small Business Labor Safety (OSHA/
MSHA) Roundtable discussion about the type and capacity issues of
OSHA's crane standard on November 16, 2012. At this meeting, major
stakeholders, including a labor union, construction trade associations,
crane manufacturers, and safety professionals, warned of the negative
impact on the regulated community that would occur if OSHA did not
continue to require employers to ensure the competency of crane
operators, as well as recognize certifications acquired by operators
from testing organizations that do not issue certifications by rated
lifting capacity. Though they had not made such comments in the
rulemaking, industry representatives, who were still in support of
requiring operator certification, likened operator certification to a
learner's permit to drive a car, suggesting that passage of the
certification test meant an individual could operate a crane, but was
not necessarily competent to perform the specific tasks required by an
employer. They cautioned that an employer should weigh factors in
addition to whether an employee has an operator certification before
allowing an employee to operate a crane.
November 29, 2012, ACCSH Meeting and Subsequent Actions
    At a November 29, 2012, ACCSH meeting, a representative from one of
the organizations not providing certifications by capacity said that
his organization had issued most of the operator certifications
acquired by operators in construction (hundreds of thousands) and
warned OSHA of an imminent disruption of construction projects should
OSHA consider that organization's certifications to be noncompliant
(OSHA-2012-0011-0087). In addition, individual employers wished to
ensure that their operators' certifications would be recognized as
valid by OSHA as they approached the November 10, 2014, effective date
for certification/qualification requirements. In response, OSHA engaged
in detailed discussions with a variety of stakeholders about their
experience using certifications and the relevance of equipment rated
lifting capacities to operator competency, safety, and certification
testing.
    OSHA also continued to engage in conversations with the four
accredited testing organizations and two industry-recognized
accrediting agencies to assist them in their efforts to meet the
criteria specified by the new crane standard. OSHA clarified that these
organizations need only specify the rated lifting capacity of the crane
in which an operator was tested to meet OSHA certification
requirements. The rated lifting capacity on the certification would
specify the maximum rated capacity for which the operator was certified
and, in combination with the rule, allow operators certified at one
capacity to also operate cranes with lower capacities. Nevertheless,
construction employers contacted OSHA to express frustration about
receiving conflicting information from various outside groups about
whether existing certifications would meet the new crane standard's
requirements.
Stakeholder Meetings (April 2013)
    In response to mounting frustrations of many in the construction
industry, OSHA conducted three stakeholder meetings on April 2-3, 2013,
to gather additional information about the issues of operator
qualification and the ``type and capacity'' requirement for
certification, in particular. Participants included representatives of
construction contractors, labor unions, crane manufacturers, crane
rental companies, accredited testing organizations, one of the
accrediting bodies, insurance companies, crane operator trainers, and
military employers. Detailed notes are available in the docket for this
rulemaking (see ID-0539). The two testing organizations that did not
certify by capacity and some stakeholders in the crane industry again
questioned the purpose of C-DAC's recommendation requiring different
levels of certification be made available by rated lifting capacity and
requested that OSHA remove the requirement.
    In addition, various parties informed OSHA that, in their opinion,
the operator certification option would not adequately ensure that
crane operators could safely operate their equipment to perform work at
a construction site. They stated that, for an employer to ensure
operator competence, additional training, experience, and evaluation
would be needed that goes well beyond the level of training and
experience needed to obtain a certification. Most of the meeting
participants agreed that an operator's certification by an accredited
testing organization does not mean that the operator is competent or
has enough experience to operate a crane to do construction work.
    OSHA heard from many stakeholders that the employer should play a
direct role in ensuring that their operators are competent because a
standardized test cannot replicate all of the conditions that operators
will face on the jobsite. They indicated that the employer is typically
in a better position than a certifying organization to ensure that an
operator has the skills, knowledge, and judgment required for a
particular assignment on a particular crane. Again, many stakeholders
likened operator certification to a learner's permit to drive a car.
They cautioned that certification should be one of several factors to
be weighed by an employer before allowing an employee to operate a
crane. Most participants said that the operator's employer should
always be made responsible for ensuring that an operator is competent
to safely operate a particular crane to do construction work. Others
indicated that employers will confirm operator competence regardless of
OSHA requirements because the risk is too great and other influences
like contracts and insurance premiums drive them to do so. Overall
though, all stakeholders reiterated that operator certification is
beneficial in establishing a minimum threshold of operator knowledge
and familiarity with very basic crane operation.
May 24, 2013, ACCSH Meeting
    ACCSH met on May 24, 2013 (OSHA-2013-0006-0025). OSHA presented the
issues surrounding operator competency

and certification to the committee, and the committee heard comments
from stakeholders and the public. At this meeting, representatives from
two accredited testing organizations provided conflicting public
comments regarding the capacity-certification requirement. One of the
two testing organizations that does not certify by capacity again
warned of the potential impact on the industry should OSHA enforce the
crane certification requirements as published in the final rule. On the
other hand, a testing organization that offers certification by
capacity noted that certifications by type and capacity were already
available to employers and operators, confirming that it is feasible to
meet the capacity requirement. Other public stakeholders expressed
concerns about the potential impact on crane safety in construction
should OSHA not enforce the crane certification requirements when
scheduled to come into effect on November 10, 2014, but asked that OSHA
quickly resolve the ``type and capacity'' issue.
    ACCSH considered a proposal that OSHA suspend the certification
requirements of the crane standard indefinitely until a new rule could
be proposed. One ACCSH member representing a major trade association
explained that many employers were not sure whether it was wise to
invest in the certification of their operators to meet OSHA
requirements that may change as result of the pending rulemaking (see
OSHA-2013-0006-0025, p. 16). A suspension of the requirements, it was
argued, would end confusion among employers about what certification
requirements had to be met by a new effective date. The proposal also
suggested that OSHA remove the certification/qualification requirements
altogether. Until OSHA adopted a revised certification requirement,
however, the proposal would require employers to train, evaluate, and
ensure the operating competency of their operators in accordance with
the transitional requirements in current Sec.  1926.1427(k). Following
the ACCSH meeting, OSHA announced that it would initiate a rulemaking
to explore extending the certification deadline and the ``phase-out''
of the employer duty to ensure operator competency and the deadline for
operator certification (see ID-0671 or https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24090).

E. Extending the Effective Dates for the Employer Duty and
Certification

    As noted above, OSHA received significant stakeholder feedback
between 2010 and 2013 indicating that employers should not be able to
rely solely on certification as the means of ensuring operator
competency, primarily because the certification programs only examine a
basic level of general crane operation knowledge and skills without
assessing an operator's ability to operate the equipment they will
actually use or the various types of operations that they will need to
perform on a particular jobsite. In response, OSHA completed a follow-
up rulemaking to extend the deadline for operator certification by
three years until November 10, 2017, and also to extend for the same
time period the existing employer duties (see 79 FR 57785 (September
26, 2014)). OSHA subsequently extended both the deadline and the
employer duties by a further year to November 10, 2018 (see 82 FR 51986
(November 9, 2017)). The main reason for these extensions was to
provide OSHA with additional time to determine whether it would be
necessary to undergo additional rulemaking regarding crane operator
competency requirements. This rulemaking reflects OSHA's decision to do
so.

F. Discussions With the Construction Industry Stakeholders

Discussions With Companies, Unions, and Organizations Who Train,
Assess, and/or Contract Crane Operators
    In order to gather factual information, OSHA conducted more than 40
site visits, conference calls, and meetings with stakeholders between
June 6, 2013 to March 27, 2015, regarding their experiences with
training, evaluating, and ensuring the competency of crane operators.
Among these stakeholders were:

 3 crane rental companies [1 large (more than 100 cranes), 1
medium (more than 20 cranes), 1 small (less than 20 cranes)]
 10 construction companies that own/operate cranes
[homebuilders, tank builders, propane delivery, steel erector]
 3 large construction/operator training companies
 5 crane manufacturers
 3 construction labor unions
 2 safety consultants/trainers
 4 state agencies
 British Columbia's qualification program
 1 sole proprietor/owner operator homebuilding company
 3 crane insurers
 certification testing bodies and accrediting entities

