41184 Federal Register / Vol. 82, No. 167 / Wednesday, August 30, 2017 / Proposed Rules 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1926 

[Docket ID–OSHA–2007–0066] 

RIN 1218–AC86 

Cranes and Derricks in Construction: 

Operator Certification Extension 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Under OSHA’s standard for 

cranes and derricks used in construction 

work, crane operators are to be certified 

by November 10, 2017. Until that date, 

employers also have duties under the 

standard to ensure that crane operators 

are trained and competent to operate the 

crane safely. The Agency delayed the 

deadline for operator certification by 

three years to November 10, 2017, and 

extended the existing employer duties 

for the same period. The Agency is 

proposing to delay the deadline and 

extend the existing employer duty to 

ensure that operators of equipment 

covered by this standard are competent 

to operate the equipment safely for one 

year to November 17, 2018. 

DATES: Submit comments to this 

proposed rule, including comments to 

the information collection (paperwork) 

determination (described under the 

section titled ‘‘Agency 

Determinations’’), hearing requests, and 

other information by September 29, 

2017. All submissions must bear a 

postmark or provide other evidence of 

the submission date. 

ADDRESSES: Submit comments, hearing 

requests, and other material, identified 

by Docket No. OSHA–2007–0066, using 

any of the following methods: 

Electronically: Submit comments and 

attachments, as well as hearing requests 

and other information, electronically at 

http://www.regulations.gov, which is 

the Federal e-Rulemaking Portal. Follow 

the instructions online for submitting 

comments. Note that this docket may 

include several different Federal 

Register notices involving active 

rulemakings, so it is extremely 

important to select the correct notice or 

its ID number when submitting 

comments for this rulemaking. After 

accessing the docket (OSHA–2007– 

0066), check the ‘‘proposed rule’’ box in 

the column headed ‘‘Document Type,’’ 

find the document posted on the date of 

publication of this document, and click 

the ‘‘Submit a Comment’’ link. 

Additional instructions for submitting 

comments are available from the 

regulations.gov homepage. 

Facsimile: OSHA allows facsimile 

transmission of comments that are 10 

pages or fewer in length (including 

attachments). Fax these documents to 

the OSHA Docket Office at (202) 693– 

1648. OSHA does not require hard 

copies of these documents. Instead of 

transmitting facsimile copies of 

attachments that supplement these 

documents (e.g., studies, journal 

articles), commenters must submit these 

attachments to the OSHA Docket Office, 

Technical Data Center, Room N–2625, 

OSHA, U.S. Department of Labor, 200 

Constitution Ave. NW., Washington, DC 

20210. These attachments must clearly 

identify the sender’s name, the date, 

subject, and the docket number (OSHA– 

2007–0066) so that the Docket Office 

can attach them to the appropriate 

document. 

Regular mail, express delivery, hand 

delivery, and messenger (courier) 

service: Submit comments and any 

additional material to the OSHA Docket 

Office, RIN No. 1218–AC86, Technical 

Data Center, Room N–3508, OSHA, U.S. 

Department of Labor, 200 Constitution 

Ave. NW., Washington, DC 20210; 

telephone: (202) 693–2350. (OSHA’s 

TTY number is (877) 889–5627). Contact 

the OSHA Docket Office for information 

about security procedures concerning 

delivery of materials by express 

delivery, hand delivery, and messenger 

service. The Docket Office will accept 

deliveries (express delivery, hand 

delivery, messenger service) during the 

Docket Office’s normal business hours, 

8:15 a.m. to 4:45 p.m., e.s.t. 

Instructions: All submissions must 

include the Agency’s name, the title of 

the rulemaking (Cranes and Derricks in 

Construction: Operator Certification 

Extension), and the docket number (i.e., 

OSHA Docket No. OSHA–2007–0066). 

OSHA will place comments and other 

material, including any personal 

information, in the public docket 

without revision, and the comments and 

other material will be available online at 

http://www.regulations.gov. Therefore, 

OSHA cautions commenters about 

submitting statements they do not want 

made available to the public, or 

submitting comments that contain 

personal information (either about 

themselves or others) such as Social 

Security numbers, birth dates, and 

medical data. 

Docket: To read or download 

comments or other material in the 

docket, go to http://www.regulations.gov 

or to the OSHA Docket Office at the 

above address. The electronic docket for 

this proposed rule established at http:// 

www.regulations.gov contains most of 

the documents in the docket. However, 

some information (e.g., copyrighted 

material) is not available publicly to 

read or download through this Web site. 

All submissions, including copyrighted 

material, are available for inspection at 

the OSHA Docket Office. Contact the 

OSHA Docket Office for assistance in 

locating docket submissions. 

FOR FURTHER INFORMATION CONTACT: 

General information and press 

inquiries: Mr. Frank Meilinger, OSHA 

Office of Communications; telephone: 

(202) 693–1999; email: 

Meilinger.Francis2@dol.gov. 

Technical inquiries: Mr. Vernon 

Preston; telephone: (202) 693–2020; fax: 

(202) 693–1689; email: Preston.Vernon@

dol.gov. 

Copies of this Federal Register 

notice and news releases: Electronic 

copies of these documents are available 

at OSHA’s Web page at http://

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary and Explanation of the 

Proposed Amendments to the Standard 

A. Introduction 

OSHA is publishing this Notice of 

Proposed Rulemaking to extend for one 

year the employer duty to ensure crane 

operator competency for construction 

work, from November 10, 2017, to 

November 10, 2018. OSHA also is 

proposing to delay the enforcement date 

for crane operator certification for one 

year from November 10, 2017, to 

November 10, 2018. This would be the 

second delay of the enforcement date, 

which OSHA needs to address 

stakeholder concerns over the operator 

certification requirements in the 2010 

cranes and derricks in construction 

standard. 

B. Summary of Economic Impact 

This proposed rule is not 

economically significant. OSHA 

proposes to revise 29 CFR 1926.1427(k) 

(competency assessment and training) to 

delay the deadline for compliance with 

the operator certification requirement in 

its construction standard for cranes and 

derricks, and to extend the existing 

employer duties for the same period. 

OSHA’s preliminary economic analysis 

shows that delaying the date for 

operator certification and employers’ 

assessment of crane operators, rather 

than allowing both provisions to expire 

on November 10, 2017, will result in a 

net cost savings for the affected 

industries. Delaying the compliance 

date for operator certification results in 

estimated cost savings that exceed the 

estimated new costs for employers to 

continue to assess crane operators to 

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Federal Register / Vol. 82, No. 167 / Wednesday, August 30, 2017 / Proposed Rules 41185 

ensure their competent operation of the 

equipment in accordance with 

1926.1427(k). The detailed preliminary 

economic analysis is in the ‘‘Agency 

Determinations’’ section of this 

preamble. 

C. Background 

1. Operator Certification Options 

OSHA developed the final rule for 

cranes and derricks in construction (29 

CFR subpart CC, referred to as ‘‘the 

crane standard’’ hereafter) through a 

negotiated rulemaking process. OSHA 

established a federal advisory 

committee, the Cranes and Derricks 

Negotiated Rulemaking Advisory 

Committee (C–DAC), to develop a draft 

proposed rule. C–DAC met in 2003 and 

2004 and developed a draft proposed 

rule (which included the provisions 

concerning crane operator certification 

at issue in this rulemaking) that it 

provided to OSHA. The rule OSHA 

subsequently proposed closely followed 

C–DAC’s draft proposal (73 FR 59718). 

