[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Proposed Rules]
[Pages 7611-7621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02579]
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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: Notice of Proposed Rulemaking.
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SUMMARY: On August 9, 2010, OSHA issued a final standard establishing
requirements for cranes and derricks used in construction work. The
standard requires employers to ensure that crane operators are
certified by November 10, 2014. Until that date, employers also have
added duties under the standard to ensure that crane operators are
trained and competent to operate the crane safely. The Agency is
proposing to extend the deadline for operator certification by three
years to November 10, 2017, and to extend the existing employer duties
for the same period.
DATES: Submit comments to this proposed rule, including comments to the
information-collection (paperwork) determination (described under the
section titled ``Agency Determinations''), hearing requests, and other
information by March 12, 2014. All submissions must bear a postmark or
provide other evidence of the submission date.
ADDRESSES: Submit comments, hearing requests, and other material,
identified by Docket No. OSHA-2007-0066, using any of the following
methods:
Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for submitting comments. Note that this docket
may include several different Federal Register notices involving active
rulemakings, so it is extremely important to select the correct notice
or its ID number when submitting comments for this rulemaking. After
accessing the docket (OSHA-2007-0066), check the ``proposed rule'' box
in the column headed ``Document Type,'' find the document posted on the
date of publication of this document, and click the ``Submit a
Comment'' link. Additional instructions for submitting comments are
available from the regulations.gov homepage.
Facsimile: OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not
require hard copies of these documents. Instead of transmitting
facsimile copies of attachments that supplement these documents (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S.
Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210.
These attachments must clearly identify the sender's name, the date,
subject, and the docket number (OSHA-2007-0066) so that the Docket
Office can attach them to the appropriate document.
Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, RIN No. 1218-AC86, Technical Data Center, Room N-
2625, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is
(877) 889-5627). Contact the OSHA Docket Office for information about
security procedures concerning delivery of materials by express
delivery, hand delivery, and messenger service. The Docket Office will
accept deliveries (express delivery, hand delivery, messenger service)
during the Docket Office's normal business hours, 8:15 a.m. to 4:45
p.m., e.t.
Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Cranes and Derricks in Construction: Operator
Certification), and the docket number (i.e., OSHA Docket No. OSHA-2007-
0066). OSHA will place comments and other material, including any
personal information, in the public docket without revision, and the
comments and other material will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting statements they do not want made available to the public, or
submitting comments that contain personal information (either about
themselves or others) such as Social Security numbers, birth dates, and
medical data.
[[Page 7612]]
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the above address. The electronic docket for this proposed rule
established at http://www.regulations.gov lists most of the documents
in the docket. However, some information (e.g., copyrighted material)
is not available publicly to read or download through this Web site.
All submissions, including copyrighted material, are available for
inspection at the OSHA Docket Office. Contact the OSHA Docket Office
for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger, OSHA
Office of Communications, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
1999; email: [email protected].
Technical inquiries: Mr. Vernon Preston, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
2020; fax: (202) 693-1689; email: [email protected].
Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's Web page
at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Summary and Explanation of the Proposed Amendments to the Standard
A. Introduction
OSHA is publishing this Notice of Proposed Rulemaking 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 proposing to extend 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 discussing this issue, OSHA decided to
propose extending the enforcement date for: The employer to ensure
competent and safe crane operation; and operator certification. During
the three-year extension, OSHA will examine and determine how to
address this issue systematically.
B. Summary of Economic Impact
This proposed rule is not economically significant. OSHA proposes
to revise 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, and
to extend the existing employer duties for the same period. OSHA's
preliminary economic analysis shows that extending the date for
operator certification and employers' assessment of crane operators,
rather than allowing both provisions to expire on November 10, 2014,
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 preliminary economic analysis is in the ``Agency
Determinations'' section of this preamble.
C. Background
1. Operator Certification Options
OSHA developed the final rule for cranes and derricks in
construction (29 CFR subpart CC, referred to as ``the cranes standard''
hereafter) through a negotiated rulemaking process. OSHA 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 final 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
[[Page 7613]]
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.