    During discussions with stakeholders, OSHA personnel took notes
that were consolidated into draft reports, which were provided to the
employer or organization for their corrections or comment before the
reports were finalized. Twenty-eight of the discussions were drafted
into written reports. The other conversations were not documented
because they were either informal or the organization's representatives
did not want their comments to be cited in the rulemaking record other
than being referenced anecdotally. The twenty-eight reports, as well as
a detailed summary of the reports, are in the docket for this
rulemaking (ID-0673). Overall, the stakeholders described their
business models for bringing cranes to construction sites, operator
competency programs, methods for ensuring that cranes brought to the
worksite are safely run by competent operators, and views on the use of
operator certification in their operator competency programs.
    During conversations with stakeholders, OSHA confirmed that most
industry representatives did not understand that the crane standard
requires employers only to ensure that their operators are certified
and does not require further evaluation of a certified operator's
competency. Several industry representatives said that regardless of
what OSHA's crane standard requires, construction and insurance
industry influences would prevent many employers of crane operators
from relying solely on certification to verify the competence of their
crane operators. Furthermore, all of the company representatives stated
that they would not let an operator run any of their cranes based
solely on his/her possession of an operator's certification. And
although most general contractors require their subcontractors to
verify that operators are certified, they intervene when there are
indications that the actions of a crane operator could compromise the
safety of a worksite. OSHA confirmed from these discussions that,
regardless of whether an operator has a certification, all of the
employers contacted evaluate their operators to ensure competency.
    Most employers stated that they value third-party certification,
but do not treat it as sufficient, by itself, to establish competency.
Many employers expect operators to get certified early in their
competency programs as a gauge for confirming whether an operator has
the skills and abilities to obtain and use knowledge that is essential
to safely operate cranes. One company explained that it uses
certification as more of an administrative tool and only sends
employees who have been trained and demonstrate, through closely

monitoring on job performance, the knowledge and ability to operate a
crane to earn a third-party certification. Most stakeholders viewed
certification only as a verification of an operator's basic operating
skills and crane knowledge such as:
     Reading load charts,
     recognizing basic crane hazards,
     inspecting the equipment,
     knowledge of applicable regulations, and
     familiarity with basic crane functions to control the boom
and load line.
    In addition, insurers explained they award reduced rates to
employers whose operator competency programs include operator
certifications.
    In sum, many in the industry have concluded that the degree of
training and operating experience needed to successfully pass
certification testing may help to increase the baseline crane safety on
construction sites. They often referenced their successes in states or
localities that require similar certifications. But all stakeholders
said it is essential that the operator's employer determine whether the
operator is competent to safely operate a crane for a particular
construction activity.
    While operator competency programs vary based on business model,
equipment used, and work performed, there are strong similarities in
the programs identified by the stakeholders as effective. Typical
operator competency programs for operators-in-training (employees who
have not been certified/licensed and evaluated to operate assigned
equipment) begin with classroom training and dialogue to gauge what
additional training and experience is needed. At some point, the
operator-in-training demonstrates that he or she is ready to begin
training-related operation of the equipment, which may eventually
include, for example, practice in the cab at storage yards or in open
areas at job sites where equipment is already set up. For more
experienced operators-in-training, the types of knowledge and
operations for which they are asked to demonstrate proficiency
typically include doing crane-related inspections, reading load charts,
calculating loads, and smoothly operating the crane to handle loads.
Typically, novice operators-in-training start out on smaller cranes/
shorter boom lengths and their assigned practice/work eventually
includes the performance of simple, low-priority jobs and lifts where
they have plenty of time to practice and ask questions of the trainer
or more experienced operators as needed.
    Most stakeholders explained that their evaluation of each operator
is ongoing from the time they begin checking the operator-in-training's
credentials and references until they confirm the operator's experience
by observing them operate construction cranes. The evaluation is also
based on the often daily informal evaluations of an operator's
performance by the employer and other people that work around a crane
operated by the operator-in-training. Several stakeholders explained
that operator competency programs are often supplemented by the
operator's completion of union apprenticeships (about one-half of the
employers who operated cranes described that they employ union
operators).
    A few employers explained how they verified operator competency
based on their prior experiences with the operator or references from
organizations for which the operator has previously completed crane
work. Every employer with whom OSHA spoke stated that the employer's
role in ensuring the competency of crane operators should be allowed to
continue.
    Through these conversations, OSHA also gained a better
understanding of the many ways in which cranes and operators are
brought to construction work sites. Cranes may be owned or leased;
operators may be long-term employees, hired from a crane rental
company, or hired out of a labor organization's hiring hall for a few
days. To minimize the cost of crane use, construction employers may
rent a crane with an operator provided by the rental company, rent only
the equipment because the employer already has an operator on staff, or
hire a short-term employee or a contractor separately to operate the
crane.

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

    OSHA presented draft revisions to the Cranes and Derricks in
Construction standard to the Advisory Committee for Construction Safety
and Health (ACCSH) at a special meeting conducted March 31 and April 1,
2015, in Washington, DC. The draft revisions included proposals to
remove the capacity requirements for operator certification and to
retain permanently an employer duty to ensure operator competency.
ACCSH heard public comment on the draft proposed rule at the meeting
before it considered any recommendations (OSHA-2015-0002-0036).
    OSHA's draft included substantive requirements that employers would
be required to follow to ensure operator competency. Operators would
not have been permitted to operate a crane independently until the
employer qualified them as competent. It also re-organized the
provisions of Sec.  1926.1427 to clarify its requirements by re-
ordering and re-grouping a number of the certification/licensing
requirements. The draft also included new provisions designed to
eliminate employee exposures to the hazards presented by cranes
operated by unqualified crane operators on multi-employer worksites.
    Several ACCSH members and some public commenters expressed strong
concerns about OSHA making any changes to the crane standard beyond
those necessary to extend permanently the employer duty to determine
operator competency and to eliminate the requirement that
certifications be by capacity. Many of these ACCSH members and public
commenters were concerned that additional provisions would slow down
the process, and that the draft documentation provisions for employer
evaluations of operators were too extensive and restrictive. After
considering the public comments, ACCSH expressed confidence that OSHA
would address those concerns before proposing a rule. In addition,
ACCSH made the following recommendations that OSHA:
     Move forward with certification by the means in the
existing standard and pursue employer qualification of crane operators.
     Clarify the requirement for certification so that
certification can be by type, or by type and capacity.
     Reconsider the language in the proposed text that appeared
to require the employer to observe the operator operate the crane in
each and every configuration to determine whether the operator was
competent.
     Use the text submitted by William Smith (Exhibit 12) as a
substitute for the draft language on evaluation in the proposed
text.\3\
---------------------------------------------------------------------------

    \3\ William Smith, commenting as a private citizen, presented
revisions to 29 CFR 1926.1427(a) by the Coalition for Crane Operator
Safety (OSHA-2015-0002-0051). The document recommended revising
Sec.  1926.1427(a) by adding provisions that an operator must meet
OSHA's qualified person standard and mandating training if an
operator cannot safely operate the equipment. In 1427(b), he
recommended removing the language that an operator will be deemed
qualified if he or she is certified. Throughout Sec.  1926.1427, he
recommended removing references to capacity.
---------------------------------------------------------------------------

     Delete the annual re-evaluation provision in the proposed
rule, and instead consider employer re-evaluations that coincide with
the re-certification period.
     Consider adding a provision that if the operator operates
the equipment in

an unsafe manner, the operator must be re-evaluated by the employer.

H. National Consensus Standards

    In adopting a standard, the Occupational Safety and Health (OSH)
Act requires OSHA to consider national consensus standards, and where
the agency decides to depart from the requirements of a national
consensus standard, it must explain why the departure better
effectuates the purposes of the Act. OSH Act 6(b)(8). As OSHA explained
when adopting the updated crane rule in 2010, the ASME B30 Standard is
a series of voluntary consensus standards that apply to most of the
types of equipment, including cranes and derricks, covered by subpart
CC as a whole (75 FR 48129-48130). The B30 standards each have chapters
that address the operation of the equipment, which typically include a
section on crane operator qualification and crane operator
responsibilities. OSHA considered these provisions in drafting this
proposed rule. Similarly, OSHA considered the general requirements of
ANSI/American Society of Safety Engineers (ASSE) Z490.1, which
generally addresses the requirements of occupational safety and health
training.
    This proposal takes many of the underlying concepts regarding
operator qualification that are consistent across the B30 standards and
ANSI/ASSE Z490.1, and it places them in one standard. This move will
allow employers and crane operators to look to one place for OSHA
requirements for operator competence and safety, rather than throughout
fourteen relevant B30 standards. The proposal rewrites the standards as
enforceable employer duties, as the OSH Act requires, rather than as
employee responsibilities or non-mandatory suggestions. The proposal
also expands on operator training requirements, which are not discussed
at length in the B30 standards and ANSI/ASSE Z490, and third-party
certification/license requirements, which are not required by the B30
standards or ANSI/ASSE Z490.
    OSHA believes this proposal will better effectuate the purposes of
the OSH Act than any applicable national consensus standard because it
will retain certification, training, and operator qualification
requirements in a manner that OSHA can enforce under the Act and
consolidate all crane operator qualification requirements for ease of
reference. OSHA requests comment on whether this proposal will better
effectuate the purposes of the OSH Act than any applicable national
consensus standard.