The Agency initiated a Small 

Business Advocacy Review Panel in 

2006. The Agency published the 

proposed rule for cranes in construction 

in 2008, received public comment on 

the proposal, and conducted a public 

hearing. Among many other provisions, 

OSHA’s final rule incorporated, with 

minor changes, the four-option 

certification scheme that C–DAC had 

recommended and the Agency had 

proposed. Accordingly, in § 1926.1427, 

as originally promulgated, OSHA 

required employers to ensure that their 

crane operators are certified under at 

least one of four options by November 

10, 2014: 

Option 1. Certification by an 

independent testing organization 

accredited by a nationally recognized 

accrediting organization; 

Option 2. Qualification by an 

employer’s independently audited 

program; 

Option 3. Qualification by the U.S. 

military; 

Option 4. Compliance with qualifying 

state or local licensing requirements 

(where mandatory). 

The third-party certification option in 

§ 1926.1427(b)—Option 1—is the only 

certification option that is ‘‘portable,’’ 

meaning that any employer who 

employs an operator may rely on that 

operator’s certification as evidence of 

compliance with the crane standard’s 

operator certification requirement. This 

certification option also is the only one 

that is available to all employers; it is 

the option that OSHA, and the parties 

that participated in the rulemaking, 

believed would be the one most widely 

used. In this regard, OSHA is not aware 

of an audited employer qualification 

program among construction industry 

employers (Option 2), and the crane 

standard limits the U.S. military crane 

operator certification programs (Option 

3) to federal employees of the 

Department of Defense or the armed 

services. While state and local 

governments certify some crane 

operators (Option 4), the vast majority of 

operators who become certified do so 

through Option 1—by third-party testing 

organizations accredited by a nationally 

recognized accrediting organization. 

Under Option 1, a third party 

performs testing. Before a testing 

organization can issue operator 

certifications, paragraph 1427(b)(1) of 

the crane standard provides that a 

nationally recognized accrediting 

organization must accredit the testing 

organizations. To accredit a testing 

organization, the accrediting agency 

must determine that the testing 

organization meets industry-recognized 

criteria for written testing materials, 

practical examinations, test 

administration, grading, facilities and 

equipment, and personnel. The testing 

organization must administer written 

and practical tests that: 

• Assess the operator’s knowledge 

and skills regarding subjects specified in 

the crane standard; 

• provide different levels of 

certification based on equipment 

capacity and type; 

• have procedures to retest applicants 

who fail; and 

• have testing procedures for 

recertification. 

Paragraph 1427(b)(2) of the final crane 

standard also specifies that, for the 

purposes of compliance with the crane 

standard, an operator is deemed 

qualified to operate a particular piece of 

equipment only if the operator is 

certified for that type and capacity of 

equipment or for higher-capacity 

equipment of that type. It further 

provides that, if no testing organization 

offers certification examinations for a 

particular equipment type and/or 

capacity, the operator is deemed 

qualified to operate that equipment if 

the operator is certified for the type/ 

capacity of equipment that is most 

similar to that equipment, and for which 

a certification examination is available. 

2. Overview of § 1926.1427(k) (Phase-in 

Provision) 

The final crane standard replaced 

provisions in 29 CFR 1926 subpart N— 

Cranes, Derricks, Hoists, Elevators, and 

Conveyors, of the construction safety 

standards. Provisions for employers to 

ensure that operators of equipment, 

including cranes, are trained and 

qualified to safely operate that 

equipment are available elsewhere in 

the construction safety standards (see, 

for example, § 1926.20(b)(4) and (f)(2)). 

OSHA delayed the effective date of 

the operator certification requirement 

for four years, until November 10, 2014 

(see § 1427(k)(1)). To make sure that 

crane operators knew how to operate 

equipment safely during this phase-in 

period, the Agency required employers 

to ‘‘ensure that operators of equipment 

covered by this standard are competent 

to operate the equipment safely’’ 

(§ 1926.1427(k)(2)(i)). When the operator 

‘‘assigned to operate machinery does not 

have the required knowledge or ability 

to operate the equipment safely,’’ the 

standard requires employers to train and 

evaluate the operator 

(§ 1926.1427(k)(2)(ii)). 

3. Post-Final Rule Developments 

After OSHA issued the final rule, it 

continued to receive feedback from 

members of the regulated community 

and conducted stakeholder meetings on 

April 2 and 3, 2013, to give interested 

members of the public the opportunity 

to express their views. Participants 

included construction contractors, labor 

unions, crane manufacturers, crane 

rental companies, accredited testing 

organizations, one of the accrediting 

bodies, insurance companies, crane 

operator trainers, and military 

employers. Detailed notes of 

participants’ comments are available at 

OSHA–2007–0066–0539. Various 

parties informed OSHA that, in their 

opinion, the operator certification 

option would not adequately ensure that 

crane operators could operate their 

equipment safely. They said a certified 

operator would need additional 

training, experience, and evaluation, 

beyond the training and evaluation 

required to obtain certification, to 

ensure that he or she could operate a 

crane safely. 

OSHA also received information that 

two (of a total of four) accredited testing 

organizations have been issuing 

certifications only by ‘‘type’’ of crane, 

rather than by the ‘‘type and capacity’’ 

of crane, as the crane standard requires. 

As a result, those certifications do not 

meet the standard’s requirements and 

operators who obtained certifications 

from only those organizations cannot, 

under OSHA’s crane standard, operate 

cranes on construction sites after the 

new requirements become effective. 

Some stakeholders in the crane industry 

requested that OSHA remove the 

capacity requirement. 

Most of the participants in the 

stakeholder meetings expressed the 

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41186 Federal Register / Vol. 82, No. 167 / Wednesday, August 30, 2017 / Proposed Rules 

1Transcript for March 31: https://www.osha.gov/ 

doc/accsh/transcripts/accsh_20150331.pdf; 

transcript for April 1: https://www.osha.gov/doc/ 

accsh/transcripts/accsh_20150401.pdf. 

2https://www.osha.gov/doc/accsh/ 

accshcrane.pdf. 

3https://www.osha.gov/doc/accsh/proposed_

crane.html. 

4https://www.osha.gov/doc/accsh/summary_

crane.html. 

opinion that an operator’s certification 

by an accredited testing organization 

did not mean that the operator was fully 

competent or experienced to operate a 

crane safely on a construction work site. 

The participants likened operator 

certification to a new driver’s license, or 

a learner’s permit, to drive a car. Most 

participants said that the operator’s 

employer should retain the 

responsibility to ensure that the 

operator was qualified for the particular 

crane work assigned. Some participants 

wanted certification to be, or viewed to 

be, sufficient to operate a crane safely. 

Stakeholders noted that operator 

certification was beneficial in 

establishing a minimum threshold of 

operator knowledge and familiarity with 

cranes. 

