Adopción de Norma Federal: Cranes and Derricks: Operator Certification, Final Rule Parte: 10 OSH 1926 75 FR No. 187 (57785-57798) September 26, 2014

ADMINISTRACIÓN DE SEGURIDAD Y SALUD OCUPACIONAL DE PUERTO RICO Ave. Muñoz Rivera 505, Hato Rey PR 00919 Tel. (787) 754-2172 Ext. 3355 8586 Fecha: 17 de abril de 2015 Secretario de Estado Por: Francisco J. Rodríguez Bernier Secretario Auxiliar de Servicios ADOPCIÓN DE NORMA FEDERAL CRANES AND DERRICKS: OPERATOR CERTIFICATION, FINAL RULE ("Grúas y Cabrias en Construcción: Certificación de Operador, Regla Final") Parte: 10 OSH 1926 75 FR No.187 (57785-57798) - September 26, 2014 Expediente del Departamento de Estado Núm. 2341 AUTHENTICATED LECOMMENT INFORMATION CFO Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57785 regulations provide comprehensive DEPARTMENT OF THE TREASURY Crime Fund" is to read "Amounts guidance for the award program Deposited in the Crime Victims Fund". authorized under Internal Revenue Code Internal Revenue Service 5. On page 47254, in the second (Code) section 7623. column, under the paragraph heading, 26 CFR Part 301 on line 1, correct "Under the Victims of DATES: This correction is effective on Crimes Act of" is to read "Under the September 26, 2014, and is applicable [TD 9687] Victims of Crime Act of" beginning August 12, 2014. RIN 1545-BL08 6. On page 47254, column 3, correct all references to "Victims of Crime FOR FURTHER INFORMATION CONTACT: Awards for Information Relating to Fund" to read "Crime Victims Fund". Melissa A. Jarboe at (202) 317-5437 (not Detecting Underpayments of Tax or a toll-free number). Violations of the Internal Revenue Martin V. Franks, SUPPLEMENTARY INFORMATION: Laws; Correction Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Background AGENCY: Internal Revenue Service (IRS), Counsel (Procedure and Administration). Treasury. [FR Doc. 2014-22948 Filed 9-25-14; 8:45 am} The final regulation (TD 9687) that is ACTION: Final regulation; correction. BILLING CODE 4830-01-P the subject of this correction is under section 7623. SUMMARY: This document contains corrections to final regulations (TD Need for Correction DEPARTMENT OF LABOR 9687) that were published in the As published, final regulations (TD Federal Register on Tuesday, August Occupational Safety and Health 12, 2014 (79 FR 47246). The final 9687) contain errors that may prove to Administration regulations provide comprehensive be misleading and are in need of guidance for the award program clarification. 29 CFR Part 1926 authorized under Internal Revenue Code List of Subjects in 26 CFR Part 301 (Code) section 7623. [Docket ID-OSHA-2007-0066] DATES: This correction is effective RIN 1218-AC86 Employment taxes, Estate taxes, September 26, 2014 and applicable Excise taxes, Gift taxes, Income taxes, beginning August 12, 2014. Cranes and Derricks in Construction: Penalties, Reporting and recordkeeping FOR FURTHER INFORMATION CONTACT: Operator Certification requirements. Melissa A. Jarboe at (202) 317-5437 (not AGENCY: Occupational Safety and Health Correction of Publication a toll-free number). Administration (OSHA), Labor. SUPPLEMENTARY INFORMATION: ACTION: Final rule. Accordingly, 26 CFR part 301 is amended by making the following Background SUMMARY: OSHA is extending its correcting amendments: The final regulation (TD 9687) that is November 10, 2014, deadline for the subject of this correction is under employers to ensure that crane operators PART 301-PROCEDURE AND section 7623 of the Internal Revenue are certified by three years, until ADMINISTRATION Code. November 10, 2017. OSHA is also Need for Correction extending its employer duty to ensure Paragraph 1. The authority citation that crane operators are competent to for part 301 continues to read in part as As published, the final regulation (TD operate a crane safely for the same follows: 9687) contains errors that may prove to three-year period. be misleading and are in need of Authority: 26 U.S.C. 7805 *** DATES: This final rule will become clarification. effective November 9, 2014. Par. 2. § 301.7623-2 is amended by Correction of Publication ADDRESSES: In accordance with 28 revising paragraph (d)(4). Accordingly, the final regulation (TD U.S.C. 2112(a)(2), the Agency designates $ 301.7623-2 Definitions. 9687), that are subject to FR Doc. 2014- Ann Rosenthal, Acting Associate * * * * 18858, are corrected as follows: Solicitor of Labor for Occupational 1. On page 47246, in the third Safety and Health, Office of the (d) * * * column, last paragraph, correct "On Solicitor, Room S-4004, U.S. (4) Criminal fines. Criminal fines December 28, 2012, Treasury and" is to Department of Labor, 200 Constitution deposited into the Crime Victims Fund read "On December 18, 2012, Treasury Avenue NW., Washington, DC 20210, to are not collected proceeds and cannot and". receive petitions for review of the final be used for payment of awards. 2. On page 47247, in the third rule. * * * * column, on line 23, correct "process, FOR FURTHER INFORMATION CONTACT: * and placing an undue burden" is to read General information and press Martin V. Franks, "process, and not placing an undue inquiries: Mr. Frank Meilinger, OSHA Chief, Publications and Regulations Branch, burden". Office of Communications, Room N- Legal Processing Division, Associate Chief 3. On page 47253, in the first column, 3647, U.S. Department of Labor, 200 Counsel (Procedure and Administration). under paragraph heading, on line 19 Constitution Avenue NW., Washington, [FR Doc. 2014-22952 Filed 9-25-14; 8:45 am] from the bottom, correct "Victims of DC 20210; telephone: (202) 693-1999; Crime Fund, and a" is to read "Crime email: Meilinger.Francis2@dol.gov. BILLING CODE 4830-01-P Victims Fund, and a". Technical inquiries: Mr. Vernon 4. On page 47254, in the second Preston, Directorate of Construction, column, the paragraph heading, correct Room N-3468, OSHA, U.S. Department "Amounts Deposited in the Victims of of Labor, 200 Constitution Avenue NW., 57786 Federal Register/Vol. 79, No. 187/Friday, September 26, and Regulations Washington, DC 20210; telephone: (202) hereafter) (75 FR 47905). OSHA certifications, paragraph 1427(b)(1) of 693-2020; fax: (202) 693-1689; email: developed the cranes standard through the cranes standard provides that a Preston. Vernon@dol.gov. a negotiated rulemaking process. The nationally recognized accrediting Copies of this Federal Register notice Agency established a Federal advisory organization must accredit the testing and news releases: Electronic copies of committee, the Cranes and Derricks organizations. To accredit a testing these documents are available at Negotiated Rulemaking Advisory organization, the accrediting agency OSHA's Web page at http:// Committee (C-DAC), to develop a draft must determine that the testing www.osha.gov. proposed rule. C-DAC met in 2003 and organization meets industry-recognized SUPPLEMENTARY INFORMATION: 2004 and developed a draft proposed criteria for written testing materials, rule that it provided to OSHA. The rule practical examinations, test I. Background that OSHA subsequently proposed administration, grading, facilities and A. Introduction closely followed C-DAC's draft proposal equipment, and personnel. The testing (73 FR 59718). OSHA is publishing this final rule to organization must administer written The Agency initiated a Small extend for three years the employer duty and practical tests that: Business Advocacy Review Panel in G Assess the operator's knowledge to ensure crane operator competency for 2006. The Agency published the and skills regarding subjects specified in construction work, from November 10, proposed rule for cranes in construction the cranes standard; 2014, to November 10, 2017. OSHA also in 2008, received public comment on provide different levels of is extending the enforcement date for the proposal, and conducted a public certification based on equipment crane operator certification for three hearing. OSHA's final rule incorporated, capacity and type; years from November 10, 2014, to with minor changes, the four-option have procedures to retest applicants November 10, 2017. After publishing scheme C-DAC recommended and the who fail; and the final rule for cranes and derricks in Agency proposed. Accordingly, in have testing procedures for construction, several entities informed OSHA that crane operator certification § 1926.1427, OSHA requires employers recertification. to ensure that their crane operators are Paragraph 1427(b)(2) of the cranes was insufficient for determining certified under at least one of four standard also specifies that, for the whether an operator could operate their options by November 10, 2014. The four purposes of compliance with the cranes equipment safely on a construction site. After hosting several public meetings options are: standard, an operator is deemed qualified to operate a particular piece of addressing this issue, OSHA decided Option 1. Certification by an independent the extension is necessary in order to testing organization accredited by a equipment only if the operator is allow the Agency to examine and nationally recognized accrediting certified for that type and capacity of determine how to address this issue organization; equipment or for higher-capacity Option 2. Qualification by an employer's equipment of that type. It further systematically. independently audited program; provides that, if no testing organization B. Summary of Economic Impact Option 3. Qualification by the U.S. offers certification examinations for a military; or This final rule is not economically particular equipment type and/or Option 4. Compliance with qualifying state significant. OSHA is revising 29 CFR or local licensing requirements. capacity, the operator is deemed 1926.1427(k) (competency assessment qualified to operate that equipment if The third-party certification option in and training) to extend the deadline for the operator is certified for the type/ § 1926.1427(b)-Option 1-is the only compliance with the operatorcapacity of equipment that is most certification option that is "portable," certification requirement in its similar to that equipment, and for which meaning that any employer who a certification examination is available. construction standard for cranes and employs an operator may rely on that derricks for three years, and to extend operator's certification as evidence of 2. Overview of § 1926.1427(k) (Phase-In the existing employer duties for the compliance with the cranes standard's Provision) same period. OSHA's final economic operator certification requirement. This The final cranes standard replaced analysis shows that extending the date certification option also is the only one provisions in 29 CFR 1926 subpart N- for operator certification and employers' that is available to all employers; it is Cranes, Derricks, Hoists, Elevators, and assessment of crane operators, rather the option that OSHA, and the parties Conveyors, of the construction safety than following the current rule, will that participated in the rulemaking, standards. Provisions for employers to result in a net cost savings for the believed would be the one most widely ensure that operators of equipment, affected industries. Extending the used. In this regard, OSHA is not aware including cranes, are trained and compliance date for operator of an audited employer qualification qualified to safely operate that certification results in estimated cost program among construction industry equipment are available elsewhere in savings that exceed the estimated new employers (Option 2), and the cranes the construction safety standards (see, costs for employers to continue to assess standard limits the U.S. military crane for example, § 1926.20(b)(4) and (f)(2)). crane operators to ensure their operator certification programs (Option OSHA delayed the effective date of competent operation of the equipment 3) to Federal employees of the the operator certification requirement in accordance with 1926.1427(k). The Department of Defense or the armed for four years, until November 10, 2014 detailed final economic analysis is in services. While state and local (see § 1926.1427(k)(1)). The Agency also the "Agency Determinations" section of governments certify some crane wanted to ensure the final cranes this preamble. operators (Option 4), the vast majority of standard maintained an employer duty C. Regulatory Background operators who become certified do SO during that four-year "phase-in" period through Option 1-by third-party testing to ensure that crane operators could 1. Operator Certification Options organizations accredited by a nationally safely operate equipment (see On August 9, 2010, OSHA published recognized accrediting organization. $ 1926.1727(k), Phase-in). Thus, the final rule for cranes and derricks in Under Option 