# Cranes and Derricks in Construction > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-21993 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 9, 2008 - **Citation:** 73 FR 59714 ## Text DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1926 [Docket ID-OSHA-2007-0066] RIN 1218-AC01 Cranes and Derricks in Construction AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Proposed rule. SUMMARY: OSHA is proposing a rule to protect employees from the hazards associated with hoisting equipment when used to perform construction activities. Under this proposed rule, employers would first determine whether the ground is sufficient to support the anticipated weight of hoisting equipment and associated loads. The employer then would be required to assess hazards within the work zone that would affect the safe operation of hoisting equipment, such as those of power lines and objects or personnel that would be within the work zone or swing radius of the hoisting equipment. Finally, the employer would be required to ensure that the equipment is in safe operating condition via required inspections and employees in the work zone are trained to recognize hazards associated with the use of the equipment and any related duties that they are assigned to perform. DATES: Submit comments (including comments to the information-collection (paperwork) determination described under the section titled “Supplementary Information” of this document), hearing requests, and other information by December 8, 2008. All submissions must bear a postmark or provide other evidence of the submission date. (See the following section titled ADDRESSES for methods you can use in making submissions.) ADDRESSES: Comments and hearing requests may be submitted as follows: • Electronic. Comments may be submitted electronically to http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments. • Facsimile: OSHA allows facsimile transmission of comments and hearing requests that are 10 pages or fewer in length (including attachments). Send these documents to the OSHA Docket Office at (202) 693-1648; hard copies of these documents are not required. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), commenters may submit these attachments, in triplicate hard copy, to the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. These attachments must clearly identify the sender's name, date, subject, and Docket ID (i.e., OSHA-2007-0066) so that the Agency can attach them to the appropriate document. • Regular mail, express delivery, hand (courier) delivery, and messenger service: Submit three copies of comments and any additional material (e.g., studies, journal articles) to the OSHA Docket Office, Docket ID OSHA-2007-0066 or RIN No. 1218-AC01, Technical Data Center, Room N-2625, OSHA, Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Please contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t. • Instructions. All submissions must include the Agency name and the OSHA Docket ID (i.e., OSHA-2007-0066). Comments and other material, including any personal information, are placed in the public docket without revision, and will be available online at http://www.regulations.gov. Therefore, the Agency cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others) such as social security numbers, birth dates, and medical data. • Docket. To read or download comments or other material in the docket, go to http://www.regulations.gov or to the OSHA Docket Office at the address above. Documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through this Web site. All submissions, including copyrighted material, are available for inspection and copying 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. Contact Ms. Jennifer Ashley, Director, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1999 or fax (202) 693-1634. • Technical inquiries. Contact Mr. Garvin Branch, Directorate of Construction, Room N-3468, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2020 or fax (202) 693-1689. • Copies of this Federal Register notice. Available from the OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. • Electronic copies of this notice. Go to OSHA's Web site ( http://www.osha.gov ), and select “Federal Register,” “Date of Publication,” and then “2008.” • Additional information for submitting documents. See section V.I. (“Public Participation”) of this notice. SUPPLEMENTARY INFORMATION: I. General A. Table of Contents The following Table of Contents identifies the major preamble sections in this notice and the order in which they are presented: I. General A. Table of Contents B. Hearing II. Background A. History B. The Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC) C. Hazards Associated with Cranes and Derricks in Construction Work III. The SBREFA Process IV. Summary and Explanation of the Proposed Standard V. Procedural Determinations A. Legal Authority B. Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis C. OMB Review Under the Paperwork Reduction Act of 1995 D. Federalism E. State-Plan States F. Unfunded Mandates Reform Act G. Applicability of Existing Consensus Standards H. Review of the Proposed Standard by the Advisory Committee for Construction Safety and Health (ACCSH) I. Public Participation—Comments and Hearings B. Hearing Requests for a hearing should be submitted to the Agency as set forth above under DATES and ADDRESSES . II. Background A. History The Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. 651-678) (the OSH Act) authorizes the Secretary of Labor to adopt safety and health standards to reduce injuries and illnesses in American workplaces. Pursuant to that authority, the Secretary has adopted, among others, a set of safety and health standards applicable to the construction industry, 29 CFR Part 1926. Initially, standards for the construction industry were adopted under the Construction Safety Act, 40 U.S.C. 333. Under the Construction Safety Act, those standards were limited to employers engaged in federally-financed or federally-assisted construction projects. The Secretary subsequently adopted them as OSHA standards pursuant to Section 6(a) of the OSH Act, 29 U.S.C. 655(a), which authorized the Secretary to adopt established federal standards as OSH Act standards within the first two years the OSH Act was effective (36 FR 25232, Dec. 30, 1971). Subpart N of 29 CFR part 1926, entitled “Cranes, Derricks, Hoists, Elevators, and Conveyors,” was originally adopted through this process. The section of subpart N of 29 CFR part 1926 that applies to cranes and derricks is § 1926.550. That section relies heavily on national consensus standards that were in effect in 1971, in some cases incorporating the consensus standards by reference. For example, § 1926.550(b)(2) requires crawler, truck, and locomotive cranes to meet applicable requirements for design, inspection, construction, testing, maintenance, and operation prescribed in ANSI B30.5-1968, “Crawler, Locomotive and Truck Cranes.” Similarly, § 1926.550(e) requires derricks to meet applicable requirements for design, construction, installation, inspection, testing, maintenance, and operation prescribed in ANSI B30.6-1969, “Derricks.” Since 1971, § 1926.550 has been amended substantively only twice. In 1988, a new paragraph (g) was added to establish clearly the conditions under which employees on personnel platforms may be hoisted by cranes and derricks. 53 FR 29116 (Aug. 2, 1988). In 1993, a new paragraph § 1926.550(a)(19) was added to require that all employees be kept clear of lifted and suspended loads. There have been considerable technological changes since the 1971 OSHA standard was issued. For example, hydraulic cranes were rare at that time but are now prevalent. Although the OSHA standard remains largely unchanged, the construction industry has updated the consensus standards on which the OSHA standard is based. For example, the industry consensus standard for derricks was most recently updated in 2003, and that for crawler, locomotive and truck cranes in 2004. In recent years, a number of industry stakeholders asked the Agency to update Subpart N's cranes and derrick requirements. They were concerned that accidents involving cranes and derricks continued to be a significant cause of fatal and other serious injuries on construction sites and believed that an updated standard was needed to address the causes of these accidents and to reduce their numbers. They emphasized that the considerable changes in both work processes and technology have made much of Subpart N obsolete. In response to these requests, in 1998 OSHA's Advisory Committee for Construction Safety and Health (ACCSH) established a workgroup to develop recommended changes to the Subpart N requirements for cranes and derricks. The workgroup developed recommendations on some issues and submitted them to the full committee in a draft workgroup report. (OSHA-2007-0066-0020). In December 1999, ACCSH recommended to OSHA that the agency consider using a negotiated rulemaking process as the mechanism to update Subpart N (ACCSH 1999-4, Ex. 100x, p. 112). B. The Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC) In July 2002, OSHA announced its intent to use negotiated rulemaking under the Negotiated Rulemaking Act (NRA), 5 U.S.C. 561 et seq. , to revise the cranes and derricks standard. The Agency made this decision in light of the stakeholder interest in updating Subpart N, the constructive discussions and work of the ACCSH workgroup, ACCSH's recommendation, a positive assessment of the criteria listed in the NRA (5 U.S.C. 563(a)) for the use of negotiated rulemaking, and the Department of Labor's policy on negotiated rulemaking (See “Notice of Policy on Use of Negotiated Rulemaking Procedures by Agencies of the Department of Labor,” 57 FR 61925 (Dec. 29, 1992)). The Agency issued a notice of intent to use negotiated rulemaking for this project and establish the Cranes and Derricks Negotiated Rulemaking Advisory Committee (“C-DAC” or “the Committee”) (67 FR 46612, July 16, 2002). Negotiated rulemaking is a process by which a proposed rule is developed by a committee comprised of members who represent the interests that will be significantly affected by the rule. Section 562 of the NRA defines “interest” as follows: “[I]nterest” means, with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner. By bringing different viewpoints to the table and sharing views, the members of the negotiated rulemaking committee learn the reasons for different positions on the issues as well as the practical effect of various approaches. Each member of the committee participates in resolving the interests and concerns of other members. Negotiation allows interested parties, including members who represent the interests of employers who will be subject to the rule and the employees who stand to benefit from the safer workplaces the rule will produce, to become involved at an earlier stage of the rulemaking process. As a result, the rule that OSHA proposes will have already received close scrutiny by affected parties at the pre-proposal stage. The goal of the negotiated rulemaking process is to develop a proposed rule that represents a consensus of all the interests. The NRA defines consensus as unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee itself unanimously agrees to use a different definition of consensus. As discussed below, C-DAC agreed by unanimous vote to a different definition: a consensus was reached on an issue when not more than two non-federal members dissented on that issue. In the July 2002 notice of intent to establish a negotiated rulemaking committee referred to above, the Agency listed key issues that OSHA expected the negotiations to address and the interests that OSHA had tentatively identified as being significantly affected by the rulemaking. Those interests were: —Crane and derrick manufacturers, suppliers, and distributors. —Companies that repair and maintain cranes and derricks. —Crane and derrick leasing companies. —Owners of cranes and derricks. —Construction companies that use cranes and derricks. —General contractors. —Labor organizations representing construction employees who operate cranes and derricks. —Labor organizations representing construction employees who work in conjunction with cranes and derricks. —Owners of electric power distribution lines. —Civil, structural and architectural engineering firms and engineering consultants involved with the use of cranes and derricks in construction. —Training organizations. —Crane and derrick operator testing organizations. —Insurance and safety organizations, and public interest groups. —Trade associations. —Government entities involved with construction safety and with construction operations involving cranes and derricks. OSHA asked for public comment on whether interests other than those listed would be significantly affected by a new rule. It also solicited requests for membership on the committee. OSHA urged interested parties to communicate with others who shared similar interests and to begin organizing coalitions to support those interests in order to identify individuals for nomination to the committee. The Agency noted that the need to limit the committee's membership to a number that could conduct effective negotiations might mean that not all interests could be represented on the committee itself. However, OSHA further noted that interested persons had means other than committee membership available to participate in the committee's deliberations, including attending committee meetings and addressing the committee, providing written comments to the committee, and participating in committee workgroups. 67 FR at 46615. In response to its request for public input, the Agency received broad support for using negotiated rulemaking and 55 nominations for committee membership. To keep membership to a reasonable size, OSHA tentatively listed 20 potential committee members and asked for public comment on that proposed list. 68 FR 9036 (Feb. 27, 2003). In response to the comments, OSHA added three members to the committee—individuals from the mobile crane manufacturing industry, the Specialized Carriers & Rigging Association, and the outdoor advertising industry. 