Cranes and Derricks in Construction: Operator Certification, 57785-57798 [2014-22816]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 79, Number 187 (Friday, September 26, 2014)]
[Rules and Regulations]
[Pages 57785-57798]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22816]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]
RIN 1218-AC86


Cranes and Derricks in Construction: Operator Certification

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

ACTION: Final rule.

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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: Meilinger.Francis2@dol.gov.
    Technical inquiries: Mr. Vernon Preston, Directorate of 
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200 
Constitution Avenue NW.,

[[Page 57786]]

Washington, DC 20210; telephone: (202) 693-2020; fax: (202) 693-1689; 
email: Preston.Vernon@dol.gov.
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's Web page 
at https://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 Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  
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 Sec.  1926.1727(k), Phase-in). Thus, pursuant to Sec.  
1926.1427(k)(2)(i), OSHA required employers to ``ensure that operators 
of equipment covered by this

[[Page 57787]]

standard are competent to operate the equipment safely.'' Under Sec.  
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 https://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 Sec.  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 Sec.  
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.

II. Summary and Explanation of the Rule

    Commenters in their written remarks and oral testimony focused on 
three issues arising from the Agency's proposed changes: (1) Whether to 
extend the date for crane operators to be certified (commenters 
indicated that the third-party certification option is the only one 
being used); (2) whether to extend the employer duty to ensure crane 
operators are competent and safe; and (3) the length of time of an 
extension (if any). This section examines these issues--in the order 
above--by first summarizing the comments and then explaining the 
Agency's decisions and determinations based on the record as a whole.

A. Extension of Operator Certification Deadline

    Many commenters supported the Agency's proposed extension of the 
date for crane operators to have certification in their written 
comments [ID 0448, 0458-61, 0462, 0464, 0466, 0469, 0471, 0476-9, 0481-
3, 0485-8, 0490-4, and 0497], in oral testimony [Tr. pp. 22, 100, 119, 
212, 222], and in post-hearing written comments [ID-0531, 0533].\1\ 
Their reasons for supporting the three-year extension were several. The 
most frequently mentioned reason was that while operator certification 
offered safety benefits, most current certifications lack the required 
capacity factor and would therefore not comply with the final cranes 
standard. The commenters concluded that the industry's confusion about 
the validity of current certifications and the difficulty, or even 
impossibility, of most construction crane operators getting a valid 
certification by November, 2014, warrants an extension of the operator 
certification deadline so that OSHA has additional time to remove the 
capacity requirement from the rule. The Associated Builders and 
Contractors, Inc. stated:
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    \1\ Exhibits are posted on https://regulations.gov and are 
accessible at OSHA's Docket Office, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N2625, Washington, DC 20210; telephone 
(202) 693-2350. (OSHA's TTY number is (877) 889-5627.) OSHA Docket 
Office hours of operation are 8:15 a.m. to 4:45 p.m., E.T.
     Throughout this document, exhibit numbers from the OSHA-2007-
0066 docket are referred to in the form ``ID-XXXX'' where XXXX are 
the last four digits of the full document ID number on https://regulations.gov. The document ID number for exhibits from other 
dockets will be listed completely.
     Comments from the May 19, 2014, informal public hearing 
transcript will be designated by ``Tr. p..''. The document 
ID number for the transcript is OSHA-2007-0066-0521.

    Without an extension . . . the construction industry will face a 
crane operator shortage in the coming years, as there will not be 
enough time for . . . employers to certify their operators in time. 
For the industry to continue performing work without disruption, it 
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is crucial for an extension to be granted. [Tr. pp. 174-175].

    The general manager of a large crane rental company stated that 
``[i]t is imperative for the good of the industry & the safety of those 
men & women working in construction that we get the correct language & 
understanding of

[[Page 57788]]

what the certification should actually encompass'' [ID-0456]. Another 
commenter stated: ``I support waiting until a realistic, workable 
solution can be agreed upon because to launch this version of an un-
workable, unrealistic requirement due to a deadline is much worse than 
waiting long enough to get it right. We all have to live with it for 
years to come'' [ID-0466]. Another added ``[a]lthough the delay in 
crane operator certification requirements is not ideal, it is 
preferrable [sic] to having the wrong solutions made into law.'' [ID-
0467].
    Other commenters supported an extension of the certification 
deadline even if OSHA did not ultimately change the substantive 
requirements in the standard. One stated that the extension makes 
``good sense'' because ``[t]here are thousands of operators nationwide 
in the positions that will need to be certified once this rule goes 
into effect, but have for one reason of [sic] another had difficulty 
getting their certification completed. . . .'' [ID-0460]. Another 
commenter also supported the extension on the grounds that the limited 
availability of certification opportunities in languages other than 
English remains a barrier for otherwise qualified operators to pass the 
certification test, noting that at least one of the certification 
organizations, the National Commission for the Certification of 
Operators (NCCCO), was experimenting with a pilot program that might 
make the certification available to more potential operators if OSHA 
delayed the certification date [ID-0452]. NCCCO acknowledged that it is 
conducting a pilot program, but suggested that there might not be a 
high a demand for the program [Tr. pp. 111-112].
    The commenter who had requested the hearing initially opposed any 
extension, but then changed its position at the public hearing to 
support a limited extension [ID-0495, Tr. p. 58]. In its prehearing 
comment, the Crane Institute Certification (CIC) argued against any 
extension because requiring crane operator certification sooner would 
provide greater construction safety as certification results in better 
trained and tested operators [ID-0495]. CIC pointed to the safety 
benefits OSHA identified in support of the 2010 cranes standard and 
concluded that the Agency's proposal to delay the deadline for all 
construction crane operators to be certified would result in greater 
risk on construction sites using cranes, more accidents, and therefore 
more injuries and fatalities to construction employees.\2\ At the 
hearing, however, CIC supported a limited extension, acknowledging that 
``a delay of crane operator certification is necessary in order to 
allow OSHA time to address the clarification of employer 
responsibility'' [Tr. p. 58]. Other hearing participants who did not 
submit comments to the NPRM agreed with CIC's new position [Tr. pp. 85, 
184-85, 201-202, 262].
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    \2\ Contrary to the assertions by several commenters [ID-0433, 
0444, 0453, 0473, 0489, 0495], OSHA did not identify individual 
components of the standard, but rather calculated the benefits of 
the entire cranes standard as a whole. OSHA did not separately 
itemize benefits accruing from the operator certification 
requirements.
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    The remaining group of commenters submitted pre-hearing comments 
suggesting that OSHA not extend the operator certification deadline, 
but did not participate in the public hearing [ID-0433; -0435; -0439-
42; -0444; -0446; -0450; -0451; -0453; -0473; -0489]. They cited the 
safety benefits of the cranes standard--incorrectly attributing all 
safety benefits of the cranes standard solely to operator 
certification--and stated that a three-year delay is unnecessary 
because certification bodies, employers, and crane operators have had 
four years to prepare for the operator certification requirements to 
become effective. Several of these objections appeared to be based on 
arguments that the delay would cause economic inequity for some 
employers or certification companies [ID-0441; -0442; -0444; -0446] or 
that the delay would necessarily leave a regulatory gap during which 
operators would not be subject to any scrutiny [ID-0473, 0489].
    One commenter in this group stated that ``[m]any current crane 
operators have a complete lack of knowledge of how to set up, use, and 
inspect a crane. . . . If not for certification, this would continue'' 
[ID-0440]. Another commenter in this group objected on the grounds that 
the extension will allow employers to go ``another'' three years 
``without training and qualifying their crane operators'' [ID-0435]. It 
appears from these statements that the commenters did not understand 
that existing Sec.  1926.1427(k)(2), which OSHA proposed to stay in 
effect for the entire three-year extension, requires employers to 
assess their crane operators and re-train them as necessary.
    Three commenters apparently equated the certification requirement 
with a training requirement [ID-0435, -0439; -0451]. One was opposed to 
the extension because construction work requires ``completely trained 
operators'' [ID-0439] and another explained that ``people die at 
construction sites daily because of Crane accidents which probably 
could have been prevented with proper training'' [ID-0451]. However, 
the certification requirements that OSHA proposed to delay by this 
rulemaking, appearing in Sec.  1926.1427(a)(2) and (f), do not include 
any specific training requirement. The training provisions are located 
elsewhere and are not changed by an extension of the operator 
certification deadline. OSHA proposed to extend the re-training 
requirement in Sec.  1926.1427(k), which was set to expire in November.
    A number of commenters addressed in their written comments the 
issue of certification by ``type and capacity'' of the crane. However, 
resolving that issue is outside the scope of this rulemaking, which 
only addresses whether to extend the deadlines of operator 
certification and the existing employer duty. As the Agency previously 
made clear in the notice of proposed rulemaking, it will consider the 
issue of type and capacity and the role of operator certification as it 
determines whether to engage in additional rulemaking during the three-
year extension and will not alter the requirements about the nature of 
certification required in this rulemaking.

