OSHA Issues Final Rule on Cranes and Derricks Operator Certification

Targeted News Service

WASHINGTON, Sept. 29 -- The U.S. Occupational Safety & Health Administration published the following rule in the Federal Register:

Cranes and Derricks in Construction: Operator Certification

A Rule by the Occupational Safety and Health Administration on 09/26/2014

Publication Date: Friday, September 26, 2014

Agencies: Department of Labor

Occupational Safety and Health Administration

Dates: This final rule will become effective November 9, 2014.

Effective Date: 11/09/2014

Entry Type: Rule

Action: Final rule.

Document Citation: 79 FR 57785

Page: 57785 -57798 (14 pages)

CFR: 29 CFR 1926

Agency/Docket Number: Docket ID-OSHA-2007-0066

RIN: 1218-AC86

Document Number: 2014-22816

Shorter URL: https://federalregister.gov/a/2014-22816

Action

Final Rule.

Summary

OSHA is extending its November 10, 2014, deadline for employers to ensure that crane operators are certified by three years, until November 10, 2017. OSHA is also extending its employer duty to ensure that crane operators are competent to operate a crane safely for the same three-year period.

DATES:

This final rule will become effective November 9, 2014.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

General information and press inquiries: Mr. Frank Meilinger, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-1999; email: [email protected].

Technical inquiries: Mr. Vernon Preston, Directorate of Construction, Room N-3468, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-2020; fax: (202) 693-1689; email: [email protected].

Copies of this Federal Register notice and news releases: Electronic copies of these documents are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Introduction

OSHA is publishing this final rule to extend for three years the employer duty to ensure crane operator competency for construction work, from November 10, 2014, to November 10, 2017. OSHA also is extending the enforcement date for crane operator certification for three years from November 10, 2014, to November 10, 2017. After publishing the final rule for cranes and derricks in construction, several entities informed OSHA that crane operator certification was insufficient for determining whether an operator could operate their equipment safely on a construction site. After hosting several public meetings addressing this issue, OSHA decided the extension is necessary in order to allow the Agency to examine and determine how to address this issue systematically.

B. Summary of Economic Impact

This final rule is not economically significant. OSHA is revising 29 CFR 1926.1427(k) (competency assessment and training) to extend the deadline for compliance with the operator-certification requirement in its construction standard for cranes and derricks for three years, and to extend the existing employer duties for the same period. OSHA's final economic analysis shows that extending the date for operator certification and employers' assessment of crane operators, rather than following the current rule, will result in a net cost savings for the affected industries. Extending the compliance date for operator certification results in estimated cost savings that exceed the estimated new costs for employers to continue to assess crane operators to ensure their competent operation of the equipment in accordance with 1926.1427(k). The detailed final economic analysis is in the "Agency Determinations" section of this preamble.

C. Regulatory Background

1. Operator Certification Options

On August 9, 2010, OSHA published the final rule for cranes and derricks in construction (29 CFR subpart CC, referred to as "the cranes standard" hereafter) (75 FR 47905). OSHA developed the cranes standard through a negotiated rulemaking process. The Agency established a Federal advisory committee, the Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC), to develop a draft proposed rule. C-DAC met in 2003 and 2004 and developed a draft proposed rule that it provided to OSHA. The rule that OSHA subsequently proposed closely followed C-DAC's draft proposal (73 FR 59718).

The Agency initiated a Small Business Advocacy Review Panel in 2006. The Agency published the proposed rule for cranes in construction in 2008, received public comment on the proposal, and conducted a public hearing. OSHA's final rule incorporated, with minor changes, the four-option scheme C-DAC recommended and the Agency proposed. Accordingly, in section 1926.1427, OSHA requires employers to ensure that their crane operators are certified under at least one of four options by November 10, 2014. The four options are:

Option 1. Certification by an independent testing organization accredited by a nationally recognized accrediting organization;

Option 2. Qualification by an employer's independently audited program;

Option 3. Qualification by the U.S. military; or

Option 4. Compliance with qualifying state or local licensing requirements.

The third-party certification option in section 1926.1427(b)--Option 1--is the only certification option that is "portable," meaning that any employer who employs an operator may rely on that operator's certification as evidence of compliance with the cranes standard's operator certification requirement. This certification option also is the only one that is available to all employers; it is the option that OSHA, and the parties that participated in the rulemaking, believed would be the one most widely used. In this regard, OSHA is not aware of an audited employer qualification program among construction industry employers (Option 2), and the cranes standard limits the U.S. military crane operator certification programs (Option 3) to Federal employees of the Department of Defense or the armed services. While state and local governments certify some crane operators (Option 4), the vast majority of operators who become certified do so through Option 1--by third-party testing organizations accredited by a nationally recognized accrediting organization.

Under Option 1, a third party performs testing. Before a testing organization can issue operator certifications, paragraph 1427(b)(1) of the cranes standard provides that a nationally recognized accrediting organization must accredit the testing organizations. To accredit a testing organization, the accrediting agency must determine that the testing organization meets industry-recognized criteria for written testing materials, practical examinations, test administration, grading, facilities and equipment, and personnel. The testing organization must administer written and practical tests that:

Assess the operator's knowledge and skills regarding subjects specified in the cranes standard;

provide different levels of certification based on equipment capacity and type;

have procedures to retest applicants who fail; and

have testing procedures for recertification.