68 FR 39879 (July 3, 2003). The members of the Committee, the organizations and interests they represent, and a summary of their qualifications at the time the Committee was formed are in Table 1 as follows: Table 1—The Qualifications of C-DAC Panel Members Stephen Brown, International Union of Operating Engineers (labor). Title Director of Construction Training, International Union of Operating Engineers. Organizations/Interests represented Organized construction employees who operate cranes and derricks, and work with such equipment. Experience Worked in numerous positions in the construction industry over 28 years, including Equipment Operator, Mechanic, and Training Director. Michael Brunet, Manitowoc Cranes, Inc. (manufacturers and suppliers). Title Director of Product Support for Manitowoc Cranes. Organizations/Interests represented Crane manufacturers, suppliers, and distributors. Experience Extensive engineering experience in crane engineering; participated in development of SAE and ISO standards for cranes. Stephen P. Charman, Viacom Outdoor, Inc. (employer users). Title Vice President (New York) of Viacom Outdoor Group. Organizations/Interests represented Billboard construction. Experience Over 43 years' experience with the construction industry, including specialized rigging. Joseph Collins, Zachry Construction Corporation (employer users). Title Crane Fleet Manager. Organizations/Interests represented Highway/Railroad Construction. Experience Over 30 years' experience with the construction industry in a variety of positions including crane operator, mechanic, and rigger. Noah Connell, U.S. Department of Labor, Occupational Safety and Health Administration (government). Title Director, Office of Construction Standards and Guidance. Organization/Interests represented Government. Experience 22 years' experience with government programs. Peter Juhren, Morrow Equipment Company, L.L.C. (manufacturers and suppliers). Title National Service Manager. Organization/Interests represented Tower crane distributor/manufacturer. Experience 22 years' experience with Morrow Equipment Company, L.L.C. Bernie McGrew, Link-Belt Construction Equipment Corp. (manufacturers and suppliers). Title Manager for Crane Testing, Product Safety, Metal Labs and Technical Computing. Organization/Interests represented Mobile crane manufacturers. Experience Extensive engineering experience in crane engineering. Larry Means, Wire Rope Technical Board (manufacturers and suppliers). Title Rope Engineer. Organization/Interests represented Wire rope manufacturing industry. Experience 36 years' wire rope engineering experience. Frank Migliaccio, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (labor organization). Title Executive Director for Safety and Health. Organization/Interests Represented Organized construction employees who operate cranes and derricks, and work with such equipment. Experience 31 years' experience in the ironworking industry, including ten years as Director of Safety and Health Training for the Ironworker's National Fund. Brian Murphy, Sundt Corporation (employer users). Title Vice President and Safety Director. Organization/Interests Represented General contractors/crane owners/users. Experience Over 35 years' experience in the construction industry, most of them with Sundt. George R. “Chip” Pocock, C.P. Buckner Steel Erection (employer users). Title Safety and Risk Manager. Organization/Interests Represented Steel Erection crane user/employers. Experience Over 22 years' experience in the construction/steel erection industry. David Ritchie, St. Paul Companies (trainer and operator testing). Title Crane and Rigging Specialist. Organization/Interests Represented Employee Training/Evaluation. Experience Over 31 years' experience in the construction industry. Emmett Russell, International Union of Operating Engineers (labor). Title Director of Safety and Health. Organization/Interests Represented Organized construction employees who operate cranes and derricks, and work with such equipment. Experience Over 32 years' experience in the crane/construction industry, including ten years in the field as well as over 20 years with IUOE. Dale Shoemaker, Carpenters International Training Center (labor). Organization/Interests Represented Labor organizations representing construction employees who operate cranes and derricks and who work in conjunction with cranes and derricks. Experience Became a crane operator in 1973; served as a rigging trainer for labor organizations since 1986. William Smith, Maxim Crane Works (lessors/maintenance). Title Corporate Safety/Labor Relations Manager. Organization/Interests Represented Crane/Derrick repair and maintenance companies. Experience 24 years' experience in the crane, rigging, and construction industry, both public and private sectors. Craig Steele, Schuck & Sons Construction Company, Inc. (employer users). Title President and CEO. Organization/Interests Represented Employers/users engaged in residential construction. Experience 30 years' experience in the construction industry with Schuck & Sons Construction Company, Inc. Darlaine Taylor, Century Steel Erectors, Inc. (employer users). Title Vice President. Organization/Interests Represented Steel Erection/Leased Crane Users. Experience 19 years with Century Steel Erectors, over 12 years in the construction safety field. Wallace Vega III, Entergy Corp. (power line owners). Organization/Interests Represented Power line owners. Experience 35 years' experience in the power line industry. William J. “Doc” Weaver, National Electrical Contractors Association (employer users). Organization/Interests Represented Electrical contractors engaged in power line construction. Experience Over 53 years' electrical construction experience, 37 of which is spent in management positions. Robert Weiss, Cranes, Inc. and A.J. McNulty & Company, Inc. (employer users). Title Vice President and Project Manager for Safety (respectively). Organization/Interests Represented Employers/users engaged in precast concrete erection. Experience 20 years' experience in the precast and steel erection industry. Doug Williams, C.P. Buckner Steel Erection (employer users). Title President. Organization/Interests Represented Buckner Heavy Lift Cranes. Experience 32 years' experience in the construction industry. Stephen Wiltshire, Sports and Public Assembly Group, Turner Construction Corp. (employer users). Title National Safety Director. Organization/Interests Represented Employer/users of owned and leased cranes. Experience 28 years' experience in construction safety. Charles Yorio, Acordia (Wells Fargo) (insurance). Title Assistant Vice President. Organization/Interests Represented Insurance. Experience 17 years' experience in loss prevention and regulatory compliance. C-DAC was chaired by a facilitator, Susan L. Podziba of Susan Podziba & Associates, a firm engaged in public policy mediation and consensus building. Ms. Podziba's role was to facilitate the negotiations by: (1) Chairing the Committee's meetings in an impartial manner; (2) impartially assisting the members of the committee in conducting discussions and negotiations; and (3) supervising the taking of minutes and keeping of records and other relevant responsibilities, including the drafting of meeting summaries after each meeting to be reviewed and approved by C-DAC members. C-DAC first met from July 30 to August 1, 2003. Before addressing substantive issues, the Committee developed ground rules (formally approved on September 26, 2003) that would guide its deliberations. (OSHA-S030-2006-0663-0373). In addition to procedural matters, the ground rules addressed the nature and consequences of the Committee's decision-making. C-DAC agreed that it would make every effort to reach unanimous agreement on all issues. However, if the facilitator determined that unanimous consent could not be achieved, the Committee would consider consensus to be reached when not more than two non-federal members (i.e., members other than the OSHA member) dissented. Under this definition, if OSHA dissented, there would be no consensus. This definition of consensus reflects the non-federal members' view that Agency support of the Committee's work was essential. The non-federal members believed that, if OSHA dissented, there would be little likelihood that the Committee's work product would eventually be reflected in the final rule. These members wanted to ensure that concerns of the Agency that would prompt it to dissent were instead resolved in the negotiating process. Under this ground rule, if C-DAC reached a final consensus agreement on some or all issues, OSHA would use the consensus-based language on those issues for which agreement was reached as its proposed standard, and C-DAC members would refrain from providing formal written negative comment on those issues in response to the proposed rule. The ground rules provide that OSHA may only depart from this aspect of the agreement by either reopening the negotiated rulemaking process or providing to the C-DAC members a detailed statement of the reasons for altering the consensus-based language sufficiently far in advance of publication that the C-DAC members could express their concerns to OSHA. The Committee members could also provide negative or positive public comment in response to those changes. (OSHA-S030-2006-0663-0373). A tentative list of issues for the Committee to address was published along with the final list of Committee members (68 FR at 39879-90). At its initial meeting, the Committee reviewed and revised the issue list, adding several issues. (OSHA-S030-2006-0663-0372). The Committee met 11 times between July 30, 2003 and July 9, 2004. As the meetings progressed, the Committee reached consensus agreement on various issues and, at the final meeting, reached consensus agreement on all outstanding issues. The Committee's work product, which is the Committee's recommended regulatory text for the proposed rule, is referred to here as the C-DAC Consensus Document. (OSHA-S030-2006-0663-0639). On October 12, 2006, ACCSH adopted a resolution supporting the C-DAC Consensus Document and recommending that OSHA use it as the basis for a proposed standard. (ACCSH 2006-1, Ex. 101x, pp. 248-49). As noted earlier, OSHA's assent was needed for C-DAC to reach consensus agreement on an issue. Thus, the fact that the Committee reached consensus agreement on all issues means that this proposal reflects OSHA's agreement with the Consensus Document. In the discussion of the various sections of the proposal below, when the Committee's views or conclusions are stated, OSHA agrees with those views or conclusions unless otherwise noted. In reviewing the Consensus Document to draft this proposed rule, OSHA identified certain problems in the Consensus Document. These range from misnumbering and other typographical/technical errors to provisions that appear to be inconsistent with the Committee's intent or that are worded in a manner that requires clarification. This proposed rule deviates from the Consensus Document where changes were clearly needed to reflect the Committee's intent, or to correct typographical/technical errors. With respect to substantive changes, the Agency has identified and explained them in the portions of this preamble that address the affected provisions. There are instances where it appears to the Agency that other changes may be needed for several reasons: To conform to the Committee's intent; where the precise form of a change needed to conform to that intent is not clear; or where an aspect of a significant issue appears not to have been considered by C-DAC. In each such instance OSHA has retained the regulatory language used in the Consensus Document but asks for public comment on them. Numerous Committee members had vast and varied experience in cranes and derricks in construction, which gave them a wealth of knowledge in the causes of accidents and safety issues involving such equipment. In addition, other members had substantial knowledge and experience in other types of subject areas that also related to crane and derrick safety. This is reflected in the summary of their qualifications (see list above). The members used this knowledge to identify issues that required particular attention and to devise regulatory language that would address the causes of such accidents. Their extensive practical experience in the construction industry and the other industries represented on the Committee helped them to design improvements to the current Subpart N requirements that would be practical and workable. This preamble describes the proposed standard and the Committee's reasons for resolving the various issues in the manner it did. In examining the causes of crane accidents and devising ways to reduce them, the Committee concluded that incorrect operation was a factor in many accidents. Operating a crane is a complex job requiring skill and knowledge. To operate a crane safely requires a thorough knowledge of the equipment and controls and a complete understanding of the factors that can affect the safety of its operation. The Committee believed that it was essential to address the issue of operator qualification so that accidents resulting from incorrect operation would be reduced. C-DAC spent considerable time and effort determining how the proposed rule could best ensure that equipment operators are well qualified. C-DAC decided that it was necessary for crane operators to be certified or qualified through a formal process to ensure that they possessed the degree of knowledge necessary to operate their equipment safely. The Committee's reasoning and the details of the qualification/certification process are discussed below in connection with § 1926.1427, Operator Qualification and Certification. Another cause of numerous fatal and serious accidents that C-DAC addressed was equipment making electrical contact with power lines. Although Subpart N currently addresses this issue by requiring equipment to maintain a minimum distance from power lines that depends on the voltage of the line, the Committee identified reasons why the current standard was not preventing the many accidents that continue to occur. The Committee concluded that simply requiring a minimum clearance distance was not sufficient to eliminate the human error that led to most instances of power line contact and that additional requirements that would help employers identify potential power line hazards and systematic procedures to protect against those hazards were needed to prevent power line contact. See the discussion below under §§ 1926.1407-1411, which deal with the various aspects of power line safety. As noted above, OSHA's current standard on cranes and derricks, 29 CFR 1926.550, incorporates numerous national consensus standards by reference. The Committee reviewed the most recent versions of these consensus standards. For some issues, the Committee determined that a different approach