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 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 final rule, it continued to receive feedback
from members of the regulated community and conducted stakeholder
meetings on April 2 and 3, 2013, to give interested members of the
public the opportunity to express their views. Participants included
construction contractors, labor unions, crane manufacturers, crane
rental companies, accredited testing organizations, one of the
accrediting bodies, insurance companies, crane operator trainers, and
military employers. Detailed notes of participants' comments are
available at http://www.osha.gov/cranes-derricks/stakeholders.html and
OSHA-2013-0024-0001. Various parties informed OSHA that, in their
opinion, the operator certification option would not adequately ensure
that crane operators could operate their equipment safely at a
construction site. They said that a certified operator would need
additional training, experience, and evaluation, beyond the training
and evaluation required to obtain certification, to ensure that he or
she could operate a crane safely.
OSHA also received information that two (of a total of four)
accredited testing organizations have been issuing certifications only
by ``type'' of crane, rather than by the ``type and capacity'' of
crane, as the cranes standard requires. As a result, those
certifications do not meet the standard's requirements and operators
who obtained certifications 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. Explanation of Proposed Action and Request for Comment
The effective dates of the operator certification requirement and
the other ``phase-in'' employer duties are in 29 CFR 1926.1427(k)(1).
The Agency is proposing to revise Sec. 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. The Agency also is proposing
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. When OSHA 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 in
this notice, the requirements would continue to serve that purpose and
preserve the status quo.\1\
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\1\ A parallel training requirement in Sec. 1430(c)(2)
reiterates the training requirement in paragraph 1427(k)(2),
specifying that the training occur during the four-year transition
period. OSHA is not proposing to amend Sec. 1430(c)(2) because it
believes that amending Sec. 1427(k)(2) is sufficient to extend the
relevant employer training duty for employers; however, the Agency
welcomes comment on this issue.
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As discussed later in this preamble, the Advisory Committee on
Construction Safety and Health (ACCSH) recommended postponing
certification indefinitely pending further rulemaking and also
recommended continuing the existing employer duties for that same
period. OSHA seeks comment on this alternative; however, the Agency
believes that an indefinite extension would result in complacency in
the regulated community because employers may assume that operator
certification is not important. Moreover, if the Agency extends the
certification deadline indefinitely, it could face additional
procedural hurdles in reinstituting the certification requirement,
rather than having those requirements take effect automatically at the
end of a fixed period.
By extending the enforcement dates by three years, the Agency will
have about four years to pursue and complete rulemaking. The Agency is
proposing a three-year extension, rather than a shorter period, to give
it sufficient time to complete a rulemaking should it choose to do so.
The Agency is confident that it can complete a subsequent rulemaking by
November, 2017, because: (1) This issue is critical to construction
safety and the effectiveness of the final cranes standard, which OSHA
previously estimated would prevent 22 fatalities per year (75 FR
47914), and (2) OSHA expects that a subsequent rulemaking would focus
on a limited number of discrete issues already debated extensively by
stakeholders in the regulated community.
OSHA seeks comment on this approach, including the duration (three
years) of the proposed extension of the operator certification deadline
and the existing employer duties, as well as the alternative approach
recommended by the ACCSH. OSHA encourages commenters to include a
rationale for any alternatives that they propose. In addition, OSHA
requests comment, data, or information on the potential safety impact
of extending operator certification and the current employer duty--or
any alternatives. OSHA requests comment on the ``Agency
[[Page 7614]]
Determinations'' section that follows, including the preliminary
economic analysis, paperwork requirements, and other regulatory impacts
of this rule on the regulated community.
II. Agency Determinations
A. Preliminary Economic Analysis and Regulatory Flexibility Analysis
When it issued the final cranes rule, 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). This
preliminary economic analysis (PEA) uses some estimates from these
documents.
Because OSHA estimates that this proposed rule will have a cost
savings for employers of $21.4 million per year for the three years of
the proposed extension, this proposed 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 proposed rule complies with Executive Order
13563.