I. The Need for a Rule

    Based on the information collected from stakeholders and the
recommendations of ACCSH, OSHA proposes to amend 29 CFR 1926 subpart CC
by revising sections that address crane operator training,
certification/licensing, and competency. The purposes of the amendments
are to clarify training requirements for operators; to remove
certification-by-capacity from certification requirements; to clarify
and permanently extend an employer's duty to evaluate potential
operators for their ability to safely operate assigned equipment
covered by subpart CC; and to require that employers document the
evaluation. Because these revisions required some re-working of the
crane standard, OSHA also took the opportunity to reorganize and
clarify the operator certification requirements in Sec.  1926.1427.
Employer's Duty To Evaluate Its Operators
    OSHA is proposing to revise the crane rule to add a permanent
employer evaluation duty based primarily on the extensive feedback
received from the construction industry, which warned that
certification does not establish that operators have sufficient crane
knowledge and operating skills to safely perform crane operations at
construction sites in all circumstances going forward. As previously
explained in more detail in the background section, industry
representatives stated that to ensure crane safety on construction
sites, it is necessary for employers to continue to evaluate the
operating competency of potential operators and provide training beyond
that which is merely sufficient for those individuals to obtain
certifications.
    The key difference between this proposal and the existing standard
is that the proposal would permanently maintain the employer's duty to
evaluate its operators, and provide greater specificity as to what that
duty entails in order to provide a clear and enforceable standard.
Under the existing standard, operator certification becomes de facto
qualification once the employer duty to ensure operator competence
(Sec.  1926.1427(k)(2)(i)) ends in November 2018. There are no other
requirements for operator safety qualifications beyond certification
after that date. Under the proposed rule, the employer's evaluation is
established as a critical step to ensure safe equipment operations on
construction work sites. While certification (or licensing in states or
localities with acceptable licensing schemes) and training may occur
under different, prior employers, the proposal would require that every
employer evaluate an employee first as an operator-in-training before
permitting him or her to operate equipment without oversight. The
process of the evaluation is performance-oriented and discussed in more
detail in the explanation for proposed paragraph 1427(f).
    An employer's evaluation would assess different operator skills
than the existing certification tests. IUOE has pointed to a number of
activities that require specific skills that are not evaluated during
the certification practical exam: Inspecting the equipment; assessing
unstable loads; hoisting loads of irregular size; operation from a
barge; personnel hoisting; rigging the load; leveling the crane;
hoisting in tight spaces where there is greater opportunity for
damaging parts of the crane other than the load line; making judgments
about wind speed and other environmental factors that can impact the
performance of the equipment; performing multiple crane lifts;
traveling with or without a load; operating near power lines; hoisting
light loads; and hoisting blind picks where the operator cannot see the
load (Docket ID 0527, p. 3). IUOE has also noted that different skills
are required to operate equipment with different attachments and
identified in particular the unique skills required to operate with
clam bucket or drag line attachments (Id.). By way of contrast, the
IUOE stated, the operator certification practical test covers only
basic operation functions (hoisting and lowering a load and guiding it
through a course), and ``does not test on the breadth of activities
that are involved in the operation of cranes'' (Id.). Without the
proposed employer duty to evaluate operators, an employer could permit
a certified operator to operate tower cranes and other large equipment
in any configuration with any number of attachments without determining
if the operator possesses the requisite knowledge and skills necessary
to address the issues identified by IUOE and others.
    Some employers describe certification as a ``learner's permit''
(Stakeholder Notes, Reports #15, 26 of ID-0673), and a number of
employers with whom OSHA spoke stated that they would not allow a
certified operator to use their equipment without first also evaluating
the operator to verify competence (Reports #1, 6, 18, 20, 22 of ID-
0673). A training company for crane operators stated that ``only a
fool'' would rely on certification alone as an assessment of

an operator's ability to safely operate a crane at the worksite (Report
20 of ID-0673). Boh Bros. Construction Co., commented during the 2014
rulemaking that ``a certification is only an indication of basic
skills. . . . Certification is good, but does not equal
qualification.'' [ID-0464]. Another training company representative
stated that operators with very little experience can acquire a
sufficient basis of knowledge of the crane to pass a certification exam
without being truly qualified to operate independently and safely on a
construction work site (Report #21 of ID-0673). Two stakeholders
expressed concern that relying solely on certification could be
dangerous because it would create a false sense of qualification,
leading some contractors to be less vigilant in evaluating the
competence of operators to safely operate equipment for all of their
tasks (Reports #9, 11 of ID-0673).
    OSHA heard from many stakeholders that the employer should play a
direct role in ensuring that their operators are competent (Stakeholder
Notes, Reports #1, 2, 3, 4, 6, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20,
21, 22, 25, 26 of ID-0673). Because a standardized test cannot
replicate all of the conditions that operators will face on the
jobsite, the employer is typically in a better position than a
certifying organization to fully evaluate an operator to ensure that he
or she has the skills, knowledge, and judgment required for a
particular assignment on a particular crane.
    Many stakeholders indicated that in their experience operator
competency needed to be crane-specific (Reports #1, 2, 3, 4, 6, 16, 19,
21 of ID-0673). Some of the stakeholders raised concerns about the
importance of these different crane characteristics in discussing
whether OSHA should require certification to be by type and capacity or
just by type. For example, one employer told OSHA that certification
could be by type alone, provided the employer was responsible for
evaluating operator competency on assigned equipment (Report #1 of ID-
0673). A crane operator training company that OSHA interviewed noted
that no one certification test could ever capture all of the types,
configurations, and capacities of cranes and the activities they may be
used to perform at the jobsite. Therefore, it is important that the
employer typically verify the operator's skill level through an
experienced assessor (Report #20 of ID-0673).
    An extensive analysis of crane accidents published by HAAG
Engineering in 2014 concluded that crane incidents are more likely to
be reduced if a company ensures that an operator possess equipment-
specific skills and knowledge in addition to certification:

    The certification process ensures that an operator has
demonstrated a core knowledge set of the principles of cranes and
crane operations, OSHA regulations, and ASME standards requirements
. . . has successfully demonstrated both knowledge and the physical
skill set to operate a type of crane. . . .
    Comparing responsibility failure trends between crane types
gives strong evidence that crane model-specific training is an
overwhelmingly good idea. . . . In order for the industry to
theoretically provide a quality certification for each model crane,
the process would take decades just to develop certifications for
existing model cranes, and with new models coming out every year,
that development process would also be never-ending. Each time a new
model crane was released, its use would be prohibited until a
qualified certification process was developed if model-specific
certification was required. Model specific qualification is an issue
that cannot and should not be done by the certification process, but
should be done through training and examination by the individual
company and corresponding operator in addition to earning type-
specific certifications which ensure the knowledge and skill sets
discussed above.
    Understanding of crane principles, general crane
characteristics, individual responsibilities, and national standard
guidelines is the basis for certification; however, an operator's
familiarity with the particular unit is invaluable in the goal to
reduce operator associated incidents.\4\
---------------------------------------------------------------------------

    \4\ Wiethron, Jim D., Crane Accidents: A Study of Causes &
Trends to Create a Safer Work Environment, 1983-2013, pp. 105-106
(HAAG Engineering, 2014).

    The proposed evaluation requirement is a mechanism to help ensure
that operators possess the skill to account for the variations within
even a single type of crane; without the evaluation requirement there
would be no distinction between the competency required to operate the
smallest, simplest mobile crane and the largest, most complex mobile
crane. It is our intent with this proposal to avoid a repeat of a
tragedy like the Deep South collapse, in which an operator was assigned
to a crane of a type for which he was certified, but the controls and
operations were substantially different from those with which he was
familiar (see Deep S. Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-
0240, 2012), aff'd Deep S. Crane & Rigging Co. v. Harris, 535 F. App'x
386, 390 (5th Cir. 2013)).
    Most concerns expressed about the evaluation requirement focused on
the specifics of the requirement, not the proposition that an employer
should have a duty to ensure operator competency. Indeed, only one
employer stated that it does not believe a formal evaluation
requirement should be part of the rule, expressing concern that it
might be something compliance officers cite when there are not obvious
violations, and even that employer acknowledged that the employer's
role in ensuring operator competency is important. (Interview #15). But
unless OSHA includes the evaluation duty in the regulatory text,
employers would have no enforceable duty to conduct any assessment of
their operators. Other employers questioned the practicality of a
formal evaluation requirement, but OSHA believes that requirement to be
necessary for effective enforcement of an employer's duty to conduct
any assessment of their operators. Finally, one employer told OSHA that
a formal rating system or checklist for evaluating a new operator's
competency would be impractical (Report #1 of ID-0673), while another
employer told OSHA that one cannot write a procedure to qualify someone
because it is all knowledge and experience (Report #6 of ID-0673).
    OSHA appreciates the concerns that inflexible procedural
requirements would cause unnecessary interference with existing work
practices. For this reason, as discussed more fully in the preamble for
paragraph 1427(f) of the proposed rule, OSHA has addressed these
concerns by carefully tailoring its proposed evaluation requirements to
provide significant flexibility for the employers. But it is also
important to note that OSHA is not proposing to create a totally new
duty. All employers were required to assess their operators prior to
the 2010 rulemaking, continue to have such a duty under existing Sec.
1926.1427(k), and OSHA is not aware of any significant difficulties
complying with those requirements. This rulemaking would simply clarify
what that evaluation involves, and would make the duty permanent.
    Generally, stakeholders supported making permanent an employer's
duty to verify operator competency. During its testimony in support of
retaining an employer duty to assess operators, the IUOE stated that
removal of that duty would endanger operators and workers in the
vicinity of cranes, ``[c]rane operators would be in a far worse
position than they were before issuance of the final rule in August
2010.'' (ID-0486). William Smith of Nations Builders Insurance Services
(NCCCO board member and C-DAC member) agreed, commenting that
``[l]eaving the rule as written [with certification but without a
continued employer duty after November, 2014] would take us back in

