Cranes and Derricks in Construction: Operator Qualification

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]

RIN 1218-AC96

Cranes and Derricks in Construction: Operator Qualification

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective date:

This final rule is effective on December 10, 2018, except the amendments to 29 CFR 1926.1427(a) and (f) (evaluation and documentation requirements), which are effective February 7, 2019.

Compliance date:

See Section C., Paperwork Reduction Act, of this document regarding dates of compliance with collections of information in this final rule.

ADDRESSES:

In accordance with 28 U.S.C. 2112(a)(2), the agency designates Edmund C. Baird, Acting Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, to receive petitions for review of the final rule.

Docket:

To read or download material in the electronic docket for this rulemaking, go to

http://www.regulations.gov

or to the OSHA Docket Office at Technical Data Center, Room N-3653, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350, TTY number (877) 889-5627. 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: (202) 693-1999; email:

Meilinger.Francis2@dol.gov.

Technical inquiries:

Mr. Vernon Preston, Directorate of Construction; telephone: (202) 693-2020; fax: (202) 693-1689; email:

preston.vernon@dol.gov.

Copies of this

Federal Register

notice and news releases:

Electronic copies of these documents are available at OSHA's web page at

http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Operator Competency Requirements

B. Operator Certification Requirement

C. Certification by Crane Rated Lifting Capacity

D. Post-2010 Rulemaking Concerns

E. Discussions with the Construction Industry Stakeholders

F. Consulting ACCSH-Draft Proposal for Crane Operator

Requirements

G. Promulgation of Notice of Proposed Rulemaking

H. National Consensus Standards

I. The Need for a Rule

J. Significant Risk

III. Summary and Explanation of the Amendments to Subpart CC

IV. Agency Determinations

A. Legal Authority

B. Final Economic Analysis and Final Regulatory Flexibility Act Analysis

C. Paperwork Reduction Act

D. Federalism

E. State-Plan States

F. Unfunded Mandates Reform Act of 1995

G. Consultation and Coordination with Indian Tribal Governments

H. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

I. Executive Summary

OSHA is amending 29 CFR 1926 subpart CC to revise sections that address crane operator training, certification/licensing,

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and competency. The purposes of these amendments are to alter the requirement that crane-operator certification be based on equipment “type and capacity,” instead permitting certification based on equipment “type”

or

“type and capacity”; continue requiring training of operators; clarify and continue the employer duty to evaluate operators for their ability to safely operate equipment covered by subpart CC; and require documentation of that evaluation.

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

This rule alters the requirement that crane operators be certified by equipment “type and capacity,” which, based on the record, creates regulatory burden without additional safety benefit and artificially limits the potential for crane operators to obtain certification. Allowing certification by equipment “type”

or

“type and capacity” removes a regulatory burden that did not create an additional safety benefit.

This rule continues to require operator training. It likewise clarifies and continues the employer duty to evaluate operators for their ability to safely use equipment. Just as an employee's driver's license does not guarantee the employee's ability to drive all vehicles safely in all conditions an employer may require, crane-operator certification alone does not ensure that an operator has sufficient knowledge and skill to safely use all equipment. The record makes clear that employers need to evaluate operators and provide training when needed to ensure that they can safely operate cranes in a variety of circumstances. Similarly, and also consistent with many employers' current practices, employer evaluation of a crane operator's experience and competency with respect to the particular equipment assigned is essential to ensuring the safe operation of cranes on construction sites. This final rule accordingly continues the common-sense requirements that employers train operators and assess their competence and ability to work safely.

OSHA's final economic impact analysis determined that the most significant costs of the changes to the standard are associated with the requirements to perform the operator competency evaluation, document the evaluations, and provide any additional training needed by operators. OSHA estimates employers impacted by this rule employ approximately 117,130 crane operators. OSHA accordingly estimates the annual cost to the industry

will be $1,481,000 for the performance of operator competency evaluations, $62,000 for documenting those evaluations, and $94,000 for any additional training needed for operators. OSHA's estimate of the total annual cost of compliance is $1,637,000.

OSHA also expects some cost savings from the changes to the rule. In particular, OSHA estimates a large one-time cost savings of $25,678,000 from dropping the requirement that crane operators be certified by capacity because that change eliminates the need for a very large number of operators to get an additional certification. OSHA also estimates that a small number of ongoing annual certifications due to an operator moving to a higher capacity crane would also no longer be needed, producing an additional annual cost savings of $426,000. These various elements lead, at a 3 percent discount rate over 10 years, to net annual cost savings of $1,752,000. At a discount rate of 7 percent there are annual cost savings of $2,388,000.

The agency has concluded that, on average, the impact of costs on employers will be low because most employers are currently providing some degree of operator training and performing operator competency evaluations to comply with the previous 29 CFR 1926.1427(k), and were previously doing so to comply with §§ 1926.550, 1926.20(b)(4), and 1926.21(b)(2). Employers who currently provide insufficient training will incur new compliance costs. Although OSHA anticipates that a few employers might incur significant new costs, the agency has concluded that, for purposes of the Regulatory Flexibility Act, the changes to the standard will not have a significant economic impact on a substantial number of small entities.

The agency has also determined that the final rule is technologically feasible because many employers already comply with all the provisions of the revised rule and the revised rule would not require any new technology. In addition, because the vast majority of employers already invest the resources necessary to comply with the provisions of the revised standard, the agency concludes that the revised standard is economically feasible.

II. Background

Explanation of record citations in this document.

References in parentheses in this preamble are to exhibits or transcripts in the docket for this rulemaking. Documents from the subpart CC—Cranes and Derricks in Construction rulemaking record are available under Docket OSHA-2007-0066 on the Federal eRulemaking Portal at

http://www.regulations.gov

or in the OSHA Docket Office. The term “ID” refers to the column labeled “ID” under Docket No. OSHA-2007-0066 on

http://www.regulations.gov.

This column lists individual records in the docket. This notice will identify each of these records only by the last four digits of the record, such as “ID-0032” for OSHA-2007-0066-0032. Identification of records from dockets other than records in OSHA-2007-0066 will be by their full ID number.

A. Operator Competency Requirements

OSHA promulgated a new standard for cranes and derricks in construction, referred to in the Background section as the “2010 crane standard,” on November 10, 2010 (75 FR 47905). It was based on a proposal drafted as the result of negotiated rulemaking and issued on October 9, 2008 (73 FR 59714). Under this cranes standard, except for employees of the U.S. military and the operation of some specified equipment, employers were required to allow only certified operators to operate equipment after November 10, 2014.

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

This cranes standard included a four-year, phased-in effective date for the certification requirements. That phase-in period was intended to provide time for existing accredited testing organizations to develop programs that complied with the standard's requirements; for operators and employers to prepare for certification testing; and for more testing organizations to become accredited to make certifications available for the operation of the wide variety of cranes used in construction. During the phase-in period, employers were required to continue complying with two broad provisions: to ensure that crane operators were competent to operate the equipment safely and, if necessary, to train and evaluate employees who did not have the required knowledge or ability to operate the equipment safely (§ 1926.1427(k)(2)(i) and (ii)) (“employer duties”). These employer duties are essentially the same as those required by § 1926.20(b)(4) and § 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 (§ 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 (§ 1926.20(b)(4)) and to “instruct each employee in the recognition and avoidance of unsafe conditions” (§ 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 §§ 1926.21(b)(2) and 1926.20(b)(4) (see ACCSH transcript Docket ID OSHA-ACCSH2002-2-2006-0194; pp. 129-135).

In 2003, OSHA commenced rulemaking by establishing a federal advisory committee, the

Cranes and Derricks Negotiated Rulemaking Advisory Committee

(C-DAC), to develop a proposal through consensus (see OSHA-S030-2006-0663-0639). The committee comprised industry stakeholders including employer users of cranes, crane manufacturers and

suppliers, labor organizations, an operator training and testing organization, a crane maintenance and repair organization, and insurers. C-DAC met eleven times between July 30, 2003, and July 9, 2004, and produced a consensus document that OSHA proposed for comment. Like the ACCSH workgroup, C-DAC acknowledged that the qualification and training requirements of §§ 1926.20(b)(4) and 1926.21(b)(2) were ineffective, and it proposed that OSHA require written and practical testing of crane operators (73 FR 59810). C-DAC also concluded that significant advances in crane/derrick safety would not be achieved without operator testing verified by accredited, third-party testing. Therefore, per C-DAC's recommendation, OSHA's proposal included a requirement for operator certification by “type and capacity” of the equipment in lieu of the previous general requirement that employers ensure their operators were competent to operate the machinery. However, OSHA proposed to retain the general employer duty during a four-year phase-in period for the operator certification (see discussion of § 1926.1427(k) at 73 FR 59938).

On October 12, 2006, ACCSH supported the C-DAC consensus document and recommended that OSHA use it as the basis of a proposed rule (see Docket ID OSHA-ACCSH2006-1-2006-0198-003).

On October 17, 2006, the Small Business Advocacy Review Panel (SBAR) submitted its final report on OSHA's draft proposal (OSHA-S030A-2006-0664-0019). The SBAR recommendations included a suggestion that OSHA solicit comment on whether “equipment capacity and type” needed clarification, which OSHA did (see 73 FR 59725). Regarding operator training, many Small Entity Representatives (SERs) thought the C-DAC's training requirements were too broad and should be focused on the equipment the operator will use and the operations to be performed. Two SERs recommended OSHA's powered industrial truck standard as a model for crane operator training requirements.

OSHA published its proposal on October 9, 2008 (73 FR 59714) and received over 350 public comments. The comments discussed a wide range of topics addressed by the crane standard. In response to requests from several public commenters, OSHA conducted a public hearing in March 2009. None of the commenters or hearing participants asked OSHA to remove the requirement that operators be certified by equipment capacity in addition to type. There were a few stakeholders who expressed some concern about the proposal to phase-out the employer duty and replace it with the requirement for employers to ensure operator competence through third-party testing (see ID-0341-March 19, 2009, page 41 and ID-0445). However, most stakeholders overwhelmingly supported the certification requirements in the rule as proposed.

On November 8, 2010, the final rule for cranes and derricks in construction, including requirements for crane operator certification, became effective. The original date by which all operators must be certified was November 10, 2014, but OSHA subsequently extended that date to November 10, 2017 (79 FR 57785 (September 26, 2014)) and then further extended it to November 10, 2018 (82 FR 51986 (November 9, 2017)). Prior to the amendments to the standard contained in this current final rule, the separate employer duty to evaluate operators was to cease on the date when operator certification was required.

C. Certification by Crane Rated Lifting Capacity

The 2010 crane standard required operators to become certified and permitted four options for doing so, one of which is certification by a third-party organization. A third-party certification is portable (a new employer can rely on it), but in relying upon a third-party certification as confirmation of an operator's knowledge and operating skills, employers need to know what kind of equipment the certification applies to when making determinations about which equipment an operator can operate at the worksite. Therefore, C-DAC recommended the requirement, which was included in the 2010 final rule, that third-party certification must indicate the equipment types and the rated capacities that an individual is certified to operate. The other certification options, which are not portable, do not require certification by capacity.

To address the concerns that testing organizations might offer certification for a variety of crane capacities but yet not offer a certification for the particular capacity of crane matching the equipment to which operators would be assigned, OSHA added subparagraph § 1926.1427(b)(2) to the 2010 crane standard. That paragraph clarified that the certification must list the type and rated lifting capacity of the crane in which the operator was tested, and for purposes of complying with the 2010 crane standard the operator would be “deemed qualified” to operate cranes of the same type that have equal or lower rated lifting capacity of the crane in which they were tested. During the rulemaking process for the 2010 crane standard, none of the commenters asked OSHA to remove the requirement that operators be certified by equipment capacity in addition to type.

D. Post-2010 Rulemaking Concerns

In OSHA outreach sessions following the publication of the 2010 crane standard, two accredited testing organizations that offered certifications by type but not capacity, as well as other stakeholders, questioned the need for specifying rated lifting capacities of equipment on their certifications to comply with the new 2010 crane standard. They expressed concern that meeting the capacity requirement would require significant changes from their previous certification practices without resulting in any real safety benefit because they believed that certification by capacity is not a meaningful component of operator certification testing. They asserted that employers already take steps to ensure that even certified operators are capable of safely operating the cranes at their worksites, regardless of the rated lifting capacities of those cranes. Thus, these testing organizations expressed the view that the certification by capacity requirement is unnecessary.

Those two testing organizations and many other stakeholders also expressed surprise and concern that on November 10, 2014, when OSHA's operator certification requirements were to take effect, the temporary requirements of § 1926.1427(k)(2)—the employer duty to ensure that operators are competent— would no longer be in effect and a similar requirement under 29 CFR 1926.20(b)(4),

qualification and experience,

would not apply. A number of stakeholders described this as a step backwards in safety.

OSHA also heard from many stakeholders that the employer should play a direct role in ensuring that their operators are competent because a standardized test cannot replicate all of the conditions that operators will need to safely navigate on the jobsite. They indicated that the employer typically has more information than a certifying organization to ensure that an operator has the skills, knowledge, and judgment required for safely completing a particular assignment on a particular crane. Many stakeholders likened operator certification to a learner's permit to drive a car. They cautioned that certification should be one of several factors to be weighed by an employer before allowing an employee to operate a crane.