This PEA 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 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 would,
however, be continuing employer costs for extending the requirement to
assess operators under existing Sec. 1926.1427(k)(2); if OSHA does not
extend these requirements, they would expire in 2014 and employers
would not incur these costs after 2014. With the extension, these
continuing employer costs would 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 proposed 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 a net savings for employers of $21.4 million per
year, annualized over the 3-year period of the proposed extension using
a 7% interest rate ($19.5 million per year using an interest rate of
3%).\2\
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\2\ 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.
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OSHA's analysis follows the steps below to reach its estimate of an
annual net $21.4 million in savings:
(1) Estimate the annual assessment costs for employers;
(2) Estimate the annual certification costs for employers; and
(3) Estimate the year-by-year cost differential if OSHA extends the
certification deadline to 2017.\3\
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\3\ 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.
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Table 1 below summarizes these costs and the differentials. In a
separate analysis, OSHA examined the cost differential under an
alternative to the proposal in which the Agency delays indefinitely the
certification deadline and employer-assessment phase out.
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 the assessments 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 the Agency had with
industry sources who participated in the public stakeholder meetings.
OSHA invites comment on these estimates.
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.\4\ 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
equivalent of the practical part of the standard crane operator test.
The
[[Page 7615]]
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).
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\4\ 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 capacity component as not
complying with the cranes standard, and certificates that include
both a type and capacity component as complying with the cranes
standard.
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The wages used for the crane operator and assessor come from the
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)).
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.
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 such cases there is no need 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 for both digger derrick and other covered equipment; 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 this
proposal, OSHA is adding 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).
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 deadline specified by the existing
cranes standard (status quo); and (2) extending the deadline to 2017
(proposed 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
[[Page 7616]]
no certification. 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). Therefore,
42,130 crane operators have no crane certification (i.e., 117,130 total
operators-(15,000 operators with compliant certification + 60,000
operators with certification for type)).
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 15,870 (i.e., (0.23 + (0.23 x 0.15)) x 60,000), and
the number of assessments for operators with no certification is 11,143
(i.e., (0.23 + (0.23 x 0.15)) x 42,130). 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 $6,781,167 (i.e., ($76.87 x
3,968) + ($192.18 x 15,870) + ($307.48 x 11,143)). 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 $6,781,167 to $4,581,334 because a percentage of the
operators under scenario 1 will obtain a compliant certificate before
they are assessed, thereby reducing the 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. For the
proposed extension, OSHA estimated that almost all certification will
occur in the year prior to the deadline. OSHA notes that although the
current November 2014 deadline is just over a year away, there is
evidence that the vast majority of operators do not yet have
certification that is in compliance with the existing standard. 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
2014 deadline specified by the existing cranes standard (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. 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 assessment; 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 from the FEA. In the 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).
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).\5\
---------------------------------------------------------------------------
\5\ There are no certification costs for operators who already
have a certificate that complies with the cranes standard.
---------------------------------------------------------------------------
The cranes standard under Option 1 (the standard case) of 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
assessment. 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
$1,070.08 (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 proposed 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 60,000 operators
have type-only certification, and 15,000 operators have certification
that complies with the existing cranes standard. The remaining 36,274
operators (i.e., 117,130 - (60,000 + 15,000 + 5,857)) are experienced
operators without certification.