B. Extension of the Existing Employer Duty

    Commenters were nearly unanimous in supporting an extension of the 
existing employer duty to ensure that their operators are competent to 
operate cranes: All but one of the comments addressing the extension of 
that duty supported it. The commenter who did not offer support 
indicated that he did not have any opinion about the issue, but noted 
his understanding that ``the employer needs to verify an individual's 
abilities'' [Tr. p. 273]. The International Union of Operating 
Engineers (IUOE) provided an extensive Power Point presentation 
highlighting the different skills operators must have, only some of 
which are tested during operator certification examinations, and the 
additional challenges operators may face [ID-0527]. IUOE asserted that 
it is crucial that employers continue to ensure that their operators 
are capable of meeting these challenges:

An extension of the enforcement date for certification without 
continuation of employer duties would endanger the safety and health 
of operators and those employees working in the vicinity of crane 
operators. OSHA would have no standard for employer assessment of 
compliance if the k(2)(i) and (ii) are not extended. . . . Crane 
operators would be in a far worse position than they

[[Page 57789]]

were before issuance of the final rule in August 2010 if employer 
duties in k(2)(i) and (ii) are not extended. . . . [ID-0486]

    William Smith of Nations Builders Insurance Services and NCCCO 
board member agreed, commenting that ``[l]eaving the rule as written 
[with certification but without a continued employer duty after 
November, 2014] would take us back in time not forward in protecting 
lives'' [ID-0474]. The Specialty Crane & Rigging Association stated 
that ``It is the employer's responsibility to ensure their operators 
are certified and qualified for any specific crane they will operate'' 
in supporting the extension of time for both provisions [ID-0493]. 
Testimony during the public hearing on May 19, 2014 also supported 
continuing the employer duty to qualify crane operators [Tr. pp. 29, 
134, 217]. The IUOE stated:

The one thing we wanted to be very clear on is that if you extend 
the date of enforcement for certification, that without extending 
the other [employer duty], there would be essentially nothing there, 
and there would be no protection at all, except for the people's 
voluntary compliance with certification. But that would be, 
obviously, inadequate. [Tr. p. 250]

    Larry Hopkins of the Operating Engineers Certification Program 
added that ``it's absolutely imperative that we put the onus of 
qualification on a particular employer'' [Tr. p. 217]. A commenter 
employed in the crane rental industry for 35 years stated that he would 
never let an operator control a crane just because he or she has 
received a third-party certification; rather, an operator would have to 
demonstrate competence on various cranes to the employer [ID-0456]. Boh 
Bros. Construction Co. commented that ``a certification is only an 
indication of basic skills. . . . Certification is good, but does not 
equal qualification'' [ID-0464]. These comments to the proposal echo 
the information the Agency heard at its stakeholder meetings in April, 
2013 [OSHA-2013-0024-0001]. While not prejudging the issue of whether 
employers should still have a duty to assess operators even once a 
certification requirement takes effect (a subject the Agency will 
consider during this extension), OSHA notes that these comments also 
support a requirement that the employer duty be maintained before the 
certification requirement takes effect.

C. Conclusions Regarding Whether the Extensions Are Appropriate

    OSHA finds that the stakeholder concerns surrounding operator 
certification and employer assessment and training warrant a more 
thorough examination, and OSHA will consider whether to commence a new 
rulemaking proceeding to make changes to the operator qualification 
requirements in Sec.  1926.1427. By this final rule, OSHA is extending 
the operator certification deadline to allow the Agency time to make 
this decision and complete a subsequent rulemaking if necessary. OSHA 
acknowledges the equity concerns raised by businesses and employers who 
have invested in certification with the expectation of a 2014 deadline 
[See ID-0441; -0442; -0444; -0446], but notes that the extension will 
not affect other benefits of certification such as access to restricted 
employment opportunities [Tr. pp. 149-150] and insurance discounts [Tr. 
p. 151]. Moreover, OSHA recognizes that it would generate confusion and 
general disregard for the standard if OSHA began to enforce compliance 
with the November 2014 deadline at the same time it announced that it 
was considering changes to the standard. Those concerns would be 
compounded if OSHA did subsequently change the standard a year or two 
later so that operators who had just completed the certification 
process were required to re-certify. OSHA concludes that it is 
preferable to extend the certification deadline rather than to require 
employers to devote additional resources to comply with requirements as 
OSHA considers changing them.
    In addition, OSHA has concluded that extending the employer duties 
in Sec.  1926.1472(k)(2) during the certification extension is 
necessary to ensure there is no reduction in worker protection. While 
OSHA is not now determining whether it should retain or alter the 
existing employer duties through a permanent change to the cranes 
standard, the record provides support for a temporary requirement for 
employer assessment and training to help ensure that crane operators 
know how to operate their crane safely [See, e.g., ID-0474, -0486, -
0493, Tr. pp. 29, 134, 217, 250].\3\ Without an extension of the 
employer duty, the standard would have no requirement to ensure that 
crane operators knew how to operate the crane safely during the 
operator certification extension.\4\ Therefore it is important that the 
Agency extend the employer duty while it considers rulemaking options. 
The Agency concludes that it would be inappropriate to disturb the 
status quo until it completes that examination and has the necessary 
information to determine whether changes are needed.
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    \3\ Several commenters suggested that OSHA should, as part of 
this rulemaking, make permanent the existing employer duties [ID-
0495, 0522; Tr. pp. 59-60, 88-89, 185, 208, 262]. OSHA had not 
proposed to do so in the NPRM; rather, the point of the instant 
rulemaking is to give the Agency the time it needs to consider 
whether to do so.
    \4\ A commenter suggested in its pre-hearing comment that OSHA 
could simply remove the employer's existing duty to assess operators 
and retrain them as necessary, and instead rely on the ``general 
duty clause'' in section 5(a)(1) of the OSH Act to enforce those 
responsibilities [ID-0495]. OSHA decided against this approach 
because it would give employers less certainty about the specifics 
of its duty to ensure their crane operators know how to operator 
cranes safely, and because it would make it more difficult for OSHA 
to enforce such a duty due to the nature of the Agency's burden of 
proof. Moreover, a court might find the cranes standard precludes 
such a general duty case even if OSHA removed the employee training 
requirement.
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    As discussed above, other commenters supported the extension 
because they thought stakeholders needed more time to complete 
certification [e.g., ID-0460]. OSHA does not find these arguments 
convincing. While OSHA rejects the argument that intentional lack of 
compliance with an existing requirement in a standard is by itself 
grounds for OSHA to delay a compliance date, it is adopting an 
extension to consider the potential safety consequences of allowing the 
existing employer duty to expire or the new concerns expressed after 
the 2010 cranes rulemaking that some of the existing operator 
certification requirements might be unnecessary and costly.

D. Length of the Extensions

    Having determined that it is appropriate to extend both the 
certification deadline and the employer duty to ensure operator 
competence, the remaining issue is the length of the extensions. In the 
NPRM, OSHA proposed extending the operator certification deadline and 
the existing employer duty for three years, until November 10, 2017. As 
an alternative, the Advisory Committee on Construction Safety and 
Health (ACCSH) recommended an indefinite extension of the operator 
certification deadline and the existing employer duty pending further 
rulemaking on the issue [OSHA 2013-0006-0024]. OSHA requested comment 
on both the three-year extension and ACCSH's recommendation of an 
indefinite extension, and invited comment on alternative periods.
    One group of commenters proposed an extension of just one year, 
others supported the proposed three-year extension, one commenter 
suggested a five-year extension, and three commenters indicated their 
support for

[[Page 57790]]