D. Three-Year Extension 

In order to address the issues raised 

by industry stakeholders after 

publication of the final rule, OSHA 

proposed a rule delaying the 

compliance date for the operator 

certification requirements of the crane 

standard, and extending the employer 

duty to ensure that the operator was 

qualified for the particular crane work 

assigned, by three years until November 

10, 2014, (79 FR 7611). Subsequently, 

OSHA conducted a hearing on the 

rulemaking on May 19, 2014, gathering 

more comments on the proposed 

extension (OSHA–2007–0066–0521). 

On September 26, 2014, OSHA issued 

a final rule delaying the compliance 

date for operator certification for three 

years until November 10, 2017, (79 FR 

57785). After publication of the final 

rule, OSHA began conducting site visits 

with a variety of stakeholders and the 

Agency drafted regulatory text with the 

purpose of addressing the capacity issue 

and the employer duty concerns. 

On March 31 and April 1, 2015, 

OSHA convened a special meeting of 

Advisory Committee on Construction 

Safety and Health in which both ACCSH 

members and non-member industry 

stakeholders provided feedback on the 

draft regulatory text.1 Prior to the 

meeting, OSHA made available the draft 

regulatory text,2 an overview of the draft 

regulatory text,3 and a summary of the 

site visits with stakeholders.4 OSHA 

received many comments and 

suggestions for revising the regulatory 

text at the ACCSH meeting. Since that 

meeting, the Agency has worked to redraft the regulatory text and preamble 

for the proposed rule. To ensure the 

Agency has enough time to propose and 

finalize the rulemaking, OSHA is 

proposing this one-year extension of the 

certification requirement compliance 

date. Just as with the previous 

extension, OSHA is also proposing an 

extension of the existing employer 

assessment duty for the same time 

period. 

E. Explanation of Proposed Action and 

Request for Comment 

The effective dates of the operator 

certification requirement and the other 

‘‘phase in’’ of employer duties are in 29 

CFR 1926.1427(k)(1). The Agency is 

proposing to revise § 1427(k)(1) to delay 

the deadline for operator certification by 

one year from November 10, 2017, to 

November 10, 2018, to provide 

additional time for the Agency to 

propose and finalize a rulemaking that 

addresses stakeholders’ concerns. The 

Agency also is proposing to extend the 

current employer duties in 

§ 1926.1427(k)(2)(i) and (ii) to ensure 

there is no reduction in worker 

protection during this three-year period. 

When OSHA included these employer 

duties in the final crane standard in 

2010, these duties were to be a ‘‘phase 

in’’ to certification (75 FR 48027). By 

extending the date to November 10, 

2018, as proposed in this notice, the 

requirements would continue to serve 

that purpose and preserve the status 

quo. 

Without an extension, the 

certification requirements from the 

crane standard will prevent operators 

without certification by crane capacity 

from operating cranes, potentially 

disrupting the construction industry by 

creating a large number of crane 

operators without compliant 

certifications. Without the extension, 

after November 10, 2017, there would 

not be any duty for employers to ensure 

that their operators are competent to 

operate the equipment safely. This 

could diminish the effectiveness of the 

final rule which OSHA previously 

estimated to prevent 22 fatalities per 

year (75 FR 47914). 

OSHA seeks comment on this 

approach, including the duration of the 

proposed extension of the operator 

certification deadline and the existing 

employer duties. OSHA encourages 

commenters to include a rationale for 

any alternatives that they propose. 

OSHA also requests comment on the 

‘‘Agency Determinations’’ section that 

follows, including the preliminary 

economic analysis, paperwork 

requirements, and other regulatory 

impacts of this rule on the regulated 

community. 

II. Agency Determinations 

A. Preliminary Economic Analysis and 

Regulatory Flexibility Analysis 

When it issued the final crane rule in 

2010, OSHA prepared a final economic 

analysis (2010 FEA) as required by the 

Occupational Safety and Health Act of 

1970 (OSH Act; 29 U.S.C. 651 et seq.) 

and Executive Orders 12866 (58 FR 

51735) (Sept. 30, 1993) and 13563 (76 

FR 3821 (Jan. 21, 2011)). OSHA also 

published a Final Regulatory Flexibility 

Analysis as required by the Regulatory 

Flexibility Act (5 U.S.C. 601–612). On 

September 26, 2014, the Agency 

included a separate FEA (2014 FEA) 

when it published a final rule delaying 

until November 10, 2017, the deadline 

for all crane operators to become 

certified, and extending the employer 

duty to ensure operator competency for 

the same period (79 FR 57785). The 

preliminary economic analysis (PEA) for 

this rulemaking relies on the 

methodology of the 2014 FEA, which in 

turn is based on estimates from the 2010 

FEA, along with public comments and 

testimony and other documents in the 

2014 rulemaking record. In this 

document OSHA has summarized some 

of the information from the 2014 FEA 

and noted where the current analysis 

differs from the previous FEA. 

Additional background on the analysis 

in this PEA may be found in the 2014 

FEA. 

Because OSHA estimates this rule 

will have a cost savings for employers 

of $4.4 million using a discount rate of 

3 percent for the one year of the 

extension, this final rule is not 

economically significant within the 

meaning of Executive Order 12866, or a 

major rule under the Unfunded 

Mandates Reform Act or Section 804 of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.). 

This PEA focuses solely on costs, and 

not on any changes in safety and 

benefits resulting from extending the 

certification deadline and the employer 

duties under § 1926.1427(k)(2). OSHA 

previously provided its assessment of 

the benefits of the crane standard in the 

2014 FEA of that standard. As noted 

elsewhere in this preamble, the primary 

rationale for this proposal is to maintain 

the status quo—including preservation 

of the employer duty to ensure that 

crane operators are competent—while 

providing OSHA additional time to 

conduct rulemaking on the crane 

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5As explained in the following discussion, OSHA 

typically calculates the present value of future costs 

and benefits using two interest rate assumptions, 

3% and 7%, as recommended by OMB Circular A– 

4 of September 17, 2003. All dollar amounts unless 

otherwise stated are in 2016 dollars. 

6Though this is a single year extension, the 

analysis needs to extend over several future years. 

For convenience, OSHA refers to the annual time 

period as a ‘‘Certification Year’’ (CY) in this 

economic analysis, which OSHA defines as ending 

November 10 of the calendar year; e.g., CY 2017 

runs from November 10, 2016, to November 9, 2017. 

7OSHA is not making any determination about 

whether a specific certification complies with the 

requirements of the crane standard. For the 

purposes of this analysis only, OSHA will treat 

certificates that do not include a multi-capacity 

component as not complying with the crane 

standard, and certificates that include both a type 

and multi-capacity component as complying with 

the crane standard. 

operator requirements in response to 

stakeholder concerns. 

Extending the employer’s requirement 

to ensure an operator’s competency 

during this period means taking the 

same approach of the previous 

extension: Continuing measures in 

existence since OSHA published the 

crane standard in 2010. As OSHA stated 

in the preamble to the 2010 final rule, 

the interim measures in paragraph (k) 

‘‘are not significantly different from 

requirements that were effective under 

subpart N of this part at former 

§ 1926.550, § 1926.20(b)(4) (‘the 

employer shall permit only those 

employees qualified by training or 

experience to operate equipment and 

machinery’), and § 1926.21(b)(2) (‘the 

employer shall instruct each employee 

in the recognition and avoidance of 

unsafe conditions . . .’)’’ (75 FR 48027). 