1, a third party pursuant to § 1926.1427(k)(2)(i), OSHA construction (29 CFR subpart CC, performs testing. Before a testing required employers to "ensure that referred to as "the cranes standard" organization can issue operator operators of equipment covered by this Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57787 standard are competent to operate the responsibility to ensure that the and (3) the length of time of an equipment safely." Under operator was qualified for the particular extension (if any). This section § 1926.1427(k)(2)(ii), employers must crane work assigned. Some participants examines these issues-in the order train and evaluate the operator when the wanted certification to be, or viewed to above-by first summarizing the operator "assigned to operate machinery be, sufficient to operate a crane safely. comments and then explaining the does not have the required knowledge Stakeholders noted that operator Agency's decisions and determinations or ability to operate the equipment certification was beneficial in based on the record as a whole. safely." establishing a minimum threshold of operator knowledge and familiarity with A. Extension of Operator Certification 3. Post-Final Rule Developments Deadline cranes. After OSHA issued the cranes Many commenters supported the standard, it continued to receive D. The Proposed Extension of the Agency's proposed extension of the date feedback from members of the regulated Operator Certification and Employer for crane operators to have certification community and conducted stakeholder Assessment Duties in their written comments [ID 0448, meetings on April 2 and 3, 2013, to give The effective dates of the operator 0458-61, 0462, 0464, 0466, 0469, 0471, interested members of the public the certification requirement and the other 0476-9, 0481-3, 0485-8, 0490-4, and opportunity to express their views. "phase-in" employer duties are in 29 0497], in oral testimony [Tr. pp. 22, 100, Participants included construction CFR 1926.1427(k)(1). By a notice of 119, 212, 222], and in post-hearing contractors, labor unions, crane proposed rulemaking (NPRM) published written comments [ID-0531, 0533].1 manufacturers, crane rental companies, February 10, 2014 (79 FR 7611), OSHA Their reasons for supporting the threeaccredited testing organizations, one of proposed to revise § 1926.1427(k)(1) to year extension were several. The most the accrediting bodies, insurance extend the deadline for operator frequently mentioned reason was that companies, crane operator trainers, and certification by three years from while operator certification offered military employers. Detailed notes of November 10, 2014, to November 10, safety benefits, most current participants' comments are available at 2017, to provide additional time for the certifications lack the required capacity http://www.osha.gov/cranes-derricks/ Agency to consider potential factor and would therefore not comply stakeholders.html and OSHA-2013- rulemaking options in light of the with the final cranes standard. The 0024-0001. Various parties informed information it had gathered since it commenters concluded that the OSHA that, in their opinion, the issued the cranes standard. The Agency industry's confusion about the validity operator certification option would not also proposed to extend the current of current certifications and the adequately ensure that crane operators employer duties in § 1926.1427(k)(2)(i) difficulty, or even impossibility, of most could operate their equipment safely at and (ii) to ensure that there is no construction crane operators getting a a construction site. They said that a reduction in worker protection during valid certification by November, 2014, certified operator would need additional this three-year period. OSHA noted that warrants an extension of the operator training, experience, and evaluation, when it included these employer duties certification deadline so that OSHA has beyond the training and evaluation in the final cranes standard in 2010, additional time to remove the capacity required to obtain certification, to these duties were to be a "phase in" to requirement from the rule. The ensure that he or she could operate a certification (75 FR 48027). By Associated Builders and Contractors, crane safely. extending the date as proposed, the Inc. stated: OSHA also received information that requirements would continue to serve two (of a total of four) accredited testing Without an extension the construction that purpose and preserve the status organizations have been issuing industry will face a crane operator shortage quo. in the coming years, as there will not be certifications only by "type" of crane, OSHA asked for comment on the enough time for employers to certify rather than offering different proposal, and it specifically asked for their operators in time. For the industry to certifications by "type and capacity" of comment on whether the extension of continue performing work without crane, as the cranes standard requires. time should be for an indefinite period disruption, it is crucial for an extension to be The two organizations later confirmed rather than for three years as proposed. granted. [Tr. pp. 174-175). this (Tr. p. 109 and 246). As a result, OSHA received 66 comments in The general manager of a large crane those certifications do not meet the response to the NPRM, one requesting a rental company stated that "[i]t is standard's requirements and operators hearing to further discuss the imperative for the good of the industry who obtained certifications only from rulemaking. On May 19, 2014, OSHA & the safety of those men & women those organizations cannot, under held an informal public hearing on the working in construction that we get the OSHA's cranes standard, operate cranes rulemaking. OSHA also received 6 correct language & understanding of on construction sites after November 10, additional comments during the post- 2014. Some stakeholders in the crane hearing comment period, which closed Exhibits are posted on http://regulations.gov industry requested that OSHA remove June 18, 2014. and are accessible at OSHA's Docket Office, U.S. the capacity requirement. Department of Labor, 200 Constitution Avenue Most of the participants in the II. Summary and Explanation of the NW., Room N2625, Washington, DC 20210; stakeholder meetings expressed the Rule telephone (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) OSHA Docket Office hours of opinion that an operator's certification Commenters in their written remarks operation are 8:15 a.m. to 4:45 p.m., E.T. by an accredited testing organization and oral testimony focused on three Throughout this document, exhibit numbers from did not mean that the operator was fully issues arising from the Agency's the OSHA-2007-0066 docket are referred to in the form "ID-XXXX" where XXXX are the last four competent or experienced to operate a proposed changes: (1) Whether to digits of the full document ID number on http:// crane safely on a construction work site. extend the date for crane operators to be regulations.gov. The document ID number for The participants likened operator certified (commenters indicated that the exhibits from other dockets will be listed certification to a new driver's license, or third-party certification option is the completely. a beginner's permit, to drive a car. Most only one being used); (2) whether to Comments from the May 19, 2014, informal public hearing transcript will be designated by "Tr. participants said that the operator's extend the employer duty to ensure p..#". The document ID number for the transcript employer should retain the crane operators are competent and safe; is OSHA-2007-0066-0521. 57788 Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations what the certification should actually employees.² At the hearing, however, "people die at construction sites daily encompass" [ID-0456]. Another CIC supported a limited extension, because of Crane accidents which commenter stated: "I support waiting acknowledging that "a delay of crane probably could have been prevented until a realistic, workable solution can operator certification is necessary in with proper training" [ID-0451]. be agreed upon because to launch this order to allow OSHA time to address the However, the certification requirements version of an un-workable, unrealistic clarification of employer responsibility" that OSHA proposed to delay by this requirement due to a deadline is much [Tr. p. 58]. Other hearing participants rulemaking, appearing in worse than waiting long enough to get who did not submit comments to the § 1926.1427(a)(2) and (f), do not include it right. We all have to live with it for NPRM agreed with CIC's new position any specific training requirement. The years to come" [ID-0466]. Another [Tr. pp. 85, 184-85, 201-202, 262]. training provisions are located added "[a]lthough the delay in crane The remaining group of commenters elsewhere and are not changed by an operator certification requirements is submitted pre-hearing comments extension of the operator certification not ideal, it is preferrable [sic] to having suggesting that OSHA not extend the deadline. OSHA proposed to extend the the wrong solutions made into law." operator certification deadline, but did re-training requirement in [ID-0467]. not participate in the public hearing $ 1926.1427(k), which was set to expire [ID-0433; -0435; -0439-42; in November. Other commenters supported an -0446; -0450; -0473; A number of commenters addressed extension of the certification deadline -0489]. They cited the safety benefits of in their written comments the issue of even if OSHA did not ultimately change the cranes standard--incorrectly certification by "type and capacity" of the substantive requirements in the attributing all safety benefits of the the crane. However, resolving that issue standard. One stated that the extension cranes standard solely to operator is outside the scope of this rulemaking, makes "good sense" because "[t]here are certification-and stated that a threewhich only addresses whether to extend thousands of operators nationwide in year delay is unnecessary because the deadlines of operator certification the positions that will need to be certification bodies, employers, and and the existing employer duty. As the certified once this rule goes into effect, crane operators have had four years to Agency previously made clear in the but have for one reason of [sic] another prepare for the operator certification notice of proposed rulemaking, it will had difficulty getting their certification requirements to become effective. consider the issue of type and capacity completed. [ID-0460]. Another Several of these objections appeared to and the role of operator certification as commenter also supported the extension be based on arguments that the delay it determines whether to engage in on the grounds that the limited would cause economic inequity for additional rulemaking during the threeavailability of certification opportunities some employers or certification year extension and will not alter the in languages other than English remains companies [ID-0441; -0442; -0444; requirements about the nature of a barrier for otherwise qualified -0446] or that the delay would certification required in this operators to pass the certification test, necessarily leave a regulatory gap rulemaking. noting that at least one of the during which operators would not be certification organizations, the National subject to any scrutiny [ID-0473, 0489]. B. Extension of the Existing Employer Commission for the Certification of One commenter in this group stated Duty Operators (NCCCO), was experimenting that "[m]any current crane operators Commenters were nearly unanimous with a pilot program that might make have a complete lack of knowledge of in supporting an extension of the the certification available to more how to set up, use, and inspect a existing employer duty to ensure that crane. potential operators if OSHA delayed the If not for certification, this their operators are competent to operate certification date [ID-0452]. NCCCO would continue" [ID-0440]. Another cranes: All but one of the comments acknowledged that it is conducting a commenter in this group objected on the addressing the extension of that duty pilot program, but suggested that there grounds that the extension will allow supported it. The commenter who did might not be a high a demand for the employers to go "another" three years not offer support indicated that he did program [Tr. pp. 111-112]. "without training and qualifying their not have any opinion about the issue, crane operators" [ID-0435]. It appears but noted his understanding that "the The commenter who had requested from these statements that the employer needs to