E. Pre-NPRM Discussions With the Construction Industry Stakeholders

Discussions With Companies, Unions, and Organizations That Train, Assess, and/or Contract Crane Operators

In order to gather factual information for this rulemaking, OSHA conducted more than 40 site visits, conference calls, and meetings with stakeholders between June 6, 2013, and March 27, 2015, regarding their experiences with training, evaluating, and ensuring the competency of crane operators. Among these stakeholders were:

• 3 crane rental companies [1 large (more than 100 cranes), 1 medium (more than 20 cranes), 1 small (fewer than 20 cranes)]

• 10 construction companies that own/operate cranes [homebuilders, tank builders, propane delivery, steel erector]

• 3 large construction/operator training companies

• 5 crane manufacturers

• 3 construction labor unions

• 2 safety consultants/trainers

• 4 state agencies

• British Columbia's qualification program

• 1 sole proprietor/owner operator homebuilding company

• 3 crane insurers

• 3 certification testing bodies and accrediting entities

During discussions with stakeholders, OSHA personnel took notes that were consolidated into draft reports, which were provided to the employer or organization for their corrections or comment before the reports were finalized. Twenty-eight of the discussions were drafted into written reports. The other conversations were not documented because they were either informal or the organization's representatives did not want their comments to be cited in the rulemaking record other than being referenced anecdotally. The twenty-eight reports, as well as a detailed summary of the reports, are in the docket for this rulemaking (ID-0673). Overall, the stakeholders described their business models for bringing cranes to construction sites, operator competency programs, methods for ensuring that cranes brought to the worksite are safely run by competent operators, and views on the use of operator certification in their operator competency programs.

F. Consulting ACCSH—Draft Proposal for Crane Operator Requirements

OSHA presented draft revisions to the 2010 cranes standard to the Advisory Committee for Construction Safety and Health (ACCSH) at a special meeting conducted March 31 and April 1, 2015, in Washington, DC. In response, ACCSH recommended that OSHA (OSHA-2015-0002-0037):

• Move forward with the certification requirement and pursue employer qualification of crane operators.

• Clarify the requirement for certification so that certification can be by type, or by type and capacity.

• Reconsider the language in the draft revisions that appears to require the employer to observe the operator operate the crane in each and every configuration to determine whether the operator was competent.

• Use the text submitted by William Smith (OSHA-2015-0002-0051) as a substitute for the draft language on evaluation in the draft revisions.

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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 § 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 § 1926.1427(b), he recommended removing the language that an operator will be deemed qualified if he or she is certified. Throughout § 1926.1427, he recommended removing references to capacity.

• Delete the annual re-evaluation provision in the draft revisions, and instead consider employer re-evaluations that coincide with the re-certification period.

• Consider adding a provision that if the operator operates the equipment in an unsafe manner, the operator must be re-evaluated by the employer.

G. Promulgation of Notice of Proposed Rulemaking

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

H. National Consensus Standards

In adopting a standard, section 6(b)(8) of the Occupational Safety and Health (OSH) Act (29 U.S.C. 651

et seq.

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

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which generally addresses the requirements of occupational safety and health training.

4

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

An association of occupational safety and health professionals asked OSHA to revise the 2010 crane standard to incorporate by reference the Z490.1 standard and the “soon to be published A10 Standard for Construction and Demolition training” (ID-1824). The commenter specifically requested that OSHA require that “any occupational safety and health training program recognized in the rule must meet the requirements in the ANSI/ASSP Z490.1 Standard and/or the soon to be published A10 Standard for Construction and Demolition Training” (Id.). The commenter also requested that “any training accreditation organization recognized in the proposed rule,” and any training curricula, also meet the requirements of those consensus standards (Id.).

OSHA is not incorporating either standard by reference in this rulemaking. First, OSHA cannot legally incorporate by reference a standard that has not yet been published. Second, the training requirements of ANSI/ASSE Z490.1 outline a general training program that is not specific to cranes. After years of interactions with stakeholders, OSHA believes that its revised training requirements will be more relevant to employers of crane operators. Third, given the comprehensive nature of ANSI/ASSE Z490.1, it does not appear to provide the same level of flexibility as OSHA's standard. OSHA developed this final rule with enough flexibility so that employers in the crane industry could adapt existing practices to comply with the standard and ensure safety in a variety of contexts.

The final rule takes many of the underlying concepts regarding operator qualification that are consistent across the B30 standards and ANSI/ASSE Z490.1, and it places them in one standard. This allows employers and crane operators to look to one place for OSHA requirements for operator competence and safety, rather than throughout fourteen relevant B30

standards. OSHA's standard re-frames the provisions of those standards as enforceable employer duties, as the OSH Act requires, rather than as employee responsibilities or non-mandatory suggestions.

OSHA believes the revisions in this final rule to the 2010 cranes standard will better effectuate the purposes of the OSH Act than any applicable national consensus standard because the revisions consolidate all crane operator qualification requirements for ease of reference and integrate the permanent operator evaluation and documentation requirements into the standard, along with the existing training requirements and certification requirement, in a manner that OSHA can enforce under the Act.

I. The Need for a Rule

Based on the information collected from stakeholders and the recommendations of ACCSH, OSHA proposed to amend 29 CFR part 1926 subpart CC by revising sections that address crane operator training, certification/licensing, and competency. The purposes of the amendments are to clarify and continue training requirements for operators; to alter the requirement that crane-operator certification be based on equipment “type and capacity,” instead permitting certification based on equipment “type”

or

“type and capacity”; to clarify and continue an employer's duty to evaluate operators and operators-in-training for their ability to safely operate assigned equipment covered by subpart CC; and to require that employers document the evaluation. OSHA is also reorganizing and clarifying the operator certification requirements in § 1926.1427.

Throughout this document OSHA refers to the “previous” or “prior” rule or standard as meaning 29 CFR part 1926 generally, § 1926.1427, or the paragraphs therein, as promulgated in 2010 and revised prior to this rulemaking. Discussion of the “revised” or “amended” standard refers to the amended standard as finalized through this rulemaking.

Employer's Duty To Evaluate Its Operators

In the NPRM for this rulemaking, OSHA proposed a permanent employer duty to evaluate operators that would not expire on the date certification is required. For the reasons discussed below, this final rule revises the prior 2010 crane standard to add that permanent employer evaluation duty. The key difference between this revision and the previous version is that the revision permanently maintains the employer's duty to evaluate its operators, and provides greater specificity as to what that duty entails in order to provide a clear and enforceable standard.

In the NPRM, OSHA requested comment on making the employer evaluation a permanent requirement in addition to certification. The agency received supportive comments for keeping the employer evaluation requirement in conjunction with certification (ID-0719, 1235, 1611, 1619, 1719, 1735, 1744, 1768). Generally, these comments supported making the employer duty permanent because certification alone is insufficient for an operator to competently operate the crane safely in a variety of workplace conditions, and the employer is in the best position to evaluate an operator's ability to use the specific crane for the specific tasks the employer assigns. As one of these commenters stated, “[t]he intent should be to ensure that operators are fully qualified to be perform their tasks no matter what certifications they may hold and only the employer can ensure that,” (ID-0719).

These comments are consistent with the feedback OSHA received from stakeholders prior to publication of the NPRM (ID-0673). In those discussions, most employers stated that they value third-party certification, but do not treat it as sufficient, by itself, to establish competency. Every employer with whom OSHA spoke stated that the employer's role in ensuring the competency of crane operators should be allowed to continue. All of the company representatives stated that they would not let an operator run any of their cranes based solely on his/her possession of an operator's certifications (see

e.g.

Report #1, 4, 6, 9, 11, 12, 16, 18, 20, 21, 22, 25 of ID-0673). Several industry representatives told OSHA that regardless of what OSHA's crane standard requires, construction and insurance industry influences would prevent many employers of crane operators from relying solely on certification to verify the competence of their crane operators (see

e.g.

Report #2, 3, 15, 19 of ID-0673). OSHA confirmed from these discussions that, regardless of whether an operator has a certification, all of the employers contacted evaluate their operators to ensure competency (see

e.g.

Reports #1, 2, 3, 6, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 22, 23, 26, 27, 28 of ID-0673). All stakeholders said it is essential that the operator's employer determine whether the operator is competent to safely operate a crane for a particular construction activity (see

e.g.

Report #1, 3, 4, 6, 7, 10, 12, 18, 20, 21, 22, 25, 28).

OSHA received no comments on the proposed rule that opposed making the employer duty permanent through an evaluation requirement. The agency received comments recommending revisions to the evaluation requirement. Those comments are addressed below in the discussion of Paragraph (f)—Evaluation.

Under the 2010 crane standard, the employer duty to ensure operator competence (§ 1926.1427(k)(2)(i)) ends in November 2018, after which operator certification would be the only required way to assess operator safety qualification. There were no other requirements for operator safety qualifications beyond certification after that date. Under the revised standard, the employer's evaluation is established as a critical element to ensure safe equipment operations on construction worksites. Third-party certification is portable so that operators do not need to be re-certified just because they switch employers; employers can rely on previous training the operator has received from other employers (or labor organizations) because the revised standard requires that every employer evaluate an employee first as an operator-in-training before permitting him or her to operate equipment without oversight. The evaluation process is performance-oriented and discussed in more detail in the explanation for revised § 1926.1427(f).

During its testimony in support of retaining an employer duty to assess operators, the International Union of Operating Engineers (IUOE) stated that removal of that duty would endanger operators and workers in the vicinity of cranes, “[c]rane operators would be in a far worse position than they were before issuance of the final rule in August 2010” (ID-0486). William Smith of Nations Builders Insurance Services (NCCCO board member and C-DAC member) agreed, commenting that “[l]eaving the rule as written [with certification but without a continued employer duty after the initial deadline of November, 2014] would take us back in time not forward in protecting lives” (ID-0474). A U.S. crane manufacturer stated that the lack of employer evaluation of an operator would be a problem, and certification is a foundation, but should not be a substitute for an employer competency evaluation. (Report #4 of ID-0673).

An employer's evaluation assesses different operator skills than certification tests. The reports from stakeholders prior to publication of the proposed rule showed that most stakeholders viewed certification only as a verification of an operator's basic

operating skills and crane knowledge such as reading load charts, recognizing basic crane hazards, inspecting the equipment, knowledge of applicable regulations, and familiarity with basic crane functions to control the boom and load line (ID-0673). The rulemaking record includes a list of activities from the IUOE that require specific skills that are not evaluated during the certification practical exam, but can be covered during an employer evaluation. These activities include inspecting the equipment; assessing unstable loads; hoisting loads of irregular size; operation from a barge; personnel hoisting; rigging the load; leveling the crane; hoisting in tight spaces where there is greater opportunity for damaging parts of the crane other than the load line; making judgments about wind speed and other environmental factors that can impact the performance of the equipment; performing multiple crane lifts; traveling with or without a load; operating near power lines; hoisting light loads; and hoisting blind picks where the operator cannot see the load (

see, e.g.,

Docket ID-0527, p. 3). IUOE has also noted that different skills are required to operate equipment with different attachments and identified in particular the unique skills required to operate with clam bucket or drag line attachments (Id.). By way of contrast, the IUOE stated that the operator certification practical test covers only basic operation functions (hoisting and lowering a load and guiding it through a course), and “does not test on the breadth of activities that are involved in the operation of cranes” (Id.). Local 49 of the IUOE added: “It is understood in the industry that it is not economically feasible to simulate on a training site all scenarios that arise on a construction site and that training and evaluations of training must occur on an ongoing basis” (ID-1719). Without the employer duty to evaluate operators on the equipment to which they are assigned, an employer could permit a certified operator to operate tower cranes and other large equipment in any configuration with any number of attachments without determining if the operator possesses the requisite knowledge and skills necessary to ensure safety and address the issues identified by IUOE and others.

Some employers described certification as a “learner's permit” (ID-0539, Reports #15, 26 of ID-0673), and a number of employers with whom OSHA spoke stated that they would not allow a certified operator to use their equipment without first also evaluating the operator to verify competence (Reports #1, 6, 18, 20, 22 of ID-0673). The Executive Director of the IUOE's certification program stated that he does “not know any contractors . . . at least the union contractors that we're associated with, who fail to make sure that their people are qualified” (OSHA-2015-0002-0036). A trade association commented that “[t]he record makes clear . . . that the fact that an employee has been certified as competent to operate a crane does not mean that the employee is qualified to operate the employer's particular equipment” (ID-1768). A training company representative stated that operators with very little experience can acquire a sufficient basis of knowledge of the crane to pass a certification exam without being truly qualified to operate independently and safely on a construction worksite (Report #21 of ID-0673). Two stakeholders expressed concern that relying solely on certification could be dangerous because it would create a false sense of qualification, leading some contractors to be less vigilant in evaluating the competence of operators to safely operate equipment for all of their tasks (Reports #9, 11 of ID-0673).