Paragraph 1427(b)(2) of the cranes standard also specifies that, for the purposes of compliance with the cranes standard, an operator is deemed qualified to operate a particular piece of equipment only if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. It further provides that, if no testing organization offers certification examinations for a particular equipment type and/or capacity, the operator is deemed qualified to operate that equipment if the operator is certified for the type/capacity of equipment that is most similar to that equipment, and for which a certification examination is available.

2. Overview of section 1926.1427(k) (Phase-In Provision)

The final cranes standard replaced provisions in 29 CFR 1926 subpart N--Cranes, Derricks, Hoists, Elevators, and Conveyors, of the construction safety standards. Provisions for employers to ensure that operators of equipment, including cranes, are trained and qualified to safely operate that equipment are available elsewhere in the construction safety standards (see, for example, section 1926.20(b)(4) and (f)(2)).

OSHA delayed the effective date of the operator certification requirement for four years, until November 10, 2014 (see section 1926.1427(k)(1)). The Agency also wanted to ensure the final cranes standard maintained an employer duty during that four-year "phase-in" period to ensure that crane operators could safely operate equipment (see section 1926.1727(k), Phase-in). Thus, pursuant to section 1926.1427(k)(2)(i), OSHA required employers to "ensure that operators of equipment covered by this standard are competent to operate the equipment safely." Under section 1926.1427(k)(2)(ii), employers must train and evaluate the operator when the operator "assigned to operate machinery does not have the required knowledge or ability to operate the equipment safely."

3. Post-Final Rule Developments

After OSHA issued the cranes standard, it continued to receive feedback from members of the regulated community and conducted stakeholder meetings on April 2 and 3, 2013, to give interested members of the public the opportunity to express their views. Participants included construction contractors, labor unions, crane manufacturers, crane rental companies, accredited testing organizations, one of the accrediting bodies, insurance companies, crane operator trainers, and military employers. Detailed notes of participants' comments are available at http://www.osha.gov/cranes-derricks/stakeholders.html and OSHA-2013-0024-0001. Various parties informed OSHA that, in their opinion, the operator certification option would not adequately ensure that crane operators could operate their equipment safely at a construction site. They said that a certified operator would need additional training, experience, and evaluation, beyond the training and evaluation required to obtain certification, to ensure that he or she could operate a crane safely.

OSHA also received information that two (of a total of four) accredited testing organizations have been issuing certifications only by "type" of crane, rather than offering different certifications by "type and capacity" of crane, as the cranes standard requires. The two organizations later confirmed this (Tr. p. 109 and 246). As a result, those certifications do not meet the standard's requirements and operators who obtained certifications only from those organizations cannot, under OSHA's cranes standard, operate cranes on construction sites after November 10, 2014. Some stakeholders in the crane industry requested that OSHA remove the capacity requirement.

Most of the participants in the stakeholder meetings expressed the opinion that an operator's certification by an accredited testing organization did not mean that the operator was fully competent or experienced to operate a crane safely on a construction work site. The participants likened operator certification to a new driver's license, or a beginner's permit, to drive a car. Most participants said that the operator's employer should retain the responsibility to ensure that the operator was qualified for the particular crane work assigned. Some participants wanted certification to be, or viewed to be, sufficient to operate a crane safely. Stakeholders noted that operator certification was beneficial in establishing a minimum threshold of operator knowledge and familiarity with cranes.

D. The Proposed Extension of the Operator Certification and Employer Assessment Duties

The effective dates of the operator certification requirement and the other "phase-in" employer duties are in 29 CFR 1926.1427(k)(1). By a notice of proposed rulemaking (NPRM) published February 10, 2014 (79 FR 7611), OSHA proposed to revise section 1926.1427(k)(1) to extend the deadline for operator certification by three years from November 10, 2014, to November 10, 2017, to provide additional time for the Agency to consider potential rulemaking options in light of the information it had gathered since it issued the cranes standard. The Agency also proposed to extend the current employer duties in section 1926.1427(k)(2)(i) and (ii) to ensure that there is no reduction in worker protection during this three-year period. OSHA noted that when it included these employer duties in the final cranes standard in 2010, these duties were to be a "phase in" to certification (75 FR 48027). By extending the date as proposed, the requirements would continue to serve that purpose and preserve the status quo.

OSHA asked for comment on the proposal, and it specifically asked for comment on whether the extension of time should be for an indefinite period rather than for three years as proposed. OSHA received 66 comments in response to the NPRM, one requesting a hearing to further discuss the rulemaking. On May 19, 2014, OSHA held an informal public hearing on the rulemaking. OSHA also received 6 additional comments during the post-hearing comment period, which closed June 18, 2014.

[*Federal RegisterVJ 2014-09-26]

For more information about Targeted News Service products and services, please contact: Myron Struck, editor, Targeted News Service LLC, Springfield, Va., 703/304-1897; [email protected]; http://targetednews.com.

TNS 22VistaJ-140926 gv-1177120