was warranted (such as in the case of protections against power lines and operator qualification/certification). In many other instances the Committee determined that concepts in the consensus standards were appropriate but that different wording was needed to improve clarity and enforceability, or to be more readable within the structure of the proposed rule. Where the Committee incorporated consensus standards by reference, it agreed with the concepts, found the structure and wording appropriate, and determined that the incorporation of the provisions would not detract from its goal of producing a readable document. In addition, to avoid encumbering the text with too much length and technical detail that would hinder readability, C-DAC decided to incorporate by reference certain requirements from consensus standards where those requirements addressed highly technical topics, such as welding criteria. C-DAC also determined that some categories of equipment needed to be addressed differently than others. The proposed standard contains general requirements in §§ 1926.1402-1434 that are appropriate for most types of equipment and workplaces but which contain certain specific exclusions. Sections 1926.1435-1441 each address a specific type of equipment, such as § 1926.1435, Tower cranes. Those sections tailor the requirements of the proposed standard to accommodate the unique characteristics of that equipment. They state which of the general provisions in §§ 1926.1402-1434 apply to that type of equipment and which do not. They also include requirements specific to that type of equipment either (as specified) as a substitute for, or in addition to, the general provisions in §§ 1926.1402-1434. In this way, C-DAC ensured that each type of equipment would be subject to requirements appropriate for that equipment. In drafting some of the provisions in this proposal, the Committee recognized that OSHA would be requiring cranes and derricks to be equipped with operational aids that have not been mandatory in the past. For some types of these aids, the Committee believed it would be impractical to require that cranes and derricks be retrofitted with the devices. In determining whether to propose that such requirements be prospective only, the Committee considered the degree of importance of the device to safety, whether the devices are required under industry consensus standards and, if so, the date they were first required under such standards. Recognizing that manufacturers generally follow industry consensus standards, C-DAC drafted these provisions to require equipment manufactured after the date an operational aid was required by an industry consensus standard to be equipped with the device. In situations where no industry consensus standard required that cranes or derricks be equipped with a certain operational aid or fall protection device, the Committee decided to allow sufficient lead time for manufacturers to install the aids and devices. The Committee proposed to require some aids and devices on equipment manufactured one year after the effective date of this standard. In other cases, the Committee specified that the aids and devices would be required on equipment manufactured after January 1, 2008. It is now evident that the standard will not be finalized by that date and that keying requirements to that date will not afford employers the lead time intended by the Committee. To conform this proposed standard to the Committee's intent, and to ensure that industry has sufficient lead time to equip cranes and derricks with the required aids and devices, OSHA is substituting “more than one year after the effective date of this standard” for “January 1, 2008” wherever that date appears in the Committee's draft. C. Hazards Associated With Cranes and Derricks in Construction Work OSHA estimates that 89 crane-related fatalities occur per year in construction work. The causes of crane-related fatalities were recently analyzed by Beavers, et al. J.E. Beavers, J.R. Moore, R. Rinehart, and W.R. Schriver, “Crane-Related Fatalities in the Construction Industry,” 132 Journal of Construction Engineering and Management 901 (Sept. 2006) (OSHA-2007-0066-0012). The authors searched OSHA's Integrated Management Information System (IMIS) database for all fatal accidents for 1997-2003 investigated by OSHA involving cranes in the construction industry. By searching the database for cases using the key words “crane,” “derrick,” or “boom,” they identified 381 IMIS files for the covered years in the federal program states, which include states with about 57% of all workers throughout the country. The authors requested the case files from OSHA so that they could confirm that a crane or derrick was involved in the fatality. Of the 335 case files that OSHA provided, the authors identified 125 (involving 127 fatalities) as being crane or derrick related. From these files, they determined that the percentages of fatalities caused by various types of incident are in Table 2 as follows: Table 2—The Causes of Fatalities during the Performance of Hoisting Activities Percent Struck by load (other than failure of boom/cable) 32 Electrocution 27 Crushed during assembly/disassembly 21 Failure of boom/cable 12 Crane tip-over 11 Struck by cab/counterweight 3 Falls 2 A study by Suruda et al. examined the causes of crane-related deaths for the 1984-1994 period. A. Suruda, M. Egger, & D. Liu, “Crane-Related Deaths in the U.S. Construction Industry, 1984-94,” The Center to Protect Workers' Rights (Oct. 1997) (OSHA-2007-0066-0013). The authors examined OSHA IMIS data to identify the number of fatal accidents involving cranes and determine their causes. For the years in question, they found 479 accidents involving 502 fatalities. In the worst year, 1990, 70 deaths occurred. The authors noted some limitations in the data they examined: Data for California, Michigan, and Washington state were not available for 1984-1989; the proportion of fatal accidents that OSHA and the states that enforce their own state plans investigate is unknown; and some of the investigation reports were not sufficiently detailed to allow the cause of the accident or the type of crane involved to be determined. The Suruda study determined that the number and the percentage of fatalities from various causes are in Table 3 as follows: Table 3—The Causes of Crane Incidents Electrocution 198 (39%) Crane assembly/disassembly 58 (12%) Boom buckling/collapse 41 (8%) Crane upset/overturn 37 (7%) Rigging failure 36 (7%) Overloading 22 (4%) Struck by moving load 22 (4%) Accidents related to manlifts 21 (4%) Working within swing radius of counterweight 17 (3%) Two-blocking 11 (2%) Hoist limitations 7 (1%) Other causes 32 (6%) The proposed standard addresses the major causes of the equipment related fatalities identified in the Beavers and Suruda studies. The following is a brief synopsis of the sections in this proposed standard that address them; each proposed section is explained in detail later in this preamble. The electrocution hazard is addressed by proposed §§ 1926.1407-1411, which deal with various aspects of power line safety. These sections contain requirements designed to prevent equipment from contacting energized power lines. The proposed rule delineates systematic, reliable procedures and methods that must be used to prevent a safe clearance distance from being breached. If maintaining the safe clearance distance is infeasible, additional protections would be required, including grounding the equipment, covering the line with an insulating sleeve, and using insulating links and nonconductive tag lines. These procedures and methods are supplemented by requirements for training the operator and crew in power line safety and the requirement for operator qualification and certification in proposed § 1926.1427. C-DAC concluded that compliance with these training and certification requirements will not only reduce the frequency of power line contact but will give the workers the knowledge they need to help avoid injury in the event such contact does occur. Fatalities that involve employees being struck or crushed during assembly/disassembly are addressed in proposed §§ 1926.1403-1406. These sections require certain specific safe practice procedures to be followed and for the employer to address a list of specific hazards. Also, assembly/disassembly must be supervised by an individual who is well qualified to see that these requirements are properly implemented. As the studies show and the Committee's experience confirms, many disassembly accidents occur when sections of lattice booms unexpectedly move and strike or crush an employee who is disassembling the boom. The proposal addresses this scenario in proposed § 1926.1404(f) by prohibiting employees from being under the boom when pins are removed unless special precautions are taken to protect against boom movement. Accidents resulting from boom or cable failure are addressed in a number of provisions. For example, the proposed standard includes requirements for: Proper assembly procedures (proposed § 1926.1403); boom stops to prevent booms from being raised too far and toppling over backwards (proposed § 1926.1415, Safety devices ); a boom hoist limiting device to prevent excessive boom travel, and an anti-two-block device, which prevents overloading the boom from two-blocking (proposed § 1926.1416, Operational aids ). Also, the inspection requirements (proposed § 1926.1412) are designed so that a structural deficiency in a boom will be detected and addressed before an accident occurs. Cable failure will be avoided by compliance with proposed sections such as § 1926.1413, Wire rope—inspection, § 1926.1414, Wire rope—selection and installation criteria, and the provision in proposed § 1926.1416 requiring two-block protection. Crane tip-over is caused by factors such as overloading, improper use of outriggers and insufficient ground conditions. Proposed § 1926.1417, Operations, includes provisions designed to prevent overloading. That section prohibits the equipment from being operated in excess of its rated capacity and includes procedures for ensuring that the weight of the load is reliably determined and within the equipment's rated capacity. Proposed § 1926.1404(q) has requirements for outrigger use designed to ensure that outriggers are properly set when they are needed to provide stability when a load is lifted. Proposed § 1926.1402 has requirements designed to ensure sufficient ground conditions. The provisions on training and operator qualification and certification will also prevent this type of accident by ensuring that the operator is sufficiently knowledgeable and skilled to recognize situations when the crane may be overloaded and to either require that the situation be corrected or refuse to proceed in accordance with proposed § 1926.1418, Authority to stop operation . Fatalities that result from workers being struck by the cab or counterweights will be avoided by compliance with proposed § 1926.1424, Work area control . That section would require that employees who must work near equipment with a rotating superstructure be trained in the hazards involved, that employers mark or barricade the area within the area covered by the rotating superstructure, and that the operator be alerted whenever an employee must enter that area and not rotate the superstructure until the area is clear. Protection against being struck by a counterweight during assembly/disassembly is provided by proposed § 1926.1404(h)(9), which would require the assembly/disassembly supervisor to address this hazard and take steps when necessary to protect workers against that danger. The proposal addresses a number of types of equipment failure that can result in the load striking a worker. Such accidents are directly addressed by proposed § 1926.1425, Keeping clear of the load , and § 1926.1426, Free fall/controlled load lowering . In addition, improved requirements in proposed §§ 1926.1419-1422 for signaling will help avoid load struck-by accidents caused by miscommunication. Improper operation, including, for example, the failure to understand and compensate for the effects of factors such as dynamic loading, can also cause employees to be struck by a load. Such incidents will be reduced by compliance with proposed § 1926.1427, Operator qualification and certification and proposed § 1926.1430, Training . Other provisions, such as those for safety devices and operational aids (proposed § 1926.1415 and § 1926.1416), and the requirement for periodic inspections in proposed § 1926.1412, will also reduce the number of this type of accident. Protection against falling from equipment is addressed by proposed § 1926.1423, Fall protection . That section would require new equipment to provide safe access to the operator work station by the use of devices such as steps, handholds, and grabrails. Certain new lattice boom equipment would have to be equipped with boom walkways. There are also fall protection provisions tailored to assembly and disassembly work and to other work. Proposed § 1926.1431, Hoisting personnel , addresses fall protection when employees are being hoisted. OSHA has investigated numerous equipment accidents that have resulted in fatalities from the causes listed in the Beavers and Suruda studies. Below is a discussion of examples from OSHA's IMIS accident investigation reports from recent years that illustrate some of the types of accidents that occur when using the types of equipment covered by this proposed standard and the ways that this proposed standard would prevent such incidents. These examples illustrate the limitations of the current standard and highlight the need for a revised standard that will address the causes of the equipment accidents that continue to kill and injure construction workers. 1. February 16, 2004: 4 fatalities, 4 injuries. A launching gantry collapsed and fatally injured 4 workers and sent 4 other workers to the hospital. The launching gantry was being used to erect pre-cast concrete segments span by span. The manufacturer required that the rear legs and front legs be properly anchored to resist longitudinal and lateral forces that act on the launching gantry. The legs of the launching gantry were not properly anchored. (OSHA-2007-0066-0017). OSHA believes that this type of accident would be prevented by compliance with the provisions of this proposed standard for assembling equipment. Proposed § 1403 requires that equipment be assembled in compliance with manufacturer procedures or with alternative employer procedures (see proposed § 1406) designed, among other things, to prevent the equipment from collapsing. In addition, under proposed § 1404, assembly must be conducted under the supervision of a person who understands the hazards associated with an improperly assembled crane and is well-qualified to understand and comply with the proper assembly procedures. 