In addition to the commenters identified earlier as supporting an evaluation requirement, OSHA had already heard from many stakeholders that the employer should play a direct role in ensuring that their operators are competent (ID-0539, Reports #1, 2, 3, 4, 6, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 25, 26 of ID-0673). A commenter asserted that extending the employer duty is “logical” because the employer should “have the ability to make an evaluation of an operator's ability to operate equipment in a safe and responsible manner” (ID-1779). One commenter stated many of its members believe “certification itself is not sufficient to establishing crane operator competency, and believe that employers must initially evaluate and continue to re-evaluate their crane operators to determine their ability to safely operate a crane” (ID-1735). Because a standardized test cannot replicate all of the conditions that operators must safely navigate on the jobsite, the employer is typically in a better position than a certifying organization to fully evaluate an operator to ensure that he or she has the skills, knowledge, and ability to recognize and avert risks required for a particular assignment on a particular crane. Just as an employee's driver's license would not guarantee the employee's ability to drive all vehicles safely in all conditions an employer may require, crane operator certification alone does not ensure that an operator has sufficient knowledge and skill to safely use equipment.

Many stakeholders indicated that in their experience operator competency needed to be crane-specific (Reports #1, 2, 3, 4, 6, 16, 19, 21 of ID-0673). A comment to the proposed rule supporting a permanent employer duty stated “employers have a duty to evaluate all crane operators to ensure that they are qualified to perform the assigned work on the type and model used” (ID-1719). Similarly, a certification body believes that “[i]t's always been the employer's duty to qualify an operator for the specific crane and task” (ID-1235). Some of the stakeholders raised concerns about the importance of these different crane characteristics in discussing whether OSHA should require certification to be by type and capacity or just by type. For example, one employer told OSHA that certification could be by type alone, provided the employer was responsible for evaluating operator competency on assigned equipment (Report #1 of ID-0673). A crane operator training company that OSHA interviewed noted that no one certification test could ever capture all of the types, configurations, and capacities of cranes and the activities they may be used to perform at the jobsite. Therefore, it is important that the employer typically verify the operator's skill level through an experienced assessor (Report #20 of ID-0673).

As OSHA noted in the NPRM, an extensive analysis of crane accidents published by HAAG Engineering in 2014 concluded that crane incidents are more likely to be reduced if a company ensures that an operator possesses equipment-specific skills and knowledge in addition to certification:

The certification process ensures that an operator has demonstrated a core knowledge set of the principles of cranes and crane operations, OSHA regulations, and ASME standards requirements . . . has successfully demonstrated both knowledge and the physical skill set to operate a type of crane. . . .

Comparing responsibility failure trends between crane types gives strong evidence that crane model-specific training is an overwhelmingly good idea. . . . In order for the industry to theoretically provide a quality certification for each model crane, the process would take decades just to develop certifications for existing model cranes, and with new models coming out every year, that development process would also be never-ending. Each time a new model crane was released, its use would be prohibited until a qualified certification process was developed if model-specific certification was required. Model specific qualification is an issue that cannot and should not be done by the

certification process, but should be done through training and examination by the individual company and corresponding operator in addition to earning type-specific certifications which ensure the knowledge and skill sets discussed above.

Understanding of crane principles, general crane characteristics, individual responsibilities, and national standard guidelines is the basis for certification; however, an operator's familiarity with the particular unit is invaluable in the goal to reduce operator associated incidents.

5

5

Wiethron, Jim D.,

Crane Accidents: A Study of Causes & Trends to Create a Safer Work Environment,

1983-2013, pp. 105-106 (HAAG Engineering, 2014)

(83 FR 23541). No commenters challenged this assessment of the significance of equipment-specific evaluations.

The evaluation requirement is a mechanism to help ensure that operators possess the skill to account for and safely use the variations within even a single type of crane; without the evaluation requirement there would be no distinction between the competency required to operate the same type that has differing controls. It is OSHA's intent with the revised standard, including the evaluation, to avoid accidents such as the

Deep South

collapse, in which an operator was assigned to a crane of a type for which he was certified, but the controls and operations were significantly different from those with which he was familiar. Operator error factored into the collapse of the crane, killing four people. The reviewing court upheld the Occupational Safety and Health Review Commission's finding that the operator was not qualified to operate that crane. The Commission noted that the crane that collapsed was “significantly different” from the cranes that the operator had previously operated and that the operator had not had previous experience with the crane in a similar configuration (see

Deep S. Crane & Rigging Co.,

23 BNA OSHC 2099 (No. 09-0240, 2012),

aff'd Deep S. Crane & Rigging Co.

v.

Harris,

535 F. App'x 386, 390 (5th Cir. 2013)).

The evaluation requirement is also necessary to ensure safety as the crane industry moves away from traditional training models. A crane insurance representative stated that the industry is moving away from assigning two employees to work on a crane, where the less experienced employee is mentored by the other, to where only one person is assigned to work on a crane, and expressed concern that this shift may impact the availability of sufficiently qualified operators and the safety of the industry (Report #25 of ID-0673). Such an approach increases the importance of an employer evaluation requirement because informal monitoring would be less frequent. Requiring certification by crane type or type and capacity, and retaining the employer duty to evaluate operators should help to ensure that crane operators have sufficient training to maintain safety when two employees are no longer assigned to work on a crane. The previous certification requirement ensures baseline knowledge and skills to operate a crane, while retaining the employer duty to evaluate operators provides some assurance that the operator can safely handle the specifics of operating particular equipment and performing more challenging tasks in a variety of contexts.

The only concerns that commenters on the proposed rule expressed about the evaluation requirement focused on the specifics of the requirement, not the proposition that an employer should have a duty to ensure operator competency. OSHA discusses the specific requirements of the evaluation more fully in the preamble explanation of revised § 1926.1427(f). It is also important to note that OSHA is not creating a totally new duty. All employers were required to assess their operators prior to the 2010 crane rulemaking, continued to have such a duty under the previous § 1926.1427(k), and none of the commenters raised any hardships caused by an employer duty to assess operators. To promote consistency and effectiveness and ensure safety, this rulemaking simply clarifies what that evaluation involves and makes the duty permanent.

OSHA requested comment on whether there are more effective ways of ensuring that operators are fully qualified to use cranes for the specific activities that they will be required to complete. Specifically, OSHA asked whether “independent third-party evaluations” should be required (83 FR 23542). One commenter responded, opposing such a requirement on the grounds that third-party evaluators might not be commercially available and, even if available, would not be more effective than evaluations conducted by the operator's employer (ID-1615).

A different commenter suggested that OSHA should implement an “operator training program such as an oiler was in the past” so that “the training is complemented with knowledge of the machine he will be operating . . . seat time will give knowledge of the load charts to understand the difference between structural, tipping capacity's [sic] from a trained operator” (ID-698). OSHA envisions the revised rule functioning in a flexible manner that will lead to the results the commenter describes: A combination of training and experiential learning that ensures that the operator can safely operate the equipment to which he or she is assigned.

OSHA considered several alternative approaches to the provisions in paragraph (f) adopted through this rulemaking, but concluded that those alternatives would not be as effective as the adopted measures in ensuring crane operator competency and safety. The first approach was to remove the phase-out of the employer duty without providing further guidance or criteria. As discussed later in the preamble section for paragraph (f), OSHA believes that evaluations of operator competency are critical to safe crane operations and that proposing a general requirement for this purpose, without providing additional criteria, would be inadequate.

The second approach considered was adopting the ACCSH recommendation to use the Coalition for Crane Operator Safety's language requiring employers to ensure that operators “meet the definition of a qualified person” before operating the equipment. As explained later in the preamble discussion of paragraph (f), OSHA is adopting a compromise version of this regulatory text as proposed by a commenter. OSHA is concerned that the ACCSH recommendation, like the general duty under § 1926.21(b)(4), fails to provide sufficient specifics to ensure operator competence. Moreover, the ability to “resolve problems,” which is a key component in the definition of a “qualified person,” only captures one aspect of what safe crane operation entails. And by relying on the definition of a “qualified person,” which can be met in some cases solely through “possession of a . . . certificate,” the whole point of having some additional assurance of operator competency beyond operator certification would be lost: An operator could still conceivably become both certified

and

a qualified person through the completion of a single certification test. For these reasons, OSHA believes that this final rule better establishes the employer's obligation to ensure crane operator competency.

In the third approach, OSHA explored the practicality of modeling a crane operator evaluation process on one implemented in the provinces of Canada. In those provinces, a quasi-governmental agency tracks the base level of certification and operating

experiences of the operators in an internet database. For example, the British Columbia system has at least three different levels of “qualification,” and employers are responsible for observing, evaluating, and ensuring the operators are competent to perform the work required at each level (ID-0672). OSHA concluded, however, that this level of oversight would be impractical on a national scale in the United States. The expertise needed to develop and maintain a system that works for the entire regulated community across the United States, and to verify the information in such a system, would be substantial. Moreover, even after providing certification for its operators, employers in Canada still have the obligation to ensure the competency of operators to safely perform assigned work, which is similar to the operator evaluation requirements of this final rule.

Based on all of the reasons in the foregoing discussion, OSHA concludes that it will improve crane safety to continue and make permanent the requirement for employers to evaluate their operators and operators-in-training in addition to ensuring that they are properly certified. Employer evaluation increases safety by focusing on specific knowledge and skills that operators need for the safe use of particular equipment for particular tasks in a variety of contexts. The specific evaluation requirements are set out in paragraph § 1926.1427(f) and are explained later in this document in the preamble discussion of that paragraph.

Elimination of the Requirement To Certify Based on Capacity of Crane

As discussed above, OSHA proposed altering the requirement for different certifications based on different lifting capacities of equipment after receiving feedback that the capacity requirement does not provide a significant safety benefit because the lifting capacity of the equipment is not a meaningful component of operator certification testing. In its request for comments on this issue, the agency specifically asked for information that demonstrated the safety benefits of certification by capacity.

OSHA received one comment claiming that “[r]etaining capacity will require more stringent testing resulting in an increase in crane safety, thus fewer accidents,” (ID-1235), but this commenter did not provide any evidence of how certification by capacity increases safety or reduces accidents. OSHA received a comment from an association stating that its members were split on this issue, but the association did not share why some of its members opposed the removal of capacity (ID-1824). Another association commented that it “concurs with the proposed rule” and suggested that it would be “better than the current rule,” but the rest of its comment on this point was not clear (ID-1632). Without further explanation, that commenter added that it supported certification organizations having a choice and “believes it would be best for the safety of crane operations to certify by type and capacity” (Id.). However, the commenter did not offer any information about the safety benefits of certification by capacity.

While testing organizations differed over whether a certification by capacity provided any useful information to an employer, most commenters agreed that capacity is just one factor to be considered in the employer's overall evaluation of the operator's ability. The majority of commenters that responded to this issue support removing the certification by capacity requirement (ID-0690, 0703, 0719, 1611, 1616, 1619, 1628, 1632, 1719, 1735, 1744, 1755, 1764, 1768, 1801, 1816, 1826, 1828). A certification body commented that “virtually unanimity exists in the industry that certification by `capacity' should be eliminated from the regulatory requirement” (ID-1816). Another certification body echoed that point, stating that “The industry has been clear in its comments that, whereas equipment “type” is critical when delineating knowledge and skill, equipment “capacity” is just one of many other factors (like configuration) to be considered in the employer's overall evaluation of an operator's ability” (ID-1755).

The majority of comments responding to this request did not know of any safety benefits related to certification by capacity (ID-1615, 1628, 1755, 1768). One comment claimed that capacity “did very little to advance the safe operation of cranes at construction jobsites” (ID-1619). Two certification bodies that offer certification by capacity did not offer any safety evidence to the agency in public hearings or stakeholder meetings (ID-1719). Referring to consensus standards and industry best practices, one commenter noted that ASME B30.5 “does not describe testing or examination by capacity,” and the organization “is not aware of any state or local regulatory body . . . that requires certification or licensing by both type and capacity” (ID-1816).

In addition to many commenters stating that certification by capacity has no demonstrable safety benefit, many also consider the requirement to be burdensome (ID-0616, 0690, 0703, 0719, 1619). One of these commenters stated that they paid for their operator to be certified, but the operator only passed the test for cranes up to a capacity of 21 tons and was forced to also take an entirely different exam for cranes up to 75 tons in order to operate a crane of 23 tons, just over the capacity limit of the lower test (ID-0616). A different commenter concluded that some of their members find the capacity requirement “unwieldy and exceptionally burdensome” (ID-1824). One commenter explained that if the OSHA capacity requirement went into effect, “approximately 83% of those possessing certification” would not be compliant with the 2010 cranes standard (ID-1801).

One commenter believes “[t]he industry has been clear . . . “capacity” is just one of many other factors (like configuration) to be considered in the employer's overall evaluation of an operator's ability” (ID-1755). One commenter agreed with OSHA that the employer evaluation was the appropriate time to consider the crane's capacity among other factors (see discussion of § 1926.1427(f)(1) later in this document) (ID-1735).

Based on this record and the continued employer duty to evaluate operators, which provides an additional means for ensuring that the operator can safely use equipment for the range of tasks assigned, OSHA has determined that employee certification by capacity of crane should no longer be required; rather, it may be an option for those employers who wish to use it. Employers can comply with the third-party certification requirements of OSHA's crane standard by ensuring that their operators are certified by an accredited organization by type of crane or, alternatively, by both type of crane and by capacity.