the indefinite extension suggested by ACCSH.
    The commenters supporting the one-year extension generally urged 
OSHA to act quickly so as not to unnecessarily delay the safety 
benefits that could be achieved by completion of the final crane 
rulemaking [Tr. pp. 58-60, 183-184, 206-207, 264-266]. In addition, the 
Crane Institute of America called for clarity as soon as possible, 
warning that ``[u]ncertainty over what the requirements of the rule 
will finally be will retard employer participation in getting operators 
certified'' [ID-0489].
    At the informal public hearing, CIC suggested a one-year extension 
of the operator certification deadline and the existing employer duty 
as ``sufficient time to allow OSHA to make this change to the 
regulation and to the industry to recover and resume pursuit of 
accredited operator certification'' [Tr. p. 60]. CIC stated that the 
Agency's announcement at the May 2013 ACCSH meeting that the Agency 
intended to propose a delay of the crane operator certification 
deadline resulted in a decline both in training and certification 
activity that had resulted in a year of confusion in the industry'' 
[Tr. p. 66]. Industrial Training International, a training provider, 
referred to the period of lower activity as ``the year we've lost'' 
[Tr. p. 209].
    CIC suggested that OSHA could complete the rulemaking process in 
one year if it ``fast tracked'' the rulemaking, citing OSHA's 
activities with respect to diacetyl as an example of this process and 
of how quickly OSHA can act to address a safety and health concern [Tr. 
p. 60-62]. Other hearing participants (Crane Training Group, Caldwell 
Tanks, Industrial Training International, and Crane Industry Services) 
supported this proposition, and suggested that OSHA could meet this 
deadline because it has the capacity to ``fast track'' rulemaking [Tr. 
pp. 82, 185, 201, 262].
    OSHA has concluded that it could not complete the necessary tasks 
in the one year period proposed by CIC, particularly if the Agency does 
decide to proceed with a second rulemaking and would need to consider 
and implement all possible rulemaking options. The commenters who 
suggested OSHA ``fast track'' rulemaking as the Agency did with the 
diacetyl rulemaking appear to have been misinformed: OSHA did not 
complete a rulemaking on diacetyl in one year; indeed the Agency has 
not yet published an NPRM on this issue. OSHA is not certain what the 
commenters' intended by their reference to a ``fast track'' rulemaking 
process.
    In response to the NPRM, OSHA received many comments supporting the 
three-year extension of the operator certification deadline and the 
employer duty [ID-0434, 0449, 0452, 0454-62, 0464, 0466-69, 0472, 0474, 
0475-79, 0481, 0482-88, 0490, 0491, 0493, 0496-98; Tr. pp. 22, 22, 100, 
119, 210-211, 222]. In the NPRM, OSHA stated that it considered a 
three-year extension ``to give it sufficient time to complete a 
rulemaking should it choose to do so'' [79 FR 7613]. Even if the Agency 
chose to conduct a subsequent rulemaking, OSHA explained that three 
years would be enough time because ``this issue is critical to 
construction safety'' and ``a subsequent rulemaking would focus on a 
limited number of discrete issues'' [79 FR 7613]. OSHA also notes that 
several participants in the public hearing, including some of the 
commenters advocating the one-year extension, cautioned OSHA against 
setting a deadline that it is not certain it can achieve [Tr. pp. 139, 
196-197, 208, 272]. Industrial Training International explained, ``when 
the target is constantly moving, we never hit it'' [Tr. p. 208]. 
Specialized Carriers & Riggers Association added ``OSHA knows how long 
it's going to take, and we would say give yourself adequate time. Don't 
limit yourself to a year and then have us all back in the room again 
next year requesting an extension again'' [Tr. p. 139].
    A few commenters urged the Agency to delay the operator 
certification deadline, and extend the existing employer duty, for a 
longer period such as five years, or to follow the ACCSH's 
recommendation that the Agency extend both indefinitely until OSHA 
completes a new rulemaking on operator certification [see ID-0447; -
0471; -0480; -0492; -0494; -0530]. These commenters asserted that three 
years would be insufficient to complete an additional rulemaking.
    NAHB asked OSHA to extend the operator certification deadline and 
the existing employer duty requirements indefinitely or ``at a minimum 
five years to allow the Agency sufficient time to implement an improved 
rule'' [ID-0480]. Subsequently at the informal public hearing, NAHB 
explained that it took more than five years to finalize the cranes 
standard, and acknowledged that its five-year recommendation was 
somewhat arbitrary because the organization ultimately ``split the 
difference'' between an indefinite extension and a three year extension 
[Tr. p. 53]. It made clear that the underlying purpose of the request 
for a longer extension was to conduct an extra round of small-business 
review of the third-party certification requirement, which it continues 
to oppose, ``because we believe that the small businesses really need a 
second bite at this apple'' [Tr. p. 44]. A different commenter opposed 
this ``second bite at the apple,'' suggesting the OSHA should not delay 
the safety benefits of the rulemaking to consider exemptions that had 
already been considered and rejected [ID-0539].
    OSHA need not resolve this issue for the purposes of this 
rulemaking, but notes that the scope of the issues it will consider for 
subsequent rulemaking will be much narrower than the 2010 cranes 
standard. In that regard, these two rulemakings are not comparable for 
purposes of determining how long they will take. While five years would 
give the Agency more time to consider and undertake any rulemaking 
options, the Agency must balance the rationale for this additional 
extension against the concerns raised by the other commenters who point 
out that any unnecessary delay in the operator certification 
requirement could prevent the Agency from obtaining the full safety 
benefit of the cranes standard.
    As explained in the NPRM, the purpose of the extension is to 
provide additional time for the Agency to consider its rulemaking 
options. Should it choose to complete a new rulemaking, the Agency is 
confident that it can do so within the three-year extension period. 
OSHA therefore is not convinced that a five-year extension would 
provide any real benefit; instead, it is likely to constitute an 
unnecessary delay subject to all of the concerns raised by commenters 
who requested a shorter period. A three-year extension, rather than a 
five-year extension, provides a better balance between achieving the 
full safety benefits of the rule and demonstrating to the industry that 
addressing this issue is a priority.
    OSHA is likewise not persuaded that an indefinite extension would 
be useful. Several commenters emphasized the need for the Agency to 
find a solution as soon as possible [Tr. pp. 70, 251], and one 
commenter opposed an indefinite extension on the grounds that it would 
remove the motivation necessary for OSHA to complete a subsequent 
rulemaking quickly [Tr. p. 259]. Moreover, one commenter [ID-0486] 
asserted that an indefinite extension would foster complacency among 
the regulated community, some of whom may erroneously assume that 
operator certification is not important. The Agency agrees with these 
comments. Further, one commenter who suggested that extending the 
operator certification deadline indefinitely would ``alleviate 
confusion regarding the current compliance deadline'' [Tr. p. 177].

[[Page 57791]]

OSHA disagrees. Failing to specify a compliance deadline for operator 
certification is likely to result in greater, not less, confusion.
    In addition, if OSHA does not designate a fixed period after which 
the certification requirements would automatically take effect, the 
Agency may face additional legal challenges to reinstating them. 
Although a temporary extension is not a reversal of the Agency's 
position requiring operator certification, some courts have suggested 
that indefinitely postponing a rule's effective date might be 
tantamount to repealing a rule. See, e.g., Pub. Citizen v. Steed, 733 
F.2d 93, 98 (D.C. Cir. 1984). The Agency has already dedicated a 
significant amount of time and resources to implementing the existing 
standard, including conducting an extensive negotiated rulemaking 
process before requiring that employers ensure their crane operators 
are certified. The Agency therefore finds it prudent to avoid any risk 
of being forced to proceed as if it had revoked the requirement, which 
could mean additional expense for the agency and additional delay in 
finalizing any subsequent rulemaking. See, e.g., N. Carolina Growers' 
Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 765 (4th Cir. 2012).
    OSHA concludes that a three-year extension of the operator 
certification deadline and the existing employer duty is the 
appropriate amount of time to consider what regulatory approach OSHA 
should take regarding operator qualification. Three years is also 
enough time to make any potential regulatory changes the Agency 
ultimately determines are appropriate. In response to the commenters 
who urged OSHA to act as quickly as possible and expressed concern that 
the 3-year delay might be unnecessary, OSHA notes that it is not 
constrained to using the entire three years to take action on this 
issue if the Agency can act sooner. OSHA will address the issue of 
operator qualification as quickly as it can, meaning that the Agency 
could determine the appropriate regulatory action, if any, and 
implement it in less than three years. In that case, the Agency could 
impose an earlier deadline through separate rulemaking.
    Therefore OSHA has decided to extend the operator certification 
deadline for three years, until November 10, 2017, and to extend the 
employer duty to ensure that crane operators are competent to operate a 
crane safely for the same three-year period, as it proposed. The Agency 
received no comment on the text of its proposed revision to Sec.  
1926.1427(k), and the final rule adopts the provision as proposed.
    In the notice of proposed rulemaking, OSHA also noted that a 
parallel training requirement in Sec.  1926.1430(c)(2) reiterates the 
training requirement in paragraph 1427(k)(2), specifying that the 
training occur during the four-year transition period. OSHA 
preliminarily determined that it did not need to amend Sec.  1430(c)(2) 
because it believed that amending Sec.  1427(k)(2) was sufficient to 
extend the relevant employer training duty for employers. OSHA asked 
for comment on this issue, and received none. The Agency continues to 
believe that no amendment of Sec.  1430(c)(2) is necessary, and 
therefore it has not changed that provision in the final rule.