After all operators attain certification by the proposed deadline,
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 occupation each year and will not require
recertification when
[[Page 7617]]
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 assessment. This situation arises for both operators
working for a single employer and operators switching employers. The
23% turnover rate from the cranes PEA covers pre-deadline situations in
which an operator needs an assessment, and 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 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 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 deadline specified by the existing cranes
standard. 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 $47,119,327 (i.e., (60,000
operators with type-only certification x $339.05) + (36,274 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 $8,433,648. 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 proposed 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 proposed 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
$48,416,216 (in 2016 dollars). The annualized cost over the five-year
period during which certification remains effective is $8,749,948. In
the following section, OSHA uses this amount in calculating the annual
certification costs under scenario 2.
c. Year-by-Year Cost Differential If OSHA Extends the Certification
Deadline to 2017
The ultimate goal of this analysis is to determine the annual cost
differential between scenario 1 (the status quo) and scenario 2 (the
proposed rule), so the final part of this PEA 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 adopting 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 assessment; 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 would 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 $6,781,167 under scenario
2 to $4,581,334 under scenario 1 because of the increasing
certification effect that occurs near the deadline.\6\ A similar
[[Page 7618]]
calculation for CY 2016 (the year prior to the proposed certification
deadline in 2017) lowers the estimated assessment costs from $7.2
million (in the absence of the deadline and accompanying certification)
to $4.8 million under scenario 2.
---------------------------------------------------------------------------
\6\ 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
$218.18 (i.e., $6,781,167 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 .35 ($76.87 / $218.88). Therefore, the resulting assessment cost
in CY 2013 using the weighted average formula is $4,581,334 (i.e.,
(0.5 x $6,781,167) + (0.5 x 0.35 cost ratio x $6,781,167).
---------------------------------------------------------------------------
One-time costs for certifying operators with non-compliant
certification ($20,343,000) and certifying experienced operators with
no certification ($14,236,623) 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 $8,433,648 for each
year of this five-year period under scenario 1.\7\ 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 $8,749,948. The
certification costs vary in the other (pre-deadline) years depending on
factors identified earlier in this PEA.
---------------------------------------------------------------------------
\7\ Under scenario 1, therefore, the total certification costs
of $33,969,804 for each year over CY2014-2017 consist of the
annualized cost of $8,433,648 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, $27.1 million; 2015,
$26.9 million; 2016, $7.9 million; 2017, -$0.3 million; 2018, -$8.7
million; 2019, -$8.7 million; and 2020, -$8.7 million.\8\
---------------------------------------------------------------------------
\8\ 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 type-only certification........................ 60,000 0 0 0 0 0 0 0 0
Operators with complaint certification........................ 15,000 111,274 111,274 111,274 111,274 111,274 111,274 111,274 111,274
Operators with no certification............................... 36,274 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 type-only certification........................ 60,000 57,000 54,150 51,443 0 0 0 0 0
Operators with compliant certification........................ 15,000 14,250 13,538 12,861 111,274 111,274 111,274 111,274 111,274
Operators with no certification............................... 36,274 40,024 43,586 46,970 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........................................ $4,581,334 0 0 0 0 0 0 0 0
Total certification costs..................................... 20,973,352 $33,969,804 $33,969,804 $33,969,804 $33,969,804 $25,536,156 $25,536,156 $25,536,156 $25,536,156
-----------------------------------------------------------------------------------------------------------------------------
Total..................................................... 25,554,686 33,969,804 33,969,804 33,969,804 33,969,804 25,536,156 25,536,156 25,536,156 25,536,156
=============================================================================================================================
Scenario 2 (deadline extension):
Total assessment costs........................................ 6,781,167 6,918,409 7,048,788 4,777,075 0 0 0 0 0
Total certification costs..................................... 0 0 0 21,289,651 34,286,103 34,286,103 34,286,103 34,286,103 25,536,156
-----------------------------------------------------------------------------------------------------------------------------
Total..................................................... 6,781,167 6,918,409 7,048,788 26,066,726 34,286,103 34,286,103 34,286,103 34,286,103 25,536,156
=============================================================================================================================
Cost Differential (Scenario 2 - Scenario 1)....................... (18,773,519) (27,051,395) (26,921,015) (7,903,078) 316,299 8,749,948 8,749,948 8,749,948 0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA Calculations.
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
$56.3 million ($55.2 million using the 3% rate). Finally, annualizing
the present value over the proposed three-year extension period results
in an annualized cost differential (i.e., net employer cost savings) of
$21.4 million per year ($19.5 million per year using the 3% rate).
d. Alternative: Indefinite Extension of the Certification Deadline
As noted above, ACCSH recommended that OSHA extend indefinitely the
deadline for operator certification and the employer duties under Sec.