J. Significant Risk

Section 3(8) of the OSH Act requires that OSHA standards be “reasonably necessary or appropriate to provide safe or healthful employment” (29 U.S.C. 652(8)), which the Supreme Court has interpreted as requiring OSHA to show that “significant risks are present and can be eliminated or lessened by a change in practices” (

Indus. Union Dep't, AFL-CIO

v.

Am. Petroleum Inst.,

448 U.S. 607, 642 (1980) (plurality opinion) (“

Benzene”

)). The Court clarified that OSHA has considerable latitude in defining significant risk and in determining the significance of any particular risk, noting that “[i]t is the Agency's responsibility to determine, in the first instance, what it considers to be

a `significant' risk” (

Benzene,

448 U.S. at 655).

Although OSHA makes significant risk findings for both health and safety standards, the methodology used to evaluate risk in safety rulemakings is more straightforward. Unlike the risks related to health hazards, which “may not be evident until a worker has been exposed for long periods of time to particular substances,” the risks associated with safety hazards such as crane tipovers, electrocution, and striking or crushing workers with a hoisted load, “are generally immediate and obvious.”

Benzene,

448 U.S. at 649, n.54. The final rule for OSHA's 2010 cranes standard contained an extensive analysis in which the agency examined fatality and injury data available in 2008 and concluded that employees working in or around cranes and derricks face a significant risk of death or serious injury (see 75 FR 48093).

When, as here, OSHA has previously determined that its standard substantially reduces a significant risk, it is unnecessary for the agency to make additional findings on risk for every provision of that standard (see,

e.g.

,

Public Citizen Health Research Group

v.

Tyson,

796 F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the argument that OSHA must “find that each and every aspect of its standard eliminates a significant risk”). Rather, once OSHA makes a general significant risk finding in support of a standard, the next question is whether a particular requirement is reasonably related to the purpose of the standard as a whole. (

Asbestos Information Ass'n/N. Am.

v.

Reich,

117 F.3d 891, 894 (5th Cir. 1997);

Forging Indus. Ass'n

v.

Secretary of Labor,

773 F.2d 1436, 1447 (4th Cir. 1985);

United Steelworkers of Am., AFL-CIO-CLC

v.

Marshall,

647 F.2d 1189, 1237-38 (DC Cir. 1980)).

As explained elsewhere in this preamble, this final rule meets this test. OSHA previously concluded that the 2010 crane standard would substantially reduce risk through a combination of mandatory operator certification and other requirements, but OSHA did not claim that the standard would eliminate the significant risk entirely. The employer evaluation is reasonably related to the reduction of significant risk because it reduces employee exposure to the previously identified hazards. It reflects current industry best practices and helps to ensure the employee has the skills and knowledge to operate the crane safely during the lifts to which he or she is assigned.

6

6

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

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

7

7

Bureau of Labor Statistics,

Census of Fatal Occupational Injuries (2011 forward),

Fatalities to Crane and Tower Operators, series ID FWU50X53702X8PN00, available at

http://www.bls.gov/iif/data.htm.

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

8

Similarly for injuries, out of 267 employee injuries, 29 were to operators, so that there were 8.2 non-operator injuries for every operator injury ((267-29)/29=8.2).

9

These two categories are not mutually exclusive (there are often injuries when there is a fatality).

8

The HAAG report, p. 31.

9

Id.

As noted in more detail in the “Benefits” section of the Final Economic Analysis for this rule, three recent fatalities in particular illustrate the dangers from improper equipment operation that could be prevented by the evaluations included in this amendment to the standard. In one instance, the crane operator was not familiar with the controls of the equipment. In another incident, an operator hoisting pipes longer than he had previously hoisted used an improper boom angle, indicating that he did not possess adequate knowledge and skills to address the additional challenges of the task he was required to perform. In the third incident, a fatality occurred when an employee operated a new, unfamiliar machine with controls in different locations than the machines with which the operator was accustomed. While the employee's use of that equipment arose from unexpected circumstances, the result nonetheless demonstrates the risk inherent with operating a crane without a method to ensure the operator knows how to operate new equipment where there are differences in control locations and functions.

None of the commenters disagreed that OSHA does not need to make a separate determination of significant risk, nor did anyone challenge the relevance of any of the fatalities noted by OSHA. As explained in the “Background” and “Need for Rulemaking” sections of the preamble, commenters have raised serious concerns that the current level of risk would increase if OSHA did not continue the employer duty to ensure operator competency on the actual equipment they operate. The nearly unanimous message to OSHA is that crane operator certification is designed to ensure a basic level of general operating competency, but is not by itself sufficient to ensure that operators have the necessary skills and knowledge to operate all assigned equipment or to perform all assigned tasks safely in all workplace conditions.

III. Summary and Explanation of the Amendments to Subpart CC

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

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

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

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

operate equipment covered by subpart CC without continuous supervision. In the regulatory text, OSHA refers to this entire three-step process as “qualification.” Each operator must be trained to do the crane activities that will be performed, be certified/licensed in accordance with subpart CC, and be evaluated on his or her competence to safely operate the equipment that will be used. In addition, paragraph (a) sets out exceptions to these requirements for certain equipment, as well as continuing to note that qualifications issued by the U.S. Military to its non-uniformed employees satisfy OSHA's crane standard (OSHA continues to apply the term “qualification” within the final rule for operators working for the U.S. military, as it did in the previous version of the rule). The new approach provides a clearer structure than the previous format of the standard, which was not designed to accommodate both certification and evaluation.

In addition, the final rule makes clear that post-certification training is required. OSHA adopted this change because the previous version of the standard focused on pre-certification training. The final rule outlines the ongoing training necessary for certified operators to learn to operate new equipment or perform new tasks. The new final rule contemplates operators still needing additional training after they are certified, such as training to operate a new type of crane, perform new tasks, or handle new controls in a crane that differ from previous models they have operated. The employer is obligated to train employees, as necessary, even after they are certified, until the employer has evaluated them in accordance with paragraph (f). The training components are otherwise nearly the same under both the previous and revised versions of the standard.

As under the previous version of the standard, (see prior § 1926.1430(g)(2)), refresher training would also be required when indicated by deficiencies in the employee's demonstrations of crane knowledge or equipment operation.

The current certification/licensing requirement, which is the centerpiece of the previous operator requirements, remains largely unchanged under the revised standard, with the exception that different certifications for different capacities of cranes would no longer be required. The reference to “certified/licensed” is intended to encompass each of the certification options in the standard (third-party certification or an audited employer certification program) as well as state or local operator licensing requirements.

Several commenters requested that OSHA remove the existing requirement for operator certification from the standard (see,

e.g.,

ID-1605, 1615, 1821, 1826). These commenters faulted OSHA for failing to re-justify the requirement for operator certification or did not think it should be applied to their specific industry.

However, operator certification was central to the 2010 final rule, which was based on the industry stakeholder recommendations through a negotiated rulemaking. Comment was requested on the proposal in that rulemaking, and OSHA held several days of hearings on the proposal. OSHA published the rationale and justification for the inclusion of the certification requirement in the standard in the 2010 preamble, and so there was no need to re-explain the agency's lengthy analysis in this new rulemaking. In the NPRM for this rulemaking OSHA did not signal that it was considering removing certification: To the contrary, one of the main purposes of the rulemaking was to implement a change to the certification requirement (removing capacity) in recognition of the limited safety benefits of that requirement. This would reduce needless regulatory burden and ensure that the employers of a majority of operators would be able to comply with the certification requirement. OSHA also proposed to clarify and make permanent other employer evaluation duties, but those were proposed

in addition to

the operator certification requirements and the proposal re-organized the standard to encompass both.

With certification already a requirement of the standard, the main issue in this rulemaking besides the content of the certificate was the additional employer evaluation requirement. One commenter claimed that OSHA's “policy shift” to include additional employer evaluation duties in the current rulemaking “demonstrates that even it does not believe that certification is necessary to verify basic crane operating skills and knowledge needed to safely operate the equipment” (ID-1605, p. 2). OSHA disagrees. OSHA accepted the construction industry stakeholders' recommendation for a third-party certification requirement in 2010 after OSHA's previous construction cranes standard, which included a generic duty for employers to assess operators but no independent certification of the operator's knowledge or abilities, appeared ineffective in reducing fatalities and injuries caused by crane operator errors. OSHA proposed the employer evaluation in this current rulemaking as an

addition to

certification, not as an

alternative to

certification, because those provisions are intended to work in tandem as explained in more detail elsewhere in this preamble. The certification provides an independent assessment of general baseline knowledge and skill and the employer evaluation focuses on specific knowledge and skills needed for the safe operation of particular equipment for particular tasks.

OSHA also disagrees with the claim that adoption of a permanent requirement for employer evaluation of operators undercuts the need for certification (see also ID-1821). Many of the industry stakeholders who participated on the negotiated rulemaking committee (C-DAC) who recommended independent operator certification saw a need to verify baseline crane operating knowledge and skills, and OSHA incorporated that recommended requirement into its standard after public comment and extensive analysis, as explained at length in its 2010 final rule and accompanying preamble (75 FR 47905). But following that rulemaking, industry stakeholders noted a distinction between the basic operating knowledge and skill needed to pass a certification examination, on the one hand, and on the other the knowledge and skill needed to safely operate specific equipment to complete a specific task on a construction site. Employers had traditionally addressed this distinction when complying with OSHA's general construction requirement in § 1926.20(b)(4) (“The employer shall permit only those employees qualified by training or experience to operate equipment and machinery”). But the inclusion of specific operator training and certification requirements in the 2010 standard supplanted that general requirement, apparently to the surprise of some former C-DAC members, who then began advocating for a replacement (see

e.g.

ID-0539). With additional information from industry, the agency has taken action through this rulemaking to prevent individuals from performing construction work using even the types of machinery for which they are certified until employers confirm that they are sufficiently familiar with the particular machines they will operate and the specific tasks they will perform in order to ensure safety.

10

10

The employer evaluation requirements should also allay stakeholder concerns about the removal of the requirement for certification by different crane capacities, which OSHA had previously incorporated as a means of addressing significant

differences between machinery within a single type of crane.

OSHA also disagrees with the assertion that OSHA had previously stated that certification would, by itself, eliminate unqualified operators, and that OSHA further stated that the “intent of certification . . . was clear all along: The test would demonstrate the operator's technical knowledge specific to the equipment—meaning certification equated to qualification” (ID-1605). In support of the claim, the commenter selectively quoted language in the regulatory text in previous § 1926.1427(b)(2) that operators would be “deemed qualified” to operate equipment once certified. However, OSHA used “deemed” in the description “deemed qualified” in the previous § 1926.1427(b)(2), as well as separate references to certification and qualification as alternatives, to avoid the impression that certification resulted in a fully qualified operator.

11

As OSHA previously explained in the NPRM, OSHA only used the term “deemed qualified” to recognize under a single rubric the full spectrum of options for complying with OSHA's standard: Certification, military authorization, state-licensing, and “qualification by an audited employer program.” (See 83 FR 23549, n. 10.)

11

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

Many commenters requested exemptions from the operator certification requirements or the entire rule. These comments, which included several mass mailings of identical or nearly identical comments, focused on exemptions for the use of cranes in three industries: Delivery and installation of propane tanks; using equipment attached to scaffolding to hoist loads up to the scaffolding; and using equipment to install signs (see,

e.g.,

ID-1184, 1631, 1830).

12

OSHA noted in the proposed rule that broad requests for exemptions from existing requirements were beyond the scope of this rulemaking, but requested comment on whether there should be exemptions from the revised

employer evaluation

requirements (83 FR 23544). Thus, exemptions from the revised employer evaluation requirements were the only exemptions OSHA proposed in the NPRM.

12

One commenter from the pre-cast concrete industry requested an exemption from the certification requirements for operators of knuckleboom cranes, noting that these cranes “are present in a large number of precast concrete plants” (ID-1047). The commenter continued that “[a]dding a national certification requirement for knuckle-boom cranes would not likely have an impact on improving safety within the plant . . . This assessment is backed by data from the Bureau of Labor and Statistics, which identifies general industry, of which the precast concrete industry is a part, as accounting for a significantly lower rate of workplace accidents involving cranes than the private construction industry.” The commenter described the burden on “these small manufacturers” and also stated: “While some precast concrete plants have crane operators who would need to be certified on other classes of cranes, there are likely thousands of plant personnel who operate only a knuckle-boom style of crane.” Taken together, the references to the employers as manufacturers engaged in general industry work, the use of the cranes in “the plant,” and their presence in a “large number of . . . plants,” the commenter seems to misinterpret OSHA's construction crane rule as applicable to that industry's general industry activities. The operator certification requirement only applies when equipment is used for construction work, not for the manufacture of pre-cast concrete in a manufacturing plant. A different commenter (ID-1190) also requested an exemption for “pre-cast concrete manufacturers” and referred to “drivers” requiring certification. OSHA has previously clarified that manufacturers who simply deliver their products to the ground on a construction site are not considered to have engaged in construction activity, so the drivers in that scenario would not require certification under OSHA's construction cranes standard.