2. January 30, 2006. 1 fatality. An employee was crushed by the lower end section of the lattice boom on a truck mounted crane while working from a position underneath the boom to remove the 2nd lower pin. When the 2nd lower pin was removed the unsecured/uncribbed boom fell on the employee. (OSHA-2007-0066-0017.1) Proposed § 1926.1404(f) would prevent this type of accident by generally prohibiting employees from being under the boom when pins are removed. In situations where site constraints require an employee to be under the boom when pins are removed, the employer must implement other procedures, such as ensuring that the boom sections are adequately supported, to prevent the sections from falling onto the employee. 3. July 23, 2001: 1 fatality. Employee failed to extend the outriggers before he extended the boom of a service truck crane to lift up some pipes. As he extended his boom, the crane tipped over on its side and an employee was struck on the head by the hook block as he stood near the rear of the truck. (OSHA-2007-0066-0017.10) This type of accident would be prevented by compliance with proposed § 1926.1404(q), which contains several provisions designed to ensure that outriggers are deployed properly before lifting a load. In addition, the operator qualification and certification requirement of proposed § 1926.1427, which is intended to ensure that operators understand and follow the safety requirements for the equipment they are operating, would help prevent this type of accident. 4. March 8, 1999. 1 fatality. Some employees were using a mobile crane to maneuver a load of steel joists. The crane contacted a 7,200-volt overhead power line, electrocuting an employee who was signaling and guiding the load. The crane operator jumped clear and was not injured. (OSHA-2007-0066-0017.11) Section 1926.1408 includes provisions that would prevent this type of accident. First, it would require the use of “encroachment prevention” measures designed to prevent the crane from breaching a safe clearance distance from the power line. Second, if tag lines are used to guide the load, they would have to be non-conductive. Third, if maintaining the normal clearance distance were infeasible, a number of additional measures would have to be used. One of those additional measures is the use of an insulating link between the end of the load line and the load. These measures would protect the employee guiding the load in several ways, including the following: First, they would reduce the chance that the crane would come into electrical contact with the power line. Second, if the employee were using a tag line to guide the load, it would have to be non-conductive, which would protect the employee if the load became energized. If the crane were intentionally operated closer than the normal clearance distance, and the employer complied with the additional protective measures required in that circumstance, an insulating link would be in place. In such a case, even if there was a failure of the encroachment prevention measures and electrical contact resulted, the insulating link would prevent the load from becoming energized and prevent the employee guiding the load from being electrocuted. 5. August 21, 2003. 3 fatalities. A crane operator and two co-workers were electrocuted when a truck crane's elevated boom contacted a 7,200 Volt uninsulated primary conductor 31 feet from the ground. When the operator stepped from the cab of the truck he created a conduction pathway to the ground through his right hand and right foot, causing him to be electrocuted. A co-worker attempted to revive the incapacitated crane operator with cardio-pulmonary resuscitation (“CPR”) while a third co-worker contacted 911 and returned to the incident location. When the third co-worker simultaneously touched the energized truck crane and the back of his co-worker performing CPR, the resulting pathway created a conduction pathway through the workers, electrocuting them all. (OSHA-2007-0066-0017.12). This type of accident would be avoided by compliance with the proposed rule. First, as explained in the previous electrocution accident examples, proposed § 1926.1408 is designed to ensure that a minimum safe distance from the power line is maintained, which would prevent the equipment from becoming energized. Also, when working closer than the normal minimum clearance distance, the crane would have to be grounded; that would reduce the chance of an electrical pathway through the employees in this type of scenario. In addition, proposed § 1926.1408(g) would require the operator to be trained to remain inside the cab unless there is imminent danger of fire or explosion. The operator must also be trained in the danger of simultaneously touching the equipment and the ground, as he did in this case, and in the safest means of evacuating the equipment. The crane's remaining crew must be trained to avoid approaching or touching the equipment. The required training would be reinforced by the electrocution warnings that must be posted in the cab and on the outside of the equipment. 6. September 28, 1999: 1 fatality. A 19-year old electrical instrument helper was at a construction site that was on a manufacturing company's property. That morning a contractor had positioned a 50-ton hydraulic crane in an open area that consisted of compacted fill material. This was the only location that the crane could be situated because the receiving area for the equipment was very close to the property border. The crane was moving large sections of piping to a new location when it overturned and struck the helper. The crane's outriggers were set but matting was placed only under the northwest outrigger pad. At the start of the construction project, the manufacturing company cleared the site and had fill material brought in. The site was originally swamp and large amounts of fill had been brought in. (OSHA-2007-0066-0017.13). Proposed § 1926.1402, Ground conditions , is designed to prevent this type of accident. Under that paragraph, care must be taken to ensure that the surface on which a crane is operating is sufficiently level and firm to support the crane in accordance with the manufacturer's specifications. A contributing factor to this accident may have been a lack of clarity regarding responsibility for adequate ground conditions due to the fact that the employer who operated the crane did not control the ground conditions on the property. Section 1926.1402 would impose specific duties on both the entity responsible for the project (the controlling entity) and the entity operating the crane to ensure that the crane is adequately supported. It places responsibility for ensuring that the ground conditions are adequate on the controlling entity while also making the employer operating the crane responsible for calling any deficiency to the controlling entity's attention and having it corrected before using the crane. 7. June 17, 2006: 1 fatality. A crane was being used on a barge to install a dock in a waterway. Employees were preparing to move the barge. A spud pipe, which anchored the barge, was being raised by the barge-mounted crane when the hoisting cable broke, dropping the headache ball and rigging onto one of the employees. (OSHA-2007-0066-0017.3). This type of accident can have various causes. An incorrectly selected wire rope (one that has insufficient capacity), use of a wire rope that is damaged or worn to the point where it needs to be replaced, or two-blocking, in which the headache ball is forced against the upper block, can each cause this type of failure. The provisions of proposed §§ 1926.1413 and 1414 on wire rope inspection, selection, and installation are designed to ensure that appropriate wire rope is installed, inspected and removed from service when its continued use would be unsafe. Section 1926.1416, Operational aids , contains provisions designed to protect against two-blocking. 8. July 13, 1999: 3 fatalities. Three employees were in a personnel basket 280 feet above the ground. They were in the process of guiding a large roof section, being lifted by another crane, into place. Winds gusting to 27 miles per hour overloaded the crane holding the roof section; that crane collapsed, striking the crane that was supporting the personnel basket, causing the boom to fall. All three employees received fatal crushing injuries. (OSHA-2007-0066-0017.4 & OSHA-2007-0066-0018). This type of accident would be prevented by compliance with proposed § 1926.1417(n), which requires the competent person in charge of the operation to consider the effect of wind and other adverse weather conditions on the equipment's stability and rated capacity. In addition, proposed § 1926.1431, Hoisting personnel , requires that when wind speed (sustained or gust) exceeds 20 mph, personnel are prohibited from being hoisted by a crane unless a qualified person determines it is safe to do so. 9. November 7, 2005: 1 fatality. A construction worker was crushed between the outrigger and the rotating superstructure of a truck crane. He apparently tried to retrieve a level and a set of blueprints which were laying on the horizontal member of one of the outriggers at the same time the operator began to swing the boom. (OSHA-2007-0066-0017.5). This type of accident would be avoided by compliance with proposed § 1926.1424, Work area control . That section generally requires that employers erect barriers to mark the area covered by the rotating superstructure to warn workers of that danger zone. In addition, employees who must work near equipment with a rotating superstructure must be trained in the hazards involved. If an employee must enter the marked area, the crane operator must be alerted and not rotate the superstructure until the area is clear. 10. March 19, 2005: 2 fatalities and 1 injury. During steel erection operations, a crane was lifting three steel beams to a parking garage under construction. The crane tipped over and the boom collapsed. The boom and attached beams struck concrete workers next to the structure. Two were killed and one injured. The accident apparently occurred as a result of overloading the crane. (OSHA-2007-0066-0017.6). Overloading a crane can cause it to tip over. When it does, the load or crane structure can strike and fatally injure workers who may be some distance from the crane. Proposed § 1926.1417, Operations , includes provisions designed to prevent overloading. That section prohibits the equipment from being operated in excess of its rated capacity and includes procedures for ensuring that the weight of the load is reliably determined and within the equipment's rated capacity. The provisions on operator training and certification/qualification will also help prevent this type of accident by ensuring that the operator is sufficiently knowledgeable and skilled in recognizing conditions that would overload the crane. 11. December 7, 2005. 1 fatality. Two cranes were being used to lower a concrete beam across the river. During the lowering process, the west side of the beam became lower than the east side. The consequent shifting of the load's weight to the west side crane caused that crane to tip over. The west end of the beam went into the river and the east end fell on the bank and a support mat, causing a flag person to be thrown into the beam. (OSHA-2007-0066-0017.7). This type of accident would be prevented by compliance with proposed § 1926.1432, Multiple crane/derrick lifts . That section specifies that when more than one crane will be supporting a load, the operation must be performed in accordance with a plan developed by a qualified person. The plan must be designed to ensure that the requirements of this proposed standard will be met and must be reviewed with all individuals who will be involved in the process. Moreover, the lift must be supervised by an individual who qualifies as both a competent person and a qualified person as defined in this standard. In the type of scenario involved in this accident, a plan that would comply with this requirement would, for example, include a determination of the degree of level that is needed to be maintained in order to prevent either crane from being overloaded. In addition, such a plan would include a system of communications and a means of monitoring the operation designed to ensure that the cranes' operation was properly coordinated. 12. May 7, 2004: 1 fatality. An employee, a rigger/operator-in-training, was in the upper cab of a 60-ton hydraulic boom truck crane to set up and position the crane boom prior to a lift. The crane was equipped with two hoists, a main line and auxiliary. The main hoist line had a multi-sheave block and hook and the auxiliary line had a 285 pound ball and hook. When the employee was extending the hydraulic boom, a two-block condition occurred with the auxiliary line ball striking the auxiliary sheave head, knocking the sheave and ball from the boom. The employee was struck in the head and killed by the falling ball. (OSHA-2007-0066-0017.8). This type of accident would be prevented by compliance with proposed § 1926.1416, Operational aids , which requires protection against two-blocking. A hydraulic boom crane, if manufactured after February 28, 1992, would have to be equipped with a device that automatically prevents two-blocking. Also, the operator-in-training in this case apparently did not understand that extending a hydraulic boom would move the sheave head toward the ball and could cause two-blocking. The proposed standard, through proposed § 1926.1427(a) and (f), would avoid having inexperienced operators make this type of mistake by prohibiting an operator-in-training from operating a crane without supervision and without first having had enough training to enable the operator to perform the assigned task safely. 