verify an individual's the hearing initially opposed any commenters did not understand that abilities" [Tr. p. 273]. The International extension, but then changed its position existing § 1926.1427(k)(2), which OSHA Union of Operating Engineers (IUOE) at the public hearing to support a proposed to stay in effect for the entire provided an extensive Power Point limited extension [ID-0495, Tr. p. 58]. three-year extension, requires employers presentation highlighting the different In its prehearing comment, the Crane to assess their crane operators and reskills operators must have, only some of Institute Certification (CIC) argued train them as necessary. which are tested during operator against any extension because requiring Three commenters apparently equated certification examinations, and the crane operator certification sooner the certification requirement with a additional challenges operators may would provide greater construction training requirement [ID-0435, -0439; face [ID-0527]. IUOE asserted that it is safety as certification results in better -0451]. One was opposed to the crucial that employers continue to trained and tested operators [ID-0495]. extension because construction work ensure that their operators are capable CIC pointed to the safety benefits OSHA requires "completely trained operators" of meeting these challenges: identified in support of the 2010 cranes [ID-0439] and another explained that An extension of the enforcement date for standard and concluded that the certification without continuation of Agency's proposal to delay the deadline 2 Contrary to the assertions by several employer duties would endanger the safety for all construction crane operators to be commenters [ID-0433, 0444, 0453, 0473, 0489, 0495], OSHA did not identify individual and health of operators and those employees certified would result in greater risk on components of the standard, but rather calculated working in the vicinity of crane operators. construction sites using cranes, more the benefits of the entire cranes standard as a OSHA would have no standard for employer accidents, and therefore more injuries whole. OSHA did not separately itemize benefits assessment of compliance if the k(2)(i) and and fatalities to construction accruing from the operator certification (ii) are not extended. Crane operators requirements. would be in a far worse position than they Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57789 were before issuance of the final rule in and training warrant a more thorough important that the Agency extend the August 2010 if employer duties in k(2)(i) and examination, and OSHA will consider employer duty while it considers (ii) are not extended. [ID-0486] whether to commence a new rulemaking rulemaking options. The Agency William Smith of Nations Builders proceeding to make changes to the concludes that it would be Insurance Services and NCCCO board operator qualification requirements in inappropriate to disturb the status quo member agreed, commenting that $ 1926.1427. By this final rule, OSHA is until it completes that examination and "[l]eaving the rule as written [with extending the operator certification has the necessary information to certification but without a continued deadline to allow the Agency time to determine whether changes are needed. employer duty after November, 2014] make this decision and complete a As discussed above, other would take us back in time not forward subsequent rulemaking if necessary. commenters supported the extension in protecting lives" [ID-0474]. The OSHA acknowledges the equity because they thought stakeholders Specialty Crane & Rigging Association concerns raised by businesses and needed more time to complete stated that "It is the employer's employers who have invested in certification [e.g., ID-0460]. OSHA does responsibility to ensure their operators certification with the expectation of a not find these arguments convincing. are certified and qualified for any 2014 deadline [See ID-0441; -0442; While OSHA rejects the argument that specific crane they will operate" in -0444; -0446], but notes that the intentional lack of compliance with an supporting the extension of time for extension will not affect other benefits existing requirement in a standard is by both provisions [ID-0493]. Testimony of certification such as access to itself grounds for OSHA to delay a during the public hearing on May 19, restricted employment opportunities compliance date, it is adopting an 2014 also supported continuing the [Tr. pp. 149-150] and insurance extension to consider the potential employer duty to qualify crane discounts [Tr. p. 151]. Moreover, OSHA safety consequences of allowing the operators [Tr. pp. 29, 134, 217]. The recognizes that it would generate existing employer duty to expire or the IUOE stated: confusion and general disregard for the new concerns expressed after the 2010 The one thing we wanted to be very clear on standard if OSHA began to enforce cranes rulemaking that some of the is that if you extend the date of enforcement compliance with the November 2014 existing operator certification for certification, that without extending the deadline at the same time it announced requirements might be unnecessary and other [employer duty], there would be that it was considering changes to the costly. essentially nothing there, and there would be standard. Those concerns would be no protection at all, except for the people's voluntary compliance with certification. But compounded if OSHA did subsequently D. Length of the Extensions that would be, obviously, inadequate. [Tr. p. change the standard a year or two later Having determined that it is 250] SO that operators who had just appropriate to extend both the Larry Hopkins of the Operating completed the certification process were certification deadline and the employer required to re-certify. OSHA concludes duty to ensure operator competence, the Engineers Certification Program added that it is preferable to extend the remaining issue is the length of the that "it's absolutely imperative that we extensions. In the NPRM, OSHA put the onus of qualification on a certification deadline rather than to particular employer" [Tr. p. 217]. A require employers to devote additional proposed extending the operator commenter employed in the crane rental resources to comply with requirements certification deadline and the existing industry for 35 years stated that he as OSHA considers changing them. employer duty for three years, until In addition, OSHA has concluded that November 10, 2017. As an alternative, would never let an operator control a crane just because he or she has extending the employer duties in the Advisory Committee on received a third-party certification; $ 1926.1472(k)(2) during the Construction Safety and Health rather, an operator would have to certification extension is necessary to (ACCSH) recommended an indefinite ensure there is no reduction in worker extension of the operator certification demonstrate competence on various protection. While OSHA is not now deadline and the existing employer duty cranes to the employer [ID-0456]. Boh Bros. Construction Co. commented that determining whether it should retain or pending further rulemaking on the issue "a certification is only an indication of alter the existing employer duties [OSHA 2013-0006-0024]. OSHA basic skills. Certification is good, through a permanent change to the requested comment on both the threebut does not equal qualification" [IDcranes standard, the record provides year extension and ACCSH's 0464]. These comments to the proposal support for a temporary requirement for recommendation of an indefinite employer assessment and training to extension, and invited comment on echo the information the Agency heard help ensure that crane operators know alternative periods. at its stakeholder meetings in April, how to operate their crane safely [See, One group of commenters proposed 2013 [OSHA-2013-0024-0001]. While not prejudging the issue of whether e.g., ID-0474, -0486, -0493, Tr. pp. 29, an extension of just one year, others 134, 217, 250].3 Without an extension of supported the proposed three-year employers should still have a duty to assess operators even once a the employer duty, the standard would extension, one commenter suggested a have no requirement to ensure that five-year extension, and three certification requirement takes effect (a subject the Agency will consider during crane operators knew how to operate the commenters indicated their support for this extension), OSHA notes that these crane safely during the operator comments also support a requirement certification extension.4 Therefore it is retrain them as necessary, and instead rely on the "general duty clause" in section 5(a)(1) of the OSH that the employer duty be maintained Act to enforce those responsibilities [ID-0495]. before the certification requirement 3 Several commenters suggested that OSHA OSHA decided against this approach because it should, as part of this rulemaking, make permanent takes effect. would give employers less certainty about the the existing employer duties [ID-0495, 0522; Tr. pp. specifics of its duty to ensure their crane operators 59-60, 88-89, 185, 208, 262]. OSHA had not C. Conclusions Regarding Whether the know how to operator cranes safely, and because it proposed to do so in the NPRM; rather, the point would make it more difficult for OSHA to enforce Extensions Are Appropriate of the instant rulemaking is to give the Agency the such a duty due to the nature of the Agency's OSHA finds that the stakeholder time it needs to consider whether to do SO. burden of proof. Moreover, a court might find the A commenter suggested in its pre-hearing cranes standard precludes such a general duty case concerns surrounding operator comment that OSHA could simply remove the even if OSHA removed the employee training certification and employer assessment employer's existing duty to assess operators and requirement. 57790 Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations the indefinite extension suggested by the three-year extension of the operator oppose, "because we believe that the ACCSH. certification deadline and the employer small businesses really need a second The commenters supporting the oneduty [ID-0434, 0449, 0452, 0454-62, bite at this apple" [Tr. p. 44]. A different year extension generally urged OSHA to 0464, 0466-69, 0472, 0474, 0475-79, commenter opposed this "second bite at act quickly SO as not to unnecessarily 0481, 0482-88, 0490, 0491, 0493, 0496- the apple," suggesting the OSHA should delay the safety benefits that could be 98; Tr. pp. 22, 22, 100, 119, 210-211, not delay the safety benefits of the achieved by completion of the final 222]. In the NPRM, OSHA stated that it rulemaking to consider exemptions that crane rulemaking [Tr. pp. 58-60, 183- considered a three-year extension "to had already been considered and 184, 206-207, 264-266]. In addition, the give it sufficient time to complete a rejected [ID-0539]. Crane Institute of America called for rulemaking should it choose to do so" OSHA need not resolve this issue for clarity as soon as possible, warning that [79 FR 7613]. Even if the Agency chose the purposes of this rulemaking, but "[u]ncertainty over what the to conduct a subsequent rulemaking, notes that the scope of the issues it will requirements of the rule will finally be OSHA explained that three years would consider for subsequent rulemaking will will retard employer participation in be enough time because "this issue is be much narrower than the 2010 cranes getting operators certified" [ID-0489]. critical to construction safety" and "a standard. In that regard, these two At the informal public hearing, CIC subsequent rulemaking would focus on rulemakings are not comparable for suggested a one-year extension of the a limited number of discrete issues" [79 purposes of determining how long they operator certification deadline and the FR 7613]. OSHA also notes that several will take. While five years would give existing employer duty as "sufficient participants in the public hearing, the Agency more time to consider and time to allow OSHA to make this change including some of the commenters undertake any rulemaking options, the to the regulation and to the industry to advocating the one-year extension, Agency must balance the rationale for recover and resume pursuit of cautioned OSHA against setting a this additional extension against the accredited operator certification" [Tr. p. deadline that it is not certain it can concerns raised by the other 60]. CIC stated that the Agency's achieve [Tr. pp. 139, 196-197, 208, 272]. commenters who point out that any announcement at the May 2013 ACCSH Industrial Training International unnecessary delay in the operator meeting that the Agency intended to explained, "when the target is certification requirement could prevent propose a delay of the crane operator constantly moving, we never hit it" [Tr. the Agency from obtaining the full certification deadline resulted in a p. 208]. Specialized Carriers & Riggers safety benefit of the cranes standard. decline both in training and certification Association added "OSHA knows how As explained in the NPRM, the activity that had resulted in a year of long it's going to take, and we would say purpose of the extension is to provide confusion in the industry" [Tr. p. 66]. give yourself adequate time. Don't limit additional time for the Agency to Industrial Training International, a yourself to a year and then have us all consider its rulemaking options. Should training provider, referred to the period back in the room again next year it choose to complete a new rulemaking, of lower activity as "the year we've lost" requesting an extension again" [Tr. p. the Agency is confident that it can do [Tr. p. 209]. 