A different commenter, without identifying his industry, asked for an exemption for “small truck mounted booms” under the theory that employers, rather than pay for operators to be certified, would simply “eliminate these valuable tools that will ultimately lead to more back injuries because proper tools are not available to the employee” (ID-1373). OSHA notes that its standard already exempts from the certification requirement operators of “equipment with a maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less” (revised 29 CFR 1926.1427(a)(2).

A third commenter noted his opposition to operator certification because “I believe that there are only three entities that are recognized for this outside of the Operating Engineers for union shops. OSHA . . . must provide a clear process for employers to seek accreditation that is independent of the currently accredited entities” (ID-0704). OSHA's standard does not restrict the number of third-party certifying entities or their accrediting bodies. OSHA's standard also allows individual employers to comply with the certification requirement by certifying their own employees through a program audited by a third-party (see revised 29 CFR 1926.1427(e)).

To the extent that commenters from these industries addressed employer evaluations of operators, they suggested that they were already performing the types of evaluations that would be required by the revised standard.

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

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For example, a representative of the propane industry explained that “experienced propane field technicians provide hands-on training to new employees in coordination with or subsequent to review of written training materials” (ID-1631). Their industry also “utilizes competency training materials that provide training on the use of cranes to deliver and retrieve a propane container,” and “utilizes the crane training materials along with other industry-developed training materials to provide new training before an employee is assigned a new responsibility as well as at regular intervals to serve as refresher training” (ID-1631). A representative of the precast concrete industry explained that their organization's “engineers have visited hundreds of plants and have observed . . . owners ensuring operators competency” (ID-1047). The rationale for the employer evaluation seems equally applicable to these industries and the commenters do not provide any persuasive evidence disputing that it is important that employers evaluate operators to assess whether they have the knowledge and skills to safely operate the equipment which they are assigned to use to perform construction tasks.

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One of the same group of commenters also suggested, if removal of certification is not an option, that OSHA consider allowing “one certification based on function,” such as a single certification for operators of propane delivery cranes (as opposed to a certification for each type of crane) (ID-1631). A different commenter requested that OSHA remove the existing exemption from the certification requirements for cranes with a lifting capacity lower than 2,000 pounds (§ 1926.1427(a)(3)), asserting that these smaller cranes can also pose safety hazards (ID-1475). Neither of these requests address any of the changes proposed in the NPRM and are therefore outside the scope of the rulemaking.

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

documenting the evaluation. It retains the previous duty for employers to re-evaluate operators when necessary (see previous § 1926.1430(g)(2)), but moves the requirement to the evaluation section to improve comprehension of the requirements (see full discussion of revised paragraph (f)—

Evaluation

below.)

Paragraphs (a)(1) to (3) provide limited exceptions to the general requirement in paragraph (a) that operators must be trained, certified, and evaluated before operating equipment.

Paragraph (a)(1) permits an employee to operate equipment as an “operator-in-training” prior to being certified and evaluated, provided that he or she is supervised and operates the equipment in accordance with the training requirements in paragraph (b). This is the only means by which an individual may operate equipment prior to being trained, certified, and evaluated as competent to do so. This exception is substantively similar to the provision in the previous crane standard at § 1926.1427(a), which permitted uncertified operators to operate equipment only when the employer complied with the requirements specified under previous § 1926.1427(f)—

Pre-qualification/certification training period.

The revised standard also permits certified/licensed operators to operate equipment as operators-in-training before successfully completing an evaluation. For example, this provision allows experienced and certified operators to become accustomed to performing new crane operations or operating somewhat different equipment while being evaluated by the employer for that purpose. It also allows a newly hired operator to run the equipment while a new employer gauges the operator's crane knowledge, operating skills, and training needs. In addition, experienced operators who are not certified may operate the equipment when all operator-in-training requirements are met.

The standard recognizes that on-the-job training is an important component of gaining the practical operating experience necessary to safely operate a crane and to pass a competency evaluation. Other employers agreed that, depending on a number of factors, determining the competency of a new, inexperienced operator to become an independent, safe, and efficient operator is a process that can vary in time depending in part on having a crane available and demand for the crane services (

e.g.,

Reports # 2, 11 of ID-0673). This competency process is often informal and integrated in day-to-day work, with operators-in-training working closely with experienced operators in on-the-job training who mentor them and show them how to use equipment (Reports # 1, 2, 3, 6, 11, 15, 16, 18, 19, 23 of ID-0673). Operators receive experience not only in the cab, but also in many tasks or operations related to hoisting, such as rigging, assembly/disassembly or set-up, or inspections. Moreover, many employers who train new operators require them to complete operator certification at the beginning, or in the middle of, their training program, while employer evaluation of competency is generally a later step in the process and may occur many times over an operator's career. Therefore, OSHA believes that permitting an operator-in-training to operate equipment under the conditions specified in paragraph (b) is appropriate and necessary to ensure the safety of operators-in-training while they train for competency evaluations by employers.

In addition, revised paragraph (a)(1) expressly states that an operator-in-training may only operate equipment

under supervision

to ensure that employers understand that supervision is a mandatory component of operating in accordance with revised paragraph (b), and therefore also required under this exception. Because the previous crane standard also required operators-in-training to be supervised, adding that requirement to paragraph (a) is a non-substantive, clarifying amendment (see paragraph (b) for a more thorough discussion of on-the-job and general training requirements).

OSHA did not propose any substantive changes to the existing exemptions for derricks, sideboom cranes, and equipment with a maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less from the training and supervision requirements in revised paragraph (b) and the certification/licensing requirements in revised paragraphs (c) and (d).

OSHA did propose a change to the regulatory text in § 1926.1427(a)(2). While the prior regulatory text in § 1926.1427(a) had excepted operators of this group of equipment from only the “Operator qualification or certification” requirements of section § 1926.1427, corresponding scope provisions in § 1926.1436(q) (derricks), § 1926.1440(a) (sideboom cranes), and § 1926.1441(a) (cranes with capacity of a ton or less) each specify that

none

of the requirements of § 1926.1427 apply to operators of those types of equipment. Therefore, OSHA proposed in the NPRM to better align § 1926.1427 with §§ 1926.1436, 1926.1440, and 1926.1441. However OSHA proposed to apply the new employer evaluation requirement to operators of these types of equipment, so the proposed language of § 1926.1427(a)(2) included an exception from only the certification “and training” requirements of § 1926.1427 (see also the discussion of the proposed amendments to §§ 1926.1436, 1926.1440, and 1926.1441). In light of OSHA's decision not to apply the new evaluation and documentation requirements to operators of this group of equipment (see discussion of revised paragraph § 1926.1427(f) later in this preamble) OSHA has revised the paragraph to preserve the previous categorical exclusion for this group of equipment from all of the requirements in § 1926.1427.

In the NPRM, OSHA also proposed a new note to § 1926.1427(a)(2) to specify that operators of sideboom cranes must comply with § 1926.1430, which contains the general training requirements in the cranes standard. Sideboom cranes were not previously exempted from the training requirements in § 1926.1430, but training is not expressly addressed in the section of the standard dedicated to these cranes, § 1926.1440. OSHA, therefore, proposed this note to clarify the training requirements that operators of this equipment had to meet. OSHA is retaining the note in the final rule. OSHA did not receive any comments on the note in proposed paragraph (a)(2).

Paragraph (a)(3) preserves a previous provision that states that non-uniformed personnel employed and qualified as operators by the U.S. military meet the licensing/certification requirements of § 1926.1427. OSHA moved this provision from the other certification/qualifications options because it operates as an exception: It specifies that no certification/licensing or training obligation for construction employers is needed beyond verifying that the employee is employed by, and qualified by, the military. For the purpose of confirming that a military operator has the basic crane knowledge and operating skills required through licensing and certification, OSHA defers to the operator qualification process of the U.S. military as the employer. All of the provisions of the crane standard apply when an operator operates equipment for an employer other than the U.S. military.

OSHA requested comment on whether the relocation of this provision was appropriate and whether it is clear that this is an exclusion from all qualification and training requirements of this standard, not just certification.

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

Paragraph (b) Operator Training.

The requirement for employers to train and evaluate operators before permitting them to operate equipment is contained in paragraph (a). Paragraph (b) now sets forth minimum requirements for training, specifies requirements for trainers, and establishes limitations on the scope of activities for operators-in-training. This paragraph specifies the conditions under which an individual may operate a crane prior to acquiring certification or successfully completing an employer evaluation. These training provisions are intended to provide a safe avenue for employees to gain experience operating cranes in a variety of circumstances.

The training requirements of revised paragraph (b) are largely the same as the previous rule but also clarify that employers must continue to address operator training needs after the operator has been certified and demonstrated competency through employer evaluation on specific equipment. Paragraph (b) further clarifies that the employer's training duty is both equipment-specific and task-specific, and extends until the employer has satisfactorily evaluated the operator-in-training in accordance with paragraph (f)—

Evaluation,

or if any retraining or subsequent training is required to perform the assigned tasks. The revised standard recognizes that even a certified and evaluated operator may need additional training to safely operate new equipment or perform significantly different types of lifts. Therefore, the employer's duty to train remains an ongoing responsibility that must be met as the operator's experiences expand. The prior version of the standard was not as clear (except with respect to when an individual's deficient operating performance or crane knowledge triggers retraining) that the employer's duty to train extends beyond when the individual is certified and evaluated. This updated paragraph clarifies that the employer's duty to train is aimed at ensuring that the employee can safely use the equipment that will be operated.

Under the previous standard, OSHA divided the training requirements between two sections. First, previous § 1926.1427(f)—

Pre-qualification/certification training period,

set forth the limited conditions under which an operator-in-training could safely operate equipment before being certified. Secondly, previous § 1926.1430—

Training Requirements,

brought together the triggers for operator training requirements, including those for retraining. As discussed in the explanation for this section, OSHA has removed the substantive operator training requirements from § 1926.1430 and replaced them with a cross-reference to new § 1926.1427(b) so that the substance of the training requirements for operators, as well as all operator-in-training requirements, are under one section. Relocating the requirements of previous § 1926.1427(f) to revised § 1926.1427(b) also ensures that the organization of the crane operator requirements corresponds with the order of a typical operator competency program—

i.e.,

initial training generally precedes certification and an operator being determined competent by employer evaluation.

The introductory language to paragraph (b) in the NPRM required the employer to “provide each operator-in-training with sufficient training, through a combination of formal and practical instruction, to ensure that the operator-in-training develops the skills, knowledge, and judgment necessary to operate the equipment safely for assigned work.” (83 FR 23567). OSHA is retaining this language in the final rule except for one change. For reasons discussed later in response to comments to paragraph (f), OSHA decided to remove the term “judgment” from that section and replace it with “the ability to recognize and avert risk.” OSHA is making the same change in the training section. OSHA proposed corresponding language in the training and evaluation sections because an operator-in-training should be trained and evaluated to the same standard. In addition, this revised requirement specifies that training must include a combination of formal and practical instruction.

OSHA notes that this paragraph (b) does not mean that employers must provide novice-level or redundant training when they hire an experienced operator as a new employee. An employee who is an experienced operator may need far less training than a less experienced employee. Employers must determine what level of practical and formal training an operator-in-training would need under paragraph (b) to ensure that they develop the skills, knowledge and ability to recognize and avoid risks necessary for safe crane operation in a variety of conditions. Ultimately, the training methods chosen by the employer must be effective and responsive to each operator's training needs.

One commenter, while urging OSHA to remove the requirement for operator certification, also urged OSHA to “limit the operator training requirements to employer-based programs that can best be customized to train operators on the specific equipment used at each individual company” (ID-1826). OSHA is not altering the training requirements in paragraph (b), which require training on the subjects listed in § 1926.1427(j)(1) and (2). OSHA believes these requirements provide enough flexibility to allow an employer to efficiently customize its training programs. For example, the standard continues to require the operator to have knowledge of “the information necessary for safe operation

of the specific type of equipment

the individual will operate” (§ 1926.1427(j)(1)) (emphasis added). There are some general requirements not tied to the operation of particular machines, such as the requirement for training on “Procedures for preventing and responding to power line contact,” that address serious hazards that vary by location, not equipment. The mandated training criteria are longstanding requirements that were adopted by OSHA on the recommendation of its negotiated rulemaking committee because most were included in OSHA's pre-2010 cranes standard (§ 1926.550) or were in industry consensus standards.

A different commenter suggested that OSHA incorporate requirements from the Powered Industrial Truck standard into the crane operator training requirements. This recommendation included more prescriptive language in the regulatory text language specific to training on the controls and instrumentation of the equipment, the operator's manual, and when further training is required (ID-1719). Although the commenter acknowledges that “the proposed rule offers clear guidance on the subject matters that initial training must cover,” it believes its recommended revision is necessary to “provide sufficient guidance on the triggers for supplemental training and re-training/remedial training” (ID-1719).

OSHA is not convinced that more prescriptive language for operator training requirements is required. OSHA believes that the incorporation of the paragraph (j), and subsequently Appendix C, provides employers with thorough lists of subjects on which operators must be trained, including elements such as the equipment's controls. OSHA concludes that the more flexible, less prescriptive language

proposed for the training requirements is more appropriate for crane operator training than the prescriptive list of elements offered by the commenter.