13. April 26, 2006: One fatality. The deceased employee was part of a framing crew which was in the process of installing sheathing for a roof. A bundle of plywood sheathing was being hoisted by a crane to a location on the roof. As the crane was positioning the bundle of sheathing above its landing location, the load hoist on the crane free spooled, causing an uncontrolled descent of the load. The employee was under the load, preparing to position it to its landing spot, when the load fell and crushed him. (OSHA-2007-0066-0017.9). This type of accident would be prevented by compliance with § 1926.1426, Free fall and controlled load lowering , which prohibits free fall of the load line hoist and requires controlled load lowering when an employee is directly under the load. As discussed below in the Preliminary Economic Analysis , OSHA finds that construction workers suffer 89 fatal injuries per year from the types of equipment covered by this proposed standard. Of that number, OSHA estimates that 53 would be avoided by compliance with the proposed standard. In addition, OSHA estimates that the proposed standard would prevent 155 non-fatal injuries each year. Based on all of the available evidence and on the collective expertise of the members of C-DAC, OSHA preliminarily finds that construction workers are faced with a significant risk of death and injury resulting from equipment operations and that the risk would be substantially reduced by compliance with this proposed standard. During the SBREFA process, several Small Entity Representatives expressed concern that the C-DAC proposal was so long and complex that small businesses would have difficulty understanding it and complying with it. The SBREFA Panel recommended that OSHA solicit public comment on how the rule could be simplified and made easier to understand without creating ambiguities. OSHA welcomes public comment on this issue. III. The SBREFA Process Before proceeding with a proposed rule based on the C-DAC Consensus Document, OSHA was required to comply with the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. (SBREFA). This required OSHA to draft an initial regulatory flexibility analysis that would evaluate the potential impact of the rule on small entities (defined as small businesses, small governmental units, and small nonprofit organizations) and identify the type of small entities that might be affected by the rule. In accordance with SBREFA, OSHA then convened a Small Business Advocacy Review Panel (“Panel”) composed of representatives of OSHA, the Office of Management and Budget, and the Office of Advocacy of the Small Business Administration. Individuals who were representative of affected small entities (Small Entity Representatives, or “SERs”) were then identified for the purpose of obtaining advice and recommendations from those individuals about the potential impacts of the proposed rule. OSHA provided the SERs with the C-DAC consensus document and the draft regulatory flexibility analysis and afforded them the opportunity to submit written comments on those documents. The Agency also drafted questions asking them their views on the specific aspects of the C-DAC document it thought would be of most concern to small entities. The Panel conducted two conference calls with the SERs in which the SERs presented their views on various issues. After reviewing the SERs' oral and written comments, on October 17, 2006, the Panel submitted its report summarizing the requirements of the C-DAC proposal, the comments received from the SERs, and presenting its findings and recommendations. (OSHA-S030A-2006-0664-0019). In its findings and recommendations, the Panel identified issues that it believed needed particular attention and analysis in the proposal or for which it believed OSHA should explicitly solicit public comment. In the discussion that follows, OSHA addresses each of the Panel's findings and recommendations in the section pertaining to the issue involved. Table 4 summarizes the Panel's recommendations and the portions of this preamble in which they are discussed. Table 4—SBREFA Panel Recommendations and OSHA Responses SBREFA panel recommendation OSHA response The Panel recommends that OSHA provide full documentation for how it estimated the number of affected small entities and all other calculations and estimates provided in the PIRFA See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA reexamine its estimate of crane use in home building, the coverage of crane trucks used for loading and unloading, and the estimates of the number of jobs per crane. Changes in these estimates should be incorporated into the estimates of costs and economic impacts See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA review its estimates for the direct costs of operator certification and seek comment on these cost estimates See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA carefully examine certain types of impact that could result from an operator certification requirement, including reports of substantial increases in the wages of operators; the possibility of increased market power for firms renting out cranes; and loss of jobs for existing operators due to language, literacy, or knowledge problems; and seek comment on these types of impacts See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA consider studying the impacts of the implementation of operator certification in California See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA reexamine its estimates for the amount of time required to assess ground conditions, the number of persons involved in the assessment, and the amount of coordination involved; clarify the extent to which such assessments are currently being conducted and what OSHA estimates as new costs for this rule represent; and seek comments on OSHA's cost estimates See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA carefully review the documentation requirements of the standard, including documentation that employers may consider it prudent to maintain; estimate the costs of such requirements; seek ways of minimizing these costs consistent with the goals of the OSH Act; and solicit comment on these costs and ways of minimizing these costs The Agency describes the documentation requirements, along with cost estimates, in the section of this Preamble entitled “OMB Review Under the Paperwork Reduction Act of 1995.” The Panel recommends that OSHA examine whether the inspection requirements of the proposed rule require procedures not normally conducted currently, such as lowering and fully extending the boom before the crane can be used and removing non-hinged inspection plates during the shift inspection, estimate the costs of any such requirements, and seek comment on these issues As explained in the discussion of § 1926.1412, Inspections , OSHA's current standard at 29 CFR 1926.550 requires inspections each time the equipment is used as well as thorough annual inspections. In addition, national consensus standards that are incorporated by reference include additional inspection requirements. This proposal would list the inspection requirements in one place rather than rely on incorporated consensus standards. OSHA does not believe this proposed standard imposes significant new requirements for inspections. Section 1926.1413(a) explicitly says that booming down is not required for shift (and therefore monthly) inspections. Similarly, OSHA does not believe that inspection of any of those items would require removal of non-hinged inspection plates. In the discussion of proposed § 1926.1412, OSHA requests public comment on these points. The Panel recommends that OSHA consider the costs of meeting the requirements for original load charts and full manuals, and solicit comments on such costs Currently, Subpart N, at 29 CFR 1926.550(a)(2), requires load charts, so that is not a new cost. Subpart N does not require manuals. OSHA believes that most crane owners and operators have and maintain crane manuals, which contain the load charts and other critical technical information about crane operations and maintenance. The Agency believes that the cost of obtaining a copy of a manual should be modest and solicits comment on how many owners or operators do not have full manuals for their cranes or derricks. The Panel recommends that OSHA provide full documentation for its analysis of the benefits the proposed rule is expected to produce and assure that the benefits analysis is reproducible by others See the Preliminary Economic Analysis (PEA), in section V.B. of this Federal Register notice. The Panel recommends that OSHA consider and solicit public comment on whether the scope language should be clarified to explicitly state whether forklifts that are modified to perform tasks similar to equipment (cranes and derricks) modified in that manner would be covered OSHA addresses this recommendation in the discussion of proposed § 1926.1400(c)(8) and solicits public comment on the issue. The Panel recommends that there be a full explanation in the preamble of how responsibility for ensuring adequate ground conditions is shared between the controlling entity, and the employer of the individual supervising assembly/disassembly and/or the operator OSHA explains in the discussion of proposed § 1926.1402(e) how the various employers, including the controlling entity, the employer whose employees operate the equipment, and the employer of the A/D supervisor share responsibility for ensuring adequate ground conditions. The Panel recommends that OSHA restate the applicable corrective action provisions (which are set forth in the shift inspection) in the monthly inspection section OSHA addresses this recommendation in the discussion of proposed § 1926.1412(e) and solicits public comment on the issue. The Panel recommends that OSHA solicit public comment on whether, and under what circumstances, booming down should be specifically excluded as a part of the shift inspection, and whether the removal of non-hinged inspection plates should be required during the shift inspection OSHA addresses this recommendation in the discussion of proposed § 1926.1412(d) and solicits public comment on the issues raised in the recommendation. The Panel recommends that OSHA solicit public comment on whether to include an exception for transportation systems in proposed § 1926.1412(a), which requires an inspection of equipment that has had modifications or additions that affect its safe operation, and, if so, what the appropriate terminology for such an exception would be OSHA addresses this recommendation in the discussion of proposed § 1926.1412(a) and solicits public comment on the issues raised in the recommendation. The Panel recommends that OSHA explain in the preamble that the shift inspection does not need to be completed prior to each shift but may be completed during the shift In the explanation of § 1926.1412(d)(1) of the proposed rule, OSHA explains that the shift inspection may be completed during the shift. The Panel recommends that OSHA solicit public comment about whether it is necessary to clarify the requirement of proposed § 1926.1412(d)(1)(xi) that the equipment be inspected for “level position” OSHA addresses this recommendation in the discussion of proposed § 1926.1412(d)(1)(xi) and requests public comment on the issues raised in the recommendation. The Panel recommends that OSHA solicit comment on whether § 1926.1412(f)(2)(xii)(D) should be changed to require that pressure be inspected “at the end of the line,” as distinguished from “at each and every line,” and if so, what the best terminology would be to meet this purpose. (An SER indicated that proposed paragraph (f)(2)(xiv)(D) of § 1926.1412 should be modified to “checking pressure setting,” in part to avoid having to check the pressure at “each and every line” as opposed to “at the end of the line.”) There is no proposed requirement to check the pressure “at each and every line.” The provision simply states that relief valves should be checked for failure to reach correct pressure. If this can be done at one point for the entire system, then that would satisfy the requirement. The Panel recommends that OSHA solicit public comment on whether proposed paragraph (f)(2)(xx) of § 1926.1412 should be deleted because an SER believes that it is not always appropriate to retain originally equipped steps and ladders, such as in instances where they are replaced with “attaching dollies.” Proposed § 1926.1412(f)(2)(xx) does not require the corrective action to which the SER refers. If an inspection under proposed § 1926.1412(f) reveals a deficiency, a qualified person must determine whether that deficiency is a safety hazard requiring immediate correction. If the inspection reveals that original equipment, such as stairs and ladders, have been replaced with something equally safe, there would be no safety hazard and no requirement for corrective action. The Panel recommends that OSHA solicit public comment on the extent of documentation of monthly and annual/comprehensive inspections the rule should require OSHA addresses this recommendation in the discussion of proposed § 1926.1412(f) and requests public comment on the issue. The Panel recommends that OSHA solicit public comment on whether the provision for monthly inspections should, like the provision for annual inspections, specify who must keep the documentation associated with monthly inspections OSHA addresses this recommendation in the discussion of proposed § 1926.1412(e) and requests public comment on the issue. The Panel recommends that OSHA consider ways to account for the possibility that there may sometimes be an extended delay in obtaining the part number for an operational aid for older equipment and solicit public comment on the extent to which this is a problem OSHA addresses this recommendation in the discussion of proposed § 1926.1416(d) and solicits public comment on the issue. The Panel recommends that the provision on fall protection (proposed § 1926.1423) be proposed as written and that OSHA explain in the preamble how and why the Committee arrived at this provision In the discussion of proposed § 1926.1423, OSHA explains the Committee's rationale underlying the proposed section. The Panel recommends that OSHA consider the potential advantages of and solicit public comment on adding provisions to proposed § 1926.1427 that would allow an operator to be certified on a particular model of crane; allow tests to be administered by an accredited educational institution; and allow employers to use manuals that have been re-written to accommodate the literacy level and English proficiency of operators OSHA addresses these recommendations in the discussion of proposed § 1926.1427 and requests public comment on the issues raised by the Panel. The Panel recommends that OSHA clarify in the preamble how the proposed rule addresses an SER's concern that his crane operator would not be able to pass a written qualification/certification exam because the operator has