Delaying the operator certification 

requirement defers a regulatory 

requirement and produces cost savings 

for employers. There will, however, be 

continuing employer costs for extending 

the requirement to assess operators 

under existing § 1926.1427(k)(2); if 

OSHA does not extended these 

requirements, they will expire on 

November 10, 2017, and employers 

would not incur these costs after 2017. 

With the extension, these continuing 

employer costs will be offset by a 

reduction in expenses that employers 

would otherwise have been required to 

incur to ensure that their operators are 

certified before the existing November 

2017 deadline. 

Overview 

In the following analysis, OSHA 

examines costs and savings to determine 

the net economic effect of the rule. By 

comparing the additional assessment 

costs to the certification cost savings 

across two scenarios—scenario 1 in 

which there is no extension of the 2017 

deadline, and scenario 2 in which there 

is an extension until 2018—OSHA 

estimates that the extension will 

produce a net savings for employers of 

$4.4 million per year using a discount 

rate of 3 percent ($5.2 million per year 

using an interest rate of 7 percent).5

OSHA’s analysis follows the steps 

below to reach its estimate of an annual 

net $4.4 million in savings: 

(1) Estimate the annual assessment 

costs for employers; 

(2) Estimate the annual certification 

costs for employers; and 

(3) Estimate the year-by-year cost 

differential for extending the 

certification deadline to 2018.6

The methodology used here is 

substantially the same as used in the 

2014 extension FEA. Table 1 below 

summarizes these costs and the 

differentials across the two scenarios. 

The major differences are updated 

wages and a revised forecast of the 

composition of the operator pool across 

certification levels. The 2014 FEA 

analysis addressed a 3-year extension, 

so it gradually increased the number of 

operators without any certification 

during that period. The model in this 

PEA addresses an extension of just a 

single year, so it holds the number of 

operators with each certification level 

constant. The latter significantly 

simplifies the analysis versus that 

presented in the 2014 FEA extension. 

a. Annual Assessment Costs 

OSHA estimated the annual 

assessment costs using the following 

three steps: First, determine the unit 

costs of meeting this requirement; 

second, determine the number of 

assessments that employers will need to 

perform in any given year (this 

determination includes estimating the 

affected operator pool as a preliminary 

step); and finally, multiply the unit 

costs of meeting the requirement by the 

number of operators who must meet it 

in any given year. 

Unit assessment costs. OSHA’s unit 

cost estimates for assessments take into 

account the time needed for the 

assessment, along with the wages of 

both the operator and the personnel 

who will perform the assessment. OSHA 

based the time requirements on crane 

operator certification exams currently 

offered by nationally accredited testing 

organizations. OSHA determined the 

time needed for various certification 

tests from the 2014 extension, drawing 

primarily from the public stakeholder 

meetings. 

The Agency estimates separate 

assessment costs for three types of 

affected operators, which together 

comprise all affected operators: Those 

who have a certificate that is in 

compliance with the existing crane 

standard; those who have a certificate 

that is not in compliance with the 

existing crane standard; and those who 

have no certificate.7 As it did in the 

previous extension, OSHA uses 

certification status as a proxy of 

competence in estimating the amount of 

assessment time needed for different 

operators. OSHA expects that an 

operator already certified to operate 

equipment of a particular type and 

capacity will require less assessment 

time than an operator certified by type 

but not capacity, who in turn will 

require less time than an operator who 

is not certified. In deriving these 

estimates, OSHA determined that 

operators who have a certificate that is 

compliant with the crane standard 

would have to complete a test that is the 

equivalent of the practical part of the 

standard crane operator test. The 

Agency estimates that it would take an 

operator one hour to complete this test. 

Operators who have a certificate that is 

not in compliance with the crane 

standard would have to complete a test 

that is equivalent to both a written 

general test and a practical test of the 

standard crane operator test. OSHA 

estimated that the written general test 

would take 1.5 hours to complete, for a 

total test time of 2.5 hours of testing for 

each operator (1.5 hours for the written 

general test and 1.0 hour for the 

practical test). Finally, operators with 

no certificate would have to complete a 

test that is equivalent to the standard 

written test for a specific crane type 

(also lasting 1.5 hours), as well as the 

written general test and the practical 

test, for a total test time of 4.0 hours (1.5 

hours for the test on a specific crane 

type, 1.5 hours for the written general 

test, and 1.0 hour for the practical test). 

The wages used for the crane operator 

and assessor come from the BLS 

Occupational Employment Survey for 

May 2016 (BLS 2017a), which is an 

updated version of the same source used 

in the 2014 extension. From this survey 

a crane operator’s (Standard 

Occupational Classification (SOC) 53– 

7021 Crane and Tower Operators) 

average hourly wage is $26.58. The full 

cost to the employer includes all 

benefits as well as the wage. From the 

BLS Employer Costs For Employee 

Compensation for December 2016 (BLS 

2017b) the average percentage of 

benefits in total for the construction 

sector is 30.2%, giving a markup of the 

wage to the total compensation of 1.43 

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8Calculations in the text may not exactly match 

due to rounding for presentation purposes. All final 

costs are exact, with no rounding. 

(1/(1–0.302)). Hence the ‘‘loaded’’ total 

hourly cost of an operator is $38.08 

(1.43 × $26.58), including a markup for 

benefits.8 Relying on the same sources, 

the wage of the assessor is estimated to 

be the same as the average wage of a 

construction supervisor (53–1031 FirstLine Supervisors of Transportation and 

Material-Moving Machine and Vehicle 

Operators) of $28.75, while the total 

hourly cost is $41.19 (1.43 × $28.75). 

Below these total hourly costs will be 

referred to as the respective 

occupation’s ‘‘wage.’’ For assessments 

performed by an employer of a 

prospective employee (i.e., a candidate), 

OSHA uses these same operator and 

assessor wages and the above testing 

times to estimate the cost of assessing 

prospective employees. 

Multiplying the wages of operators, 

assessors, and candidates by the time 

taken for each type of assessment 

provides the cost for each type of 

assessment. Hence, the cost of assessing 

an operator already holding a certificate 

that complies with the standard (both 

type and capacity) is one hour of both 

the operator’s and assessor’s time: 

$79.27 ($38.08 + $41.19). For an 

operator with a certificate for crane type 

only (not crane capacity), the 

assessment time is 2.5 hours for a cost 

of $198.17 (2.5 × ($38.08 + $41.19)). 

Finally, for an operator with no 

certificate, the assessment time is 4.0 

hours for a cost of $317.48 (4.0 × ($38.08 

+ $41.19)). 

Besides these assessment costs, OSHA 

notes that § 1427(k)(2)(ii) requires 

employers to provide training to 

employees if they are not already 

competent to operate their assigned 

equipment. To determine whether an 

operator is competent, the employer 

must first perform an assessment. Only 

if an operator fails the assessment must 

the employer provide additional 

operator training required by 

§ 1427(k)(2)(ii). 