time not forward in protecting lives'' [ID-0474]. A U.S. crane
manufacturer stated that the lack of employer evaluation of an operator
would be a problem, and certification is a foundation, but should not
be a substitute for an employer competency evaluation. (Report #4 of
ID-0673). Similarly, a training company representative stated that
certification plays a vital role in the operator competency process,
but sufficient training and months to years of actual operating
experience are needed to ensure the operator's competency (Report #20
of ID-0673).
    Other employers agreed that, depending on a number of factors,
determining the competency of a new, inexperienced operator to become
an independent, safe, and efficient operator is a process that can vary
in time depending in part on the employer needing a new operator,
having a crane available, and demand for the crane services (e.g.,
Reports #2, 11 of ID-0673). This competency process is often informal
and integrated in day-to-day work, with operators-in-training working
closely with experienced operators in on-the-job training who mentor
them and show them how to use equipment (Reports #1, 2, 3, 6, 11, 15,
16, 18, 19, 23 of ID-0673). Operators receive experience not only in
the cab, but also in many tasks or operations related to hoisting, such
as rigging, assembly/disassembly or set-up, or inspections.
    A crane insurance representative suggested that the industry is
moving away from assigning two employees to work on a crane, where the
less experienced employee is mentored by the other, and expressed
concern that this shift may impact the availability of sufficiently
qualified operators and the safety of the industry (Report #25 of ID-
0673). If true, such a trend would increase the importance of an
employer evaluation requirement because the informal monitoring would
be less frequent. Requiring certification by crane type and retaining
the existing employer duty to evaluate operators should ensure that
crane operators have sufficient training to maintain safety, even if
the industry is moving away from assigning two employees to work on a
crane. The existing certification requirement ensures baseline
knowledge and skills to operate a crane, while retaining the employer
duty to evaluate operators provides some assurance that the operator
can handle the specifics of operating particular equipment and
performing more challenging tasks. Many industry stakeholders told the
agency that this combination is necessary to fully ensure that
operators are truly qualified to operate the equipment for their
assigned tasks.
    Based on all of the reasons in the foregoing discussion, OSHA is
proposing to clarify and make permanent the requirement for employers
to evaluate their operators and operators-in-training in addition to
ensuring that they are certified in accordance with the existing
standard. The specific evaluation requirements are set out in proposed
paragraph Sec.  1926.1427(f) and are explained later in this document
in the preamble discussion of that paragraph. OSHA requests comment on
this proposal to retain the evaluation requirement in addition to
certification. Are there more effective ways of ensuring that operators
are fully qualified to use cranes for the specific activities that the
operator will be required to complete, such as independent third-party
evaluations?
Elimination of the Requirement To Certify Based on Capacity of Crane
    As discussed above, OSHA's research suggests that while
certification by type of crane establishes that an operator has a basic
level of skill and knowledge about the operation of that type of crane,
it is the employer's evaluation that best ensures the operator has the
skill and knowledge necessary to operate a crane in a particular
configuration. While testing organizations differed over whether a
certification by capacity provided any useful information to an
employer, most agreed that capacity is just one factor to be considered
in the employer's overall evaluation of the operator's ability. OSHA is
unaware of any direct evidence establishing a safety benefit for
requiring certification by capacity. For these reasons, OSHA has
preliminarily determined that, if the employer duty becomes a permanent
requirement, employee certification by capacity of crane should no
longer be required; rather, it should merely be an option for those
employers who wish to use it.
    OSHA requests comment on its proposal to eliminate the requirement
that crane operators be certified by capacity in addition to type of
crane. Do you or your employer currently require certification by both
type and capacity? If so, how do you use the certification on capacity
in determining whether an employee may operate a particular crane or
conduct a particular lift? Please provide any other information of
which you are aware showing safety benefits from certification by
capacity.

J. Significant Risk

    Section 3(8) of the OSH Act requires that OSHA standards be
``reasonably necessary or appropriate to provide safe or healthful
employment'' (29 U.S.C. 652(8)), which the Supreme Court has
interpreted as requiring OSHA to show that ``significant risks are
present and can be eliminated or lessened by a change in practices''
(Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642
(1980) (plurality opinion) (``Benzene'')). The Court clarified that
OSHA has considerable latitude in defining significant risk and in
determining the significance of any particular risk, noting that ``[i]t
is the Agency's responsibility to determine, in the first instance,
what it considers to be a `significant' risk'' (Benzene, 448 U.S. at
655).
    Although OSHA makes significant risk findings for both health and
safety standards, the methodology used to evaluate risk in safety
rulemakings is more straightforward. Unlike the risks related to health
hazards, which ``may not be evident until a worker has been exposed for
long periods of time to particular substances,'' the risks associated
with safety hazards such as crane tipovers, electrocution, and striking
or crushing workers with a hoisted load, ``are generally immediate and
obvious.'' Benzene, 448 U.S. at 649, n.54. OSHA's 2010 Cranes and
Derricks in Construction standard was accompanied by an extensive
analysis in which the Agency examined fatality and injury data
available in 2008 and concluded that employees working in or around
cranes and derricks face a significant risk of death or serious injury
(see 75 FR 48093).
    When, as here, OSHA has previously determined that its standard
substantially reduces a significant risk, it is unnecessary for the
Agency to make additional findings on risk for every provision of that
standard (see, e.g., Public Citizen Health Research Group v. Tyson, 796
F.2d 1479, 1502 n. 16 (D.C. Cir. 1986) (rejecting the argument that
OSHA must ``find that each and every aspect of its standard eliminates
a significant risk''). Rather, once OSHA makes a general significant
risk finding in support of a standard, the next question is whether a
particular requirement is reasonably related to the purpose of the
standard as a whole. (Asbestos Information Ass'n/N. Am. v. Reich, 117
F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Secretary of
Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (D.C. Cir. 1980)).

    As explained elsewhere in this preamble, the proposal meets this
test. OSHA previously concluded that the standard would substantially
reduce risk through a combination of mandatory operator certification
and other requirements, but OSHA did not claim that the standard would
eliminate the significant risk entirely. The employer evaluation is
reasonably related to the reduction of significant risk because it
reduces employee exposure to the previously identified hazards. It
reflects current industry best practices and helps to ensure the
employee has the skills and knowledge to operate the crane safely
during the lifts to which he or she is assigned.\5\
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    \5\ The proposed removal of the requirement for certification by
crane lifting capacity is not implicated in this significant risk
discussion because it removes a requirement and does not impose any
new duties.
---------------------------------------------------------------------------

    The Agency notes that there is ample evidence in the record that
workers could continue to be exposed to the hazards that OSHA sought to
reduce through the cranes standard. OSHA relied on fatality data
available in 2008 when it promulgated the crane standard, but
unfortunately crane-related fatalities have continued to occur.
According to the Census of Fatal Occupational Injuries, 47 crane
operators were killed between 2011 and 2014 (this does not include
accidents with non-fatal injuries or crane incidents causing fatalities
or injuries to workers other than the crane operator).\6\
---------------------------------------------------------------------------

    \6\ Bureau of Labor Statistics, Census of Fatal Occupational
Injuries (2011 forward), Fatalities to Crane and Tower Operators,
series ID FWU50X53702X8PN00, available at http://www.bls.gov/iif/data.htm.
---------------------------------------------------------------------------

    Another useful data source is a report by an engineering forensics
firm, HAAG Engineering, of a large dataset of crane accidents that it
has investigated over a period of 30 years (Wiethorn, 2014, the ``HAAG
Report'') (ID-0674). The final dataset has 507 incidents, covering all
types of cranes and accidents. This dataset is likely biased towards
larger accidents since these are more likely to warrant significant
investigation for insurance and litigation issues. But while it cannot
be said to be a representative sample of all crane accidents, it is a
large sample and hence suggestive of more general trends. The HAAG
report states that of 147 fatalities among its reported crane
incidents, 28 were operators, meaning there were over 4 times more non-
operator employees killed than operators from crane accidents in this
sample ((147-28)/28 = 4.3).\7\ Similarly for injuries, out of 281
injuries, 29 were to operators, so that there were 8.7 non-operator
injuries for every operator injury ((281-29)/29 = 8.7).\8\ Of course
these two categories are not mutually exclusive (there will often be
injuries when there is a fatality).
---------------------------------------------------------------------------

    \7\ The HAAG report, p. 31.
    \8\ Id.
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    As noted in more detail in the Benefits section of the Preliminary
Economic Analysis for this rule, three recent fatalities in particular
illustrate the dangers from improper equipment operation that OSHA
posits could be prevented by the evaluations included in this proposed
amendment to the standard. In one instance, the crane operator was not
familiar with the controls of the equipment. In another incident, an
operator hoisting pipes longer than he had previously hoisted used an
improper boom angle, indicating that he did not possess adequate
knowledge and skills to address the additional challenges of the task
he was required to perform. In the third incident, a fatality occurred
when an employee operated a new, unfamiliar machine with controls in
different locations than the machines with which the operator was
accustomed. While the employee's use of that equipment arose from
unexpected circumstances, the result nonetheless demonstrates the risk
inherent with operating a crane without a method to ensure the operator
knows how to use the particular crane to which he or she is assigned.
    As explained in the Background and Need for Rulemaking sections of
the preamble, stakeholders have raised serious concerns that the
current level of risk will increase if OSHA does not make permanent the
employer duty to ensure operator competency on the actual equipment
they operate. The nearly unanimous message to OSHA is that crane
operator certification is designed to ensure a basic level of general
operating competency, but is not by itself sufficient to ensure that
operators have the necessarily skills and knowledge to operate all
assigned equipment or to perform all assigned tasks safely.