difficulty in taking written exams The issue is discussed in the explanation of the proposed rule for § 1926.1427(h). The Panel recommends soliciting public comment on whether the phrase “equipment capacity and type” in proposed § 1926.1427(b)(1)(ii)(B) needs clarification, suggestions on how to accomplish this, and whether the categories represented in Figures 1 through 10 contained in ASME B30.5-2000 (i.e., commercial truck-mounted crane—telescoping boom; commercial truck-mounted crane—non-telescoping boom; crawler crane; crawler crane—telescoping boom; locomotive crane; wheel mounted crane (multiple control station); wheel mounted crane—telescoping boom (multiple control station); wheel mounted crane (single control station); wheel mounted crane—telescoping boom (single control station)) should be used OSHA addresses this recommendation in the discussion of proposed § 1926.1427(b)(1)(ii)(B) and requests public comment on the issue. The Panel recommends that OSHA ask for public comment on whether the rule needs to state more clearly that proposed § 1926.1427(j)(1)(i) requires more limited training for operators of smaller capacity equipment used in less complex operations as compared with operators of higher capacity, more complex equipment used in more complex situations OSHA addresses this recommendation in the discussion of proposed § 1926.1430(c) and requests public comment on the issue. The Panel recommends that OSHA consider and ask for public comment on whether a more limited training program would be appropriate for operations based on the capacity and type of equipment and nature of operations OSHA addresses this recommendation in the discussion of proposed § 1926.1430(c) and requests public comment on the issue. The Panel recommends that OSHA consider and ask for public comment as to whether the supervisor responsible for oversight for an operator in the pre-qualification period (§ 1926.1427(f)) should have additional training beyond that required in the C-DAC document at proposed § 1926.1427(f)(2)(iii)(B) OSHA addresses this recommendation in the discussion of proposed § 1926.1430(c) and requests public comment on the issue. The Panel recommends OSHA solicit comment on whether there are qualified persons in the field with the necessary expertise to assess how the rated capacity for land cranes and derricks used on barges and other flotation devices needs to be modified as required by proposed § 1926.1437(n)(2) OSHA addresses these recommendations in the discussion of proposed § 1926.1437(n)(2) and requests public comment on the issues. The Panel also recommends that OSHA solicit comment on whether it is necessary, from a safety standpoint, to apply this provision to cranes used only for duty cycle work, and if so, why that is the case, and how “duty cycle work” should be defined The Panel recommends that OSHA consider and ask for comment on whether it would be appropriate to exempt from the rule small side boom cranes incapable of lifting above the height of a truck bed and with a capacity of not more than 6,000 pounds OSHA addresses this recommendation in the discussion of proposed paragraph § 1926.1440(a) and requests public comment on the issue. The Panel recommends that OSHA solicit public comment on how the proposed rule could be simplified (without creating ambiguities) and made easier to understand. (Several SERs believed that the C-DAC document was so long and complex that small businesses would have difficulty understanding it and complying with it.) The length and comprehensiveness of the standard is an issue for this rulemaking. OSHA requests comment on how and whether the proposal can be shortened or simplified—made easier to understand—and the effect of that on addressing construction hazards. The Panel recommends that OSHA consider outlining the inspection requirements in spreadsheet form in an Appendix or developing some other means to help employers understand what inspections are needed and when they must be done OSHA will consider developing such an aid as a separate guidance document. The Panel recommends that OSHA consider whether use of the words “determine” and “demonstrate” would mandate that the employer keep records of such determinations and if records would be required to make such demonstrations Some SERs requested clarification as to when documentation was required, believing that the document implicitly requires documentation when it states that the employer must “determine” or “demonstrate” certain things. OSHA notes that it cannot cite an employer for failing to have documentation not explicitly called for in a standard. See also the discussion under proposed § 1926.1402(e). The Panel recommends soliciting public comment on whether the word “days” as used in §§ 1926.1416(d) and 1926.1416(e) should be clarified to mean calendar days or business days OSHA addresses this recommendation in the discussion of proposed § 1926.1416(d) and requests public comment on the issue. The Panel recommends that OSHA carefully discuss what is included and excluded from the scope of this standard OSHA discusses in detail the types of machinery that are included under this proposed standard and those that are excluded in the explanation of § 1926.1400. The Panel recommends that OSHA gather data and analyze the effects of already existing certification requirements OSHA has obtained and evaluated a study by the Construction Safety Association of Ontario showing that Ontario's certification requirement has led to a substantial decrease in crane-related fatalities there. The Panel recommends that OSHA consider excluding and soliciting comment on whether equipment used solely to deliver materials to a construction site by placing/stacking the materials on the ground should be explicitly excluded from the proposed standard's scope OSHA addresses this recommendation in the discussion of proposed § 1926.1400(c) and requests public comment on the issue. The Panel recommends that OSHA should consider the information and range of opinions that were presented by the SERs on the issue of operator qualification/certification when analyzing the public comments on this issue The information and opinions submitted by the SERs are part of the record for this rulemaking, and OSHA will consider them along with the other public comments on the proposed rule. The Panel recommends that OSHA consider and solicit public comment on expanding the levels of certification so as to allow an operator to be certified on a specific brand's model of crane OSHA addresses this recommendation in the discussion of proposed § 1926.1427(j)(1) and requests public comment on the issue. The Panel recommends that OSHA consider and solicit public comment on expanding the levels of operator qualification/certification to allow an operator to be certified for a specific, limited type of circumstance. Such a circumstance would be defined by a set of parameters that, taken together, would describe an operation characterized by simplicity and relatively low risk. The Agency should consider and solicit comment on whether such parameters could be identified in a way that would result in a clear, easily understood provision that could be effectively enforced OSHA addresses this recommendation in the discussion of proposed § 1926.1427(j)(1) and requests public comment on the issue. The Panel recommends that OSHA consider and solicit public comment on allowing the written and practical tests described in Option (1) of § 1926.1427(b) to be administered by an accredited educational institution OSHA addresses this recommendation in the discussion of § 1926.1427(b)(3) and requests public comment on the issue. The Panel recommends that OSHA solicit public comment on making it clear that: (1) an employer is permitted to equip its cranes with manuals re-written in a way that would allow an operator with a low literacy level to understand the material (such as substituting some text with pictures and illustrations), and (2) making it clear that, when the cranes are equipped with such re-written manuals and materials, the “manuals” and “materials” referred to in these literacy provisions would be the re-written manuals OSHA addresses this recommendation in the discussion of proposed § 1926.1427(h)(1) and requests public comment on the issues. The Panel recommends that OSHA explain in a Small Business Compliance Guide that the certification/qualification test does not need to be administered in English but can be administered in a language that the candidate can read; and that while the employee would also need to have a sufficient level of literacy to read and understand the relevant information in the equipment manual, that requirement would be satisfied if the material is written in a language that the employee can read and understand OSHA will issue a Small Business Compliance Guide after a final rule is issued and will explain these points in the Guide. IV. Summary and Explanation of the Proposed Standard The following discussion summarizes and explains each provision in the proposal and the substantive differences between the proposal and OSHA's current standard for cranes and derricks at 29 CFR 1926.550, which is located in Subpart N of OSHA's standards for construction work. In the discussion, OSHA explains corrections and clarifications it has made to the language in the C-DAC Document. The Agency also identifies other areas in the C-DAC Document it believes could benefit from modifications to the C-DAC language and asks for public comment on the need for such changes and, in some instances, the appropriateness of particular clarifying language. Section 1400 Scope Paragraphs (a) through (d) of proposed § 1926.1400 set forth the scope of the proposed rule. Proposed paragraphs (a) through (c) describe, respectively, what equipment is included, the application of the standard to equipment used with attachments, and specific exclusions. Combining a Functional Description With a List of Covered Equipment Proposed paragraph (a) provides a functional definition of the covered equipment as well as a non-exclusive list of what is covered. C-DAC considered choosing between these approaches, but ultimately decided to use a combination of the two. The Committee also agreed that equipment listed in this proposed paragraph should be defined; these definitions, among others, are set forth in § 1926.1401, Definitions . It should be noted that the scope of some of the listed equipment is further delineated in the section of the standard that specifically relates to that equipment (for example, § 1926.1436, Derricks and § 1926.1438, Overhead & Gantry Cranes ). OSHA believes that this format strikes an appropriate balance between clarity and avoiding unintended limitations that might eliminate new and/or other existing technology that is similar to the listed examples. The decision to propose a functional definition with a non-exclusive list of covered equipment followed considerable discussion. The Committee settled on a definition that focuses on the equipment's elemental functions—hoisting, lowering, and horizontally moving a suspended load. The goal of this definition is to cover both existing and new technologies that share those same functions. Committee members rejected using just a list of equipment because: (1) Even the most comprehensive list might inadvertently omit existing technologies, and (2) they wanted to provide leeway in the scope for applying the new standard to future technologies. On the other hand, C-DAC decided against a functional definition alone because that might include equipment that the standard was not designed to address (for example, equipment that poses a different set of hazards than those addressed by the standard). The list provides a context in which to apply the functional definition. The Agency believes that this hybrid approach addresses C-DAC's concerns. Dedicated Pile Drivers The Committee quickly agreed to include most of the items on the non-exclusive list. However, several items were included only after considerable debate. For example, C-DAC's decision to include dedicated pile drivers followed much discussion, including a panel presentation. The panel was comprised of a manufacturer, represented by Ahti Knopp and Pentti Heinonen, President, of Junttan, as well as a user, represented by Pat Karinen and Dan Kuhs, of Pile Drivers Local Union 34 and 56. The focus of the discussion was whether to include machinery that fell outside what the industry traditionally considered to be a crane or derrick covered by existing Subpart N. Although the manufacturer's representatives stated that they did not consider their equipment to be cranes, they ultimately supported the inclusion of dedicated pile drivers in the proposed standard for several reasons. Specifically, they emphasized certain mechanical similarities and the need for timely regulation. However, they requested that the standard be adjusted to address the equipment's unique characteristics. The users on the panel, citing the similarities in functional capabilities and hazards between dedicated pile drivers and cranes, also supported their inclusion. They were particularly concerned about the need to establish required inspections for dedicated pile drivers in view of the stress placed on this type of equipment. The Committee acknowledged the dilemma it faced in establishing the parameters of the proposed standard—including machines not typically described as cranes versus omitting machines similar in hazards and construction—but ultimately decided to include dedicated pile drivers. Prior to that decision, however, several members voiced concerns. For example, some members were worried that including these machines might encourage their “use as cranes,” that is, primarily for hoisting objects. The manufacturer representatives pointed out that while these machines are designed to hoist within a very limited range and capacity, it is inappropriate to use them for hoisting beyond those restricted limits. Others were concerned that some requirements in the proposed standard might be a “bad fit” for these machines. In response to such concerns, the Committee included dedicated pile drivers but tailored the requirements of the standard to take into account the specific characteristics of such equipment. As a result, proposed § 1439, Dedicated pile drivers , provides that most provisions of the standard apply to dedicated pile drivers but excludes some that the Committee believed were inappropriate for such equipment. OSHA believes that this approach is appropriate to propose because