III. Agency Determinations

A. Final Economic Analysis and Regulatory Flexibility Analysis

    When it issued the final cranes rule in 2010, OSHA prepared a final 
economic analysis (FEA) as required by the Occupational Safety and 
Health Act of 1970 (OSH Act; 29 U.S.C. 651 et seq.) and Executive 
Orders 12866 (58 FR 51735) (Sept. 30, 1993) and 13563 (76 FR 3821 (Jan. 
21, 2011)). OSHA also published a Final Regulatory Flexibility Analysis 
as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). The 
preliminary economic analysis (PEA) for this rulemaking relied on some 
estimates from those earlier documents, and this FEA is based on 
estimates in the PEA along with public comments and testimony and other 
documents in the rulemaking record.
    Because OSHA estimates that this rule will have a cost savings for 
employers of $21.4 million per year for the three years of the 
extension, this final rule is not economically significant within the 
meaning of Executive Order 12866, or a major rule under the Unfunded 
Mandates Reform Act or Section 804 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). In addition, 
this rule complies with Executive Order 13563.
    This FEA focuses solely on costs, and not on any changes in safety 
and benefits resulting from extending the certification deadline and 
the employer duties under Sec.  1427(k)(2). OSHA previously provided 
its assessment of the benefits of the cranes standard in the FEA of 
that standard. As noted elsewhere in this preamble, the primary 
rationale for proposing the extension is to provide additional time for 
OSHA to consider the potential costs and benefits of possible 
adjustments to the operator certification requirements in future 
rulemaking.
    Extending the employer's requirement to ensure an operator's 
competency during this period means continuing measures in existence 
since publishing the final crane standard in 2010. As OSHA stated in 
the preamble to the 2010 final rule, the interim measures in paragraph 
(k) ``are not significantly different from requirements that were 
effective under subpart N of this part at former Sec.  1926.550, Sec.  
1926.20(b)(4) (`the employer shall permit only those employees 
qualified by training or experience to operate equipment and 
machinery'), and Sec.  1926.21(b)(2) (`the employer shall instruct each 
employee in the recognition and avoidance of unsafe conditions . . 
.')'' (75 FR 48027).
    Delaying the operator certification requirement defers a regulatory 
requirement and should impose no new costs on employers. There will, 
however, be continuing employer costs for extending the requirement to 
assess operators under existing Sec.  1926.1427(k)(2); if OSHA had not 
extended these requirements, they would have expired in 2014 and 
employers would not have incurred these costs after 2014. With the 
extension, these continuing employer costs will be offset by a 
reduction in expenses that employers would otherwise incur to ensure 
that their operators are certified before the existing November 2014 
deadline.
 Overview
    In the following analysis, OSHA examined costs and savings to 
determine the net economic effect of the rule. By comparing the 
additional assessment costs to the certification cost savings across 
two scenarios--a scenario in which there is no extension of the 2014 
deadline, and a scenario in which there is an extension until 2017--
OSHA estimates that the extension will produce a net savings for 
employers of $21.7 million per year, annualized over the 3-year period 
of the extension using a 7% interest rate ($19.8 million per year using 
an interest rate of 3%).\5\
---------------------------------------------------------------------------

    \5\ As explained in the following discussion, OSHA typically 
calculates the present value of future costs and benefits using two 
interest rate assumptions, 7% and 3%, as recommended by OMB Circular 
A-4 of September 17, 2003.
---------------------------------------------------------------------------

    OSHA's analysis follows the steps below to reach its estimate of an 
annual net $21.7 million in savings:
    (1) Estimate the annual assessment costs for employers;
    (2) Estimate the annual certification costs for employers; and

[[Page 57792]]

    (3) Estimate the year-by-year cost differential for extending the 
certification deadline to 2017.\6\
---------------------------------------------------------------------------

    \6\ For convenience, OSHA refers to the annual time period as a 
``Certification Year'' (CY) in this economic analysis, which OSHA 
defines as beginning November 10 of the calendar year; e.g., CY 2013 
runs from November 10, 2013, to November 9, 2014. There is some 
small variation in both assessment and certification costs across 
CYs due to changes in the composition of the operator pool resulting 
from turnover (discussed below). In this regard, OSHA presents CY 
2013 costs in full, and then presents the minor adjustments needed 
for other CYs.
---------------------------------------------------------------------------

    Table 1 below summarizes these costs and the differentials.
a. Annual Assessment Costs
    OSHA estimated the annual assessment costs using the following 
three steps: First, determine the unit costs of meeting this 
requirement; second, determine the number of assessments that employers 
will need to perform in any given year (this determination includes 
estimating the affected operator pool as a preliminary step); and 
finally, multiply the unit costs of meeting the requirement by the 
number of operators who must meet it in any given year to determine the 
annual costs.
    Unit assessment costs. OSHA's unit cost estimates for assessments 
take into account the time needed for the assessment, along with the 
wages of both the operator and the specialized operator assessor who 
will perform the assessment. OSHA based the time requirements on crane 
operator certification exams currently offered by nationally accredited 
testing organizations. OSHA determined the time needed for various 
certification tests from informal conversations with industry sources 
who participated in the public stakeholder meetings.
    The Agency estimates separate assessment costs for three types of 
affected operators, which together include all affected operators: 
those who have a certificate that is in compliance with the existing 
cranes standard; those who have a certificate from a nationally 
accredited testing organization that is not in compliance with the 
existing cranes standard; and those who have no certificate.\7\ OSHA 
uses certification status as a proxy of competence in estimating the 
amount of assessment time needed for different operators. OSHA expects 
that an operator already certified to operate equipment of a particular 
type and capacity will require less assessment time than an operator 
certified by type but not capacity, who in turn will require less time 
than an operator who is not certified. In deriving these estimates, 
OSHA determined that operators who have a certificate that is compliant 
with the cranes standard would have to complete a test that is the 
equivalent of the practical part of the standard crane operator 
test.\8\ The Agency estimates that it would take an operator one hour 
to complete this test. Operators who have a certificate that is not in 
compliance with the cranes standard would have to complete a test that 
is equivalent to both a written general test and a practical test of 
the standard crane operator test. OSHA estimated that the written 
general test would take 1.5 hours to complete, for a total test time of 
2.5 hours of testing for each operator (1.5 hours for the written 
general test and 1.0 hour for the practical test). Finally, operators 
with no certificate would have to complete a test that is equivalent to 
the written test on a specific crane type of the standard crane 
operator test (also lasting 1.5 hours), as well as the written general 
test and the practical test, for a total test time of 4.0 hours (1.5 
hours for the test on a specific crane type, 1.5 hours for the written 
general test, and 1.0 hour for the practical test).
---------------------------------------------------------------------------

    \7\ OSHA is not making any determination about whether a 
specific certification complies with the requirements of the cranes 
standard. For the purposes of this analysis only, OSHA will treat 
certificates that do not include a multi-capacity component as not 
complying with the cranes standard, and certificates that include 
both a type and multi-capacity component as complying with the 
cranes standard. For example, during the hearing, a participant 
indicated that some certifying organizations offer a single 
``unlimited capacity'' certification (Tr. p. 246). In this analysis, 
OSHA treats such certifications as not complying with the cranes 
standard.
    \8\ One commenter to the PEA objected that: ``Costs associated 
with 1 hour of additional practical testing for operators who are 
compliant are not necessary'' (OSHA-20007-0066-0495). But this 
comment overlooks that this cost is for an employer to assess an 
operator with compliant certification under the employer duty 
clause. The hour taken is an estimate based on the time for a 
practical test as being a reasonable proxy for this assessment.
---------------------------------------------------------------------------

    The wages used for the crane operator and assessor come from the 
2010 final cranes rule (75 FR 48102). Accordingly, the operator wage is 
$35.62, while the wage of the assessor is estimated to be the same as 
the wage of a crane inspector, $41.25. For assessments performed by an 
employer of a prospective employee (i.e., a candidate), OSHA used these 
same operator and assessor wages and the above testing times to 
estimate the cost of assessing prospective employees.
    Multiplying the wages of operators, assessors, and candidates by 
the time taken for each type of assessment provides the cost for each 
type of assessment. Hence, the cost of assessing an operator already 
holding a certificate that complies with the standard (both type and 
capacity) is one hour of both the operator's and assessor's time: 
$76.87 ($35.62 + $41.25). For an operator with a certificate for crane 
type only (not crane capacity), the assessment time is 2.5 hours for a 
cost of $192.18 (2.5 x ($35.62 + $41.25)). Finally, for an operator 
with no certificate, the assessment time is 4.0 hours for a cost of 
$307.48 (4.0 x ($35.62 + $41.25)). These estimates are identical to 
those in the PEA, and commenters did not object to them except for the 
one comment questioning the inclusion of the assessment costs for 
operators with compliant certifications, discussed in the above 
footnote.
    Besides these assessment costs, OSHA notes that Sec.  
1427(k)(2)(ii) requires employers to provide training to employees if 
they are not already competent to operate their assigned equipment. To 
determine whether an operator is competent, the employer must first 
perform an assessment. Only if an operator fails the assessment will 
the operator require training. However, in determining this cost, OSHA 
made a distinction between a nonemployee candidate for an operator 
position and an operator who is currently an employee. For an employer 
assessing a nonemployee candidate, OSHA assumed, based on common 
industry practice, that the employer will not hire a nonemployee 
candidate who fails the assessment. In the second situation, an 
employee qualified to operate a crane fails a type and/or capacity 
assessment for a crane that differs from the crane the employee 
currently operates. In this situation, the cost-minimizing action for 
the employer is not to assign the employee to that type and/or capacity 
crane, thereby avoiding training costs. While the Agency acknowledges 
that there will be cases in which the employer will provide this 
training, it believes these costs to be minimal and, therefore, is not 
taking costs for the training. OSHA made the same determinations in the 
PEA and did not receive public comment on them.
    Number of assessments and number of affected operators. The number 
of assessments is difficult to estimate due to the heterogeneity of the 
crane industry. Many operators work continuously for the same employer, 
already have their assessment, and do not need reassessment, so the 
number of new assessments required by the cranes standard for these 
operators will be zero. Some crane companies will rent both a crane and 
an operator employed by the rental company to perform crane work, in 
which case the rental crane company is the operator's employer and 
responsible for operator assessment. In