1427(k)(2). OSHA is requesting comment on this alternative, and is
providing the following analysis of potential employer costs and
savings under this alternative. Based on the calculations described
above, cost savings under this alternative would be larger than the
cost savings under the proposed 2017 extension because there would be
no rise in certification costs later in the extension period.
This alternative would result in an indefinite extension of
employer assessments and associated costs. Assuming that no operator
would have any type of certification, all assessments would involve the
4-hour assessment at a cost of $307.48. Thus, using the same estimates
of 23% turnover and a 15% failure rate described above, the yearly
[[Page 7619]]
assessment costs would be $9,526,003 (0.23 x 1.15 x 117,130 x $307.48)
for this alternative.
While assessment costs would disappear after the deadline under any
scenario with a specified certification deadline, there will still be
annual ongoing employer certification costs for new operators, as well
as recertifications and additional certifications for operators
previously certified. As noted earlier, total yearly ongoing
certification costs consist of: 5% new operators each year with
certification costs of $2,141.16 for each operator, or $12,539,704
total (0.05 x 117,130 x $2,141.16); recertification of 20% of the
previously certified operator pool at a cost of $76.87 for each
operator, or $1,710,719 total (0.20 x 0.95 x 117,130 x $76.87); and 9%
of the operator pool getting additional certification at a unit cost of
$1,070.58 for each operator, or $11,285,733 total (0.09 x 117,130 x
$1,070.58). Adding these costs, the grand total each year post-deadline
for scenarios with specified certification deadlines is $25,536,156
($12,539,704 + $1,710,719 + $11,285,733). Hence, even without
considering the upfront costs of having all current operators certified
to the standard, postponing the certification deadline indefinitely
would result in a net yearly savings of $16,010,153 ($25,536,156 -
$9,526,003) each year. Therefore, the ACCSH-recommended alternative
would increase cost savings by removing the additional cost associated
with having to fully certify, and maintain certification for, the total
operator pool by a specified deadline.
e. 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 would be
minimal on any employer. Most employers would have savings resulting
from the three-year extension, particularly employers that planned to
pay for operator certification in the year before the deadline
specified by the existing cranes standard. The only entities likely to
see a net cost would be entities that planned to hire an operator with
compliant certification after November 10, 2014. Without the proposed
extension, these entities would have no separate assessment duty, but
under the proposed extension they would 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 would, by definition, have few operators, and OSHA
believes the $76.78 cost would 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 proposed
rule would not have a significant impact on a substantial number of
small entities. OSHA invites comments on this certification and the
underlying rationale.
B. Paperwork Reduction Act of 1995
When OSHA issued the final rule on August 9, 2010, it submitted an
Information Collection Request (ICR) to the Office of Management and
Budget (OMB) titled Cranes and Derricks in Construction (29 CFR Part
1926, Subpart CC).\9\ On November 1, 2010, OMB approved the ICR under
OMB Control Number 1218-0261, with an expiration date of November 30,
2013. Subsequently, in December 2010, OSHA discontinued the Cranes and
Derricks Standard for Construction (29 CFR 1926.550) ICR (OMB Control
Number 1218-0113) because the new ICR superseded the existing ICR. In
addition, OSHA retitled the new ICR to Cranes and Derricks in
Construction (29 CFR Part 1926, Subpart CC and Subpart DD).\10\
---------------------------------------------------------------------------
\9\ The ICR is available at ID-0425 at www.regulations.gov and
at www.reginfo.gov (OMB Control Number 1218-0261).
\10\ The request and OMB approval for discontinuing the previous
Cranes and Derricks in Construction ICR (OMB Control Number 1218-
0113) and the retitling of the ICR are available at www.reginfo.gov.