139]. so within the three-year extension CIC suggested that OSHA could A few commenters urged the Agency period. OSHA therefore is not complete the rulemaking process in one to delay the operator certification convinced that a five-year extension year if it "fast tracked" the rulemaking, deadline, and extend the existing would provide any real benefit; instead, citing OSHA's activities with respect to employer duty, for a longer period such it is likely to constitute an unnecessary diacetyl as an example of this process as five years, or to follow the ACCSH's delay subject to all of the concerns and of how quickly OSHA can act to recommendation that the Agency extend raised by commenters who requested a address a safety and health concern [Tr. both indefinitely until OSHA completes shorter period. A three-year extension, p. 60-62]. Other hearing participants a new rulemaking on operator rather than a five-year extension, (Crane Training Group, Caldwell Tanks, certification [see ID-0447; -0471; -0480; provides a better balance between Industrial Training International, and -0492; -0494; -0530]. These achieving the full safety benefits of the Crane Industry Services) supported this commenters asserted that three years rule and demonstrating to the industry proposition, and suggested that OSHA would be insufficient to complete an that addressing this issue is a priority. could meet this deadline because it has additional rulemaking. OSHA is likewise not persuaded that the capacity to "fast track" rulemaking NAHB asked OSHA to extend the an indefinite extension would be useful. [Tr. pp. 82, 185, 201, 262]. operator certification deadline and the Several commenters emphasized the OSHA has concluded that it could not existing employer duty requirements need for the Agency to find a solution complete the necessary tasks in the one indefinitely or "at a minimum five years as soon as possible [Tr. pp. 70, 251], and year period proposed by CIC, to allow the Agency sufficient time to one commenter opposed an indefinite particularly if the Agency does decide to implement an improved rule" [IDextension on the grounds that it would proceed with a second rulemaking and 0480]. Subsequently at the informal remove the motivation necessary for would need to consider and implement public hearing, NAHB explained that it OSHA to complete a subsequent all possible rulemaking options. The took more than five years to finalize the rulemaking quickly [Tr. p. 259]. commenters who suggested OSHA "fast cranes standard, and acknowledged that Moreover, one commenter [ID-0486] track" rulemaking as the Agency did its five-year recommendation was asserted that an indefinite extension with the diacetyl rulemaking appear to somewhat arbitrary because the would foster complacency among the have been misinformed: OSHA did not organization ultimately "split the regulated community, some of whom complete a rulemaking on diacetyl in difference" between an indefinite may erroneously assume that operator one year; indeed the Agency has not yet extension and a three year extension certification is not important. The published an NPRM on this issue. [Tr. p. 53]. It made clear that the Agency agrees with these comments. OSHA is not certain what the underlying purpose of the request for a Further, one commenter who suggested commenters' intended by their reference longer extension was to conduct an that extending the operator certification to a "fast track" rulemaking process. extra round of small-business review of deadline indefinitely would "alleviate In response to the NPRM, OSHA the third-party certification confusion regarding the current received many comments supporting requirement, which it continues to compliance deadline" [Tr. p. 177]. Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57791 OSHA disagrees. Failing to specify a revision to § 1926.1427(k), and the final certification requirements in future compliance deadline for operator rule adopts the provision as proposed. rulemaking. certification is likely to result in greater, In the notice of proposed rulemaking, Extending the employer's requirement not less, confusion. OSHA also noted that a parallel training to ensure an operator's competency In addition, if OSHA does not requirement in $ 1926.1430(c)(2) during this period means continuing designate a fixed period after which the reiterates the training requirement in measures in existence since publishing certification requirements would paragraph 1427(k)(2), specifying that the the final crane standard in 2010. As automatically take effect, the Agency training occur during the four-year OSHA stated in the preamble to the may face additional legal challenges to transition period. OSHA preliminarily 2010 final rule, the interim measures in reinstating them. Although a temporary determined that it did not need to paragraph (k) "are not significantly extension is not a reversal of the amend § 1430(c)(2) because it believed different from requirements that were Agency's position requiring operator that amending $ 1427(k)(2) was effective under subpart N of this part at certification, some courts have sufficient to extend the relevant former $ 1926.550, § 1926.20(b)(4) ("the suggested that indefinitely postponing a employer training duty for employers. employer shall permit only those rule's effective date might be OSHA asked for comment on this issue, employees qualified by training or tantamount to repealing a rule. See, e.g., and received none. The Agency experience to operate equipment and Pub. Citizen V. Steed, 733 F.2d 93, 98 continues to believe that no amendment machinery'), and $ 1926.21(b)(2) ('the (D.C. Cir. 1984). The Agency has already of $ 1430(c)(2) is necessary, and employer shall instruct each employee dedicated a significant amount of time therefore it has not changed that in the recognition and avoidance of and resources to implementing the provision in the final rule. unsafe conditions .')" (75 FR 48027). existing standard, including conducting an extensive negotiated rulemaking III. Agency Determinations Delaying the operator certification requirement defers a regulatory process before requiring that employers A. Final Economic Analysis and requirement and should impose no new ensure their crane operators are Regulatory Flexibility Analysis costs on employers. There will, certified. The Agency therefore finds it When it issued the final cranes rule in however, be continuing employer costs prudent to avoid any risk of being 2010, OSHA prepared a final economic for extending the requirement to assess forced to proceed as if it had revoked the requirement, which could mean analysis (FEA) as required by the operators under existing additional expense for the agency and Occupational Safety and Health Act of $ 1926.1427(k)(2); if OSHA had not additional delay in finalizing any 1970 (OSH Act; 29 U.S.C. 651 et seq.) extended these requirements, they subsequent rulemaking. See, e.g., N. and Executive Orders 12866 (58 FR would have expired in 2014 and Carolina Growers' Ass'n, Inc. V. United 51735) (Sept. 30, 1993) and 13563 (76 employers would not have incurred these costs after 2014. With the Farm Workers, 702 F.3d 755, 765 (4th FR 3821 (Jan. 21, 2011)). OSHA also published a Final Regulatory Flexibility extension, these continuing employer Cir. 2012). OSHA concludes that a three-year Analysis as required by the Regulatory costs will be offset by a reduction in Flexibility Act (5 U.S.C. 601-612). The expenses that employers would extension of the operator certification otherwise incur to ensure that their deadline and the existing employer duty preliminary economic analysis (PEA) for this rulemaking relied on some operators are certified before the is the appropriate amount of time to estimates from those earlier documents, existing November 2014 deadline. consider what regulatory approach OSHA should take regarding operator and this FEA is based on estimates in Overview qualification. Three years is also enough the PEA along with public comments time to make any potential regulatory and testimony and other documents in In the following analysis, OSHA the rulemaking record. examined costs and savings to changes the Agency ultimately determine the net economic effect of the determines are appropriate. In response Because OSHA estimates that this rule rule. By comparing the additional to the commenters who urged OSHA to will have a cost savings for employers assessment costs to the certification cost act as quickly as possible and expressed of $21.4 million per year for the three savings across two scenarios-a scenario concern that the 3-year delay might be years of the extension, this final rule is in which there is no extension of the unnecessary, OSHA notes that it is not not economically significant within the 2014 deadline, and a scenario in which constrained to using the entire three meaning of Executive Order 12866, or a there is an extension until 2017-OSHA years to take action on this issue if the major rule under the Unfunded estimates that the extension will Agency can act sooner. OSHA will Mandates Reform Act or Section 804 of produce a net savings for employers of address the issue of operator the Small Business Regulatory $21.7 million per year, annualized over qualification as quickly as it can, Enforcement Fairness Act of 1996 (5 the 3-year period of the extension using meaning that the Agency could U.S.C. 801 et seq.). In addition, this rule a 7% interest rate ($19.8 million per determine the appropriate regulatory complies with Executive Order 13563. year using an interest rate of 3%).5 action, if any, and implement it in less This FEA focuses solely on costs, and OSHA's analysis follows the steps than three years. In that case, the not on any changes in safety and below to reach its estimate of an annual Agency could impose an earlier benefits resulting from extending the deadline through separate rulemaking. net $21.7 million in savings: certification deadline and the employer Therefore OSHA has decided to duties under § 1427(k)(2). OSHA (1) Estimate the annual assessment extend the operator certification previously provided its assessment of costs for employers; deadline for three years, until November the benefits of the cranes standard in the (2) Estimate the annual certification 10, 2017, and to extend the employer FEA of that standard. As noted costs for employers; and duty to ensure that crane operators are elsewhere in this preamble, the primary competent to operate a crane safely for rationale for proposing the extension is 5 As explained in the following discussion, OSHA the same three-year period, as it to provide additional time for OSHA to typically calculates the present value of future costs and benefits using two interest rate assumptions, proposed. The Agency received no consider the potential costs and benefits 7% and 3%, as recommended by OMB Circular A- comment on the text of its proposed of possible adjustments to the operator 4 of September 17, 2003. 