III. Summary and Explanation of the Proposed Amendments to Subpart CC

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

    The following discussion summarizes and explains each new or
revised provision in the proposal and the substantive differences
between the proposal and OSHA's current crane operator requirements in
subpart CC of 29 CFR 1926. In general, OSHA proposes to reorganize this
section of the current rule to improve comprehension of the
requirements. In the Background section of this notice, OSHA summarizes
revisions to the current rule that would clarify crane operator
requirements and address concerns raised by stakeholders and through
enforcement activity. OSHA asks for public comment on the potential
impact and necessity of those revisions and for alternatives to these
revisions that should be considered.
    OSHA applies the term ``qualification'' within the proposed
regulatory text for operators working for the U.S. military. This has
been carried over from the existing provisions. OSHA has retitled Sec.
1926.1427 as ``Operator training, certification, and evaluation.'' When
OSHA uses ``qualification'' or ``qualified operator'' in this preamble,
it means an individual who is fully trained, certified, and passed an
evaluation by the employer, or the process of completing all three of
those steps.
Paragraph (a)--Duty To Train, Certify or License, and Evaluate
Operators
    Proposed paragraph (a) sets out the employer's responsibility to
ensure that each operator completes three steps before the employer
permits him or her to operate equipment covered by subpart CC without
continuous supervision. Each operator must be trained to do the
construction activity that will be performed, be certified/licensed in
accordance with subpart CC, and be evaluated on his or her competence
to safely operate the equipment that will be used. In addition,
paragraph (a) sets out exceptions to these requirements for certain
equipment, as well as continuing to note that qualifications issued by
the U.S. Military to its non-uniformed employees satisfy OSHA's crane
standard. The proposed new approach provides a clearer structure than
the existing standard, which was not designed to accommodate both
certification and evaluation.
    In addition, the proposal makes clear that post-certification
training is required.
    OSHA acknowledges that the existing standard could be clearer
regarding ongoing training requirements for certified operators. OSHA
anticipated, and the existing rule reflects the notion, that
certification would supplant the employer's evaluation, and that
employers would train their operators on the equipment for which they
were certified, so therefore the employer would have met the training
requirements specified under Sec. Sec.  1926.1427(f) and
1926.1430(c)(2) at or around the time the operator was

certified. Therefore, OSHA did not spell out the ongoing training
necessary for certified operators to learn to operate new equipment or
perform new tasks. The proposed rule contemplates operators still
needing additional training after they are certified, such as training
to operate a new type of crane, perform new tasks, or handle new
controls in a new model of crane.
    The training components in the proposed and existing standards are
similar. The proposed standard differs from the existing standard in
that it clarifies that the employer would be obligated to train
employees, as necessary, even after they are certified, until the
employer has evaluated them in accordance with proposed paragraph (f).
As under the existing standard, (see current Sec.  1926.1430(g)(2)),
refresher training would also be required when indicated by
deficiencies in the employee's demonstrations of crane knowledge and
equipment operation.
    The current certification/licensing requirement, which is the
centerpiece of the existing operator requirements, would remain largely
unchanged under this proposal, with the exception that different
certifications for different capacities of cranes would no longer be
required. The reference to ``certified/licensed'' is intended to
encompass each of the certification options in the standard (third-
party certification or an audited employer certification program) as
well as state or local operator licensing requirements.
    The third element in the introductory text of proposed paragraph
(a) refers to the employer's duty to assess the operator to ensure that
an operator has the skills, knowledge, and judgment to safely operate
equipment. The proposed duty to evaluate operators is similar to the
duty in the existing standard at Sec.  1926.1427(k)(2)(i), which
specifies interim duties that are required until they are scheduled to
be phased out once operator certification requirements become effective
on November 10, 2018. OSHA is proposing to maintain this employer duty
permanently but re-locate it to paragraph (a) to clarify the standard's
requirements. In addition to the existing requirements in Sec.
1926.1427(k)(2)(i), the proposal has requirements for the individual
who performs the evaluation and requirements for documenting the
evaluation. The proposal retains the existing standard's duty for
employers to re-evaluate operators when necessary (see current Sec.
1926.1430(g)(2)), but moves it to the evaluation section to clarify the
requirements (see full discussion of proposed paragraph (f)--Evaluation
below.)
    Proposed paragraphs (a)(1)-(3) provide limited exceptions to the
general requirement in paragraph (a) that operators must be trained,
certified, and evaluated before operating equipment.
    Proposed paragraph (a)(1) would permit an employee to operate
equipment as an ``operator-in-training'' prior to being certified and
evaluated, provided that he or she is supervised and operates the
equipment in accordance with the training requirements in paragraph
(b). This is the only means by which an individual may operate
equipment prior to being trained, certified, and evaluated as competent
to do so. This exception is substantively similar to the requirement in
the existing crane standard at Sec.  1926.1427(a), which permits
uncertified operators to operate equipment only when the employer
complies with the requirements specified under existing Sec.
1926.1427(f)--Pre-qualification/certification training period. But it
would also permit certified/licensed operators to operate equipment as
operators-in-training before successfully completing an evaluation. For
example, this provision would allow experienced and certified operators
to become accustomed to performing new crane operations or operating
somewhat different equipment while being evaluated by the employer for
that purpose, or to allow a newly hired operator to run the equipment
while a new employer gauges the operator's crane knowledge, operating
skills, and training needs. In addition, experienced operators who are
not certified could operate the equipment when all operator-in-training
requirements are met.
    The proposal recognizes that on-the-job training is an important
component of gaining the practical operating experience necessary to
safely operate a crane and to pass a competency evaluation. Moreover,
based on the stakeholder discussions noted above, many employers who
train new operators require them to complete operator certification at
the beginning or in the middle of their training program, while
employer evaluation of competency is generally a later step in the
process and may occur many times over an operator's career. Therefore,
OSHA believes that permitting an operator-in-training to operate
equipment under the conditions specified in paragraph (b) is
appropriate and necessary to ensure the safety of operators-in-training
while they train for competency evaluations by employers.
    In addition, proposed paragraph (a)(1) expressly states that an
operator-in-training may only operate equipment under supervision to
ensure that employers understand that supervision is a mandatory
component of operating in accordance with proposed paragraph (b), and
therefore under this exception. Because the existing crane standard
also requires operators-in-training to be supervised, including the
supervision requirement in proposed paragraph (a) as well as proposed
paragraph (b) is a non-substantive, clarifying amendment (see paragraph
(b) for a more thorough discussion of on-the-job and general training
requirements).
    Proposed paragraph (a)(2) retains the exemptions for derricks,
sideboom cranes, and equipment with a maximum manufacturer-rated
hoisting/lifting capacity of 2,000 pounds or less from the training and
supervision requirements in proposed paragraph (b) and the
certification/licensing requirements in proposed paragraphs (c)-(d).
OSHA considered, but has declined to include in this proposal, other
requests for certification exemptions for operators of other types of
equipment, including cranes with a rated maximum lifting capacity in
the 5,000-35,000 pound range and cranes that are typically used for
repetitive lifts, or are only used intermittently. In adopting the
existing rule, OSHA considered exempting such equipment and concluded
that ``many of the same hazards presented by larger cranes are present
for cranes in [the 5,000-35,000 lb.] capacity range'' (75 FR 48016).
Similarly, OSHA concluded that the underlying causes of crane
fatalities and injuries did not necessarily decrease for cranes used
for duty cycle work (Id.).
    Proposed paragraph (a)(3) would preserve an existing provision that
states that non-uniformed personnel employed and qualified as operators
by the U.S. military meet the licensing/certification requirements of
Sec.  1926.1427. OSHA moved this provision from the other
certification/qualifications options because it operates as an
exception: It specifies that no certification/licensing or training
obligation for construction employers is needed beyond verifying that
the employee is employed by, and qualified by, the military. For the
purpose of confirming that a military operator has the basic crane
knowledge and operating skills required through licensing and
certification, OSHA defers to the operator qualification process of the
U.S. military as the employer. However, the military qualification is
not portable: An operator must comply with all of the provisions of the
crane