However, in determining this cost, 

OSHA made a distinction between a 

nonemployee candidate for an operator 

position and an operator who is 

currently an employee. For an employer 

assessing a nonemployee candidate, 

OSHA assumed, based on common 

industry practice, that the employer will 

not hire a nonemployee candidate who 

fails the assessment. In the second 

situation, an employee qualified to 

operate a crane fails a type and/or 

capacity assessment for a crane that 

differs from the crane the employee 

currently operates. In this situation, the 

cost-minimizing action for the employer 

is not to assign the employee to that 

type and/or capacity crane, thereby 

avoiding training costs. While the 

Agency acknowledges that there will be 

cases in which the employer will 

provide this training, it believes these 

costs to be minimal and, therefore, is 

not estimating costs for the training. 

OSHA made the same determinations in 

the 2014 PEA and did not receive public 

comment on them. 

Number of assessments and number 

of affected operators. The number of 

assessments is difficult to estimate due 

to the heterogeneity of the crane 

industry. Many operators work 

continuously for the same employer, 

already have had their assessment, and 

do not need reassessment, so the 

number of new assessments required by 

the crane standard for these operators 

will be zero. Some companies will rent 

both a crane and an operator employed 

by the crane rental company to perform 

crane work, in which case the rental 

crane company is the operator’s 

employer and responsible for operator 

assessment. In such cases there is no 

requirement for the contractor who is 

renting the crane service to conduct an 

additional operator assessment. 

Assuming that employers already 

comply with the assessment and 

training requirements of the existing 

§ 1427(k)(2), employers only need to 

assess a subset of operators: New hires; 

employees who will operate equipment 

that differs by type and/or capacity from 

the equipment on which they received 

their current assessment; and operators 

who indicate they no longer possess the 

required knowledge or skill necessary to 

operate the equipment. 

To calculate the estimated annual 

number of assessments, OSHA first 

estimated the current number of crane 

operators affected by the crane standard. 

The 2014 FEA estimated 117,130 

operators and this PEA also uses this 

estimate. The Agency solicits comment 

and additional data on this estimate. 

For the purpose of determining the 

number of assessments required each 

year under this proposal, OSHA is 

relying on the 23% turnover rate for 

operators originally identified in the 

2008 PEA for the crane rule and used 

most recently in the extension 2014 FEA 

(79 FR 57793). This turnover rate 

includes all types of operators who 

would require assessment: Operators 

moving between employers; operators 

moving between different types and/or 

capacities of equipment; and operators 

newly entering the occupation. OSHA 

estimated that 26,940 assessments occur 

each year based on turnover (i.e., 

117,130 operators × 0.23 turnover rate). 

In addition, just as it did with the 

previous extension, OSHA assumed that 

15% of operators involved in 

assessments related to turnover would 

fail the first test administration and 

need reassessment (79 FR 57793). 

Therefore, OSHA added 4,041 

reassessments (26,940 assessments × 

0.15) to the number of reassessments 

resulting from turnover, for an annual 

total of 30,981 assessments resulting 

from turnover and test failure (26,940 + 

4,041). 

Annual assessment costs. OSHA must 

determine the annual base amount for 

the two scenarios: (1) Retaining the 

original 2017 deadline (status quo); and 

(2) extending the deadline to 2018 

(NPRM). 

The first part of the calculation is the 

same under both scenarios. Because the 

annual assessment costs vary by the 

different levels of assessment required 

(depending on the operator’s existing 

level of certification), OSHA grouped 

the 117,130 operators subject to the 

crane standard into three classifications: 

Operators with a certificate that 

complies with the standard; operators 

with a certificate only for crane type; 

and operators with no certification. In 

order to simplify the estimation for this 

one-year extension (the 2014 extension 

was for 3 years) and reflect the last hard 

data point the Agency has, the Agency 

is using a static crane operator pool and 

the composition of the base operator 

population used in the 2014 deadline 

extension: 15,000 Crane operators 

currently have a certificate that 

complies with the existing crane 

standard, 71,700 have a certificate for 

crane type only (but not capacity), 

leaving 30,430 crane operators with no 

crane certification (117,130 total 

operators—(15,000 operators with 

compliant certification + 71,700 

operators with certification for type 

only)). 

Assuming the turnover rate of 23% 

and the failure rate of 15% for turnoverrelated assessments are distributed 

proportionally across the three types of 

operators, then the number of 

assessments for operators with 

compliant certification is 3,968 ((0.23 + 

(0.23 × 0.15)) × 15,000), the number of 

assessments for operators with typeonly certification is 18,965 ((0.23 + (0.23 

× 0.15)) × 71,700), and the number of 

assessments for operators with no 

certification is 8,049 ((0.23 + (0.23 × 

0.15)) × 30,430). 

Under scenario 2 there is an extension 

and employers would not certify all of 

their operators during CY 2017. OSHA 

estimated the CY 2017 assessment costs 

for scenario 2 by multiplying the 

assessment numbers for each type of 

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9There are no certification costs for operators 

who already have a certificate that complies with 

the crane standard. 

operator by the unit costs, resulting in 

a cost of $6,624,861 (($79.27 × 3,968) + 

($198.17 × 18,965) + ($317.08 × 8,049)). 

Under scenario 1, the employerassessment requirement will be in effect 

for all of CY 2017, while employers 

would be gradually certifying all of their 

operators during CY 2017. As a result, 

the CY 2017 assessment costs identified 

for scenario 2 would decrease to 

$4,540,348 from $6,624,861 in scenario 

1. This is because, as compared to 

scenario 2, there will be more operators 

who will have a compliant certificate, 

and therefore under the approach 

described above the employer 

assessment will require less time. This 

reduction in the estimated time, and 

therefore unit cost, lowers the overall 

assessment cost (see discussion in the 

2014 deadline extension FEA for more 

details about this methodology). 

Under both scenarios, once the 2010 

rule comes into effect the employer duty 

to assess the crane operator no longer is 

in effect and so assessment costs are 

zero. Thus, in CY 2018, the assessment 

costs under scenario 1 would be zero. 

Under scenario 2, the assessment costs 

for CY 2018 would be the same as those 

under scenario 1 for CY 2017, because 

employers would be gradually certifying 

operators over the course of that year. 

b. Annual Certification Costs 

OSHA estimated the annual 

certification costs using the three steps: 

first, determine the unit costs of meeting 

this requirement; second, determine the 

number of affected operators; and, 

finally, multiply the unit costs of 

meeting the requirement by the number 

of operators who must meet them. In 

this PEA, following the same 

methodology as in the 2014 FEA, OSHA 

estimates that all certifications occur in 

the year prior to the deadline, hence in 

CY 2017 in scenario 1, while in CY2018 

for the one-year extension in scenario 2. 

As in the annual assessment-cost 

analysis described above, OSHA 

provides the calculations for CY 2017 

under the existing 2017 deadline 

(scenario 1), and then presents the 

certification costs for CY 2018 that 

would apply if OSHA extends the 

certification requirement to November 

2018 (scenario 2). 

Unit certification costs. Unit 

certification costs vary across the three 

different types of operators in the 

operator pool (operators with compliant 

certification; operators with type-only 

certification; and operators with no 

certification). Among operators without 

certification there is a further 

distinction with different unit 

certification costs: Experienced 

operators without certification and 

operators who have only limited 

experience. Therefore, there are 

different unit certification costs for four 

different types of operators. There also 

are ongoing certification costs due to the 

following two conditions: The 

requirement for re-certification every 

five years and the need for some 

certified operators to obtain additional 

certification to operate a crane that 

differs by type and/or capacity from the 

crane on which they received their 

current certification. 