57792 Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations (3) Estimate the year-by-year cost status as a proxy of competence in type and capacity) is one hour of both differential for extending the estimating the amount of assessment the operator's and assessor's time: certification deadline to 2017.6 time needed for different operators. $76.87 ($35.62 + $41.25). For an Table 1 below summarizes these costs OSHA expects that an operator already operator with a certificate for crane type and the differentials. certified to operate equipment of a only (not crane capacity), the a. Annual Assessment Costs particular type and capacity will require assessment time is 2.5 hours for a cost less assessment time than an operator of $192.18 (2.5 X ($35.62 + $41.25)). OSHA estimated the annual certified by type but not capacity, who Finally, for an operator with no assessment costs using the following in turn will require less time than an certificate, the assessment time is 4.0 three steps: First, determine the unit operator who is not certified. In deriving hours for a cost of $307.48 (4.0 X ($35.62 costs of meeting this requirement; these estimates, OSHA determined that + $41.25)). These estimates are identical second, determine the number of operators who have a certificate that is to those in the PEA, and commenters assessments that employers will need to compliant with the cranes standard did not object to them except for the one perform in any given year (this would have to complete a test that is the comment questioning the inclusion of determination includes estimating the equivalent of the practical part of the the assessment costs for operators with affected operator pool as a preliminary standard crane operator test. The compliant certifications, discussed in step); and finally, multiply the unit Agency estimates that it would take an the above footnote. costs of meeting the requirement by the operator one hour to complete this test. Besides these assessment costs, OSHA number of operators who must meet it Operators who have a certificate that is notes that § 1427(k)(2)(ii) requires in any given year to determine the annual costs. not in compliance with the cranes employers to provide training to standard would have to complete a test employees if they are not already Unit assessment costs. OSHA's unit that is equivalent to both a written competent to operate their assigned cost estimates for assessments take into account the time needed for the general test and a practical test of the equipment. To determine whether an assessment, along with the wages of standard crane operator test. OSHA operator is competent, the employer estimated that the written general test must first perform an assessment. Only both the operator and the specialized would take 1.5 hours to complete, for a if an operator fails the assessment will operator assessor who will perform the total test time of 2.5 hours of testing for the operator require training. However, assessment. OSHA based the time requirements on crane operator each operator (1.5 hours for the written in determining this cost, OSHA made a certification exams currently offered by general test and 1.0 hour for the distinction between a nonemployee nationally accredited testing practical test). Finally, operators with candidate for an operator position and organizations. OSHA determined the no certificate would have to complete a an operator who is currently an time needed for various certification test that is equivalent to the written test employee. For an employer assessing a on a specific crane type of the standard nonemployee candidate, OSHA tests from informal conversations with crane operator test (also lasting 1.5 assumed, based on common industry industry sources who participated in the hours), as well as the written general practice, that the employer will not hire public stakeholder meetings. The Agency estimates separate test and the practical test, for a total test a nonemployee candidate who fails the time of 4.0 hours (1.5 hours for the test assessment. In the second situation, an assessment costs for three types of affected operators, which together on a specific crane type, 1.5 hours for employee qualified to operate a crane the written general test, and 1.0 hour for fails a type and/or capacity assessment include all affected operators: those who for a crane that differs from the crane have a certificate that is in compliance the practical test). with the existing cranes standard; those The wages used for the crane operator the employee currently operates. In this who have a certificate from a nationally and assessor come from the 2010 final situation, the cost-minimizing action for cranes rule (75 FR 48102). Accordingly, the employer is not to assign the accredited testing organization that is the operator wage is $35.62, while the employee to that type and/or capacity not in compliance with the existing wage of the assessor is estimated to be crane, thereby avoiding training costs. cranes standard; and those who have no certificate.⁷ OSHA uses certification the same as the wage of a crane While the Agency acknowledges that there will be cases in which the inspector, $41.25. For assessments For convenience, OSHA refers to the annual performed by an employer of a employer will provide this training, it time period as a "Certification Year" (CY) in this prospective employee (i.e., a candidate), believes these costs to be minimal and, economic analysis, which OSHA defines as OSHA used these same operator and therefore, is not taking costs for the beginning November 10 of the calendar year; e.g., CY 2013 runs from November 10, 2013, to assessor wages and the above testing training. OSHA made the same determinations in the PEA and did not November 9, 2014. There is some small variation in times to estimate the cost of assessing both assessment and certification costs across CYs prospective employees. receive public comment on them. due to changes in the composition of the operator Multiplying the wages of operators, Number of assessments and number pool resulting from turnover (discussed below). In assessors, and candidates by the time of affected operators. The number of this regard, OSHA presents CY 2013 costs in full, assessments is difficult to estimate due and then presents the minor adjustments needed for taken for each type of assessment to the heterogeneity of the crane other CYs. provides the cost for each type of 7 OSHA is not making any determination about assessment. Hence, the cost of assessing industry. Many operators work whether a specific certification complies with the an operator already holding a certificate continuously for the same employer, requirements of the cranes standard. For the already have their assessment, and do purposes of this analysis only, OSHA will treat that complies with the standard (both not need reassessment, SO the number of certificates that do not include a multi-capacity new assessments required by the cranes component as not complying with the cranes 8 One commenter to the PEA objected that: "Costs standard, and certificates that include both a type associated with 1 hour of additional practical standard for these operators will be and multi-capacity component as complying with testing for operators who are compliant are not zero. Some crane companies will rent the cranes standard. For example, during the necessary" (OSHA-20007-0066-0495). But this both a crane and an operator employed hearing, a participant indicated that some certifying comment overlooks that this cost is for an employer by the rental company to perform crane organizations offer a single "unlimited capacity" to assess an operator with compliant certification certification (Tr. p. 246). In this analysis, OSHA under the employer duty clause. The hour taken is work, in which case the rental crane treats such certifications as not complying with the an estimate based on the time for a practical test company is the operator's employer and cranes standard. as being a reasonable proxy for this assessment. responsible for operator assessment. In Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57793 such cases there is no requirement for fail the first test administration and the hearing stated that currently it has the contractor who is renting the crane need reassessment (73 FR 59895). "just a little over 6,700 operators" service to conduct an additional Therefore, in the PEA for the current certified under its associated OECP operator assessment. Assuming that rulemaking, OSHA added 4,041 program, which does not break out employers already comply with the reassessments (i.e., 26,940 operators X certification by capacity [Tr. p. 246]. assessment and training requirements of 0.15) to the number of reassessments OSHA invited each of these three the existing $ 1427(k)(2), employers only resulting from turnover, for a total of organizations to provide additional need to assess a subset of operators: 30,981 yearly assessments resulting information in their post-hearing New hires; employees who will operate from turnover and test failure (i.e., submissions about the number of equipment that differs by type and/or 26,940 + 4,041) (79 FR 7615). OSHA did operators certified, but none of the capacity from the equipment on which not receive comment on this estimate, organizations provided additional they received their current assessment; SO it is unchanged in this FEA. information on this subject or provided and operators who indicate that they no Annual assessment costs. Annual additional information challenging longer possess the required knowledge assessment costs will vary by year OSHA's underlying estimate that the or skill necessary to operate the depending on several factors; the total number of operators covered by the equipment. following section addresses year-by-year cranes standard is 117,130. To calculate the estimated annual variations. However, OSHA must first Based on this record, OSHA estimates number of assessments, OSHA first determine the annual base amount from that there are 71,700 (65,000 + 6,700) estimated the current number of crane which to account for the variations, and operators with certification for type operators affected by the cranes must do SO for the two scenarios: (1) only, while 15,000 operators have standard. The FEA in the final cranes Retaining the original 2014 deadline compliant certification. Therefore, standard identified a total of 142,630 specified by the existing cranes standard 30,430 crane operators have no crane affected crane operators (75 FR 48108). (status quo); and (2) extending the certification (i.e., 117,130 total operators However, after publishing the final deadline to 2017 (final rule). - (15,000 operators with compliant cranes standard, OSHA made revisions The first part of the calculation is the certification + 71,700 operators with to the cranes standard that reduced the same under both scenarios. Because the certification for type only)). total number of affected operators. In annual assessment costs vary by the Assuming the turnover rate of 23% this regard, OSHA excluded a different levels of assessment required and the failure rate of 15% for turnoversignificant percentage of digger-derrick (depending on the operator's existing related assessments are distributed use from the scope of the cranes level of certification), OSHA grouped proportionally across the three types of standard (see Cranes and Derricks in the 117,130 operators subject to the operators, then the number of Construction: Revising the Exemption cranes standard into three assessments for operators with for Digger Derricks, 78 FR 32110 (May classifications: Operators with a compliant certification is 3,968 (i.e., 29, 2013)). Accordingly, for electric certificate that complies with the (0.23 + (0.23 X 0.15)) X 15,000), the power generation and transmission standard; operators with a certificate number of assessments for operators work covered by the digger-derrick only for crane type; and operators with with type-only certification is 18,965 exemption, OSHA found that the two no certification. In the PEA, from (i.e., (0.23 + (0.23 0.15)) 71,700), and industries using digger derricks have a discussions with members of the crane the number of assessments for operators total of 25,500 operators of digger industry, OSHA estimated that 15,000 with no certification is 8,049 (i.o., (0.23 derricks; these industries are: Electric crane operators currently have a + (0.23 X 0.15)) X 30,430). Under Power Generation, NAICS: 221110; and certificate that complies with the scenario 2 (employer-assessment Electric Power Transmission, NAICS: existing cranes standard, and another requirement extended to 2017), OSHA 221120 (see 78 FR 32114). Subtracting 60,000 have a certificate for crane type estimated the CY 2013 costs by these digger-derrick operators from the only (but not capacity) (79 FR 7616). multiplying the assessment numbers for original total leaves the total number of Subsequent to the PEA, OSHA has each type of operator by the unit costs, operators affected by this proposal at received further information, both from resulting in a cost of $6,424,338 (i.e., 117,130 (i.e., 142,630 - 25,500). post-PEA public comments and ($76.87 X 3,968) + ($192.18 X 18,965) + For the purpose of determining the statements made at the public hearing. ($307.48 X 8,049)). Under scenario 1, number of assessments required each One certification organization, the employers would be certifying operators year under this proposal, OSHA is National Commission for the