standard whenever he or she operates equipment for an employer other
than the U.S. military. OSHA requests comment on this proposed
paragraph regarding whether the relocation of this provision is
appropriate and if it is clear that this is an exclusion from all
qualification and training requirements of this standard, not just
certification.
Paragraph (b) Operator Training
    The requirement for employers to train and evaluate operators
before permitting them to operate equipment is contained in paragraph
(a) of the proposal. Proposed paragraph (b) would set forth minimum
requirements for training, specify requirements for trainers, and
establish limitations on the scope of activities for operators-in-
training. This proposed paragraph would specify the conditions under
which an individual may operate a crane prior to acquiring
certification or successfully completing an employer evaluation. These
training provisions are intended to provide a safe avenue for employees
to gain experience operating cranes.
    The proposed training requirements of paragraph (b) would clarify
that employers must continue to address operator training needs after
the operator has been certified and demonstrated competency through
employer evaluation on specific equipment. Proposed paragraph (b)
differs from the training requirements in the existing standard because
the proposal would clarify that the employer's training duty is both
equipment-specific and task-specific, and extends until the employer
has satisfactorily evaluated the operator-in-training in accordance
with proposed paragraph (f)--Evaluation, or if any retraining or
subsequent training is required to perform the assigned tasks. The
proposal recognizes that even a certified and evaluated operator may
need additional training to safely operate new equipment or perform
significantly different types of lifts. Therefore, the employer's duty
to train remains an ongoing responsibility that must be met as the
operator's operating experiences expand. In contrast, the existing
standard is not as clear (except when an individual's deficient
operating performance or crane knowledge triggers re-training) that the
employer's duty to train extends beyond when the individual is
certified and evaluated. This proposal clarifies that the employer's
duty to train is aimed at ensuring that the employee can safely use the
equipment that will be operated.
    Existing training requirements are distributed between two
sections. First, Sec.  1926.1427(f)--Pre-qualification/certification
training period, sets forth the limited conditions under which an
operator-in-training can safely operate equipment before being
certified. Secondly, Sec.  1926.1430--Training Requirements,
centralizes the triggers for operator training requirements, including
those for re-training. As discussed in the explanation for this
section, OSHA is proposing to remove the substantive operator training
requirements from Sec.  1926.1430 and replace them with a cross-
reference to proposed Sec.  1926.1427(b) so that the substance of the
training requirements for operators, as well as all operator-in-
training requirements, would be under one section. Relocating the
requirements of Sec.  1926.1427(f) would also ensure that the
organization of the crane operator requirements corresponds with the
order of a typical operator competency program--i.e. initial training
generally precedes certification and an operator being determined
competent by employer evaluation.
    The introductory text in proposed paragraph (b) would require the
employer to provide operators-in-training with sufficient training to
ensure that they develop the skills, knowledge, and judgment necessary
to safely operate equipment to perform work. In addition, this proposed
requirement would specify that training must include a combination of
formal and practical instruction.
    OSHA notes that this paragraph (b) does not mean that employers
must provide novice-level or redundant training when they hire an
experienced operator as a new employee. Employers must determine what
level of practical and formal training an operator-in-training would
need under proposed paragraph (b). Ultimately, the methods chosen must
be effective and responsive to each operator's training needs.
    OSHA is proposing to remove the introductory text in existing
paragraph (f). The existing introductory paragraph contains the
requirement that a non-certified employee may only operate as an
operator-in-training within the limitations of paragraph (f), which
would be supplanted by the language in proposed paragraphs Sec.
1926.1427(a)(1) and (b).
    Most of the specific training requirements in proposed paragraph
(b) would be identical or similar to the existing training
requirements. Proposed paragraph (b)(1) requires the employer to
provide the operator-in-training with instruction on the subjects in
paragraph (j). This requirement is identical to the requirement in
existing Sec.  1926.1430(c)(1)--Operators-in-Training for equipment
where certification or qualification is required by this subpart,
although under the proposed standard this duty continues after the
operator-in-training is determined competent by employer evaluation
when the operator operates new equipment or performs tasks that require
new skills or knowledge. An individual may be a fully certified and
evaluated operator with respect to one piece of equipment such that he
or she is allowed to operate that equipment independently, but
simultaneously be an operator-in-training (and thus subject to the
operating restrictions in the standard) with respect to different
equipment or tasks that require significantly different skills or
knowledge.
    Current section 1926.1427(j)--Certification criteria specifies the
mandatory subject matter for third-party licensing and certification,
as recommended by C-DAC. It requires a written and a practical test.
Subparagraph (j)(1)(i) specifies areas of information that must be
covered by the written certification test for the type of crane that an
individual will operate, such as controls, operational/performance
characteristics, load calculations, and ground conditions. This
subparagraph also references a more comprehensive list of areas of
technical knowledge in Appendix C--Operator Certification: Written
Examination: Technical Knowledge Criteria. Subparagraph (j)(2)
identifies the operating skill areas that must be covered by the
practical certification test.
    OSHA preliminarily concludes that operators-in-training should
continue to receive training in the subject matter identified in this
section as recommended by C-DAC. However, OSHA is proposing to relocate
the requirement in Sec.  1926.1430(c)(1) to proposed Sec.  1926.1427(f)
so that the requirements for operators-in-training may all be found in
one place. New language in proposed Sec.  1926.1430--Training,
discussed separately below in this preamble, would reference proposed
paragraph Sec.  1926.1427(a) and (b) rather than repeat the same
requirement.
    Proposed paragraph (b)(2) requires the employer to ensure that a
trainer continuously monitors operators-in-training during all crane
operation. This requirement is identical to the existing requirement
for continuous monitoring under existing paragraph (f)(3).
    Proposed paragraph (b)(3) requires the employer to assign the
operator-in-training only tasks that are within his or her ability.
This requirement is

substantively identical to the requirement under current paragraph
(f)(2). OSHA is proposing minor changes to the language of this
requirement to clarify that it is the employer's duty to assign tasks
to the operator-in-training. OSHA is also proposing to relocate the
requirements of existing paragraph (f)(1). The existing paragraph
requires the employer to provide each operator-in-training with
training sufficient to operate safely under the limitations of existing
paragraph (f). Its requirements are retained in proposed paragraphs
(b)(1) and (b)(3), which state that the operator-in-training must be
trained on the subject matter specified in paragraph (j) of this
section and may only perform tasks that are within his or her
abilities.
    Proposed paragraph (b)(3) retains the limitations specified in
existing paragraph (f)(5), which preclude operators-in-training from
operating equipment next to energized power lines; from hoisting
personnel; or from performing multiple-equipment lifts, multi-lift
rigging operations, or lifts over shafts, cofferdams or in a tank farm.
OSHA previously determined in the 2010 final rule that these equipment
operations and worksite conditions are too complex, or present such
heightened risks, that it would be unreasonably dangerous if an
operator-in-training were to operate the equipment in these
circumstances (75 FR 48024). However, OSHA is considering revising
these limitations because they may have the effect of preventing
operators from gaining the experience necessary to conduct these lifts.
It appears that even certified operators may lack the experience to
perform crane operations listed in Sec.  1926.1427(b)(3), particularly
if the operator is subject to the operator-in-training prohibitions
until he or she is evaluated for competence at that skill. OSHA
requests public comment on whether such restrictions are still
appropriate or whether they unduly restrict the employer's discretion
to allow experienced but uncertified, or certified but unevaluated
operators, the opportunity to participate in even monitored, on-the-job
training for those activities. The agency is particularly interested in
comments addressing how employers have identified and evaluated
operators for these tasks, both before and after the 2010 rule took
effect.
    Proposed paragraph (b)(4) prescribes minimum requirements for
monitored training of operators-in-training and trainers who monitor
operators-in-training. Proposed (b)(4)(i) specifies requirements for
the required trainer which are similar to requirements in paragraph
(f)(3) of the existing standard. Proposed paragraph (b)(4)(i)(A), which
requires the trainer to be the employee or agent of the operator-in-
training's employer, is identical to existing subparagraph (f)(3)(i).
    Proposed paragraph (b)(4)(i)(B) requires that the trainer must
``have the knowledge, training, and experience necessary to direct the
operator-in-training on the equipment in use.'' This requirement is
different from the requirements of existing paragraph Sec.
1926.1427(f)(3), which requires a trainer to either be a certified
operator or to have passed the written part of a certification test and
have familiarity with the equipment's controls. This proposal
recognizes that some trainers without certification may be competent to
teach or monitor the equipment operations of an operator-in-training.
    OSHA is proposing this change for three reasons. First, OSHA has
preliminarily concluded that merely requiring the trainer to have
passed the written part of a certification test is insufficient to
confirm a trainer's ability to train other operators. Existing
paragraph (f)(3) presumes that all certified operators or individuals
who passed only written certification tests have the skills to monitor
an operator-in-training, but as explained above, OSHA now believes that
certification alone is insufficient to ensure that operators are
competent to safely operate a crane. Under this proposed rule, even
after the basic crane knowledge and operating skills of operators have
been confirmed through certification testing, employers must still
determine through evaluation if operator training already provided is
sufficient or if more is necessary, based on the complexity of
equipment that will be used and activity that will be performed. Thus,
requiring an individual to pass a written certification exam appears to
be likewise insufficient as the sole criterion for confirming a
trainer's ability to monitor and train an operator-in-training.
    Second, OSHA has preliminarily concluded that, using certification
as the sole criterion could actually impose barriers to proper training
to the extent it excludes individuals who have extensive operating
experience and familiarity with the controls of particular equipment
operated but may not possess a certification for it. The careers of
experienced operators may naturally progress to training other
operators as their physical abilities begin to diminish. Under the
existing trainer requirements, an experienced but uncertified operator
may have to be monitored by less experienced but certified individual
or one that has merely passed the written certification exam. For these
reasons, allowing only certified operators in these training roles, on
its face, appears to be inconsistent with an industry practice of
pairing inexperienced operators with experienced trainers who monitor
the safety and professional development of the inexperienced operator.
    Third, OSHA concluded that passing a written certification test is
not a definitive indicator of safe training practices in the industry
and requiring certification of all trainers could significantly alter
many existing work practices in the industry. Stakeholder feedback
suggests that many different employees or agents of an employer fill
the role of a trainer under certain circumstances. Some formal training
might be administered by someone with extensive knowledge of a
particular make and model of crane. For example, some crane
manufacturers offer technical training to their customers regarding the
operation, maintenance, and troubleshooting of cranes they sell (see
Reports #4, 5, 13 of ID-0673). On-the-job training, by contrast, is
often administered by a seasoned crane operator with years of
experience (see Reports #1, 2, 19, 23, 28 of ID-0673) or in some cases
by a retired operator (see Report #26 of ID-0673). In addition, an
employer might employ an experienced safety manager, foreman, or site
manager to monitor some work activities, or an experienced small
business owner might fill the role of trainer in some cases (see
Reports #1, 2, 15, 26 of ID-0673). And OSHA spoke with three companies
that offer other employers private training from experienced operators
who are also qualified instructors (see Reports #20, 21, 22 of ID-
0673). In sum, stakeholders reported that some individuals who have the
necessary knowledge, training, and experience to direct the operator-
in-training do not possess a certification and possibly could not pass
formal testing for a variety of reasons.
    Thus, although some public commenters at the March 31-April 1, 2015
ACCSH meeting supported requiring trainers to possess a certification,
OSHA proposes to adopt language similar to the requirement in ASME
B30.5 (2014) at 5-3.1.2(e) that training be performed by a ``designated
person who, by experience and training, fulfills the requirements of a
qualified person.'' Under the proposed language, employers would have
some flexibility in determining the level of knowledge and experience
that the trainer must possess based on the skill level of the operator-
in-training and the nature of