[[Page 57793]]

such cases there is no requirement for the contractor who is renting 
the crane service to conduct an additional operator assessment. 
Assuming that employers already comply with the assessment and training 
requirements of the existing Sec.  1427(k)(2), employers only need to 
assess a subset of operators: New hires; employees who will operate 
equipment that differs by type and/or capacity from the equipment on 
which they received their current assessment; and operators who 
indicate that they no longer possess the required knowledge or skill 
necessary to operate the equipment.
    To calculate the estimated annual number of assessments, OSHA first 
estimated the current number of crane operators affected by the cranes 
standard. The FEA in the final cranes standard identified a total of 
142,630 affected crane operators (75 FR 48108). However, after 
publishing the final cranes standard, OSHA made revisions to the cranes 
standard that reduced the total number of affected operators. In this 
regard, OSHA excluded a significant percentage of digger-derrick use 
from the scope of the cranes standard (see Cranes and Derricks in 
Construction: Revising the Exemption for Digger Derricks, 78 FR 32110 
(May 29, 2013)). Accordingly, for electric power generation and 
transmission work covered by the digger-derrick exemption, OSHA found 
that the two industries using digger derricks have a total of 25,500 
operators of digger derricks; these industries are: Electric Power 
Generation, NAICS: 221110; and Electric Power Transmission, NAICS: 
221120 (see 78 FR 32114). Subtracting these digger-derrick operators 
from the original total leaves the total number of operators affected 
by this proposal at 117,130 (i.e., 142,630 - 25,500).
    For the purpose of determining the number of assessments required 
each year under this proposal, OSHA is relying on the original 23% 
turnover rate for operators identified in the 2008 PEA for the cranes 
rule (73 FR 59895), which includes all types of operators who would 
require assessment: operators moving between employers; operators 
moving between different types and/or capacities of equipment; and 
operators entering the occupation. OSHA estimated that 26,940 
assessments occur each year based on turnover (i.e., 117,130 operators 
x 0.23 turnover rate). This number includes assessments performed by an 
employer on current employees assigned to a new type and/or capacity 
crane. In addition, OSHA in the 2008 PEA assumed that 15% of operators 
involved in assessments related to turnover would fail the first test 
administration and need reassessment (73 FR 59895). Therefore, in the 
PEA for the current rulemaking, OSHA added 4,041 reassessments (i.e., 
26,940 operators x 0.15) to the number of reassessments resulting from 
turnover, for a total of 30,981 yearly assessments resulting from 
turnover and test failure (i.e., 26,940 + 4,041) (79 FR 7615). OSHA did 
not receive comment on this estimate, so it is unchanged in this FEA.
    Annual assessment costs. Annual assessment costs will vary by year 
depending on several factors; the following section addresses year-by-
year variations. However, OSHA must first determine the annual base 
amount from which to account for the variations, and must do so for the 
two scenarios: (1) Retaining the original 2014 deadline specified by 
the existing cranes standard (status quo); and (2) extending the 
deadline to 2017 (final rule).
    The first part of the calculation is the same under both scenarios. 
Because the annual assessment costs vary by the different levels of 
assessment required (depending on the operator's existing level of 
certification), OSHA grouped the 117,130 operators subject to the 
cranes standard into three classifications: Operators with a 
certificate that complies with the standard; operators with a 
certificate only for crane type; and operators with no certification. 
In the PEA, from discussions with members of the crane industry, OSHA 
estimated that 15,000 crane operators currently have a certificate that 
complies with the existing cranes standard, and another 60,000 have a 
certificate for crane type only (but not capacity) (79 FR 7616). 
Subsequent to the PEA, OSHA has received further information, both from 
post-PEA public comments and statements made at the public hearing. One 
certification organization, the National Commission for the 
Certification of Crane Operators (NCCO), stated that OSHA's estimates 
``significantly understate the number of crane operators considered by 
OSHA to be out of compliance,'' and that ``the number of compliant 
certifications appears overstated'' [ID-0488]. A different 
certification organization, Crane Institute Certification (CIC), 
reached the opposite conclusion, stating that the number of operators 
with compliant certificates ``is actually much higher'' than OSHA's 
estimate of 15,000 [ID-0495]. During the hearing NCCCO stated that 
``65,000 or more'' operators were currently certified under their 
program [Tr. p. 94], which is by type only [Tr. p. 109]. The 
International Union of Operating Engineers (IUOE) at the hearing stated 
that currently it has ``just a little over 6,700 operators'' certified 
under its associated OECP program, which does not break out 
certification by capacity [Tr. p. 246]. OSHA invited each of these 
three organizations to provide additional information in their post-
hearing submissions about the number of operators certified, but none 
of the organizations provided additional information on this subject or 
provided additional information challenging OSHA's underlying estimate 
that the total number of operators covered by the cranes standard is 
117,130.
    Based on this record, OSHA estimates that there are 71,700 (65,000 
+ 6,700) operators with certification for type only, while 15,000 
operators have compliant certification.\9\ Therefore, 30,430 crane 
operators have no crane certification (i.e., 117,130 total operators - 
(15,000 operators with compliant certification + 71,700 operators with 
certification for type only)).
---------------------------------------------------------------------------

    \9\ In light of the disagreement between the commenters about 
the number of operators with compliant certifications, and no other 
information in the record, the Agency elected to stay with the 
original number of 15,000. As a sensitivity analysis check, OSHA 
redid the analysis with both 10,000 and 20,000 operators with 
compliant certification. This had a miniscule effect, changing the 
$21.7m per year cost savings, at a 7% discount rate, by $53k per 
year, either $53k higher (for 20,000 certified), or $53k lower (for 
10,000 certified.) This is only 0.25% of a change.
---------------------------------------------------------------------------

    Assuming the turnover rate of 23% and the failure rate of 15% for 
turnover-related assessments are distributed proportionally across the 
three types of operators, then the number of assessments for operators 
with compliant certification is 3,968 (i.e., (0.23 + (0.23 x 0.15)) x 
15,000), the number of assessments for operators with type-only 
certification is 18,965 (i.e., (0.23 + (0.23 x 0.15)) x 71,700), and 
the number of assessments for operators with no certification is 8,049 
(i.e., (0.23 + (0.23 x 0.15)) x 30,430). Under scenario 2 (employer-
assessment requirement extended to 2017), OSHA estimated the CY 2013 
costs by multiplying the assessment numbers for each type of operator 
by the unit costs, resulting in a cost of $6,424,338 (i.e., ($76.87 x 
3,968) + ($192.18 x 18,965) + ($307.48 x 8,049)). Under scenario 1, 
employers would be certifying operators throughout CY 2013, whereas 
under scenario 2 employers would be deferring the certifications until 
CY 2016; as a result, the CY 2013 assessment costs for scenario 1 would 
decrease from $6,424,338 to $4,402,920 because a percentage of the 
operators under scenario 1 will obtain a compliant certificate before 
they are assessed,

[[Page 57794]]

thereby reducing the estimated time and cost needed for the assessment 
(see discussion of year-by-year cost differential in section c below 
for more details about this determination).
b. Annual Certification Costs
    OSHA estimated the annual certification costs using the three steps 
used for estimating annual assessment costs: First, determine the unit 
costs of meeting this requirement; second, determine the number of 
affected operators; and, finally, multiply the unit costs of meeting 
the requirement by the number of operators who must meet them. In the 
PEA, OSHA estimated that almost all certification will occur in the 
year prior to the deadline, noting that although the November 2014 
deadline was roughly a year away, the vast majority of operators had 
not yet received certification that is in compliance with the existing 
standard. None of the commenters disagreed. Based upon this evidence, 
if OSHA extends the existing requirements to November 2017, OSHA 
estimates that the vast majority of employers will again wait until the 
year before the deadline (i.e., CY 2016) to certify all operators. As 
in the annual assessment-cost analysis described above, OSHA provides 
the calculations for CY 2013 under the original 2014 deadline (scenario 
1), and then presents the certification costs for CY 2016 that would 
apply if OSHA extends the certification requirement to November 2017 
(scenario 2).
    Unit certification costs. The unit certification costs are the same 
as those proposed in the PEA. Unit certification costs vary across the 
three different types of operators in the operator pool (operators with 
compliant certification; operators with type-only certification; and 
operators with no certification). Among operators without certification 
there is a further distinction with different unit certification costs: 
experienced operators without certification and operators who have only 
limited experience. Therefore, there are different unit certification 
costs for four different types of operators. There also are ongoing 
certification costs due to the following three conditions: the five-
year limit on operator certification; the need for some certified 
operators to obtain additional certification to operate a crane that 
differs by type and/or capacity from the crane on which they received 
their current certification; and a yearly 5% turnover rate (i.e., 5% 
new crane operators entering the occupation to replace operators 
leaving the occupation).
    OSHA estimated these different unit certification costs using 
substantially the same unit-cost assumptions used in the FEA for the 
2010 cranes standard. In that FEA, OSHA estimated that training and 
certification costs for an operator with only limited experience would 
consist of $1,500 for a 2-day course (including tests) and 18 hours of 
the operator's time, for a total cost of $2,141.16 (i.e., $1,500 + (18 
hours x $35.62)) (see 75 FR 48096-48097).\10\ OSHA continues to use a 
cost of $250 for the tests taken without any training (a constant fixed 
fee irrespective of the number of tests (75 FR 48096)), and the same 
number of hours used for each test that it used in the assessment 
calculations provided above (which the Agency based on certification 
test times). Accordingly, OSHA estimated the cost of a certificate 
compliant with the standard for an operator who has a type-only 
certificate to be $339.05 (i.e., 1 type/capacity-specific written test 
at 1.5 hours and 1 practical test at 1.0 hours (2.5 hours total), plus 
the fixed $250 fee for the tests (i.e., (2.5 hours x $35.62) + $250)). 
For an experienced operator with no certificate, the cost is $392.48 
(i.e., the same as the cost for an operator with a type-only 
certificate plus the cost of an added general written test of 1.5 hours 
(i.e., (4.0 hours x $35.62) + $250).\11\
---------------------------------------------------------------------------