OSHA estimated these different unit 

certification costs using substantially 

the same unit-cost assumptions used in 

the FEA for the 2010 crane standard 

(and exactly the same as the FEA of the 

2014 deadline extension.) In those 

previous FEAs, OSHA estimated that 

training and certification costs for an 

operator with only limited experience 

would consist of $1,500 for a 2-day 

course (including tests) and 18 hours of 

the operator’s time, for a total cost of 

$2,185.44 ($1,500 + (18 hours × $38.08)) 

(see 75 FR 48096–48097). OSHA 

continues to use a cost of $250 for the 

tests taken without any training (a 

constant fixed fee irrespective of the 

number of tests (75 FR 48096)), and the 

same number of hours used for each test 

that it used in the assessment 

calculations provided above (which the 

Agency based on certification test 

times). Accordingly, OSHA estimates 

the cost of a certificate compliant with 

the standard for an operator who has a 

type-only certificate to be $345.20 (i.e., 

1 type/capacity-specific written test at 

1.5 hours and 1 practical test at 1.0 

hours (2.5 hours total), plus the fixed 

$250 fee for the tests (2.5 hours × 

$38.08) + $250). For an experienced 

operator with no certificate, the cost is 

$402.32 (i.e., the same as the cost for an 

operator with a type-only certificate 

plus the cost of an added general 

written test of 1.5 hours (4.0 hours × 

$38.08) + $250)).9

For Scenario 1, § 1926.1427(b)(4) 

specifies that a certificate is valid for 

five years. OSHA estimates the 

recertification unit cost would be the 

same as the assessment for an operator 

with compliant certification (i.e., 

$79.27). In the 2014 extension, OSHA 

assumed that employers would pay a 

reduced fee for the recertification testing 

as opposed to the cost of a full first-time 

examination. Because OSHA lacked 

data on exactly how much the fee would 

be reduced, it used the assessment cost 

as a proxy for the cost of recertification 

(79 FR 57794). OSHA did not receive 

any comment on that approach and is 

retaining it for this rulemaking. 

Finally, there will be certified 

operators who must obtain certification 

when assigned to a crane that differs by 

type and/or capacity from the crane on 

which they received their current 

certification. This situation requires 

additional training, but less training 

than required for a ‘‘new’’ operator with 

only limited experience. Accordingly, 

OSHA estimated the cost for these 

operators as one half of the cost of 

training and certifying a new operator, 

or $1,092.72 ($2,185.44/2). 

Number of certifications. After 

establishing the unit certification costs, 

OSHA had to determine how many 

certifications are necessary to ensure 

compliance with OSHA’s standard. In 

doing so, the Agency uses the 5% newhire estimate from the FEA discussed 

above to calculate the number of new 

operators; therefore, of the 117,130 

operators affected by the standard, 5,857 

(0.05 × 117,130) would be new operators 

who would require two days for training 

and certification each year. As 

discussed earlier, OSHA estimated that 

71,700 operators have type-only 

certification, 15,000 operators have 

certification that complies with the 

existing crane standard, and the 

remaining 24,574 operators (117,130 ¥ 

(71,700 + 15,000 + 5,857)) are 

experienced operators without 

certification. 

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10A positive cost differential indicates cost 

savings and a negative cost differential indicates net 

costs. Savings in the first two years are due to the 

lower cost of assessments versus certification. Then 

net costs in year 2022 are due to the last year of 

annualized certification costs for scenario 2, while 

this cost ends in year 2021 for scenario 1. 

Under scenario 1 (no extension), after 

all operators attain certification by 

November 2017 there will still be 

ongoing certification costs each year. 

With a constant total number of 

operators, the same number of operators 

(5,857) will be leaving the profession 

each year and will not require 

recertification when their current 5-year 

certification ends. This leaves 111,274 

operators (117,130 ¥ 5,857) who will 

need such periodic recertification. If we 

approximate the timing of requirements 

for recertification as distributed 

proportionally across years, then 20% of 

all operators with a 5-year certificate 

(22,255 operators (.20 × 111,274)) would 

require recertification each year. 

A final category of unit certification 

costs involves the continuing need for 

certified operators to obtain further 

certification when assigned to a crane 

that differs by type and/or capacity from 

the crane on which they received their 

current certification. This situation 

arises for both operators working for a 

single employer and operators switching 

employers. 

The operators who will not need 

multiple certifications in the postdeadline period are operators with 

certification who move to a new 

employer and operate a crane with the 

same type and capacity as the crane on 

which they received certification while 

with their previous employer. These 

operators will not need multiple 

certifications because operator 

certificates are portable across 

employers, as specified by the crane 

standard (see § 1427(b)(3)). For an 

employer looking to hire an operator for 

a specific crane, this option will 

minimize cost, and OSHA assumes 

employers will choose this option when 

possible. 

After the certification deadline, OSHA 

estimates that each year 23% of the 

117,130 operators (26,940 = 0.23 × 

117,130) will enter the workforce, 

change employers, or take on new 

positions that require one or more 

additional certifications to operate 

different types and/or capacities of 

cranes. Of these 26,940 operators, OSHA 

estimates 5 of the total 23%, or 5,857 

(0.05 × 117,130), will result from new 

operators entering the occupation each 

year; 9%, or 10,542 (0.09 × 117,130), 

will result from operators switching 

employers but operating a crane of the 

same type and capacity as the crane 

they operated previously (i.e., no 

certification needed because 

certification is portable in this case); 

and the remaining 9%, or 10,542, 

changing jobs or positions and requiring 

one or more additional certification to 

operate a crane that differs by type and/ 

or capacity from the crane they operated 

previously. These percentages are 

identical to those in the 2014 FEA. 

Annualized certification costs. To 

estimate the annual base cost for the 

first scenario, OSHA calculates the 

certification costs for CY 2017 because 

that is the remaining period before the 

existing deadline. The total cost for 

certifying all operators in CY 2017 in 

accordance with the existing crane 

standard using the above unit-cost 

estimates and numbers of operators is 

$47,436,368 ((71,700 operators with 

type-only certification × $345.20) + 

(24,574 experienced operators without 

certification × $402.32) + (5,857 

operators with no experience or 

certification × $2,185.44)). The Agency, 

following the previous FEAs (75 FR 

48096 and 79 FR 57795), annualized 

this cost for the five-year period during 

which operator certification remains 

effective, resulting in an annualized cost 

of $7,563,216. In section c below, OSHA 

uses this amount in calculating the 

annual certification costs under scenario 

1. 