the activity performed. OSHA expects that in many cases, the trainer
will possess a certification. However, the proposal leaves open the
possibility that the trainer's experience with the task and equipment
used could be sufficient for experienced personnel to provide training
even absent a certification. For example, an uncertified person who has
significant experience operating the particular equipment used during
the training may have more insight into the function of its controls
and the nuances of its operation than someone who is certified for that
type of equipment but has never operated that particular equipment.
OSHA concludes that this performance-based language, which is similar
to the qualified person definition that is familiar to the construction
industry, could give employers the flexibility to select and assign
trainers who are appropriate to the skills and needs of their
operators-in-training, while ensuring that these trainers possess an
ability to train operators-in-training that goes beyond mere
certification.
    OSHA requests comment on this proposed revision of existing trainer
requirements. Should OSHA retain the requirement that trainers possess
a certification or at least pass the written certification exam while
adding a new additional requirement that the trainer possess the
knowledge, training, and experience to direct the operator-in-training?
Should trainers also be evaluated under proposed paragraph (f)? Should
certification alone be considered sufficient evidence that an
individual has the knowledge, experience, and training to be a trainer?
Why or why not? If certification is not sufficient, please provide
specific recommendations for additional qualifications. For example, if
the assertion is that a trainer should have previous experience
operating equipment, it would be helpful to specify what kind of
experience and how much: Should a specific number of seat hours be
required? Should experience with the same type of equipment be
sufficient, or should the trainer have previously operated that
particular equipment (and if so, for how long)?
    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 existing paragraph (f)(3)(iii).
    Proposed 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 existing paragraph (f)(3)(iv),
with minor simplifying language changes. The proposal relocates this
provision to an independent subparagraph to clarify that the employer
has the ultimate responsibility for ensuring compliance with this
requirement. This proposed paragraph also provides an exception for
tower cranes; 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 existing paragraph
(f)(3)(iv) in the preamble to the final cranes standard at 75 FR
48024). This exclusion is also substantively the same as existing
paragraph (f)(3)(iv), with minor simplifying language changes.
    Proposed 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 specified under existing
paragraph (f)(4) for that monitoring. Proposed paragraph (b)(4)(iv)(A)
requires that a break can last no longer than 15 minutes and can occur
no more than once per hour. Proposed 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. Proposed 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.
    Proposed 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 existing Sec.  1926.1430(g)(2) but would be included in proposed
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 proposing
to delete that requirement from Sec.  1926.1430(g). Thus, identical
language will appear in two different paragraphs of the proposed
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 proposed
paragraph (b)(5) would also trigger the requirement for reevaluation
under proposed paragraph (f)(5) (see also preamble discussion below of
paragraph (f)--Evaluation).
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
retained certification while permanently extending the employer's duty
to ensure the competency of operators. Proposed paragraph (c) retains
the certification and licensing structure of the existing standard with
only a few minor modifications intended to improve comprehension of
certification/licensing requirements.
    First, OSHA proposes to move the military qualification provisions
of existing Sec.  1926.1427(e)(4) to the proposed exception in
paragraph (a), as noted earlier.
    Second, OSHA proposes to remove the somewhat misleading reference
to an ``option'' with respect to mandatory compliance with existing
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.
    The content of proposed paragraph (c)(1) is virtually identical to
provisions in existing Sec.  1926.1427(e)(2), with one exception:
Proposed (c)(1)(v). For a more detailed explanation for the other
provisions in this paragraph, see the preamble to the final subpart CC
rule for Sec.  1926.1427(e)(2) at 75 FR 48021-23 (August 9, 2010).
    Proposed Sec.  1926.1427(c)(1)(v) states that licensing must
specify the ``type, or type and capacity'' of equipment for which the
certification is applicable. OSHA is proposing this specification that
state and local licenses specify the type of crane in order to clarify
the obligation under the existing standard and facilitate enforcement.
In existing Sec.  1926.1427(e)(2)(i), OSHA requires a licensing program
to include at minimum, an assessment of the knowledge and skills listed
in paragraph (j). Paragraph (j)(1)(i) requires an individual to know
the information necessary for safe operation of the specific type of
equipment the individual will operate. If the license does not identify
a specific type of

equipment, it is more difficult to determine whether the operator
possesses the knowledge required under (j)(1). OSHA solicits comments
on whether compliance with this requirement would necessitate a
significant change to any state or local licensing program.
    The ``type, or type and capacity'' language was requested by Crane
Institute Certification and recommended by ACCSH. The language was
proposed to make clear that while all certifying bodies must certify by
type of crane in order for their certifications to meet OSHA's
requirements, they may also choose to specify different levels of crane
capacity for their certifications.
    Although OSHA is proposing this language as requested, it invites
comment on whether the language ``or type and capacity'' should be
removed in the final rule. OSHA would recognize a certification that
lists the type of crane on which an operator has been certified,
whether or not it also lists a capacity, as a compliant certification
(assuming that the certification also meets the requirement of this
standard). For example, if a crane operator certification showed that
an operator was certified to operate a tower crane, the certification
would be valid because it lists the type of crane on which the operator
was certified. Whether the capacity of the crane was also listed would
not affect whether OSHA would consider the certification compliant.
OSHA invites comment in particular on whether including ``capacity'' in
this provision could confuse the industry as to whether capacity is
required for a state or local license to be valid under Sec.
1926.1427, particularly in light of the fact that one purpose of this
proposal is to remove the capacity requirement from certification (see
the Need for a Rule section above).
    In the existing standard, OSHA frames the state/local licensing
process through a structure parallel to the model in which third-party
certification organizations are accredited by a nationally recognized
accrediting body. In the proposed rule, OSHA's approach would be
simpler: Proposed paragraph (c)(1) would directly require states or
localities to meet certain criteria in order for their operator
licenses to be enforceable by OSHA. If these minimum ``federal floor''
criteria are not met, then OSHA would deem those licenses insufficient
and would not require employers to comply with those licenses.
    The remainder of the requirements of proposed paragraph (c)(1) are
substantively the same as those in Sec. Sec.  1926.1427(a)(1), (a)(2),
and (e) of the existing 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.
    Proposed 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 proposed
paragraph (d) (third-party certification) or (e) (audited employer
program) of this section. Proposed paragraph (c)(2) is identical to
existing 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 would be addressed
as a scope exclusion in proposed paragraph (a)(3). Proposed paragraphs
(d) and (e), discussed later, correspond to existing paragraphs Sec.
1926.1427(b) and (c), respectively.