    \10\ One commenter in the instant rulemaking stated that the 
operator certification costs taken in the 2010 FEA were understated, 
but did not provide any support for an alternative. That commenter 
mistakenly claimed without citation that OSHA, presumably in the 
2010 FEA, ``took into consideration that the cost to certify an 
operator based on the programs available at the time would range 
from $500 to $1600 depending on the test and the training required'' 
but ``took the lowest cost'' of $500 for its estimate [ID-0475]. In 
fact, OSHA used $1,500 as the unit cost for operator certification, 
both in the 2010 FEA and in the PEA for this rulemaking [75 FR 
48097].
    \11\ There are no certification costs for operators who already 
have a certificate that complies with the cranes standard.
---------------------------------------------------------------------------

    For Scenario 1, Sec.  1926.1427(b)(4) specifies that a certificate 
is valid for five years. OSHA estimates the recertification unit cost 
would be the same as the assessment for an operator with compliant 
certification (i.e., $76.87).
    Finally, there will be certified operators who must obtain 
certification when assigned to a crane that differs by type and/or 
capacity from the crane on which they received their current 
certification. This situation requires additional training, but less 
training than required for a ``new'' operator with only limited 
experience. Accordingly, OSHA estimated the cost for these operators as 
one half of the cost of training and certifying a new operator, or 
$1,070.58 (i.e., $2,141.16 / 2).
    Number of certifications. After establishing the unit certification 
costs, OSHA had to determine how many certifications are necessary to 
ensure compliance with OSHA's standard. In doing so, the Agency uses 
the 5% new-hire estimate from the FEA discussed above to calculate the 
number of new operators; therefore, of the 117,130 operators affected 
by the standard, 5,857 (i.e., 0.05 x 117,130) would be new operators 
who would require two days for training and certification each year. As 
discussed earlier, OSHA estimated that 71,700 operators have type-only 
certification, and 15,000 operators have certification that complies 
with the existing cranes standard. The remaining 24,574 operators 
(i.e., 117,130 - (71,700 + 15,000 + 5,857)) are experienced operators 
without certification.
    After all operators attain certification by November 2017, there 
will still be ongoing certification costs each year. OSHA estimated 
that 5% of all operators each year, or 5,857 (i.e., .05 x 117,130), are 
new operators with no experience or certification and, therefore, will 
need an initial certification. Consequently, with a constant total 
number of operators, the same number of operators (5,857) will be 
leaving the profession each year and will not require recertification 
when their current 5-year certification ends. This leaves 111,274 
operators (i.e., 117,130 - 5,857) who will need such periodic 
recertification. If we approximate the timing of requirements for 
recertification as distributed proportionally across years, then 20% of 
all operators with a 5-year certificate (i.e., 22,255 operators (.20 x 
111,274)) would require recertification each year.
    A final category of unit certification costs involves the 
continuing need for certified operators to obtain further certification 
when assigned to a crane that differs by type and/or capacity from the 
crane on which they received their current certification. This 
situation arises for both operators working for a single employer and 
operators switching employers.
    Two commenters pointed to the 2010 FEA and suggested that OSHA had 
significantly underestimated the number of certifications that most 
operators would need to obtain to operate cranes of different 
capacities [ID-0475 and Tr. p. 142] These commenters do not appear to 
be aware that under Sec.  1926.1427(b)(2), an operator need only obtain 
a certification for the highest capacity of the type of crane that he 
or she will operate; there

[[Page 57795]]

is no requirement to obtain separate certification for lower capacity 
cranes of the same type. Moreover, the 23% turnover rate (originally 
from the 2008 cranes PEA) used in this FEA covers not only the pre-
deadline situations in which an operator needs an assessment, but also 
situations in the post-deadline period in which an operator needs 
multiple certifications. The operators requiring assessments in the 
pre-deadline period who will not need additional certification in the 
post-deadline period are operators with certification who move to a new 
employer and operate a crane with the same type and capacity as the 
crane on which they received certification from their previous 
employer. These operators will not need reassessment because of the 
portability of an operator certificate across employers as specified by 
the cranes standard (see Sec.  1427(b)(3)). For an employer looking to 
hire an operator for a specific crane, this option will minimize cost, 
and OSHA assumes employers will choose this option when possible.
    After the certification deadline, OSHA estimates that each year 23% 
of the 117,130 operators (26,940, i.e., 0.23 x 117,130) will enter the 
workforce, change employers, or take on new positions that require one 
or more additional certifications to operate different types and/or 
capacities of cranes. Of these 26,940 operators, OSHA estimates that 5% 
of that turnover, or 5,857 ((i.e., 0.05 x 117,130), will result from 
new operators entering the occupation each year; 9%, or 10,542 (i.e., 
0.09 x 117,130), will result from operators switching employers but 
operating a crane of the same type and capacity as the crane they 
operated previously (i.e., no certification needed because 
certification is portable in this case); and the remaining 9%, or 
10,542, changing jobs or positions and requiring one or more additional 
certification to operate a crane that differs by type and/or capacity 
from the crane they operated previously.
    Annual certification costs. As with the assessment costs, 
certification costs will vary by year depending on several factors 
addressed in the following section. However, OSHA still needs to 
determine the annual base amount from which to account for the 
variations, and must do so for the same two scenarios: (1) Retaining 
the original 2014 deadline specified by the existing cranes standard 
(status quo); and (2) extending the deadline to 2017 (proposed rule).
    To estimate the annual base cost for the first scenario, OSHA 
calculates the certification costs for CY 2013 because that is the 
remaining period before the original deadline. The total cost for 
certifying all operators in CY 2013 in accordance with the existing 
cranes standard using the above unit-cost estimates and numbers of 
operators is $46,494,196 (i.e., (71,700 operators with type-only 
certification x $339.05) + (24,574 experienced operators without 
certification x $392.48) + (5,857 operators with no experience or 
certification x $2,141.16)). The Agency, following the FEA (75 FR 
48096), annualized this cost for the five-year period during which 
operator certification remains effective, resulting in an annualized 
cost of $8,281,185. In section c below, OSHA uses this amount in 
calculating the annual certification costs under scenario 1.
    To determine the annual amount used in calculations for the second 
scenario (the extension to 2017), OSHA examines the costs in CY 2016 
because that is the first year with certification costs (as noted 
earlier, OSHA determined that, under the three-year extension, 
employers will postpone certification costs until CY 2016, so there 
will not be any new certification costs for CY 2013-2015). Using the 
same methodology used to calculate the CY 2013 certification costs, the 
total cost for having all crane operators certified in CY 2016 is 
$47,880,244 (in 2016 dollars). The annualized cost over the five-year 
period during which certification remains effective is $8,619,229. In 
the following section, OSHA uses this amount in calculating the annual 
certification costs under scenario 2.
c. Year-By-Year Cost Differential for Extending the Certification 
Deadline to 2017 and Preserving the Employer Assessment Duty Over That 
Same Period
    The ultimate goal of this analysis is to determine the annual cost 
differential between scenario 1 (the status quo) and scenario 2 (the 
extensions of the certification date and the employer assessment duty), 
so the final part of this FEA compares the yearly assessment and 
certification costs employers will incur for the two scenarios. Because 
the assessment and certification costs change each year under each 
scenario, OSHA must compare the cost differential in each year 
separately to determine the annual cost savings for each year 
attributable to scenario 2. OSHA calculated the present value of each 
year's differential, which provides a consistent basis for comparing 
the cost differentials over the extended compliance period. OSHA then 
annualized the present value of each differential to identify an annual 
amount that accounts for the discounted costs over this period. Table 1 
below summarizes these calculations.
    Table 1 shows that assessment and certification costs vary each 
year under scenario 2. There are several factors that cause these costs 
to vary: (1) The five-year limit on operator certification causes some 
operators to require recertification during this period; (2) the need 
for some certified operators to obtain additional certification to 
operate a crane that differs by type and/or capacity from the crane on 
which they received their current certification; and (3) the yearly 5% 
turnover that results in new crane operators entering the occupation. 
In addition, the composition of the operator pool will shift in the 
year before the deadline because a higher share of all operators will 
have certification. This shift will decrease the need to perform a 
longer and more costly assessment, thereby reducing the high costs 
associated with operators who do not have certification (i.e., 
employers would take less time assessing operators with compliant 
certification in this certification year compared to years in which 
there is no deadline). To account for this effect, OSHA adjusted 
assessment costs in the year directly preceding the deadline in each 
scenario (i.e., CY 2013 for scenario 1 and CY 2016 for scenario 2).
    Accordingly, OSHA determined that assessment costs for CY 2013 
under the first scenario would decrease from $6,424,338 under scenario 
2 to $4,402,920 under scenario 1 because of the increasing 
certification effect that occurs near the deadline.\12\ A similar 
calculation for CY 2016 (the year prior to the proposed certification 
deadline in 2017) lowers the estimated assessment costs from $6.9 
million (in the absence of the deadline and accompanying