throughout CY 2013, whereas under relying on the original 23% turnover Certification of Crane Operators scenario 2 employers would be rate for operators identified in the 2008 (NCCO), stated that OSHA's estimates deferring the certifications until CY PEA for the cranes rule (73 FR 59895), "significantly understate the number of 2016; as a result, the CY 2013 which includes all types of operators crane operators considered by OSHA to assessment costs for scenario 1 would who would require assessment: be out of compliance," and that "the decrease from $6,424,338 to $4,402,920 operators moving between employers; number of compliant certifications because a percentage of the operators operators moving between different appears overstated" [ID-0488]. A under scenario 1 will obtain a compliant types and/or capacities of equipment; different certification organization, certificate before they are assessed, and operators entering the occupation. Crane Institute Certification (CIC), OSHA estimated that 26,940 reached the opposite conclusion, stating 9In light of the disagreement between the assessments occur each year based on that the number of operators with commenters about the number of operators with turnover (i.e., 117,130 operators X 0.23 compliant certificates "is actually much compliant certifications, and no other information turnover rate). This number includes higher" than OSHA's estimate of 15,000 in the record, the Agency elected to stay with the original number of 15,000. As a sensitivity analysis assessments performed by an employer [ID-0495]. During the hearing NCCCO check, OSHA redid the analysis with both 10,000 on current employees assigned to a new stated that "65,000 or more" operators and 20,000 operators with compliant certification. type and/or capacity crane. In addition, were currently certified under their This had a miniscule effect, changing the $21.7m OSHA in the 2008 PEA assumed that program [Tr. p. 94], which is by type per year cost savings, at a 7% discount rate, by $53k per year, either $53k higher (for 20,000 certified), 15% of operators involved in only [Tr. p. 109]. The International or $53k lower (for 10,000 certified.) This is only assessments related to turnover would Union of Operating Engineers (IUOE) at 0.25% of a change. 57794 Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations thereby reducing the estimated time and OSHA estimated these different unit training and certifying a new operator, cost needed for the assessment (see certification costs using substantially or $1,070.58 (i.e., $2,141.16 + 2). discussion of year-by-year cost the same unit-cost assumptions used in Number of certifications. After differential in section C below for more the FEA for the 2010 cranes standard. In establishing the unit certification costs, details about this determination). that FEA, OSHA estimated that training OSHA had to determine how many b. Annual Certification Costs and certification costs for an operator certifications are necessary to ensure with only limited experience would compliance with OSHA's standard. In OSHA estimated the annual consist of $1,500 for a 2-day course doing so, the Agency uses the 5% newcertification costs using the three steps (including tests) and 18 hours of the hire estimate from the FEA discussed used for estimating annual assessment operator's time, for a total cost of above to calculate the number of new costs: First, determine the unit costs of $2,141.16 (i.e., $1,500 + (18 hours X operators; therefore, of the 117,130 meeting this requirement; second, $35.62)) (see 75 FR 48096-48097).10 operators affected by the standard, 5,857 determine the number of affected OSHA continues to use a cost of $250 (i.e., 0.05 X 117,130) would be new operators; and, finally, multiply the unit for the tests taken without any training operators who would require two days costs of meeting the requirement by the (a constant fixed fee irrespective of the for training and certification each year. number of operators who must meet number of tests (75 FR 48096)), and the As discussed earlier, OSHA estimated them. In the PEA, OSHA estimated that same number of hours used for each test that 71,700 operators have type-only almost all certification will occur in the that it used in the assessment certification, and 15,000 operators have year prior to the deadline, noting that calculations provided above (which the certification that complies with the although the November 2014 deadline Agency based on certification test existing cranes standard. The remaining was roughly a year away, the vast times). Accordingly, OSHA estimated 24,574 operators (i.e., 117,130 -- majority of operators had not yet the cost of a certificate compliant with (71,700 + 15,000 + 5,857)) are received certification that is in the standard for an operator who has a experienced operators without compliance with the existing standard. type-only certificate to be $339.05 (i.e., certification. None of the commenters disagreed. 1 type/capacity-specific written test at After all operators attain certification Based upon this evidence, if OSHA 1.5 hours and 1 practical test at 1.0 by November 2017, there will still be extends the existing requirements to hours (2.5 hours total), plus the fixed ongoing certification costs each year. November 2017, OSHA estimates that $250 fee for the tests (i.e., (2.5 hours X OSHA estimated that 5% of all the vast majority of employers will again wait until the year before the $35.62) + $250)). For an experienced operators each year, or 5,857 (i.e., .05 deadline (i.e., CY 2016) to certify all operator with no certificate, the cost is 117,130), are new operators with no $392.48 (i.e., the same as the cost for an experience or certification and, operators. As in the annual assessmentcost analysis described above, OSHA operator with a type-only certificate therefore, will need an initial plus the cost of an added general certification. Consequently, with a provides the calculations for CY 2013 written test of 1.5 hours (i.e., (4.0 hours constant total number of operators, the under the original 2014 deadline X $35.62) + $250).11 same number of operators (5,857) will (scenario 1), and then presents the certification costs for CY 2016 that For Scenario 1, § 1926.1427(b)(4) be leaving the profession each year and will not require recertification when would apply if OSHA extends the specifies that a certificate is valid for their current 5-year certification ends. certification requirement to November five years. OSHA estimates the This leaves 111,274 operators (i.e., 2017 (scenario 2). recertification unit cost would be the 117,130 - 5,857) who will need such Unit certification costs. The unit same as the assessment for an operator periodic recertification. If we certification costs are the same as those with compliant certification (i.e., approximate the timing of requirements proposed in the PEA. Unit certification $76.87). for recertification as distributed costs vary across the three different Finally, there will be certified proportionally across years, then 20% of types of operators in the operator pool operators who must obtain certification all operators with a 5-year certificate (operators with compliant certification; when assigned to a crane that differs by (i.e., 22,255 operators (.20 X 111,274)) operators with type-only certification; type and/or capacity from the crane on would require recertification each year. and operators with no certification). which they received their current A final category of unit certification Among operators without certification certification. This situation requires costs involves the continuing need for there is a further distinction with additional training, but less training certified operators to obtain further different unit certification costs: than required for a "new" operator with certification when assigned to a crane experienced operators without only limited experience. Accordingly, that differs by type and/or capacity from certification and operators who have OSHA estimated the cost for these the crane on which they received their only limited experience. Therefore, operators as one half of the cost of current certification. This situation there are different unit certification arises for both operators working for a costs for four different types of 10 One commenter in the instant rulemaking single employer and operators switching operators. There also are ongoing stated that the operator certification costs taken in employers. certification costs due to the following the 2010 FEA were understated, but did not provide Two commenters pointed to the 2010 three conditions: the five-year limit on any support for an alternative. That commenter mistakenly claimed without citation that OSHA, FEA and suggested that OSHA had operator certification; the need for some presumably in the 2010 FEA, "took into significantly underestimated the certified operators to obtain additional consideration that the cost to certify an operator number of certifications that most certification to operate a crane that based on the programs available at the time would operators would need to obtain to differs by type and/or capacity from the range from $500 to $1600 depending on the test and the training required" but "took the lowest cost" of operate cranes of different capacities crane on which they received their $500 for its estimate [ID-0475]. In fact, OSHA used [ID-0475 and Tr. p. 142] These current certification; and a yearly 5% $1,500 as the unit cost for operator certification, commenters do not appear to be aware turnover rate (i.e., 5% new crane both in the 2010 FEA and in the PEA for this that under § 1926.1427(b)(2), an operators entering the occupation to rulemaking [75 FR 48097]. 11 There are no certification costs for operators operator need only obtain a certification replace operators leaving the who already have a certificate that complies with for the highest capacity of the type of occupation). the cranes standard. crane that he or she will operate; there Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57795 is no requirement to obtain separate original deadline. The total cost for amount that accounts for the discounted certification for lower capacity cranes of certifying all operators in CY 2013 in costs over this period. Table 1 below the same type. Moreover, the 23% accordance with the existing cranes summarizes these calculations. turnover rate (originally from the 2008 standard using the above unit-cost Table 1 shows that assessment and cranes PEA) used in this FEA covers not estimates and numbers of operators is certification costs vary each year under only the pre-deadline situations in $46,494,196 (i.e., (71,700 operators with scenario 2. There are several factors that which an operator needs an assessment, type-only certification X $339.05) + cause these costs to vary: (1) The fivebut also situations in the post-deadline (24,574 experienced operators without year limit on operator certification period in which an operator needs certification X $392.48) + (5,857 causes some operators to require multiple certifications. The operators operators with no experience or recertification during this period; (2) the requiring assessments in the precertification X $2,141.16)). The Agency, need for some certified operators to deadline period who will not need following the FEA (75 FR 48096), obtain additional certification to operate additional certification in the postannualized this cost for the five-year a crane that differs by type and/or deadline period are operators with period during which operator capacity from the crane on which they certification who move to a new certification remains effective, resulting received their current certification; and employer and operate a crane with the in an annualized cost of $8,281,185. In (3) the yearly 5% turnover that results same type and capacity as the crane on section C below, OSHA uses this amount in new crane operators entering the which they received certification from in calculating the annual certification occupation. In addition, the their previous employer. These costs under scenario 1. composition of the operator pool will operators will not need reassessment To determine the annual amount used shift in the year before the deadline because of the portability of an operator in calculations for the second scenario because a higher share of all operators certificate across employers as specified (the extension to 2017), OSHA examines will have certification. This shift will by the cranes standard (see § 1427(b)(3)). the costs in CY 2016 because that is the decrease the need to perform a longer For an employer looking to hire an first year with certification costs (as and more costly assessment, thereby operator for a specific