To determine the annual amount used 

in calculations for the second scenario 

(the extension to 2018), OSHA examines 

the costs in CY 2017 because that is the 

first year with certification costs. All 

numbers are the same, just shifted 

forward a year, so the total cost for 

having all crane operators certified in 

CY 2018 is $47,436,368 (in 2018 

dollars). 

c. Year-by-Year Cost Differential for 

Extending the Certification Deadline to 

2018 and Preserving the Employer 

Assessment Duty Over That Same 

Period 

The ultimate goal of this analysis is to 

determine the annualized cost 

differential between scenario 1 (the 

status quo) and scenario 2 (the 

extensions of the certification date and 

the employer assessment duty), so the 

final part of this PEA compares the 

yearly assessment and certification costs 

employers will incur under the two 

scenarios. Because the assessment and 

certification costs change across years 

under each scenario, OSHA must 

compare the cost differential in each 

year separately to determine the annual 

cost savings for each year attributable to 

scenario 2. OSHA calculated the present 

value of each year’s differential, which 

provides a consistent basis for 

comparing the cost differentials over the 

extended compliance period. OSHA 

then annualized the present value of 

each differential to identify an annual 

amount that accounts for the discounted 

costs over this period. Table 1 below 

summarizes these calculations. 

Table 1 shows that assessment and 

certification costs are just shifted out 

another year. As noted earlier, OSHA 

estimated the overall cost differential 

between these two scenarios by 

calculating the difference in total 

(assessment and certification) costs each 

year across the two scenarios. The net 

employer cost savings in current dollars 

attributable to adopting the second 

scenario are, for each certification year: 

2017, $18.2 million; 2018, $8.7 million; 

2019–2021, $0; 2022, ¥ $7.5 million.10

TABLE 1—YEAR-BY-YEAR COST DIFFERENTIAL IF OSHA EXTENDS THE CERTIFICATION DEADLINE TO 2018 

Certification Year 2017 2018 2019 2020 2021 2022 2023 

Operator Pool 

Scenario 1 (no deadline extension) 

operators with non-compliant certification ................................................ 71,700 0 0 0 0 0 0 

operators with compliant certification .. 15,000 111,274 111,274 111,274 111,274 111,274 111,274 

operators with no certification .............. 24,574 0 0 0 0 0 0 

new operators ...................................... 5,857 5,857 5,857 5,857 5,857 5,857 5,857 

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11U.S. Environmental Protection Agency, ‘‘Wage 

Rates for Economic Analyses of the Toxics Release 

Inventory Program,’’ June 10, 2002. 

12 Grant Thornton LLP, 2015 Government 

Contractor Survey. (https://www.grantthornton.

com/∼/media/content-page-files/public-sector/pdfs/ 

surveys/2015/Gov-Contractor-Survey.ashx.) 

13For a further example of overhead cost 

estimates, please see the Employee Benefits 

Security Administration’s guidance at https://www.

dol.gov/sites/default/files/ebsa/laws-andregulations/rules-and-regulations/technicalappendices/labor-cost-inputs-used-in-ebsa-opr-riaand-pra-burden-calculations-august-2016.pdf. 

TABLE 1—YEAR-BY-YEAR COST DIFFERENTIAL IF OSHA EXTENDS THE CERTIFICATION DEADLINE TO 2018—Continued 

Certification Year 2017 2018 2019 2020 2021 2022 2023 

Scenario 2 (deadline extension) 

operators with non-compliant certification ................................................ 71,700 71,700 0 0 0 0 0 

operators with compliant certification .. 15,000 15,000 111,274 111,274 111,274 111,274 111,274 

operators with no certification .............. 24,574 24,574 0 0 0 0 0 

new operators ...................................... 5,857 5,857 5,857 5,857 5,857 5,857 5,857 

Costs 

Scenario 1 (no deadline extension) 

Total assessment costs ....................... 4,540,348 0 0 0 0 0 0 

Total certification costs ........................ 20,362,269 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 26,082,317 

Total costs .................................... 24,902,617 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 26,082,317 

Scenario 2 (deadline extension) 

Total assessment costs ....................... 6,624,861 4,540,348 0 0 0 0 0 

Total certification costs ........................ 0 20,362,269 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 

Total costs .................................... 6,624,861 24,902,617 33,645,533 33,645,533 33,645,533 33,645,533 26,082,317 

Cost Differential (Scenario 2 

¥ Scenario 1) .................... (18,277,756) (8,742,916) .................... .................... .................... 7,563,216 ....................

Source: OSHA, ORA Calculations. 

OSHA next determined the present 

value of these cost differentials between 

the two scenarios. OSHA calculated the 

present value of future costs using two 

interest rates assumptions, 3 percent 

and 7 percent, which follow the OMB 

guidelines specified by Circular A–4. At 

an interest rate of 3 percent, the present 

value of the cost differentials for CY 

2017 onwards results in an estimated 

savings of $20.2 million ($21.3 million 

using the 7 percent rate). Finally, 

annualizing the present value over five 

years results in an annualized cost 

differential (i.e., net employer cost 

savings) of $4.4 million per year ($5.2 

million per year using the 7 percent 

rate). 

The Agency notes that it did not 

include an overhead labor cost in the 

Preliminary Economic Analysis (PEA) 

for this rule. It is important to note that 

there is not one broadly accepted 

overhead rate and that the use of 

overhead to estimate the marginal costs 

of labor raises a number of issues that 

should be addressed before applying 

overhead costs to analyze the costs of 

any specific regulation. There are 

several approaches to look at the cost 

elements that fit the definition of 

overhead and there are a range of 

overhead estimates currently used 

within the federal government—for 

example, the Environmental Protection 

Agency has used 17 percent,11 and 

government contractors have been 

reported to use an average of 77 

percent.12 13 Some overhead costs, such 

as advertising and marketing, may be 

more closely correlated with output 

rather than with labor. Other overhead 

costs vary with the number of new 

employees. For example, rent or payroll 

processing costs may change little with 

the addition of 1 employee in a 500- 

employee firm, but those costs may 

change substantially with the addition 

of 100 employees. If an employer is able 

to rearrange current employees’ duties 

to implement a rule, then the marginal 

share of overhead costs such as rent, 

insurance, and major office equipment 

(e.g., computers, printers, copiers) 

would be very difficult to measure with 

accuracy (e.g., computer use costs 

associated with 2 hours for rule 

familiarization by an existing 

employee). 

If OSHA had included an overhead 

rate when estimating the marginal cost 

of labor, without further analyzing an 

appropriate quantitative adjustment, 

and adopted for these purposes an 

overhead rate of 17 percent on base 

wages, as was done in a sensitivity 

analysis in the FEA in support of 

OSHA’s 2016 final rule on Occupational 

Exposure to Respirable Crystalline 

Silica, the overhead costs would 

increase cost savings from $4.4 million 

to $4.5 million at a discount rate of 3 

percent, an increase of 1.8 percent, and 

would increase cost savings from $5.2 

million to $5.3 million at a discount rate 

of 7 percent, an increase of 1.9 percent. 

d. Certification of No Significant Impact 

on a Substantial Number of Small 

Entities 

Most employers will have savings 

resulting from the one-year extension, 

particularly employers that planned to 

pay for operator certification in the year 

before the existing 2017 deadline. The 

only entities likely to see a net cost will 

be entities that planned to hire an 

operator with compliant certification 

after November 10, 2017. Without the 

one-year extension, these entities will 

have no separate assessment duty, but 

under the one-year extension they will 

have the expense involved in assessing 

operator competency. As noted above, 

however, OSHA estimated the 

maximum cost for such an assessment 

(for operators with no certification) to be 

$317.08 per certified operator. 