OSHA has not retained the introductory text in previous paragraph (f), which required that a non-certified employee could only operate as an operator-in-training within the limitations of paragraph (f). That introductory text has now been supplanted by the language in revised paragraphs § 1926.1427(a)(1) and (b), without substantive change other than the addition of the evaluation requirement.

Most of the specific training requirements in paragraph (b) are identical or similar to the previous training requirements. Paragraph (b)(1) requires the employer to provide the operator-in-training with instruction on the subjects in paragraph (j). This requirement is identical to the requirement in previous § 1926.1430(c)(1)—

Operators-in-Training for equipment where certification or qualification is required by this subpart.

However, under the revised standard, even after the operator-in-training is determined competent by employer evaluation, the employer's training duty can continue when the operator operates new equipment or performs tasks that require new skills or knowledge. An individual may be a fully certified and evaluated operator with respect to one piece of equipment such that he or she is allowed to operate that equipment independently, but simultaneously be an operator-in-training (and thus subject to the operating restrictions in the standard) with respect to different equipment or tasks that require significantly different skills or knowledge to ensure safety.

Section 1926.1427(j)—

Certification criteria,

which remains unchanged, specifies the mandatory subject matter for third-party licensing and certification, as recommended by C-DAC. It requires a written and a practical test. Paragraph (j)(1)(i) specifies areas of information that must be covered by the written certification test for the type of crane that an individual will operate, such as controls, operational/performance characteristics, load calculations, and ground conditions. This paragraph also references a more comprehensive list of areas of technical knowledge in Appendix C—

Operator Certification: Written Examination: Technical Knowledge Criteria.

Paragraph (j)(2) identifies the operating skill areas that must be covered by the practical certification test.

OSHA concludes that operators-in-training must continue to receive training in the subject matter identified in this section as recommended by C-DAC. However, as proposed, OSHA relocated the training requirement in § 1926.1430(c)(1) to revised § 1926.1427(b) so that the requirements for operators-in-training may all be found in one place. New language in revised § 1926.1430—

Training,

discussed separately below in this preamble, references § 1926.1427(a) and (b) rather than repeat the same requirement.

Paragraph (b)(2) requires the employer to ensure that a trainer continuously monitors operators-in-training during all crane operations. This requirement is identical to the previous requirement for continuous monitoring under previous paragraph (f)(3).

Paragraph (b)(3) requires the employer to assign the operator-in-training only tasks that are within his or her ability. This requirement is substantively identical to the requirement under previous paragraph (f)(2). OSHA made minor changes to the language of this requirement to clarify that it is the employer's duty to assign tasks to the operator-in-training.

OSHA also relocated the requirements of previous paragraph (f)(1). The previous paragraph (f)(1) required the employer to provide each operator-in-training with training sufficient to operate safely under the limitations of previous paragraph (f). Its requirements are retained in revised paragraphs (b)(1) and (3), which state that the operator-in-training must be trained on the subject matter specified in paragraph (j) of this section and may only perform tasks that are within his or her abilities.

Paragraph (b)(3) retains a revised version of the limitations specified in previous paragraph (f)(5), which precluded operators-in-training from operating equipment next to energized power lines; from hoisting personnel; or from performing multiple-equipment lifts, multi-lift rigging operations, or lifts over shafts, cofferdams or in a tank farm. OSHA previously determined in the 2010 final rule that these equipment operations and worksite conditions are too complex, or present such heightened risks, that it would be unreasonably dangerous if an operator-in-training were to operate the equipment in these circumstances (75 FR 48024). However, in the NPRM OSHA announced that it would consider revising these limitations because they may have the effect of preventing operators from gaining the experience necessary to conduct these lifts.

OSHA received comments supportive of removing these limitations on operators-in-training. A labor union commented that these tasks “should not be prohibited” because “an operator must be trained in how to safely perform them” (ID-1615). Another commenter, in urging OSHA to remove operation in tank farms from the list, argued that “[t]he continuous monitoring requirement specified in the Rule along with other safe work practices (

e.g.,

work permits, joint jobsite visits, etc.) are sufficient to identify and mitigate hazards that an operator-in-training may encounter in a tank farm” (ID-1647). OSHA did not receive additional comments on this issue.

In response to these comments, OSHA revised the language of the regulatory text to provide a measured expansion of the prior rule that removes the prohibition as requested by the commenters. Operators-in-training will now be allowed to perform these lifts, but only if they have been certified in accordance with § 1926.1427(c). The 2010 crane standard only allowed an operator to perform these lifts after becoming certified, so OSHA is preserving the status quo in that respect. OSHA continues to agree with C-DAC that these lifts are too complex and potentially dangerous to be attempted by an operator candidate who may lack the basic knowledge and skills required for general crane operation. But the prior regulatory text left no way forward for even a certified operator to gain the experience necessary to perform those functions safely, and did not leave room for an employer to have an operator evaluated on these tasks in accordance with revised § 1926.1427(f). This language change therefore respects C-DAC's intent to prevent operators who have not acquired the baseline knowledge of crane operation provided by certification from performing these complex lifts, while allowing operators-in-training the opportunity to train performing these lifts under the direction of a trainer prior to being evaluated to perform these lifts as an operator. Note that the employer must still train the operator on these specialized lifts before allowing the operator to attempt them, even under supervision, because paragraph (b)(3) only permits the employer to assign tasks to an operator-in-training that are “within the operator-in-training's ability.”

Paragraph (b)(4) prescribes minimum requirements for monitored training of operators-in-training and trainers who monitor operators-in-training. Revised (b)(4)(i) specifies requirements for the

required trainer which are similar to requirements in paragraph (f)(3) of the 2010 crane standard. Paragraph (b)(4)(i)(A), which requires that the trainer must be an employee or agent of the operator-in-training's employer, is identical to paragraph (f)(3)(i) of the 2010 crane standard.

Paragraph (b)(4)(i)(B) requires that the trainer must “have the knowledge, training, and experience necessary to direct the operator-in-training on the equipment in use.” This requirement is the same as the proposal but is different from the requirements of paragraph § 1926.1427(f)(3) of the 2010 crane standard, which required that a trainer either be a certified operator or have passed the written part of a certification test, and have familiarity with the equipment's controls. This revision recognizes that some uncertified trainers may have the knowledge and experience to be competent to teach or monitor the equipment operations of an operator-in-training.

In the NPRM, OSHA explained that it proposed this change for three reasons. First, merely requiring that the trainer must have passed the written part of a certification test is insufficient to confirm a trainer's ability to train other operators. Paragraph (f)(3) of the 2010 crane rule presumed that all certified operators or individuals who passed only written certification tests have the skills to monitor an operator-in-training, but as explained above, certification alone is insufficient to ensure that operators are competent to safely operate a crane. Under the final rule, even after the basic crane knowledge and operating skills of operators have been confirmed through certification testing, employers must still determine through evaluation if operator training already provided is sufficient or if more is necessary, based on the complexity of equipment that will be used and activity that will be performed. Thus, requiring an individual to pass a written certification exam appears to be likewise insufficient as the sole criterion for confirming a trainer's ability to monitor and train an operator-in-training.

Second, using certification as a required criterion for the trainer could exclude individuals from the role who have extensive operating experience and familiarity with the controls of the relevant equipment but do not possess a certification. Under the trainer requirements of the 2010 crane rule, an experienced but uncertified operator may have been required to be monitored by a less experienced but certified individual. In stark contrast, an uncertified person who has significant experience operating the particular equipment used during the training may have more insight into the function of its controls and the nuances of its operation than someone who is certified for that type of equipment but has never operated that particular equipment. Allowing only certified operators in these training roles is also inconsistent with the industry practice of pairing inexperienced operators with experienced trainers who monitor the safety and professional development of the inexperienced operator.

Third, passing a written certification test is not a definitive indicator of safe training practices in the industry and requiring certification of all trainers could significantly alter many previous work practices in the industry. Stakeholder feedback suggests that many different employees or agents of an employer successfully fulfill the role of a trainer but may not be certified. Some formal training might be administered by an individual who is not certified but has extensive knowledge of a particular make and model of crane. For example, some crane manufacturers offer technical training to their customers regarding the operation, maintenance, and troubleshooting of cranes they sell (see Reports # 4, 5, 13 of ID-0673). On-the-job training is often conducted by a seasoned crane operator with years of experience (see Reports # 1, 2, 19, 23, 28 of ID-0673) or in some cases by a retired operator (see Report # 26 of ID-0673). These operators may no longer be certified. In addition, an employer might employ various non-certified employees, such as an experienced safety manager, foreman, or site manager, to monitor some work training activities, or an experienced small business owner might fill the role of trainer in some cases (see Reports # 1, 2, 15, 26 of ID-0673). And OSHA spoke with three companies that offer other employers private training from experienced operators who are not certified (see Reports # 20, 21, 22 of ID-0673). In sum, stakeholders reported that some individuals who have the necessary knowledge, training, and experience but do not possess a certification or have not passed the written certification exam can, nevertheless, be successful trainers.

In the proposed revision of this provision, OSHA proposed language similar to the requirement in ASME B30.5 (2014) at 5-3.1.2(e) that training must be performed by a “designated person who, by experience and training, fulfills the requirements of a qualified person.” The language is also similar to the “qualified person” definition that is familiar to the construction industry. Under this language, employers have some flexibility in determining the level of knowledge and experience that the trainer must possess based on the skill level of the operator-in-training and the nature of the activity performed.

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

OSHA received comments supporting the proposed changes to the trainer criteria. A trade association agreed with the proposed language because it provides employers with “flexibility in determining the level of knowledge and experience that the trainer must possess based on the skill level of the operator-in-training and the nature of the activity performed . . . even when the individual has not passed the written certification exam, possesses an operator certification, or has prior experience operating a crane” (ID-1801). One commenter agreed with OSHA that certification or passing the written part of the certification test is not determinative of whether an individual can train an operator-in-training, stating that it “fails as a measure of a trainer's competencies and capabilities” (ID-1821). Similarly, a comment supporting the proposed language asserted that “[t]he current requirement that trainers obtain certification or at least pass the written portion of the certification requirement does not necessarily correlate with the individual's ability to provide practical instruction or impart valuable knowledge to other employees” (ID-1631).

A different commenter supported the “requirement that the trainer should be a `qualified person,'” as defined in the cranes standard, without other requirements (ID-1828). OSHA believes that the proposed new language, which the commenter did not directly oppose, comes close to that approach while still providing the additional focus on the training.

Several other commenters opposed the proposed change and preferred that the trainers at least pass the written portion of the certification exam. One commenter responded that trainers possessing certification have been “a long established standard and best practice among the industry,” and interprets ASME B30.5's term “qualified operator” to mean “one who possesses a certification for the type of equipment for which he/she is instructing an operator-in-training” (ID-1816). OSHA disagrees with that interpretation of

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

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16

See definition of “qualified person” in ASME B30.5 (2004) (“by possession of a recognized degree in an applicable field or certificate of professional standing,

or

who, by extensive knowledge, framing, and experience . . .”) (emphasis added).

That commenter also compared operator certification to a driver's license and stated that “one would not want a driving instructor who herself does not possess a driver's license,” (id.), but there may be many reasons why an experienced crane operator may no longer possess a valid certification. Many seasoned crane operators who have safely operated cranes for decades have the knowledge, operating experience, and ability to effectively train and direct an inexperienced operator even though they never had a need to acquire a certification during the course of their operating careers or let their certifications expire after transitioning into new roles. Contrary to the commenter's assertion, the seasoned operator may be preferred as a trainer because of the greater experience, particularly if that experience is with the particular equipment that will be operated. OSHA concludes that the emphasis of the trainer qualifications should be on a person's ability to train and direct an operator-in-training, rather than whether the trainer possesses a certification.

Another commenter stated that it is “infeasible to consider how a trainer or evaluator can determine an operators qualifications if they have never operated a crane . . . OSHA should consider going to the original definition they are using for the trainer” (ID-1623). That comment incorrectly assumes that trainers without a current certification, or those who have not passed the written portion of a certification exam, have not previously operated a crane. In some cases, the trainers may be retired or semi-retired operators who are fully capable of training other operators but who have not elected to take an operator certification examination because they no longer operate cranes. The record of the 2010 rulemaking and this rulemaking also contains a number of statements indicating that some employers have very experienced operators who have difficulty with written exams (see,

e.g.,

73 FR 59816-59817). In some cases, the language or literacy barriers that impede an experienced operator from passing a written exam may have no relevance to that person's ability to instruct an operator-in-training. OSHA does not agree that such a trainer should be disqualified from training an operator so long as there is effective communication between the operator-in-training and the trainer.

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

One certification organization conceded that “certification may not be an appropriate `sole' criterion or a sufficient indication of competence as a trainer,” but contended that it is an “appropriately necessary condition of establishing such competence and ensuring a `baseline' of knowledge and skills” (ID-1755). That commenter suggested that OSHA go further than the previous rule and require that trainers be both certified

and

possess the requisite knowledge, training, and experience.