it provides a workable approach that addresses the unique aspects of the equipment. Multi-purpose Machines The concept of “multi-purpose machines” was discussed in depth. This term, as used in the proposed standard, refers to a relatively new type of equipment that is designed to be configured in a variety of ways to perform a variety of different types of functions. For example, during the discussion, C-DAC members noted that this type of machinery in one configuration works as an aerial forklift, and in another configuration works as a crane. The Agency believes that the Committee developed an appropriate approach to coverage of this equipment. Specifically, the Committee defined this category of equipment in § 1926.1401, Definitions , to cover only machinery “designed to be configured in various ways” and has included it within the proposed scope of the standard only when configured “to hoist (by means of a winch or hook) and horizontally move a suspended load.” In short, a multi-purpose machine would only be covered by the proposed standard when configured as a crane. For example, a machine might be configured variously as a rough-terrain type forklift, work platform, or as a crane. Such a machine would only be covered by the proposed standard when configured as a crane. Conversely, a traditional rough-terrain forklift is originally designed solely as a forklift. Even if an employer suspends a load from its fork, it would still be configured (and can only be configured) as a rough terrain forklift. Such forklifts are not multi-purpose machines and would specifically be excluded from the standard's coverage by proposed § 1926.1400(c)(8). For the same reason, aerial lifts that may have an incidental capacity to hoist (by means of suspending loads from the boom) are not multi-purpose machines. Even aerial lifts that are equipped with a low capacity hoisting device (usually located at basket level) are not “designed to be configured in various ways” and, as such, would not fall within the definition of a multi-purpose machine. Such aerial lifts are designed to be configured in only one way, that is, as an aerial lift. In fact, the provision that specifically excludes aerial lifts, proposed § 1926.1400(c)(5), emphasizes that point in its description of aerial lifts by saying “[e]quipment originally designed as vehicle-mounted aerial devices (for lifting personnel) * * *.” The Agency agrees with the Committee that it is appropriate to propose covering multi-purpose equipment in this proposed standard (when configured as a crane) to protect employees from the types of hazards that are associated with the other equipment included in the Scope. Other Listed Equipment Some members were concerned that proposing to include industrial cranes on the list would result in such cranes being covered by this proposed standard even when used in a factory/general industry setting. That is not the case—this proposed standard applies only to employers engaged in construction, and therefore would apply to such equipment only when used in construction. The Committee decided to cover side-boom cranes, which are included in the current Subpart N. 1 Committee members noted that side-boom cranes (defined in proposed § 1926.1401, Definitions ) share characteristics with cranes. One member also stated that the American Pipeline Association supports their inclusion. 1 29 CFR 1926.550(a)(18) of Subpart N requires sideboom cranes mounted on wheel or crawler tractors to meet the requirements of SAE J743a-1964. Additional machinery that is proposed to be covered that is either not currently covered or not specifically addressed by Subpart N include cranes on a monorail, luffing tower cranes, straddle cranes, pedestal cranes and shearleg derricks (see § 1926.1436, Derricks ). Each of these meets the functional definition in the proposed standard and presents the same types of hazards. Attachments Proposed § 1926.1400(b) would establish that equipment otherwise covered by proposed § 1926.1400(a) would remain within the scope of the proposed standard when used with attachments that are either “crane-attached or suspended.” As defined in § 1926.1401, an “attachment” is “any device that expands the range of tasks that can be done by the equipment. Examples include, but are not limited to: an auger, drill, magnet, pile-driver, and boom-attached personnel platform.” This definition reflects an inclusive approach with respect to the use of attachments. The Committee recognized that equipment using these attachments retain their fundamental nature as cranes, including most of the hazards typically associated with crane use. For example, hazards associated with ground conditions, assembly/disassembly and operation near power lines, as well as the importance of proper signaling, work area control, and operator knowledge and skill, remain the same while an attachment is in use. Consequently, the proposed standard as a whole is well suited to the use of this equipment with attachments. The ACCSH December 2002 work group document provided C-DAC with an initial list of possible attachments (hooks, magnets, grapples, clamshell buckets, orange peel buckets) to be covered by the new rule. (OSHA-2007-0066-0020). Committee members suggested the remaining examples. Whether the proposed rule should apply to a personnel platform that is pinned to the boom was the subject of considerable discussion. Such a personnel platform was the subject of a presentation to C-DAC by Dan Wolff of the National Crane Corporation. Currently, Subpart N explicitly addresses suspended personnel platforms but does not specifically mention boom-attached personnel platforms. The Committee confirmed in its discussions that installing a boom-attached personnel platform does not change the nature of the equipment to the type of aerial lift that is excluded by this proposed standard (see proposed § 1926.1400(c)(5)). The Committee was concerned that a failure to specifically address this type of platform could result in confusion as to whether its use would be governed by this standard or by the aerial lift standard. C-DAC concluded that it was appropriate to explicitly include boom-attached personnel platforms in this standard. Committee members expressed some concern as to whether the use of such an attachment involves additional hazards not addressed in this proposed standard. The Agency is asking for public comment on whether there are additional requirements that should apply when using a personnel platform that is attached directly to the boom. Exclusions Proposed paragraph (c) lists machinery that is specifically excluded from the scope of the proposed rule. The Committee referenced a list in the ACCSH December 2002 work group document as a starting point for discussion (OSHA-2007-0066-0020). As a result of that discussion, modifications to that list were made. As discussed below, the Agency believes that the list in the proposed standard, in combination with proposed paragraphs (a) and (b), sets appropriate limits to the proposed standard's scope. Proposed paragraph (c)(1) states that machinery otherwise included under proposed § 1926.1400(a) but “converted or adapted for non-hoisting use” is excluded. Power shovels, excavators and concrete pumps are listed as nonexclusive examples of such “conversions/adaptations” or modified machinery. The view of the Committee was that, in most cases, once machinery that would otherwise be included under proposed § 1926.1400(a) is converted or adapted for non-hoisting use, the configuration and nature of operation of the machinery is generally changed to the point where many of the proposed provisions would not be directly relevant to the hazards presented. In contrast, as discussed above, C-DAC believed that equipment used with “crane-attached or suspended” attachments typically retain many of their original characteristics and the proposed provisions remain relevant. The Agency recognizes that there may be some instances where covered equipment used with an attachment is similar in purpose to machinery converted or adapted for non-hoisting use. For example, a crane with a drilling attachment will serve the same function as a machine converted to a dedicated drilling rig. Nonetheless, the Agency believes that the approach recommended by C-DAC and reflected in the proposed rule sets an appropriate dividing line between covered and excluded machinery. The crane's hoisting mechanisms are mostly still present while the attachment is in use, and the crane's hoisting capability will likely be called upon fully once the attachment is removed. Having the machine move in and out of coverage of the rule as attachments are put on and taken off would create significant confusion. Furthermore, most of the operational characteristics and hazards of the equipment remain the same while the attachment is in use. The Agency believes that, overall, this represents a sensible approach to setting the breadth and limits of the proposed standard. - Proposed paragraph (c)(2) contains a specific list of excluded material handling machinery. This provision reflects C-DAC's decision to name specific material handling machinery that is excluded rather than simply reference “material handling machinery” as a generic basis for exclusion. The Committee indicated that a generic exclusion based upon material handling would be too broad. For example, a crane, when equipped with a clamshell bucket, is used for material handling, and C-DAC believed such equipment should be covered by the proposed standard. C-DAC also agreed to a Committee member's suggestion of specifying that the listed machinery is excluded even when used with rigging to lift suspended loads. C-DAC acknowledged that some of the hazards of using this material handling machinery in this way are similar to the hazards associated with equipment covered by the proposed rule. However, the Committee also believed the differences between the covered equipment and the material handling machinery is such that one standard could not be readily designed to suit both. It should be noted that another construction standard, 29 CFR 1926.602 in subpart O—Motor Vehicles, Mechanized Equipment, and Marine Operations, covers material handling equipment. Proposed paragraph (c)(3) excludes automotive wreckers and tow trucks “when used to clear wrecks and haul vehicles.” A Committee member, citing C-DAC's focus on construction activities, questioned the need for this provision. In response, another member explained that some of these vehicles have substantial hoisting capacity. The implication of that observation is that these machines have the capability of hoisting construction material and so some construction employers may use them for that purpose. Consequently, C-DAC decided to cover them generally, but to exclude them when used for clearing wrecks and hauling vehicles. The exclusion is based on the Committee's view that, even if done as a construction activity (which would be very rare), clearing wrecks and hauling vehicles is a highly repetitious, predictable type of operation that is sufficiently distinct from typical construction crane and derrick use to justify an exclusion from the proposed rule. It should be noted that “cranes designed for . . . automobile wreck clearance” are excluded from the scope of ASME B30.5-2004. Under proposed paragraph (c)(4), service trucks with mobile lifting devices for use in the power line and electric service industries, such as digger derricks, are excluded when engaged in certain listed activities for those industries. This machinery is currently covered by Subpart N, with the exception of certain provisions, by virtue of § 1926.952(c). We note that ASME B30.5-2004 excludes digger derricks and “cranes manufactured specifically for, or when used for, energized electrical line service” from the scope of that industry consensus standard. C-DAC ultimately adopted this exclusion because of the narrow, specialized range of activities and circumstances in which such trucks are used. The Agency is asking for public comment as to whether such an exclusion is appropriate and whether safety problems would be created by excluding them from coverage under the proposed standard. Proposed paragraph (c)(5) specifically excludes machinery originally designed as vehicle mounted aerial lifts and self-propelled elevating work platforms. The language of this provision reflects C-DAC's intent to differentiate between equipment with an attachment such as a personnel platform pinned to the boom, which is within the scope of the proposed rule, and machinery originally designed to be configured only as an aerial lift, which is excluded. In excluding this machinery, the Committee discussed the fact that some aerial lifts have a small capacity auxiliary winch. C-DAC decided not to include such machinery. The use of such winches is only incidental to an aerial lift's primary function. Also, another standard, § 1926.453, addresses aerial lifts. Proposed paragraph (c)(6) excludes telescopic/hydraulic gantry systems. This machinery is also not currently covered by Subpart N or any ANSI/ASME standards. C-DAC made the decision to exclude this machinery after extensive discussion between members and a presentation by Mr. Kevin Johnston of J&R Engineering Co., Inc. The decision was based upon several factors. One factor was the difference in design between this machinery and other equipment covered by the proposed rule. Telescopic/hydraulic gantry systems consist (in their most basic configuration) of a header beam that is supported on each side by hydraulic jacks. The load is suspended by rigging from the header beam. The load is raised and lowered by raising and lowering the jacks. This type of design involves hazards that are unique to this type of equipment. For example, keeping the jacks plumb and closely coordinating their movements is very important. Mr. Johnston noted that because of these differences, many of the requirements in the proposed standard would not be workable or needed. Also, hazards unique to this type of machinery would not be addressed. C-DAC was concerned that a failure to include this machinery in the proposed rule could result in there being no applicable OSHA requirements. The Committee was particularly concerned about this because there was no industry consensus standard for telescopic/hydraulic gantry systems. Once the Specialized Carriers & Rigging Association (SC&RA) indicated its willingness to draft and complete a voluntary consensus standard for this machinery within a short time frame, the Committee was