[[Page 57796]]

certification) to $4.6 million under scenario 2.
---------------------------------------------------------------------------

    \12\ OSHA estimates that operators will obtain their compliant 
certification at a uniform rate throughout the certification year 
immediately preceding the deadline, which implies that certification 
costs can be estimated by using a weighted average of the unit costs 
if no operators become compliant certified, and the unit costs if 
all operators are so certified, with equal weight attributed to each 
condition (i.e., each condition (no operators and all operators) 
contributing one half to the estimate). The Agency then values 
assessment unit costs as if none of the operators had certification, 
which would result in maximum assessment times, with unit costs 
determined by total costs divided by total assessments, which is 
$207.36 (i.e., $6,424,338 total assessment cost / 30,981 total 
yearly assessments). OSHA next values unit assessment costs as if 
all operators had compliant certification, which would require the 
shortest assessment time of 1 hour, and a cost of $76.87. The ratio 
of the second unit assessment cost to the first unit assessment cost 
is .37 ($76.87 / $207.36). Therefore, the resulting assessment cost 
in CY 2013 using the weighted average formula is $4,402,920 (i.e., 
(0.5 x $6,424,338) + (0.5 x 0.37 cost ratio x $6,424,338).
---------------------------------------------------------------------------

    One-time costs for certifying operators with non-compliant 
certification ($24,309,885) and certifying experienced operators with 
no certification ($9,644,607) account for much of the rise in 
certification costs in CY 2013 under scenario 1. OSHA annualized these 
one-time operator certification costs across CY 2013-2017 (matching the 
5-year duration of the certifications received in the last year before 
the deadline), resulting in an annualized cost of $8,281,185 for each 
year of this five-year period under scenario 1.\13\ Under scenario 2, 
the corresponding annualized certification costs for CY 2016-2020 
(again matching the 5-year duration of the certifications received in 
the last year before the deadline) would be $8,619,229. The 
certification costs vary in the other (pre-deadline) years depending on 
factors identified earlier in this FEA.
---------------------------------------------------------------------------

    \13\ Under scenario 1, therefore, the total certification costs 
of $33,817,340 for each year over CY2014-2017 consist of the 
annualized cost of $8,281,185 for the one-time operator 
certification costs and $25,536,156 for fixed costs involving 
recertification of compliant operators, additional certifications 
for operators changing type or capacity of crane, and certification 
of new operators.
---------------------------------------------------------------------------

    As noted earlier, OSHA estimated the overall cost differential 
between these two scenarios by calculating the difference in total 
(assessment and certification) costs each year across the two 
scenarios. The net employer cost savings in current dollars 
attributable to adopting the second scenario are, for each 
certification year: 2013, $18.8 million; 2014, $27.2 million; 2015, 
$27.1 million; 2016, $8.0 million; 2017, -$0.3 million; 2018, -$8.6 
million; 2019, -$8.6 million; and 2020, -$8.6 million.\14\
---------------------------------------------------------------------------

    \14\ A positive cost differential indicates net savings and a 
negative cost differential indicates net costs. Savings in earlier 
years results largely from the extension of the certification 
deadline. The cost differential then turns negative in later years 
largely because employers complete certification under the first 
scenario while they are just beginning certification under the 
second scenario.
    By 2017, under both scenarios all existing operators will have 
compliant certification. However, under the second scenario, the 
five-year annualization of when certification costs are incurred 
would continue until 2020. Hence, 2021 is the first year when, under 
both scenarios, employer costs would consist solely of ongoing 
certification costs, and the cost differential between the two 
scenarios would be zero. The ongoing certification costs consist of: 
the yearly cost resulting from new operators (5% of all operators) 
entering the operator pool; the proportion of the pool that must 
receive recertification each year resulting from expiration of the 
five-year certification; and the annual additional certifications 
that occur.

                               Table 1--Year-by-Year Cost Differential if OSHA Extends the Certification Deadline to 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          2013          2014          2015          2016         2017        2018        2019        2020        2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operator Pool
Scenario 1 (no deadline extension):
    Operators with non-compliant            71,700             0             0             0           0           0           0           0           0
     certification..................
    Operators with compliant                15,000       111,274       111,274       111,274     111,274     111,274     111,274     111,274     111,274
     certification..................
    Operators with no certification.        24,574             0             0             0           0           0           0           0           0
    New operators...................         5,857         5,857         5,857         5,857       5,857       5,857       5,857       5,857       5,857
Scenario 2 (deadline extension):
    Operators with non-compliant            71,700        68,115        64,709        61,474           0           0           0           0           0
     certification..................
    Operators with compliant                15,000        14,250        13,538        12,861     111,274     111,274     111,274     111,274     111,274
     certification..................
    Operators with no certification.        24,574        28,909        33,027        36,939           0           0           0           0           0
    New operators...................         5,857         5,857         5,857         5,857       5,857       5,857       5,857       5,857       5,857
Costs
Scenario 1 (no deadline extension):
    Total assessment costs..........     4,402,920             0             0             0           0           0           0           0           0
    Total certification costs.......    20,820,888    33,817,340    33,817,340    33,817,340  33,817,340  25,536,156  25,536,156  25,536,156  25,536,156
                                     -------------------------------------------------------------------------------------------------------------------
        Total.......................    25,223,808    33,817,340    33,817,340    33,817,340  33,817,340  25,536,156  25,536,156  25,536,156  25,536,156
Scenario 2 (deadline extension):
    Total assessment costs..........     6,424,338     6,579,422     6,726,751     4,624,107           0           0           0           0           0
    Total certification costs.......             0             0             0    21,158,933  34,155,385  34,155,385  34,155,385  34,155,385  25,536,156
                                     -------------------------------------------------------------------------------------------------------------------
        Total.......................     6,424,338     6,579,422     6,726,751    25,783,039  34,155,385  34,155,385  34,155,385  34,155,385  25,536,156
                                     -------------------------------------------------------------------------------------------------------------------
Cost Differential (Scenario 2-        (18,799,469)  (27,237,919)  (27,090,590)   (8,034,301)     338,044   8,619,229   8,619,229   8,619,229           0
 Scenario 1)........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    OSHA next determined the present value of these cost differentials 
between the two scenarios. OSHA calculated the present value of future 
costs using two interest rates assumptions, 7% and 3%, which are the 
rates OSHA used in the FEA of the cranes standard (75 FR 48080), and 
which follow the OMB guidelines specified by Circular A-4 of September 
17, 2003. At an interest rate of 7%, the present value of the cost 
differentials for CY 2013 onwards results in an estimated savings of 
$57.0 million ($56.0 million using the 3% rate). Finally, annualizing 
the present value over the three-year extension period results in an 
annualized cost differential (i.e., net employer cost savings) of $21.7 
million per year ($19.8 million per year using the 3% rate).
d. Certification of No Significant Impact on a Substantial Number of 
Small Entities
    Because the Agency estimates the cost of any single assessment to 
be no higher than $307.48, it believes the economic impact will be 
minimal on any employer. Most employers will have savings resulting 
from the three-year extension, particularly employers that planned to 
pay for operator certification in the year before the original 2014 
deadline. The only entities likely to see a net cost will be entities 
that planned to hire an operator with compliant certification after 
November 10, 2014. Without the three-year extension, these entities 
will have no separate assessment duty, but under the three-year 
extension they will have the expense involved in assessing operator 
competency. As noted above, however, OSHA estimated the cost for such 
assessments (for operators with a type and capacity certification) to 
be $76.87 per certified operator.
    Small businesses will, by definition, have few operators, and OSHA 
believes the $76.78 cost will be well below 1% of revenues, and well 
below 5% of profits, in any industry sector using cranes. OSHA does not 
consider such small amounts to represent a significant impact on small 
businesses in any industry sector. Hence, OSHA certifies this final 
rule will not have a significant impact on a substantial number of 
small entities. OSHA made the same certification in the PEA and did not 
receive any comment on either the certification or its underlying 
rationale.