OSHA does not agree that it is necessary to go as far as the commenter suggests in order to ensure that appropriate trainers are instructing operators-in-training. As stated earlier, OSHA anticipates that many trainers will be certified operators. As one commenter noticed, the proposed language “does not preclude employers from following the existing trainer requirements if they so choose” (ID-1801). Moreover, a certification could provide partial evidence of the knowledge, training, and experience necessary to train an operator-in-training, but is not sufficient for verifying competency and safe crane operation. The requirement for even a partially certified trainer would come at the price of excluding the experienced trainers currently relied on by the earlier commenter (ID-1826). The final rule will preserve greater flexibility for the employer seeking to ensure safety through available resources, and is also more closely aligned with the existing industry guidance in ASME B30.5.

One of the certification organizations asserted that “[r]equiring that a trainer have a baseline of knowledge and skills as an operator is likely, not only to improve the quality of training, but also to increase safety during training in the event the operator-in-training engages in an unsafe act and the trainer is forced to intervene” (ID-1755). The agency agrees that it is important for the trainer to be able to direct an operator-in-training should their operation potentially result in an incident or near miss and has included that requirement in the standard (“Have the knowledge, training, and experience necessary

to direct

the operator-in-training on the equipment in use”). But requiring that a trainer must have passed the written part of the certification test does not indicate that a trainer would be able to do more. OSHA's standard, both as revised and prior to this revision, does not permit anyone other than a certified operator to be at the controls absent supervision, so a trainer who has only passed the written exam would not be permitted to operate the crane without another person serving as a trainer to that person. It does not follow that a person who has passed the written portion of the certification exam, but not necessarily demonstrated any practical skill at operating a crane, would be inherently better prepared to correct an operator than a person who has the knowledge, training, and experience necessary

to direct

the operator-in-training on the equipment in use.

It is true that a trainer who is a certified operator (and properly evaluated under the new standard) would be permitted to sit in the cab and take over the controls in the event of perceived unsafe action, but there is no record that this is a common occurrence or has been shown to be effective. In the absence of a clearer record on this point, OSHA is hesitant to disturb C-DAC's judgment that requiring all trainers to be fully certified operators was unnecessarily restrictive (see 75 FR 48024). In its 2008 NPRM explanation of the trainer requirements, which were included without change in the final rule, OSHA acknowledged that full certification was unnecessary and explained that the trainer's knowledge of the particular equipment being operated was paramount to certification:

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

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

employer options or to shift the focus away from the trainer's knowledge of the equipment to be used by the operator-in-training.

As stated previously, OSHA proposed language for its similarity to language from ASME B30.5 and OSHA's qualified person standard, and the flexibility it offers employers in choosing trainers for their crane operators. OSHA considered simply requiring a trainer to be a “qualified person,” but relying solely on the definition of qualified person as criteria for trainers presents a problem. In § 1926.1401, OSHA defines a qualified person as one “who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, successfully demonstrated the ability to solve/resolve problems relating to the subject matter, the work, or the project.” However, even under the previous standard OSHA did not intend for the possession of a certificate to be enough for an individual to be a trainer—the previous standard also required knowledge of the equipment's controls. Relying on the definition of “qualified person” in the crane standard as the lone criteria for trainers would mean that anyone possessing a certificate would automatically be a “qualified person,” regardless of their knowledge of any of the controls or other aspects of the equipment to be operated. OSHA will retain its proposed language.

The remainder of paragraph (b)(4) does not contain any substantive changes from the previous rule, did not receive any comments, and is promulgated as proposed. Paragraph (b)(4)(ii) prohibits the trainer from performing any task that detracts from his or her ability to monitor the operator-in-training. It is identical to previous paragraph (f)(3)(iii).

Paragraph (b)(4)(iii) requires the operator's trainer and the operator-in-training to be in each other's direct line of sight, and that they communicate verbally or with hand signals. This requirement is substantively the same as previous paragraph (f)(3)(iv), with minor simplifying changes. The revised standard relocates this provision to an independent subparagraph to clarify that the employer has the ultimate responsibility for ensuring compliance with this requirement. This revised paragraph also retains an exception for tower cranes so that the trainer and operator-in-training must be in direct communication with each other, but are not required to maintain a direct line of sight because the height of the operator's station may make it infeasible. (See also, the discussion of previous paragraph (f)(3)(iv) in the preamble to the 2010 final crane rule at 75 FR 48024.) This exclusion in this final rule is also substantively the same as paragraph (f)(3)(iv) of the 2010 crane rule, with minor simplifying language changes.

Paragraph (b)(4)(iv) requires that an operator-in-training be monitored while operating the equipment at all times except for short breaks and retains the conditions specifying monitoring under paragraph (f)(4) of the 2010 crane rule. Paragraph (b)(4)(iv)(A) requires that a trainer's break while the operator-in-training runs the crane can last no longer than 15 minutes and can occur no more than once per hour. Paragraph (b)(4)(iv)(B) requires the employer to ensure that the trainer and operator-in-training communicate about the tasks, if any, that can and cannot be performed in the trainer's absence while on break. Paragraph (b)(4)(iv)(C) limits tasks performed during the trainer's break to only those that are within the abilities of the operator-in-training.

Paragraph (b)(5) requires the employer to provide retraining when, based on the performance of the operator or an assessment of the operator's knowledge, there is an indication that retraining is necessary. This language is identical to the requirement in previous § 1926.1430(g)(2) but is included in paragraph (b) to consolidate all substantive training requirements to the extent practical for operators covered under § 1926.1427. Because the requirements of § 1926.1430(g) apply more broadly to all employees covered by this standard, however, OSHA is not deleting that requirement from § 1926.1430(g). Thus, identical language will appear in two different paragraphs of the final standard. This retraining requirement is consistent with the retraining described as already implemented by employers who spoke with OSHA during interviews and site visits (see Reports # 1, 2, 3, 15, 18, 19, 22, 26 of ID-0673). Note that the need for retraining under paragraph (b)(5) would also trigger the requirement for re-evaluation under paragraph (f)(7) (see also preamble discussion below of paragraph (f)—

Evaluation

).

OSHA received one substantive comment proposing revisions to the retraining requirements. The commenter recommends incorporating language from the Powered Industrial Trucks standard that states when retraining is necessary, including unsafe operation, an accident or near-miss, a failed evaluation, or insufficiency of training (ID-1719). OSHA does not believe this is necessary because the revised retraining requirements allow the employer to determine whether an operator needs additional training based on their performance and their knowledge. This final rule not only requires that retraining be triggered based on an operator's performance, but it also requires an employer to conduct retraining if the operator indicates it is necessary (see revised § 1926.1427(b)(5)). OSHA concludes that this approach gives employers more flexibility in determining when retraining is needed to ensure safety.

One commenter also noted that OSHA uses the words “retraining” and “refresher training” interchangeably in proposed paragraph (b)(5) without defining either term, and requested clarification (ID-1719). Another commenter agreed that additional clarification would be helpful.

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In response to such comments, OSHA will replace the term “refresher training” with “retraining”.

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

Paragraph (c) Operator Certification and Licensing.

At the ACCSH meeting on March 31-April 1, 2015, ACCSH members unanimously recommended that OSHA move forward with a rulemaking that retains certification and permanently extends the employer's duty to ensure the competency of operators (OSHA-2015-0002-0037). Paragraph (c) retains the certification and licensing structure of the 2010 crane standard with only a few minor modifications intended to improve comprehension of certification/licensing requirements.

First, OSHA moved the military qualification provisions of previous § 1926.1427(e)(4) to the exception in paragraph (a), as noted earlier.

Second, OSHA removed the reference to an “option” with respect to mandatory compliance with previous state and local licensing requirements.

When a state or local government issues operator licenses for equipment covered under subpart CC, and that government licensing program meets the requirements specified in the standard, then employers must ensure that equipment operators are properly licensed when working in the state or local jurisdiction, even if the operator is also certified by a nationally accredited certification organization. However, the state or local license would satisfy OSHA's certification requirement: OSHA will not

require

an operator who obtains such a state or local license to also obtain a separate certification from a nationally accredited certification organization or an employer-audited program.

The content of revised paragraph (c)(1) is virtually identical to provisions in § 1926.1427(e)(2) of the 2010 crane rule, with one exception: Revised (c)(1)(v). For a more detailed explanation of the other provisions in this paragraph, see the preamble discussion of § 1926.1427(e)(2) in the 2010 crane rule at 75 FR 48021-23 (August 9, 2010).

As in the 2010 crane standard, this final rule includes minimum “federal floor” criteria for state and local crane operator licensing. If a license does not meet the minimum “federal floor” criteria specified in OSHA's crane standard (see revised § 1427(c)(1) and (j)), then the state or locality could still enforce its own licensing requirements, but employers operating cranes for construction within that jurisdiction could not rely on that license to satisfy OSHA's operator certification requirement. The employer must then comply with one of the other options for certification/qualification specified by this final rule. In the NPRM, OSHA proposed amending § 1926.1427(c)(1)(v) to add a new requirement to the “federal floor”: The license must specify the “type, or type and capacity” of equipment for which the license is applicable. The purpose of this proposed change was to make it easier to determine whether the licensing procedure required the operator to have knowledge about the “type” of crane to be operated, as required by OSHA's standard in § 1926.1427(j)(1).

OSHA received three comments (ID-1611, 1779, 1824) warning that inserting any additional requirements into the “federal floor” for state or local licenses could make it more likely that some states or localities would not meet that “federal floor.” For employers in jurisdictions where the state or local licensing program did not comply with the federal floor, they would need to ensure that their operators were not only licensed as required by the state or locality but also certified through a third-party program or audited employer program in order to comply with OSHA's standard. One commenter expressed concern that OSHA's proposed change would result in “duplicative or multiple layers of identical certification requirements” for employers, and that a change designed primarily to facilitate compliance (rather than to add a substantive safety requirement) would not warrant the potential impact for employers (ID-1779). “Provided that the state or local licensing requirement is in fact equivalent or more stringent than the OSHA expectation of determining competency,” the commenter stated, “then duplicative certification is unduly burdensome, especially for small businesses” (Id.).

OSHA is sensitive to concerns raised about unnecessary regulatory duplication, particularly when the purpose of the change is to facilitate compliance rather than adding a new safety measure. To avoid needless burden, OSHA has decided not to implement the proposed change. Proposed paragraph (c)(1)(v) has been removed and proposed paragraph (c)(1)(vi) is designated (c)(1)(v).

The remainder of the requirements of paragraph (c)(1) are substantively the same as those in § 1926.1427(a)(1), (a)(2), and (e) of the previous rule, except that OSHA combined the requirements of those three paragraphs into one paragraph and clarified some of the language to facilitate better comprehension of state or local government entity requirements. Paragraph (c) restates more clearly the requirement in previous paragraph (a)(1) that the employer must ensure operators are certified and licensed. Paragraph (c)(1) substantially incorporates the requirements of previous paragraph (a)(1)(i) and combines it with the licensing criteria in previous paragraph (e)(2)(i)-(iv). Paragraph (c)(1)(v) is substantially the same as previous paragraph (e)(3)(ii).

Paragraph (c)(2) specifies the certification requirements for two remaining situations: The construction occurs in a state or local jurisdiction that does not require licensing of equipment operators, or the construction occurs in a state or local jurisdiction where the licensing program does not meet the “federal floor” of requirements established in this standard. In each of those situations, the operator would have to be certified in accordance with paragraph (d) (third-party certification) or (e) (audited employer program) of this section. Paragraph (c)(2) is identical to previous § 1926.1427(a)(2), except that it references only the paragraphs containing criteria for certification by an accredited testing organization and an audited employer program—and not the option for qualification by the U.S. military which is addressed as a scope exclusion in Paragraph (a)(3). Revised paragraphs (d) and (e), discussed later, correspond to previous paragraphs § 1926.1427 (b) and (c), respectively.

Paragraph (c)(3) requires employers to provide at no cost to employees the certification or licensing required by § 1926.1427. This revised requirement is almost identical to that of § 1926.1427(a)(4) of the previous rule, except that it has been revised to clarify that it applies to all operators certified or licensed after the effective date of the new standard, not just those operators who were “employed by the employer on November 8, 2010,” as previous § 1926.1427(a)(4) stated.

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This revision is in line with, and will be enforced similarly to, other OSHA provisions that require employers to provide personal protective equipment, medical examinations, or other functions at no cost to the employees. The requirement would also be consistent with the way in which OSHA assessed costs in the 2010 economic analysis. In the final economic analysis of subpart CC, OSHA modeled all of the costs for compliance with the previous certification requirements as if all employers always paid for the certifications/licenses they provide for operators. Note, however, that this provision does not mandate an employer to maintain its employment of an employee/operator who cannot pass certification testing or who is not a good operator candidate. Furthermore, an employee who does not possess a certification may still be allowed by the employer to operate a crane, but only as an operator-in-training and through the employer's compliance with all requirements of paragraph (b) of this section.

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

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

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

As noted above, paragraph (c)(2) provides two options for certification: Compliance with paragraph (d) (third-party certification) or paragraph (e) (audited employer program). Compliance with the requirements of paragraph (d) is the option that OSHA expects the vast majority of employers to use. Paragraph (d) retains, with some non-substantive language clarification and two exceptions discussed below, the requirements of previous paragraph § 1926.1427(b) and is unchanged from the proposal.