crane, this option noted earlier, OSHA determined that, reducing the high costs associated with will minimize cost, and OSHA assumes under the three-year extension, operators who do not have certification employers will choose this option when employers will postpone certification (i.e., employers would take less time possible. costs until CY 2016, so there will not be assessing operators with compliant After the certification deadline, OSHA any new certification costs for CY 2013- certification in this certification year estimates that each year 23% of the 2015). Using the same methodology compared to years in which there is no 117,130 operators (26,940, i.e., 0.23 used to calculate the CY 2013 deadline). To account for this effect, 117,130) will enter the workforce, certification costs, the total cost for OSHA adjusted assessment costs in the change employers, or take on new having all crane operators certified in year directly preceding the deadline in positions that require one or more CY 2016 is $47,880,244 (in 2016 each scenario (i.e., CY 2013 for scenario additional certifications to operate dollars). The annualized cost over the 1 and CY 2016 for scenario 2). different types and/or capacities of five-year period during which certification remains effective is Accordingly, OSHA determined that cranes. Of these 26,940 operators, OSHA assessment costs for CY 2013 under the estimates that 5% of that turnover, or $8,619,229. In the following section, first scenario would decrease from 5,857 ((i.e., 0.05 X 117,130), will result OSHA uses this amount in calculating $6,424,338 under scenario 2 to from new operators entering the the annual certification costs under $4,402,920 under scenario 1 because of occupation each year; 9%, or 10,542 scenario 2. (i.e., 0.09 X 117,130), will result from the increasing certification effect that operators switching employers but C. Year-By-Year Cost Differential for occurs near the deadline. 12 A similar operating a crane of the same type and Extending the Certification Deadline to calculation for CY 2016 (the year prior capacity as the crane they operated 2017 and Preserving the Employer to the proposed certification deadline in previously (i.e., no certification needed Assessment Duty Over That Same 2017) lowers the estimated assessment Period because certification is portable in this costs from $6.9 million (in the absence case); and the remaining 9%, or 10,542, The ultimate goal of this analysis is to of the deadline and accompanying changing jobs or positions and requiring determine the annual cost differential one or more additional certification to between scenario 1 (the status quo) and 12 OSHA estimates that operators will obtain their operate a crane that differs by type and/ scenario 2 (the extensions of the compliant certification at a uniform rate throughout the certification year immediately preceding the or capacity from the crane they operated certification date and the employer deadline, which implies that certification costs can previously. assessment duty), SO the final part of be estimated by using a weighted average of the unit Annual certification costs. As with this FEA compares the yearly costs if no operators become compliant certified, the assessment costs, certification costs assessment and certification costs and the unit costs if all operators are SO certified, with equal weight attributed to each condition (i.e., will vary by year depending on several employers will incur for the two each condition (no operators and all operators) factors addressed in the following scenarios. Because the assessment and contributing one half to the estimate). The Agency section. However, OSHA still needs to certification costs change each year then values assessment unit costs as if none of the determine the annual base amount from under each scenario, OSHA must operators had certification, which would result in maximum assessment times, with unit costs which to account for the variations, and compare the cost differential in each determined by total costs divided by total must do so for the same two scenarios: year separately to determine the annual assessments, which is $207.36 (i.e., $6,424,338 total (1) Retaining the original 2014 deadline cost savings for each year attributable to assessment cost + 30,981 total yearly assessments). specified by the existing cranes standard scenario 2. OSHA calculated the present OSHA next values unit assessment costs as if all operators had compliant certification, which would (status quo); and (2) extending the value of each year's differential, which require the shortest assessment time of 1 hour, and deadline to 2017 (proposed rule). provides a consistent basis for a cost of $76.87. The ratio of the second unit To estimate the annual base cost for comparing the cost differentials over the assessment cost to the first unit assessment cost is the first scenario, OSHA calculates the extended compliance period. OSHA .37 ($76.87 ÷ $207.36). Therefore, the resulting assessment cost in CY 2013 using the weighted certification costs for CY 2013 because then annualized the present value of average formula is $4,402,920 (i.e., (0.5 X that is the remaining period before the each differential to identify an annual $6,424,338) + (0.5 0.37 cost ratio X $6,424,338). 57796 Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations certification) to $4.6 million under annualized cost of $8,281,185 for each difference in total (assessment and scenario 2. year of this five-year period under certification) costs each year across the One-time costs for certifying operators scenario 1.¹³ Under scenario 2, the two scenarios. The net employer cost with non-compliant certification corresponding annualized certification savings in current dollars attributable to ($24,309,885) and certifying costs for CY 2016-2020 (again matching adopting the second scenario are, for experienced operators with no the 5-year duration of the certifications each certification year: 2013, $18.8 certification ($9,644,607) account for received in the last year before the million; 2014, $27.2 million; 2015, much of the rise in certification costs in deadline) would be $8,619,229. The CY 2013 under scenario 1. OSHA $27.1 million; 2016, $8.0 million; 2017, certification costs vary in the other (pre- $0.3 million; 2018, -$8.6 million; annualized these one-time operator deadline) years depending on factors certification costs across GY 2013-2017 2019, $8.6 million; and 2020, - $8.6 identified earlier in this FEA. million.14 (matching the 5-year duration of the As noted earlier, OSHA estimated the certifications received in the last year overall cost differential between these before the deadline), resulting in an two scenarios by calculating the TABLE 1-YEAR-BY-YEAR COST DIFFERENTIAL IF OSHA EXTENDS THE CERTIFICATION DEADLINE TO 2017 2013 2014 2015 2016 2017 2018 2019 2020 2021 Operator Pool Scenario 1 (no deadline extension): Operators with non-compliant certification 71,700 0 0 0 0 0 0 0 0 Operators with compliant certification 15,000 111,274 111,274 111,274 111,274 111,274 111,274 111,274 111,274 Operators with no certification 24,574 0 0 0 0 0 0 0 0 New operators 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 Scenario 2 (deadIne extension): Operators with non-compliant certification 71,700 68,115 64,709 61,474 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 24,574 28,909 33,027 36,939 0 0 0 0 0 New operators 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 5,857 Costs Scenario 1 (no deadline extension): Total assessment costs 4,402,920 0 0 0 0 0 0 0 0 Total certification costs 20,820,888 33,817,340 33,817,340 33,817,340 33,817,340 25,536,156 25,536,156 25,536,156 25,536,156 Total 25,223,808 33,817,340 33,817,340 33,817,340 33,817,340 25,536,156 25,536,156 25,536,156 25,536,156 Scenario 2 (deadine extension): Total assessment costs 6,424,338 6,579,422 6,726,751 4,624,107 0 0 0 0 0 Total certification costs 0 0 0 21,158,933 34,155,385 34,155,385 34,155,385 34,155,385 25,536,156 Total 6,424,338 6,579,422 6,726,751 25,783,039 34,155,385 34,155,385 34,155,385 34,155,385 25,536,156 Cost Differential (Scenario Scenario 1) (18,799,469) (27,237,919) (27,090,590) (8,034,301) 338,044 8,619,229 8,619,229 8,619,229 0 OSHA next determined the present d. Certification of No Significant Impact competency. As noted above, however, value of these cost differentials between on a Substantial Number of Small OSHA estimated the cost for such the two scenarios. OSHA calculated the Entities assessments (for operators with a type present value of future costs using two and capacity certification) to be $76.87 interest rates assumptions, 7% and 3%, Because the Agency estimates the cost per certified operator. which are the rates OSHA used in the of any single assessment to be no higher FEA of the cranes standard (75 FR than $307.48, it believes the economic Small businesses will, by definition, impact will be minimal on any have few operators, and OSHA believes 48080), and which follow the OMB guidelines specified by Circular A-4 of employer. Most employers will have the $76.78 cost will be well below 1% savings resulting from the three-year of revenues, and well below 5% of September 17, 2003. At an interest rate extension, particularly employers that profits, in any industry sector using of 7%, the present value of the cost planned to pay for operator certification cranes. OSHA does not consider such differentials for CY 2013 onwards in the year before the original 2014 small amounts to represent a significant results in an estimated savings of $57.0 deadline. The only entities likely to see impact on small businesses in any million ($56.0 million using the 3% a net cost will be entities that planned industry sector. Hence, OSHA certifies rate). Finally, annualizing the present to hire an operator with compliant this final rule will not have a significant value over the three-year extension certification after November 10, 2014. impact on a substantial number of small period results in an annualized cost Without the three-year extension, these entities. OSHA made the same differential (i.e., net employer cost entities will have no separate certification in the PEA and did not savings) of $21.7 million per year ($19.8 assessment duty, but under the threereceive any comment on either the million per year using the 3% rate). year extension they will have the certification or its underlying rationale. expense involved in assessing operator 13 Under scenario 1, therefore, the total costs. Savings in earlier years results largely from is the first year when, under both scenarios, certification costs of $33,817,340 for each year over the extension of the certification deadline. The cost employer costs would consist solely of ongoing CY2014-2017 consist of the annualized cost of differential then turns negative in later years largely certification costs, and the cost differential between $8,281,185 for the one-time operator certification because employers complete certification under the the two scenarios would be zero. The ongoing costs and $25,536,156 for fixed costs involving first scenario while they are just beginning certification costs consist of: the yearly cost recertification of compliant operators, additional certification under the second scenario. resulting from new operators (5% of all operators) certifications for operators changing type or By 2017, under both scenarios all existing entering the operator pool; the proportion of the capacity of crane, and certification of new operators will have compliant certification. pool that must receive recertification each year operators. However, under the second scenario, the five-year resulting from expiration of the five-year 14A positive cost differential indicates net annualization of when certification costs are certification; and the annual additional savings and a negative cost differential indicates net incurred would continue until 2020. Hence, 2021 certifications that occur. Federal Register/Vol. 79, No. 187/Friday, September 26, 2014/Rules and Regulations 57797 B. Paperwork Reduction Act of 1995 contains no additional paperwork Federal standard or amendment (29 CFR The Paperwork Reduction Act of 1995 requirements. 