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Notice of Proposed Rulemaking.
CFR Part: "29 CFR Part 1926"
RIN Number: "RIN 1218-AC86"
Citation: "79 FR 7611"
Document Number: "Docket ID-OSHA-2007-0066"
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
ADDRESSES: Submit comments, hearing requests, and other material, identified by Docket No.
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
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,
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.
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
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr.
Technical inquiries: Mr.
Copies of this
I. Summary and Explanation of the Proposed Amendments to the Standard
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
B. Summary of Economic Impact
This proposed rule is not economically significant.
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.
The Agency initiated a
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
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 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
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
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
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
FOOTNOTE 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.
As discussed later in this preamble, the
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 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.
II. Agency Determinations
A. Preliminary Economic Analysis and Regulatory Flexibility Analysis
When it issued the final cranes rule,
Because OSHA estimates that this proposed rule will have a cost savings for employers of
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).
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
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
In the following analysis,
FOOTNOTE 2 As explained in the following discussion,
OSHA's analysis follows the steps below to reach its estimate of an annual net
(1) Estimate the annual assessment costs for employers;
<p> (2) Estimate the annual certification costs for employers; and
(3) Estimate the year-by-year cost differential if
FOOTNOTE 3 For convenience,
Table 1 below summarizes these costs and the differentials. In a separate analysis,
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.
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/
The wages used for the crane operator and assessor come from the final cranes rule (75 FR 48102). Accordingly, the operator wage is
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:
Besides these assessment costs,
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,
For the purpose of determining the number of assessments required each year under this proposal,
Annual assessment costs. Annual assessment costs will vary by year depending on several factors; the following section addresses year-by-year variations. However,
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),
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),
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,
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,
FOOTNOTE 5 There are no certification costs for operators who already have a certificate that complies with the cranes standard. END FOOTNOTE
The cranes standard under Option 1 (the standard case) of SEC 1926.1427(b)(4) specifies that a certificate is valid for five years.
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,
Number of certifications. After establishing the unit certification costs,
After all operators attain certification by the proposed deadline, there will still be ongoing certification costs each year.
After the certification deadline,
Annual certification costs. As with the assessment costs, certification costs will vary by year depending on several factors addressed in the following section. However,
To estimate the annual base cost for the first scenario,
To determine the annual amount used in calculations for the second scenario (the proposed extension to 2017),
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,
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,
One-time costs for certifying operators with non-compliant certification (
FOOTNOTE 7 Under scenario 1, therefore, the total certification costs of
As noted earlier,
FOOTNOTE 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. END FOOTNOTE
Table 1--Year-by-Year Cost Differential if OSHA Extends the Certification Deadline to 2017 2013 2014 2015 2016 2017 Operator Pool Scenario 1 (no deadline extension): Operators 60,000 0 0 0 0 with type- only certi- fication Operators 15,000 111,274 111,274 111,274 111,274 with complaint certi- fication Operators 36,274 0 0 0 0 with no certi- fication New 5,857 5,857 5,857 5,857 5,857 operators Scenario 2 (deadline extension): Operators 60,000 57,000 54,150 51,443 0 with type- only certi- fication Operators 15,000 14,250 13,538 12,861 111,274 with compliant certi- fication Operators 36,274 40,024 43,586 46,970 0 with no certi- fication New 5,857 5,857 5,857 5,857 5,857 operators Costs Scenario 1 (no deadline extension): Total
$4,581,3340 0 0 0 assessment costs Total certi- 20,973,352 $33,969,804 $33,969,804 $33,969,804 $33,969,804fication costs Total 25,554,686 33,969,804 33,969,804 33,969,804 33,969,804 Scenario 2 (deadline extension): Total 6,781,167 6,918,409 7,048,788 4,777,075 0 assessment costs Total certi- 0 0 0 21,289,651 34,286,103 fication costs Total 6,781,167 6,918,409 7,048,788 26,066,726 34,286,103 Cost (18,773,519) (27,051,395) (26,921,015) (7,903,078) 316,299 Differential (Scenario 2 - Scenario 1)
Table 1--Year-by-Year Cost Differential if OSHA Extends the Certification Deadline to 2017 2018 2019 2020 2021 Operator Pool Scenario 1 (no deadline extension): Operators 0 0 0 0 with type- only certi- fication Operators 111,274 111,274 111,274 111,274 with complaint certi- fication Operators 0 0 0 0 with no certi- fication New 5,857 5,857 5,857 5,857 operators Scenario 2 (deadline extension): Operators 0 0 0 0 with type- only certi- fication Operators 111,274 111,274 111,274 111,274 with compliant certi- fication Operators 0 0 0 0 with no certi- fication New 5,857 5,857 5,857 5,857 operators Costs Scenario 1 (no deadline extension): Total 0 0 0 0 assessment costs Total certi-
$25,536,156 $25,536,156 $25,536,156 $25,536,156fication costs Total 25,536,156 25,536,156 25,536,156 25,536,156 Scenario 2 (deadline extension): Total 0 0 0 0 assessment costs Total certi- 34,286,103 34,286,103 34,286,103 25,536,156 fication costs Total 34,286,103 34,286,103 34,286,103 25,536,156 Cost 8,749,948 8,749,948 8,749,948 0 Differential (Scenario 2 - Scenario 1) Source: OSHA, ORA Calculations.
OSHA next determined the present value of these cost differentials between the two scenarios.
d. Alternative: Indefinite Extension of the Certification Deadline
As noted above, ACCSH recommended that
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
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
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
Small businesses would, by definition, have few operators, and
B. Paperwork Reduction Act of 1995
When OSHA issued the final rule on
FOOTNOTE 9 The ICR is available at ID-0425 at <a href="http://www.regulations.gov">www.regulations.gov and at www.reginfo.gov (OMB Control Number 1218-0261). END FOOTNOTE
FOOTNOTE 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. END FOOTNOTE
This proposed rule requires no additional collection of information. OMB's approval of
Interested parties who comment on
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.
OSHA reviewed this proposed rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255,
Under Section 18 of the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C.
OSHA previously concluded from its analysis that promulgation of subpart CC complies with Executive Order 13132 (75 FR 48128-29). In states without an
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
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
The proposed amendments to
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.
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
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
Under 29 CFR parts 1911 and 1912,
During the ACCSH deliberations, one member of the ACCSH recommended extending the compliance date for qualification/certification indefinitely until
The ACCSH passed a motion recommending that
H. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (29 U.S.C.
In addition to materially reducing a significant risk, a safety standard must be technologically feasible. See UAW v.
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,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this proposed rule,
Subpart CC--Cranes and Derricks in Construction
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.
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
(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
(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;
BILLING CODE 4510-26-P
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