First, the most significant change is that paragraph (d)(1)(ii)(B) replaces the references to certification by “type and capacity” that appeared in previous paragraph (b)(1)(ii)(B) with “type, or type and capacity,” as recommended by ACCSH (see OSHA-2015-0002-0037 pg. 71). OSHA has therefore also reworded previous paragraph § 1926.1427(b)(1)(ii)(B) to remove the requirement that an operator's certificate list a lifting capacity for which the operator was certified. The need for these changes is explained in the “Need for a Rule” section of this preamble. These revisions remove the requirement to obtain a certification for a designated crane capacity, but also clarify in the regulatory text that OSHA considers testing organizations whose programs provide certifications that specify “type and capacity” equally acceptable.

The “type, or type and capacity” language was requested by Crane Institute Certification and recommended by ACCSH. Several other commenters also made this request (OSHA-2015-0002-0036). The language has been included in the final rule to make clear that while all certifying bodies must certify by type of crane for their certifications to meet OSHA's requirements, testing organizations may also choose to specify for their certifications different levels of rated lifting capacity of cranes.

As explained in the section

Elimination of the Requirement to Certify Based on Capacity of Crane

of this final rule, almost all the comments received relating to the proposed removal of the requirement to certify by capacity were in favor of its removal. The commenters were split, however, on whether OSHA should keep the “type, or type and capacity” language in the regulatory text. One of those commenters specifically requested OSHA to keep the proposed language because many of its members “currently require certification by type and capacity, and have expressed that they find both types of certification to be beneficial to establishing a baseline operator competency,” and added that this language “will help alleviate confusion about the changes to the requirement and allow employers to maintain their current certification requirements as they see fit” (ID-1735). The one commenter who opposed OSHA's decision to remove the requirement for certification by capacity concluded that if OSHA did remove that requirement, then ACCSH's recommended language of “type, or type and capacity” should stay in the rule (ID-1235).

The agency also received comments requesting that OSHA not include the language “or type and capacity” in the standard. Two of these comments were submitted by certification bodies that currently provide certification by type only. Both believe removing this language will add clarity and reduce confusions among the regulated community (ID-1755 and 1816). One of them is concerned that keeping the language will inaccurately convey that “the only options for certification are either (a) by type, or (b) by type and capacity,” whereas “testing organizations may in fact seek to consider factors other than ‘type’ ” or capacity when developing operator certification programs (ID-1755). A different commenter believes removing the reference to capacity “does not restrict crane certifying bodies from certifying according to capacity should they so choose” (ID-1611). Another commenter suggested OSHA revise the proposed language to require certification “by type and/or type and capacity” (ID-1828).

OSHA has decided to retain the proposed “type, or type and capacity” language for paragraph (d)(1)(ii)(B) because it makes it clear that the agency will accept certifications that are otherwise compliant with the standard from any of the four accredited certification bodies of which OSHA is aware. OSHA does not believe that including this language will lead to confusion in the industry because, currently, certifications are offered by type or type and capacity. None of the comments recommending the removal of certification expressed any confusion about including this language.

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

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

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

All other provisions in paragraph (d) are unchanged from previous paragraph (b), and discussion and justification of these provisions can be found in the preamble to the 2010 final cranes rule (75 FR 48017).

A labor union commented that paragraph (d)(2) should be revised to establish a benchmark for the types of cranes for which a separate certification is required. They argue that without a benchmark, OSHA will be “effectively delegating to an accredited testing organizations responsibility for determining the number of types of cranes for which a separate certification is required . . . .” This concerns the organization because “for-profit testing organizations, which benefit financially from an increased number of mandatory certifications, have an incentive to develop testing for additional types of crane, regardless of whether extra testing will improve safety” (ID-1719). They propose that operators of

equipment for which there is no certification must still be certified on the equipment most similar to the equipment they will operate, but only if a national consensus standard does not recommend a separate certification for the equipment. In explaining their reliance on national consensus standards for making this determination, they point to the National Commission for the Certification of Crane Operator's (NCCCO) Crane Type Advisory Group, a group that has yet to publish a standard but is considering “the skill sets required to operate various types of cranes for which separate certifications are not offered and a comparison of those skill sets to determine if they are already encompassed in existing testing (ID-1719).

OSHA explained its rationale in the preamble of the 2010 cranes rule for including similar language in previous § 1926.1427(b)(2). When OSHA was informed that there were not certification tests for a number of cranes, it decided to add “flexibility in the certification requirement to deal with specialized types of cranes or newly developed equipment for which certification examinations might not be available.” (75 FR 48018). To do this, OSHA applied C-DAC's proposed requirement for dedicated pile drivers—that operators be certified on the equipment most similar to the equipment they operated if there was no available certification test for the equipment they operated. OSHA has not adopted the recommendation of the labor union (ID-1719) because the agency does not believe it is in the best position to determine the various types of cranes for which certifications should be necessary. It would be unwise for OSHA to consider a major change to the standard before the NCCCO Crane Type Advisory Group concludes its work, which could include a consensus standard that identifies crane types that require a similar skillset and knowledge to operate.

OSHA requested comment on whether it should delete the requirement for operator recertification every five years, which was proposed as § 1926.1427(d)(4). OSHA mostly received comments in support of retaining the recertification requirement. One certification organization was not convinced that retraining and re-evaluation are sufficient substitutes for recertification. The commenter contrasted the retraining and re-evaluation requirements with recertification, asserting that:

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

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

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

(ID-1668). A consultant added that “[r]ecertifying by 3rd party is completely unbiased,” and focuses on new information that may not be conveyed during an evaluation (ID-1764). Another commenter expressed concern about relying on retraining in lieu of recertification, arguing that “a training program does not indicate skill mastery or competency as measured against a defensible set of standards set through an industry-wide process” (ID-1150).

Many commenters agreed that recertification was necessary to continue establishing a baseline knowledge of crane operation (ID-1150, 1719, 1744, 1755, 1768, 1816, 1828). For example, one commenter stated certification is an ongoing process and recertification is necessary for an operator to maintain the knowledge and skills necessary for safe crane operation because “unused skills atrophy and there are ever-evolving technological changes in newly-manufactured cranes and periodic regulatory changes” (ID-1719). To this point, a certification body submitted comments that at least 3,755 certified operators have failed their recertification exams, operators that “[i]f OSHA were to delete the requirement for operator recertification every five years . . . would be legally able to continue operating cranes—even though an independent, third-party assessment would have determined them to lack the baseline competence to do so” (ID-1755).

Additionally, many of the comments supportive of keeping the recertification requirement pointed out accreditation organizations ANSI and NCCA require recertification as part of an accredited certification program (ID-1150, 1668, 1719, 1744, 1755, 1794, 1816, 1828). An affiliate of one of these organizations commented that ISO 17024, a consensus standard “recognized by several federal agencies as a requirement for credentialing organizations that offer certification,” requires recertification (ID-1150). Another comment noted that many states and localities also require recertification of crane operators (ID-1719).

Some supporters of the recertification requirement recommended that OSHA also require a set number of hours an operator must spend gaining experience with the crane prior to recertifying. One of these commenters explained that each certification body requires an operator to document 1,000 hours of “crane-related experience” in the five years prior to recertification and, accordingly, recommended that OSHA require operators attempting to recertify to meet this standard (ID-1816). During its 2010 rulemaking, OSHA considered and rejected a nearly identical request for seat-hour-requirements (75 FR 48019).

The record amply demonstrates the sufficiency of the accreditation process that must be passed for a testing organization to become accredited. That process is designed to ensure that accredited testing organizations use a sufficiently reliable process for certifying operators. The record also shows that such a mechanism is an effective one for determining operator competence . . . . There is insufficient information in the record to include an additional requirement for 1,000 hours of “crane related experience . . . .” The commenter does not specify what should be included in “crane related experience,” or why 1,000 hours would be the appropriate amount of such experience for this purpose.” (75 FR 48019). The commenter has not presented any new evidence to persuade OSHA to change its position. If all accrediting bodies did require the certification bodies they accredit to include a minimum amount of time for “crane related experience,” then the commenter would not need to ask OSHA to mandate that requirement. Even after nearly a decade following OSHA's consideration of that point in the 2010 rulemaking, the prominent accrediting bodies that accredit the four major crane certification organizations have not imposed this approach. OSHA continues to rely on the accreditation process to determine whether, based on analytics and careful scientific study of the issue, recertification requires a prescribed number of hours gaining experience with the equipment. If the accrediting bodies determine it is necessary, then they will presumably require the certification organizations to

include it as part of their testing criteria. The agency believes there is insufficient evidence in the record to support such a new requirement, especially one that may be very onerous on crane operators who may not have the opportunity to gain 1,000 hours experience with the equipment.

Another commenter recommended language that would allow a minimum number of hours of crane experience to

substitute

for the practical recertification test, also citing the 1,000 hours of “industry experience” as a threshold accredited testing organizations accept in place of retaking the practical test (ID-1719). The commenter also cites state laws that require recertification, but those requirements vary vastly. For example, while California requires operators to recertify every five years and have 1,000 hours operating experience on the crane for which recertification is sought, Washington only requires that a certification be renewed to ensure operators maintain qualified operator status (ID-1719). Similarly, a different commenter opposed a recertification requirement because “if an operator has been operating safely for five years, there is no need to recertify” (ID-1615). The commenter continued, stating “most employers provide their operators with updates on new equipment and changes to government regulations” (ID-1615).

OSHA is not persuaded that merely gaining “industry experience” for a certain number of hours, without any true measure of the safety of operation during that period, or operating “safely” for five years, should replace a third-party validation of the operator's knowledge, skills, and abilities. Besides the vagaries of “crane experience” and “industry experience” already noted in response to the prior commenter, as well as the subjective nature of “operating safely,” OSHA notes the previously discussed comments from the certification organization about the importance of staying abreast of “ever-evolving technological changes in newly-manufactured cranes and periodic regulatory changes,” as well as the 3,755 certified operators who failed their recertification exams but would otherwise have been legally able to continue operating cranes (ID-1755). Even if “most” employers do actually provide their operators with updates on equipment and changes in regulations, it is not clear that the operators comprehend those changes, and it does not take into account the operators who are not fortunate enough to work for employers that provide these updates. The fact that an operator has logged 1,000 hours or five years in the cab of a crane, even without injury, does not mean that the operator is aware of technological and regulatory changes that have occurred during that period, that the operator has operated without near misses or other issues, or that the next hazard the operator faces will not result in injury.

Another commenter urged removal of the recertification requirement, stating that recertification is unnecessary because it is duplicative of the refresher training provided to crane operators at regular intervals in their industry (ID-1631). As OSHA explained in the 2010 rulemaking, “the rulemaking record shows that a training requirement alone is insufficient to ensure that crane operators have the requisite level of competence,” and cannot substitute for third-party validation of the operator's comprehension of that training (75 FR 48013).

OSHA agrees with the comments submitted in support of retaining the recertification requirement. As the agency has previously concluded, certification is a necessary component for safe crane operation. Recertification establishes a standardized, baseline knowledge of equipment operation for operators and indicates to an employer that a certified operator has at least a certain knowledge of how to operate a crane. Recertification helps to ensure that an operator does not lose this baseline knowledge over time. It also helps to ensure continuing education for certified operators so they are aware of any regulatory changes that impact their work. The agency believes there are some employers that would find it difficult to make sure their operators are up to date on changes to equipment and updates to regulations that affect their operation unless they had the ability to have their operators recertified. Therefore, OSHA is retaining the requirement for recertification as proposed.

Paragraph (e) Audited Employer Program

The substantive content of paragraph (e) is the same as previous § 1926.1427(c), and it is promulgated as proposed. It sets out the parameters for a nonportable certification program administered by the employer and audited by a third party. The changes to the regulatory text for the audited employer program are the removal of the word “qualification” and the replacement of three cross references with updated references to their new locations in the revised standard.

OSHA has removed reference to “qualification” from the heading of the paragraph. It has been removed to avoid the misconception by some that the term signaled full competency, rather than its intended meaning as an equivalent to certification. The employer-audited program will continue to be an alternative to certification by an independent third party.

Three cross references have also been changed. First, the reference in previous § 1926.1427(c)(1)(i) to “paragraph (b)” was revised to “paragraph (d)” in the updated rule. Second, the reference in previous § 1926.1427(c)(1)(ii)(A) to “paragraph (b)” was revised to “paragraph (d).” Finally, the reference in previous § 1926.1427(c)(4) to “paragraphs (c)(1) and (2)” was revised to “paragraphs (e)(1) and (2).” OSHA did not receive any comments to the proposed changes to this paragraph.

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OSHA received one comment asking the agency to make the audited employer program “more feasible,” by “expand[ing] its definition of `auditor' so that more accredited auditing organizations are available as resources to meet the requirements of this option,” even asking OSHA to designate staff to audit employer programs (ID-1647). The commenter asserted that OSHA's standard requires an audited employer program to use tests developed by an accredited crane operator testing organization and to obtain approval from an auditor certified by an accredited crane operator testing organization to evaluate these tests. The commenter stated that this creates “a conflict of interest for the crane operator testing organization to the detriment of the audited employer program option. As long as all auditing must go through one of these three organizations, there is little incentive for them to approve or audit an employer program since such auditing would remove certification candidates from their own programs” (ID-1647).

In the NPRM, OSHA explained that

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