---------------------------------------------------------------------------
This proposed rule requires no additional collection of
information. OMB's approval of OSHA's ICR under Control Number 1218-
0261 already covers all collections of information required by this
proposed rule, and OSHA does not believe it is necessary to submit a
new ICR to OMB seeking to collect additional information under this
proposed rule.
Interested parties who comment on OSHA's determination that this
proposal contains no additional paperwork requirements must send their
written comments to the Office of Management and Budget, Attn: OMB Desk
Officer for OSHA, Room 10235, 726 Jackson Place NW., Washington, DC
20503. OSHA also encourages commenters to submit their comments on this
paperwork determination to it, along with their other comments on the
proposed rule.
OSHA notes that a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the agency displays
a currently valid OMB control number. 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.
C. Federalism
OSHA reviewed this proposed 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, any standard developed from
this proposed rule would limit 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,
[[Page 7620]]
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 proposal.
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 proposed amendments to OSHA's cranes standard preserve the
status quo and would 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 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 IV.A (Preliminary Economic Analysis
and Regulatory Flexibility Analysis) of this preamble, this proposed
rule does not impose any costs on private-sector employers beyond those
costs already taken into account in the final rule for cranes and
derricks in construction. Because OSHA reviewed the total costs of this
final rule under the UMRA, no further review of those costs is
necessary. Therefore, for the purposes of the UMRA, OSHA certifies that
this proposed 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 proposed rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it does not have ``tribal
implications'' as defined in that order. As proposed, 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. Consultation With the Advisory Committee on Construction Safety and
Health
Under 29 CFR parts 1911 and 1912, OSHA must consult with the
Advisory Committee on Construction Safety and Health (ACCSH or
Committee), established pursuant to Section 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3701 et seq.), in setting
standards for construction work. Specifically, Sec. 1911.10(a)
requires the Assistant Secretary to provide the ACCSH with a draft
proposed rule (along with pertinent factual information) and give the
Committee an opportunity to submit recommendations. See also Sec.
1912.3(a) (``[W]henever occupational safety or health standards for
construction activities are proposed, the Assistant Secretary [for
Occupational Safety and Health] shall consult the Advisory
Committee''). Accordingly, the ACCSH met on May 23, 2013, and discussed
OSHA's proposal to delay the crane operator certification deadline and
extend the existing employer duties to assess and train crane operators
pursuant to Sec. 1926.1427(k).
During the ACCSH deliberations, one member of the ACCSH recommended
extending the compliance date for qualification/certification
indefinitely until OSHA completed a rulemaking on crane operator
qualification. This member noted that extending the compliance date by
three years would lead to new uncertainty, and not provide sufficient
time for OSHA to complete a rulemaking that would clarify the
responsibility of both crane operators and their employers (OSHA 2013-
0006-0024, 133-134). Other members of the ACCSH agreed that it would be
better to extend the compliance date indefinitely, allow OSHA to
address the issue of crane operator qualification, and then establish a
new compliance date for the industry once new guidance is in place
(OSHA-2013-0006-0024, 136-137).
The ACCSH passed a motion recommending that OSHA suspend the
operator certification requirement until OSHA completes a rulemaking on
crane operator qualification, and require employers to continue to
comply with the existing ``phase-in'' employer duties in Sec.
1926.1427 during the same period (OSHA-2013-0006-0025, 30-31). (See
OSHA's discussion of the ACCSH's motion under section I.D (Explanation
of Proposed Action and Request for Comment) of this preamble.)
H. 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
[[Page 7621]]
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
proposed rule does not impose any new requirements on employers.
Therefore, this proposal 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 proposed
rule would, therefore, be technologically feasible as well because it
would not require employers to implement any additional protective
measures; it would simply extend 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 notice. OSHA is issuing this proposed 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 February 3, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this proposed rule, OSHA
proposes to amend 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. In Sec. 1926.1427, revise 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) of this
section, which are applicable November 10, 2017.
(2) When paragraph (a)(1) of this section 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. 2014-02579 Filed 2-7-14; 8:45 am]
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