Proposed Paragraph (c)(3)--Employer Payment for Certification and
Licensing

    Proposed paragraph (c)(3) would require employers to provide the
required certification or licensing at no cost to employees. This
proposed requirement is almost identical to that of Sec.
1926.1427(a)(4) of the existing 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 existing
Sec.  1926.1427(a)(4) states.\9\ This proposed requirement would then
be in line with, and 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 existing certification requirements as if all employers always
paid for the certifications they provide for operators. Note, however,
that this provision would 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 indefinitely, but only as an operator-
in-training and through the employer's compliance with all requirements
of proposed paragraph (b) of this section.
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    \9\ Existing Sec.  1926.1427(a)(4) requires employers to provide
``the qualification or certification'' at no cost to the employees.
Because existing Sec.  1926.1427(a)(1) mandates that employers
ensure that all operators are ``qualified or certified to operate
the equipment in accordance with the following,'' the required state
or local licensing must constitute a form of qualification or
certification. Thus, employers are currently required to pay for
state or local licensing of their operators when those licenses are
required by OSHA.
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Proposed Paragraph (c)(4)--Single Entity Permitted To Provide Training
and Testing

    Proposed paragraph (c)(4) would retain, without change, the content
of existing 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, proposed paragraph (c)(2) provides two options for
certification: Compliance with proposed paragraph (d) (third-party
certification) or proposed paragraph (e) (audited employer program).
Compliance with the requirements of proposed paragraph (d) is the
option that OSHA expects the vast majority of employers to use.
Proposed paragraph (d) retains, with some non-substantive language
clarification and two exceptions discussed below, the requirements of
existing paragraph Sec.  1926.1427(b).
    First, the most significant change is that the proposal replaces
the references to certification by ``type and capacity'' that appear in
existing sub-paragraph (b)(1)(ii)(B) and (b)(2) with ``type, or type
and capacity'' as recommended by ACCSH (see OSHA-2015-0002-0037 pg.
71). The need for this change is explained in the ``Need for a Rule''
section of this preamble. This proposed revision will remove the
requirement to obtain a certification for a designated crane capacity,
but also clarify in regulatory text that OSHA considers testing
organizations whose programs provide certifications that specify ``type

and capacity'' equally acceptable. One testing organization expressed
concerns that the clarification is needed to prevent confusion about
this particular certification requirement. OSHA's concerns about adding
this language are noted above in the preamble discussion for paragraph
(c)(1), and the Agency seeks comment on whether to include the language
``type, or type and capacity'' in this standard.
    Second, the proposal does not include the reference in existing
Sec.  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. Instead, the proposal states that the operator would be
``deemed certified.'' The latter proposed change would help 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.\10\ All other provisions in
proposed paragraph (d) are unchanged from existing paragraph (b), and
discussion and justification of these provisions can be found in the
preamble to the final cranes standard (75 FR 48017). OSHA solicits
comment on the proposed changes encompassed in proposed paragraph Sec.
1926.1427(d).
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    \10\ 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 mean 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 proposed rule, OSHA has
simplified the language of the standard to refer to certification,
so ``deemed certified'' now conveys the same meaning.
---------------------------------------------------------------------------

    OSHA is considering deleting the requirement for operator
recertification every five years and solicits public comments about
whether this requirement is necessary, or alternatively, whether
compliance with proposed Sec. Sec.  1926.1427(b)(5)--Retraining, and
1926.1427(f)(5)--Re-evaluation, would be sufficient to ensure operators
continue to operate cranes safely after being certified, trained, and
evaluated. During its many conversations with stakeholders about crane
operator mentoring and periodic assessment, OSHA heard that frequent
monitoring, employer feedback, and assessment of an operator's
proficiency on the job are industry-recognized work practices (see site
visit discussion in Background section). Similarly, most employers who
spoke with OSHA explained that their operator competency programs
provide their operators with updates regarding any new information
about equipment and changes to federal, state, and local government
regulations as well as any changes in company policies. None of these
employers expressed concerns about operators losing their basic
knowledge and operating skills after periods of inactivity.
Paragraph (e) Audited Employer Program
    The substantive content of proposed paragraph (e) is the same as
existing Sec.  1926.1427(c). It sets out the parameters for a
nonportable certification program administered by the employer and
audited by a third party. The proposed changes to the regulatory text
for the audited employer program are to remove the word
``qualification'' and to replace three cross references with updated
references to their new locations in the proposed rule.
    OSHA's proposal to remove the reference to ``qualification'' from
the heading of the paragraph changes the product of the employer
program from a ``qualification'' of the operator to a ``certification''
of the operator. OSHA is removing the reference to ``qualification''
because of the misconception by some that it signaled full competency,
rather than its intended meaning as an equivalent to certification. The
employer audited program would continue to be an alternative to
certification by an independent third party.
    Three cross references would be changed. First, the reference in
existing Sec.  1926.1427(c)(1)(i) to ``paragraph (b)'' will be revised
to ``paragraph (d)'' in the proposed rule. Second, the reference in
existing Sec.  1926.1427(c)(1)(ii)(A) to ``paragraph (b)'' will be
revised to ``paragraph (d).'' Finally, the reference in existing Sec.
1926.1427(c)(4) to ``paragraphs (c)(1) and (2)'' will be revised to
``paragraphs (e)(1) and (2).''
    OSHA solicits comment on the proposed variations from the existing
Sec.  1926.1427(c).
Paragraph (f) Evaluation
    Proposed 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 proposing 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 would be conducted. OSHA's goal in proposed 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
to ensure safe operators. OSHA requests comment on the proposed process
for crane operator evaluation, and, as explained in more detail below,
any of the specific requirements of this proposed paragraph.
    Proposed paragraph (f)(1) requires employers to evaluate their
operators and specifies the two goals of the evaluation: Ensure that
the operator has (i) the necessary skills, knowledge, and judgment to
safely operate the actual equipment that will be used, and (2) the
ability to safely perform the assigned work. These performance-based
evaluations are intended to be more directly focused on the operator's
actual work than the general knowledge and skills tested during the
certification process.
    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, etc., Sec.
1926.600, 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.
    OSHA considered, but has preliminarily decided against specifying
particular operator skills that the employer must evaluate because
those skills could vary significantly based on the complexity of the
equipment and work to be performed. Almost all employers OSHA spoke to
said that when they observe operators handling loads at construction
work sites they can tell whether the operators appear competent. At
worksites, most 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.

Operators who move the load too quickly or repeatedly make sharp,
corrective steps may not have full control over the load at all times,
which can lead to worker injuries and increased costs. But OSHA's
analysis of the ACCSH public comments confirmed that it would be
difficult to capture in a regulatory scheme all criteria necessary to
determine an operator's ability to safely operate a type of crane for
all possible conditions on a construction site.
    For these reasons, the proposed rule retains the performance-based
character of the existing evaluation requirements in Sec.
1926.1427(k)(2)(i), but makes clear that the operator must possess the
necessary skills, knowledge, and judgment to operate ``the equipment''
safely. The skills, knowledge, and judgment must be relevant to the
actual crane or other covered equipment to be used. Employers must
ensure that the operator demonstrates his or her knowledge of essential
crane-related information and applies it to operate that crane safely.
This information consists of facts and characteristics of equipment and
operations, which can be learned in a classroom setting, and hands-on
knowledge of equipment operation and hoisting techniques, learned at
work sites. For example, the operator must not only know what each
control does and where it is located, but also 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, but 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). If a less-experienced 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).
    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. Although operator competency evaluations conducted by many
employers may already exceed that of certification testing, compliance
with this proposed provision would ensure that all operator evaluations
cover subject matter that is specific to the equipment used and the
construction activities performed. OSHA's proposed requirement for
work-specific skills, knowledge, and judgment should help to encourage
consistency throughout the industry in confirming the basic knowledge
and operating skills of all operators in construction work. As
explained in the Background section, certification tests conducted by
accredited testing organizations are not designed to function as the
evaluations required by this proposed section and the certification
subject matter would most likely not cover all that is needed to assure
safe crane operations on specific construction sites. For example, a
certification test may examine a potential operator's knowledge of
ground conditions suitable for a particular type of crane, but not
examine whether an operator can assemble the specific type of crane
that will be operated on those ground conditions.
    Proposed (f)(1)(i) also requires employers to evaluate the
operator's judgment. An equipment operator, as a designated competent
person, must frequently make determinations regarding the safety of
crane operation. The term ``judgment'' used in this proposed provision
refers 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. The term
``judgment'' connotes the ``successfully demonstrated ability'' of a