[[Page 57797]]

B. Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 (PRA-95) requires Federal 
agencies to obtain the Office of Management and Budget (OMB) approval 
of a collection of information (paperwork) requirement before an Agency 
can conduct or sponsor the paperwork requirement; and to display the 
OMB control (approval number) (44 U.S.C. 3507(d)). Agencies submit an 
Information Collection Request (ICR), with paperwork analysis, to OMB 
seeking approval of their paperwork requirements. The Cranes and 
Derricks in Construction Standard (29 CFR subpart CC) contains 
paperwork requirements that have been approved by OMB, ICR titled 
Cranes and Derricks in Construction Standard (29 CFR part 1926, Subpart 
CC), under OMB control Number 1218-0261. These paperwork requirements 
expire on 02/28/2017.
    OSHA notes the public need not respond to a collection of 
information requirement unless the agency displays a currently valid 
OMB control number, and, notwithstanding any other provision of law, no 
person shall be subject to a penalty for failing to comply with a 
collection of information requirement if the requirement does not 
display a currently valid OMB control number.
    Also, the PRA-95 (44 U.S.C. 3506(c)(2)), requires agencies to 
solicit public comments on proposed or revised collection of 
information requirements; and, requires agencies to submit proposed 
rules which contain collection of information requirements to OMB for 
review.
    In the February 10, 2014 NPRM, OSHA notified the public that the 
Agency believed the proposed Cranes and Derricks in Construction: 
Operator Certification rule did not contain additional collection of 
information, and that OSHA did not believe it was necessary to submit a 
new (revised) ICR to OMB. OSHA instructed the public to submit comments 
on this determination to OMB and encouraged them to submit their 
comments to OSHA.
    OSHA has determined this final rule requires no additional 
collection of information or any permanent change to the collection 
program: it preserves the status quo for an additional short period of 
time. OMB's approval of the Cranes and Derricks in Construction ICR 
already covers all collections of information required by the temporary 
extensions in this final rule, and therefore OSHA did not submit a 
revised ICR to OMB as part of this rulemaking. No parties commented on 
OSHA's determination that this rule contains no additional paperwork 
requirements.

C. Federalism

    OSHA reviewed this final rule in accordance with the Executive 
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 
1999), which requires that Federal agencies, to the extent possible, 
refrain from limiting state policy options, consult with states prior 
to taking any actions that would restrict state policy options, and 
take such actions only when clear constitutional authority exists and 
the problem is national in scope. Executive Order 13132 provides for 
preemption of state law only with the expressed consent of Congress. 
Federal agencies must limit any such preemption to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act of 1970 
(OSH Act; 29 U.S.C. 651 et seq.), Congress expressly provides that 
states and U.S. territories may adopt, with Federal approval, a plan 
for the development and enforcement of occupational safety and health 
standards. OSHA refers to such states and territories as ``State Plan 
States.'' Occupational safety and health standards developed by State 
Plan States must be at least as effective in providing safe and 
healthful employment and places of employment as the Federal standards. 
29 U.S.C. 667. Subject to these requirements, State Plan States are 
free to develop and enforce under state law their own requirements for 
safety and health standards.
    OSHA previously concluded from its analysis that promulgation of 
subpart CC complies with Executive Order 13132 (75 FR 48128-29). In 
states without an OSHA-approved State Plan, this final rule limits 
state policy options in the same manner as every standard promulgated 
by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in 
the previous paragraph, permits State-Plan States to develop and 
enforce their own cranes standards provided these requirements are at 
least as effective in providing safe and healthful employment and 
places of employment as the requirements specified in this final rule.

D. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, State Plan States must amend their 
standards to reflect the new standard or amendment, or show OSHA why 
such action is unnecessary, e.g., because an existing state standard 
covering this area is ``at least as effective'' as the new Federal 
standard or amendment (29 CFR 1953.5(a)). The state standard must be at 
least as effective as the final Federal rule. State Plan States must 
adopt the Federal standard or complete their own standard within six 
months of the promulgation date of the final Federal rule. When OSHA 
promulgates a new standard or amendment that does not impose additional 
or more stringent requirements than an existing standard, State Plan 
States do not have to amend their standards, although OSHA may 
encourage them to do so. The 21 states and 1 U.S. territory with OSHA-
approved occupational safety and health plans are: Alaska, Arizona, 
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and 
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin 
Islands have OSHA-approved State Plans that apply to state and local 
government employees only.
    When OSHA promulgates a new final rule, states and territories with 
approved State Plans must adopt comparable amendments to their 
standards for cranes and derricks within six months of OSHA's 
promulgation of the final rule unless they demonstrate that such a 
change is not necessary because their existing standards are already 
the same, or at least as effective, as OSHA's new final rule.
    The amendments to OSHA's cranes standard in this final rule 
preserve the status quo and do not impose any new requirements on 
employers. Accordingly, State Plan States would not have to amend their 
standards to delay the effective date of their operator certification 
requirements, but they may do so if they so choose. However, if they 
choose to delay the effective date of their certification requirements, 
they also would need to include a corresponding extension of the 
employer duty to assess and train operators that is equivalent to Sec.  
1427(k)(2).

E. Unfunded Mandates Reform Act

    When OSHA issued the final rule for cranes and derricks in 
construction, it reviewed the rule according to the Unfunded Mandates 
Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order 
13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded that the final rule 
did not meet the definition of a ``Federal intergovernmental mandate'' 
under the UMRA because OSHA standards do not apply to state or local 
governments except in states that

[[Page 57798]]

voluntarily adopt State Plans. OSHA further noted that the rule imposed 
costs of over $100 million per year on the private sector and, 
therefore, required review under the UMRA for those costs, but that its 
final economic analysis met that requirement.
    As discussed above in Section III.A (Final Economic Analysis and 
Regulatory Flexibility Analysis) of this preamble, this final rule does 
not impose any costs on private-sector employers beyond those costs 
already taken into account in the 2010 final rule for cranes and 
derricks in construction. Because OSHA reviewed the total costs of the 
2010 final rule under the UMRA, no further review of those costs is 
necessary. Therefore, for the purposes of the UMRA, OSHA certifies that 
this final rule does not mandate that state, local, or tribal 
governments adopt new, unfunded regulatory obligations, or increase 
expenditures by the private sector of more than $100 million in any 
year.

F. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175 (65 FR 67249) and determined that it does not have ``tribal 
implications'' as defined in that order. The rule does not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.

G. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.) is ``to assure so far as possible every working man 
and woman in the nation safe and healthful working conditions and to 
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal, 
Congress authorized the Secretary of Labor to promulgate and enforce 
occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A 
safety or health standard is a standard ``which 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 employment or places of employment.'' 29 
U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
the meaning of Section 652(8) when a significant risk of material harm 
exists in the workplace and the standard would substantially reduce or 
eliminate that workplace risk. See Industrial Union Department, AFL-CIO 
v. American Petroleum Institute, 448 U.S. 607 (1980). In the cranes 
rulemaking, OSHA made such a determination with respect to the use of 
cranes and derricks in construction (75 FR 47913, 47920-21). This final 
rule does not impose any new requirements on employers. Therefore, this 
final rule does not require an additional significant risk finding (see 
Edison Electric Institute v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988)).
    In addition to materially reducing a significant risk, a safety 
standard must be technologically feasible. See UAW v. OSHA, 37 F.3d 
665, 668 (D.C. Cir. 1994). A standard is technologically feasible when 
the protective measures it requires already exist, when available 
technology can bring the protective measures into existence, or when 
that technology is reasonably likely to develop (see American Textile 
Mfrs. Institute v. OSHA, 452 U.S. 490, 513 (1981); American Iron and 
Steel Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). In the 
2010 Final Economic Analysis for the cranes standard, OSHA found the 
standard to be technologically feasible (75 FR 48079). This final rule 
is, therefore, technologically feasible as well because it does not 
require employers to implement any additional protective measures; it 
simply extends the duration of existing requirements.

List of Subjects in 29 CFR Part 1926

    Construction industry, Cranes, Derricks, Occupational safety and 
health, Safety.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, 200 
Constitution Ave. NW., Washington, DC 20210, authorized the preparation 
of this document. OSHA is issuing this rule under the following 
authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C. 3701 et seq.; 5 U.S.C. 
553; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012); 
and 29 CFR part 1911.

    Signed at Washington, DC, on September 19, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble of this final rule, OSHA 
amends 29 CFR part 1926 as follows:

PART 1926--[AMENDED]

Subpart CC--Cranes and Derricks in Construction

0
1. The authority citation for subpart CC of 29 CFR part 1926 continues 
to read as follows:

    Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; and 
Secretary of Labor's Orders 5-2007 (72 FR 31159) or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.


0
2. Amend Sec.  1926.1427 by revising paragraph (k) to read as follows:


Sec.  1926.1427  Operator qualification and certification.

* * * * *
    (k) Phase-in. (1) The provisions of this section became applicable 
on November 8, 2010, except for paragraphs (a)(2) and (f), which are 
applicable November 10, 2017.
    (2) When Sec.  1926.1427(a)(1) is not applicable, all of the 
requirements in paragraphs (k)(2)(i) and (ii) of this section apply 
until November 10, 2017.
    (i) The employer must ensure that operators of equipment covered by 
this standard are competent to operate the equipment safely.
    (ii) When an employee assigned to operate machinery does not have 
the required knowledge or ability to operate the equipment safely, the 
employer must train that employee prior to operating the equipment. The 
employer must ensure that each operator is evaluated to confirm that 
he/she understands the information provided in the training.
[FR Doc. 2014-22816 Filed 9-25-14; 8:45 am]
BILLING CODE 4510-26-P