satisfied that the best approach was to exclude telescopic/hydraulic gantry systems from the proposed rule. The Agency notes that, in the fall of 2004, SC&RA did in fact complete a voluntary consensus standard for telescopic/hydraulic gantry systems. (OSHA-2007-0066-0027). Accordingly, the Agency agrees with C-DAC that, under these circumstances, these systems should be excluded from the proposed rule. Under proposed paragraph (c)(7), stacker cranes are excluded. This machinery, covered by ASME B30.18, was similarly excluded in the ACCSH draft. The Agency believes that these cranes are rarely used in construction, and that their configuration is too unlike other machinery covered by this proposed standard to warrant inclusion. Proposed paragraph (c)(8) excludes powered industrial trucks (forklifts). As noted during the C-DAC meetings, this machinery is already covered by § 1926.602 of Subpart O—Motor Vehicles, Mechanized Equipment, and Marine Operations. The Agency believes that this type of machinery is mostly used in a manner that does not involve suspended loads and would often require different responses to the hazards presented than provided in this proposed standard. Therefore, the Agency agrees with C-DAC that this machinery should be excluded from the proposed standard. During the SBREFA process, one Small Entity Representative stated that the C-DAC document does not contain a provision explicitly excluding coverage of machines that are originally designed to function primarily as forklifts but are modified to perform tasks similar to cranes and derricks that are covered under the standard. The Panel recommended that OSHA consider and solicit public comment on whether the scope language should be modified to explicitly state whether forklifts modified in such a manner are covered. OSHA welcomes comment on this issue. Proposed paragraph (c)(9) excludes mechanic's trucks with hoisting devices when used in activities related to equipment maintenance and repair. The treatment of this machinery is similar to that of automotive wreckers and tow trucks. This exclusion reflects the Committee's conclusion that mechanic's trucks, when used in these support activities, have the capability of hoisting construction material and so some construction employers may use them for that purpose. Consequently, C-DAC decided to cover them generally, but to exclude them when used for equipment maintenance and repair activities. The exclusion is based on the Committee's view that, even if done as a construction activity (which would be very rare), the maintenance and repair activities are highly repetitious, predictable types of operations that are sufficiently distinct from typical construction crane and derrick use to justify an exclusion from the proposed rule. In proposed paragraph (c)(10), machinery that hoists by using a come-a-long or chainfall is excluded. This exclusion reflects currently industry practice as exemplified by OSHA's steel erection standard. The definition of “hoisting equipment” in OSHA's steel erection standard, § 1926.751, defines “come-a-long” as “a mechanical device typically consisting of a chain or cable attached at each end that is used to facilitate movement of materials through leverage” and notes that such a device is not considered “hoisting equipment.” § 1926.1401 of this proposed standard sets forth the same definition of “come-a-long” as OSHA's steel erection standard. Committee members decided that a specific exclusion was needed because these devices, that members term “tools of the trade,” are not all human-powered and thus might otherwise fall within the scope of the proposed rule. C-DAC was of the view that these tools are unlike the equipment covered by the proposed rule in terms of both scale and the set of hazards associated with their use. Proposed paragraph (c)(11) excludes dedicated drilling rigs. This exclusion was agreed upon after substantial discussion among Committee members. It should be noted that neither Subpart N nor other OSHA construction standards currently cover dedicated drilling rigs specifically. Much of the specific information as to the nature of dedicated drilling rigs and the concerns of drill rig industry stakeholders was ascertained during a panel discussion chaired by members of the International Association of Foundation Drilling. Panel members emphasized that, in their view, a dedicated drilling rig is not a crane, but rather is designed to function as excavating equipment. In support of that position, the panelists noted that, unlike cranes, this machinery lacks load charts and has only limited horizontal movement, radius, and hoisting capabilities. They also stated that although many are equipped with an auxiliary service winch, the primary use of this machinery is not for hoisting. Panelists suggested that accidents associated with the use of dedicated drilling rigs tend to result from improper use (that is, attempting to use them for more extensive hoisting work, beyond the narrow limits set by manufacturer specifications). Finally, the speakers emphasized that while they did not believe this machinery should be regulated as cranes under the proposed rule, if they were to be regulated, they should be under a more closely related standard, such as the excavation standard. Several additional concerns were examined in the course of the discussion. Some members suggested that dedicated pile drivers and dedicated drilling rigs be treated in the same manner—to either cover or exclude both. Others responded that the disparate treatment is justified by the fact that dedicated pile drivers are frequently used on barges, which involves additional hazards, and the more widespread use of that machine's hoisting function. Some members expressed concern that the inclusion of dedicated drilling rigs under the proposed rule would encourage their misuse as cranes. The Committee decided that the arguments for excluding dedicated drilling rigs outweighed those for including them. The Agency agrees; while there are certain similarities to dedicated pile drivers in that both have an auxiliary hoisting capability, the dedicated drilling rigs are not typically used on barges and there seems to be less abuse of their very limited hoisting capabilities. Specific public comment is requested on these issues. Proposed paragraph (c)(12) contains an exclusion for gin poles used during the erection of communication towers. It is the Agency's understanding that the erection of communication towers is a specialized subset of the construction industry, and involves issues that go beyond those C-DAC was designed to address. OSHA is therefore not proposing to include gin poles used for this purpose in the proposed rule. Proposed paragraph (c)(13) excludes tree trimming and tree removal work from the scope of the proposed rule. In correspondence to the Committee (OSHA S030-2006-0663-0534), the Tree Care Industry Association had requested that their work be excluded from the proposed rule. The Committee noted that the vast majority of the tree care industry's work does not take place in construction and agreed that such work should be excluded. The Agency believes that, since tree trimming and tree removal work so rarely falls within construction, it is appropriate to exclude tree trimming and removal from the proposed rule. Proposed paragraph (c)(14) excludes anchor handling with a vessel or barge using an affixed A-frame. C-DAC decided to exclude this activity after the Cranes on Barges Work Group found that there would be problems tailoring the general requirements of the C-DAC draft to address the use of these specialized devices. Proposed paragraph (c)(15), the final item listed, excludes roustabouts. The Committee was of the view that the proposed rule is not suited to addressing these devices, which are moved about by hand. The SBREFA Panel recommended that OSHA consider, and solicit comment on, whether equipment used solely to deliver materials to a construction site by placing/stacking the materials on the ground should be explicitly excluded from the scope of the rule. OSHA requests public comment on this issue. Note: OSHA replaced the word “Equipment” used in proposed §§ 1926.1400(c)(1), (c)(5) and (c)(10) of the C-DAC Consensus Document with the word “Machinery.” This was done because “equipment” is a defined term in the proposed standard that refers to covered equipment and, thus, cannot be used to mean excluded machinery. Unspecified Equipment Proposed paragraph (d) is included to clarify that all provisions of the proposed rule apply to covered equipment unless otherwise noted. This paragraph was included because there are some types of equipment for which only limited requirements apply, and others where there are special requirements that supplement, rather than displace, the other requirements in the proposed rule. To avoid confusion, this proposed paragraph establishes that all parts of the proposed rule apply unless a provision specifically identifies other parts of the proposed rule as inapplicable, or identifies the only provisions of the standard that are applicable. Controlling Entities Proposed paragraph (e) provides that the duties of controlling entities 2 are not limited to the duties specified in §§ 1926.1402(c), (e) and 1926.1424(b). This was included to clarify that the controlling entity duties specified in the proposed rule are intended to supplement, rather than displace, controlling entity duties under OSHA's multi-employer policy. 2 The definition of “controlling entity” is explained in the discussion of proposed § 1926.1402(c). The Agency has clear authority to include in this proposed rule the provisions in proposed §§ 1926.1402(c), (e) and 1926.1424(b), which would apply specific requirements to controlling entities. First, the plain language of the OSH Act and its underlying purpose support OSHA's authority to place requirements on employers that are necessary to protect the employees of others. Second, congressional action subsequent to passage of the OSH Act recognizes this authority. Third, OSHA has consistently interpreted its statutory authority as permitting it to impose obligations on employers that extend beyond their own employees, as evidenced by the numerous standards, including several construction standards, that OSHA has promulgated with multi-employer provisions. Finally, OSHA's authority to place obligations on employers that reach beyond an employer's own employees has been upheld by numerous courts of appeals and the Occupational Safety and Health Review Commission (OSHRC). The purpose of the Act is to assure so far as possible safe and healthful working conditions for every working man and women in the nation. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary to establish mandatory occupational safety and health standards. The Act broadly defines an OSHA standard as a rule that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employments and places of employment.” 29 U.S.C. 652(8). See Building and Constr. Trades Div., AFL-CIO v. Brock, 838 F.2d 1258, 1278 (DC Cir. 1988). OSHA standards must prescribe measures that are appropriate to protect “places of employment”; nothing in the statutory language suggests that OSHA may do so only by regulating an employer's interaction with its own employees. On the contrary, the Act's broad language gives OSHA almost “unlimited discretion” to devise means to reach the statutory goal. See United Steelworkers v. Marshall, 647 F.2d 1189, 1230 (DC Cir. 1980), cert. denied, 453 U.S. 913 (1981). Similarly, Section 5(a)(2) provides that each employer “shall comply with occupational safety and health standards promulgated under this Act.” 3 Nothing in this language suggests that compliance is required only when necessary to protect the employers' own employees, or that the employer is entitled to endanger other employers' employees at the worksite. Finally, Section 6(b)(7) of the Act authorizes the Secretary to “prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed.” 29 U.S.C. 655(b)(7). Again, this authority is not limited to labels that would warn the employer's own employees of the hazard. Given the distribution of potentially hazardous products in commerce, employees are predictably exposed to hazardous conditions created by other employers. Requiring employers to include hazard information needed by downstream employees is a necessary and appropriate means to ensure that the employees are apprised of all hazards to which they are exposed. 3 This language is in marked contrast to the language of Section 5(a)(1) of the Act (known as the “general duty clause”), which requires each employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. 654(a)(1) (emphases added). See Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2nd. Cir. 1975). In short, the statute focuses on workplace conditions to effectuate the OSH Act's congressional mandate, and not on a particular employment relationship. The OSH Act's underlying purpose is broad—to assure safe and healthful working conditions for working men and women—and Congress made clear that it expected the Act to protect all employees. (H. Rep. No. 91-1291, 91st Cong., 2d Sess., p. 14-16 (July 9, 1970)). Numerous references in the legislative history of the Act require employers to provide a safe and healthful “place of employment” (see, e.g., S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 10 (October 6, 1970)). The OSH Act tasks OSHA with promulgating rules that will create safe places of employment, notwithstanding the many varied employment relationships that might exist at a worksite. Subsequent congressional action has also recognized OSHA's authority to impose responsibilities on employers to protect employees who are not their own. For example, Congress directed OSHA to develop a chemical process safety standard (the PSM standard) requiring employers to “ensure contractors and contract employees are provided appropriate information and training” and to “train and educate employees and contractors in emergency response.” (29 U.S.C. note) (quoting Pub.L. 101-549, Title III, Sec. 304, November 15, 1990, 104 Stat. 2576). This is a clear ratification of the Agency's authority to require employers to protect the employees of others. Congress also approved of the Agency's authority when it relied on the provisions of OSHA's Hazard Communication standard in promulgating the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA). OSHA's Hazard Communication [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-21993. Public record. Not legal advice.