1953.5(a)). The state standard must be at least as effective as the final Federal (PRA-95) requires Federal agencies to C. Federalism obtain the Office of Management and rule. State Plan States must adopt the OSHA reviewed this final rule in Budget (OMB) approval of a collection Federal standard or complete their own accordance with the Executive Order on standard within six months of the of information (paperwork) requirement Federalism (Executive Order 13132, 64 before an Agency can conduct or promulgation date of the final Federal FR 43255, August 10, 1999), which sponsor the paperwork requirement; rule. When OSHA promulgates a new requires that Federal agencies, to the standard or amendment that does not and to display the OMB control extent possible, refrain from limiting (approval number) (44 U.S.C. 3507(d)). impose additional or more stringent state policy options, consult with states Agencies submit an Information requirements than an existing standard, prior to taking any actions that would State Plan States do not have to amend Collection Request (ICR), with restrict state policy options, and take paperwork analysis, to OMB seeking their standards, although OSHA may such actions only when clear approval of their paperwork encourage them to do SO. The 21 states constitutional authority exists and the requirements. The Granes and Derricks and 1 U.S. territory with OSHAproblem is national in scope. Executive in Construction Standard (29 CFR approved occupational safety and health Order 13132 provides for preemption of plans are: Alaska, Arizona, California, subpart CC) contains paperwork state law only with the expressed Hawaii, Indiana, Iowa, Kentucky, requirements that have been approved consent of Congress. Federal agencies Maryland, Michigan, Minnesota, by OMB, ICR titled Cranes and Derricks must limit any such preemption to the Nevada, New Mexico, North Carolina, in Construction Standard (29 CFR part extent possible. Oregon, Puerto Rico, South Carolina, 1926, Subpart CC), under OMB control Under Section 18 of the Occupational Tennessee, Utah, Vermont, Virginia, Number 1218-0261. These paperwork Safety and Health Act of 1970 (OSH Act; Washington, and Wyoming. requirements expire on 02/28/2017. 29 U.S.C. 651 et seq.), Congress Connecticut, Illinois, New Jersey, New OSHA notes the public need not expressly provides that states and U.S. York, and the Virgin Islands have respond to a collection of information territories may adopt, with Federal OSHA-approved State Plans that apply requirement unless the agency displays approval, a plan for the development to state and local government employees a currently valid OMB control number, and enforcement of occupational safety only. and, notwithstanding any other and health standards. OSHA refers to When OSHA promulgates a new final provision of law, no person shall be such states and territories as "State Plan rule, states and territories with subject to a penalty for failing to comply States." Occupational safety and health approved State Plans must adopt with a collection of information standards developed by State Plan comparable amendments to their requirement if the requirement does not States must be at least as effective in standards for cranes and derricks within display a currently valid OMB control providing safe and healthful six months of OSHA's promulgation of number. employment and places of employment the final rule unless they demonstrate Also, the PRA-95 (44 U.S.C. as the Federal standards. 29 U.S.C. 667. that such a change is not necessary 3506(c)(2)), requires agencies to solicit Subject to these requirements, State because their existing standards are public comments on proposed or Plan States are free to develop and already the same, or at least as effective, revised collection of information enforce under state law their own as OSHA's new final rule. requirements; and, requires agencies to requirements for safety and health The amendments to OSHA's cranes submit proposed rules which contain standards. standard in this final rule preserve the collection of information requirements OSHA previously concluded from its status quo and do not impose any new to OMB for review. analysis that promulgation of subpart requirements on employers. In the February 10, 2014 NPRM, CC complies with Executive Order Accordingly, State Plan States would OSHA notified the public that the 13132 (75 FR 48128-29). In states not have to amend their standards to Agency believed the proposed Granes without an OSHA-approved State Plan, delay the effective date of their operator and Derricks in Construction: Operator this final rule limits state policy options certification requirements, but they may Certification rule did not contain in the same manner as every standard do SO if they SO choose. However, if they additional collection of information, promulgated by OSHA. For State Plan choose to delay the effective date of and that OSHA did not believe it was States, Section 18 of the OSH Act, as their certification requirements, they necessary to submit a new (revised) ICR noted in the previous paragraph, also would need to include a to OMB. OSHA instructed the public to permits State-Plan States to develop and corresponding extension of the submit comments on this determination enforce their own cranes standards employer duty to assess and train to OMB and encouraged them to submit provided these requirements are at least operators that is equivalent to their comments to OSHA. as effective in providing safe and $ 1427(k)(2). OSHA has determined this final rule healthful employment and places of requires no additional collection of employment as the requirements E. Unfunded Mandates Reform Act information or any permanent change to specified in this final rule. When OSHA issued the final rule for the collection program: it preserves the cranes and derricks in construction, it status quo for an additional short period D. State Plan States reviewed the rule according to the of time. OMB's approval of the Cranes When Federal OSHA promulgates a Unfunded Mandates Reform Act of 1995 and Derricks in Construction ICR new standard or more stringent (UMRA; 2 U.S.C. 1501 et seq.) and already covers all collections of amendment to an existing standard, Executive Order 13132 (64 FR 43255 information required by the temporary State Plan States must amend their (Aug. 10, 1999)). OSHA concluded that extensions in this final rule, and standards to reflect the new standard or the final rule did not meet the definition therefore OSHA did not submit a amendment, or show OSHA why such of a "Federal intergovernmental revised ICR to OMB as part of this action is unnecessary, e.g., because an mandate" under the UMRA because rulemaking. No parties commented on existing state standard covering this area OSHA standards do not apply to state or OSHA's determination that this rule is "at least as effective" as the new local governments except in states that 57798 Federal Register/Vol. 79, No. 187/Friday, September 26, Rules and Regulations voluntarily adopt State Plans. OSHA 607 (1980). In the cranes rulemaking, PART 1926-[AMENDED] further noted that the rule imposed OSHA made such a determination with costs of over $100 million per year on respect to the use of cranes and derricks Subpart CC-Cranes and Derricks in the private sector and, therefore, in construction (75 FR 47913, 47920- Construction required review under the UMRA for 21). This final rule does not impose any those costs, but that its final economic new requirements on employers. 1. The authority citation for subpart analysis met that requirement. Therefore, this final rule does not CC of 29 CFR part 1926 continues to As discussed above in Section III.A read as follows: (Final Economic Analysis and require an additional significant risk finding (see Edison Electric Institute V. Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. Regulatory Flexibility Analysis) of this OSHA, 849 F.2d 611, 620 (D.C. Cir. 653, 655, 657; and Secretary of Labor's preamble, this final rule does not impose any costs on private-sector 1988)). Orders 5-2007 (72 FR 31159) or 1-2012 (77 FR 3912), as applicable; and 29 CFR part employers beyond those costs already In addition to materially reducing a 1911. taken into account in the 2010 final rule significant risk, a safety standard must ! 2. Amend § 1926.1427 by revising for cranes and derricks in construction. be technologically feasible. See UAW V. paragraph (k) to read as follows: Because OSHA reviewed the total costs OSHA, 37 F.3d 665, 668 (D.C. Cir. of the 2010 final rule under the UMRA, 1994). A standard is technologically 1926.1427 Operator qualification and no further review of those costs is feasible when the protective measures it certification. necessary. Therefore, for the purposes of * * * requires already exist, when available the UMRA, OSHA certifies that this technology can bring the protective (k) Phase-in. (1) The provisions of this final rule does not mandate that state, measures into existence, or when that section became applicable on November local, or tribal governments adopt new, unfunded regulatory obligations, or technology is reasonably likely to 8, 2010, except for paragraphs (a)(2) and increase expenditures by the private develop (see American Textile Mfrs. (f), which are applicable November 10, 2017. sector of more than $100 million in any Institute V. OSHA, 452 U.S. 490, 513 (1981); American Iron and Steel (2) When § 1926.1427(a)(1) is not year. Institute V. OSHA, 939 F.2d 975, 980 applicable, all of the requirements in F. Consultation and Coordination With paragraphs (k)(2)(i) and (ii) of this (D.C. Cir. 1991)). In the 2010 Final Indian Tribal Governments section apply until November 10, 2017. Economic Analysis for the cranes (i) The employer must ensure that OSHA reviewed this final rule in standard, OSHA found the standard to operators of equipment covered by this accordance with Executive Order 13175 be technologically feasible (75 FR standard are competent to operate the (65 FR 67249) and determined that it 48079). This final rule is, therefore, equipment safely. does not have "tribal implications" as technologically feasible as well because (ii) When an employee assigned to defined in that order. The rule does not it does not require employers to operate machinery does not have the have substantial direct effects on one or implement any additional protective required knowledge or ability to operate more Indian tribes, on the relationship measures; it simply extends the the equipment safely, the employer between the Federal government and duration of existing requirements. must train that employee prior to Indian tribes, or on the distribution of power and responsibilities between the List of Subjects in 29 CFR Part 1926 operating the equipment. The employer must ensure that each operator is Federal government and Indian tribes. Construction industry, Cranes, evaluated to confirm that he/she G. Legal Considerations Derricks, Occupational safety and understands the information provided The purpose of the Occupational health, Safety. in the training. Safety and Health Act of 1970 (29 U.S.C. [FR Doc. 2014-22816 Filed 9-25-14; 8:45 am] 651 et seq.) is "to assure SO far as Authority and Signature BILLING CODE 4510-26-P possible every working man and woman David Michaels, Ph.D., MPH, in the nation safe and healthful working Assistant Secretary of Labor for conditions and to preserve our human DEPARTMENT OF HOMELAND Occupational Safety and Health, U.S. resources." 29 U.S.C. 651(b). To achieve SECURITY Department of Labor, 200 Constitution this goal, Congress authorized the Ave. NW., Washington, DC 20210, Coast Guard Secretary of Labor to promulgate and authorized the preparation of this enforce occupational safety and health document. OSHA is issuing this rule 33 CFR Part 100 standards. 29 U.S.C. 654(b), 655(b). A safety or health standard is a standard under the following authorities: 29 [Docket No. USCG-2014-0697] "which requires conditions, or the U.S.C. 653, 655, 657; 40 U.S.C. 3701 et adoption or use of one or more seq.; 5 U.S.C. 553; Secretary of Labor's Special Local Regulation; Southern practices, means, methods, operations, Order No. 1-2012 (77 FR 3912, Jan. 25, California Annual Marine Events for or processes, reasonably necessary or 2012); and 29 CFR part 1911. the San Diego Captain of the Port Zone appropriate to provide safe or healthful Signed at Washington, DC, on September AGENCY: Coast Guard, DHS. employment or places of employment." 19, 2014. ACTION: Notice of enforcement of 29 U.S.C. 652(8). A standard is David Michaels, reasonably necessary or appropriate regulation. Assistant Secretary of Labor for Occupational within the meaning of Section 652(8) Safety and Health. SUMMARY: The Coast Guard will enforce when a significant risk of material harm the U.S. Open Water Ski Racing exists in the workplace and the standard Amendments to Standards Nationals special local regulations on would substantially reduce or eliminate that workplace risk. See Industrial For the reasons stated in the preamble October 11-12, 2014. This marine event Union Department, AFL-CIO V. of this final rule, OSHA amends 29 CFR occurs on the navigable waters of American Petroleum Institute, 448 U.S. part 1926 as follows: Mission Bay, in San Diego, California. This action is necessary to provide for