Small businesses will, by definition, 

have few operators, and OSHA believes 

the $317.08 cost will be well below 1% 

of revenues, and well below 5% of 

profits, in any industry sector using 

cranes. OSHA does not consider such 

small amounts to represent a significant 

impact on small businesses in any 

industry sector. Hence, OSHA certifies 

this final rule will not have a significant 

impact on a substantial number of small 

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41192 Federal Register / Vol. 82, No. 167 / Wednesday, August 30, 2017 / Proposed Rules 

14The ICR is available at ID–0425 at 

www.regulations.gov and at www.reginfo.gov (OMB 

Control Number 1218–0261). 

entities. After providing relatively 

similar estimates in the 2014 FEA, 

OSHA made the same certification in 

the 2014 FEA and did not receive any 

adverse comment on either the 

certification or its underlying rationale. 

B. Paperwork Reduction Act 

When OSHA issued the final rule on 

August 9, 2010, it submitted an 

Information Collection Request (ICR) to 

the Office of Management and Budget 

(OMB) titled Cranes and Derricks in 

Construction (29 CFR part 1926, subpart 

CC).14 On November 1, 2010, OMB 

approved the ICR under OMB Control 

Number 1218–0261, with an expiration 

date of November 30, 2013. On April, 

25, 2017, OMB’s approval of the ICR 

was extended to April 30, 2020. 

This proposed rule contains no 

collection of information needing OMB 

approval. OSHA welcomes commenters 

to submit their comments on this 

determination to the rulemaking docket 

(OSHA–2007–0066), along with their 

other comments on the proposed rule. 

For instructions on submitting these 

comments to the docket, see the sections 

of this Federal Register notice titled 

DATES and ADDRESSES. 

OSHA notes that a Federal agency 

cannot conduct or sponsor a collection 

of information unless OMB approves it 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501 et seq.), and the 

agency displays a currently valid OMB 

control number. The public need not 

respond to a collection of information 

requirement unless the agency displays 

a currently valid OMB control number, 

and, notwithstanding any other 

provision of law, no person shall be 

subject to a penalty for failing to comply 

with a collection of information 

requirement if the requirement does not 

display a currently valid OMB control 

number. 

C. Federalism 

OSHA reviewed this proposed rule in 

accordance with the Executive Order on 

Federalism (Executive Order 13132, 64 

FR 43255, August 10, 1999), which 

requires that Federal agencies, to the 

extent possible, refrain from limiting 

state policy options, consult with states 

prior to taking any actions that would 

restrict state policy options, and take 

such actions only when clear 

constitutional authority exists and the 

problem is national in scope. Executive 

Order 13132 provides for preemption of 

state law only with the expressed 

consent of Congress. Federal agencies 

must limit any such preemption to the 

extent possible. 

Under Section 18 of the Occupational 

Safety and Health Act of 1970 (OSH Act; 

29 U.S.C. 651 et seq.), Congress 

expressly provides that states and U.S. 

territories may adopt, with Federal 

approval, a plan for the development 

and enforcement of occupational safety 

and health standards. OSHA refers to 

such states and territories as ‘‘State Plan 

States.’’ Occupational safety and health 

standards developed by State Plan 

States must be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards. 29 U.S.C. 667. 

Subject to these requirements, State 

Plan States are free to develop and 

enforce under state law their own 

requirements for safety and health 

standards. 

OSHA previously concluded from its 

analysis that promulgation of subpart 

CC complies with Executive Order 

13132 (75 FR 48128–29). In states 

without an OSHA-approved State Plan, 

any standard developed from this 

proposed rule would limit state policy 

options in the same manner as every 

standard promulgated by OSHA. For 

State Plan States, Section 18 of the OSH 

Act, as noted in the previous paragraph, 

permits State-Plan States to develop and 

enforce their own crane standards 

provided these requirements are at least 

as effective in providing safe and 

healthful employment and places of 

employment as the requirements 

specified in this proposal. 

D. State Plans 

When Federal OSHA promulgates a 

new standard or more stringent 

amendment to an existing standard, 

State Plans must amend their standards 

to reflect the new standard or 

amendment, or show OSHA why such 

action is unnecessary, e.g., because an 

existing state standard covering this area 

is ‘‘at least as effective’’ as the new 

Federal standard or amendment (29 CFR 

1953.5(a)). The state standard must be at 

least as effective as the final Federal 

rule. State Plans must adopt the Federal 

standard or complete their own 

standard within six months of the 

promulgation date of the final Federal 

rule. When OSHA promulgates a new 

standard or amendment that does not 

impose additional or more stringent 

requirements than an existing standard, 

State Plans do not have to amend their 

standards, although OSHA may 

encourage them to do so. The 21 states 

and 1 U.S. territory with OSHAapproved occupational safety and health 

plans covering private sector and state 

and local government are: Alaska, 

Arizona, California, Hawaii, Indiana, 

Iowa, Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, North 

Carolina, Oregon, Puerto Rico, South 

Carolina, Tennessee, Utah, Vermont, 

Virginia, Washington, and Wyoming. 

Connecticut, Illinois, Maine, New 

Jersey, New York, and the Virgin Islands 

have OSHA-approved State Plans that 

apply to state and local government 

employees only. 

The proposed amendments to OSHA’s 

crane standard preserve the status quo 

and would not impose any new 

requirements on employers. 

Accordingly, State Plans would not 

have to amend their standards to delay 

the effective date of their operator 

certification requirements, but they may 

do so if they so choose. However, if they 

choose to delay the effective date of 

their certification requirements, they 

also would need to include a 

corresponding extension of the 

employer duty to assess and train 

operators that is equivalent to 

§ 1427(k)(2). 

E. Unfunded Mandates Reform Act 

When OSHA issued the final rule for 

cranes and derricks in construction, it 

reviewed the rule according to the 

Unfunded Mandates Reform Act of 1995 

(UMRA; 2 U.S.C. 1501 et seq.) and 

Executive Order 13132 (64 FR 43255 

(Aug. 10, 1999). OSHA concluded that 

the final rule did not meet the definition 

of a ‘‘Federal intergovernmental 

mandate’’ under the UMRA because 

OSHA standards do not apply to state or 

local governments except in states that 

voluntarily adopt State Plans. OSHA 

further noted that the rule imposed 

costs of over $100 million per year on 

the private sector and, therefore, 

required review under the UMRA for 

those costs, but that its final economic 

analysis met that requirement. 

As discussed above in Section IV.A 

(Preliminary Economic Analysis and 

Regulatory Flexibility Analysis) of this 

preamble, this proposed extension does 

not impose any costs on private-sector 

employers beyond those costs already 

identified in the final rule for cranes 

and derricks in construction and the 

2014 extension. Because OSHA 

reviewed the total costs of this final rule 

under the UMRA, no further review of 

those costs is necessary. Therefore, for 

the purposes of the UMRA, OSHA 

certifies that this proposed rule does not 

mandate that state, local, or tribal 

governments adopt new, unfunded 

regulatory obligations, or increase 

expenditures by the private sector of 

more than $100 million in any year. 

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Federal Register / Vol. 82, No. 167 / Wednesday, August 30, 2017 / Proposed Rules 41193 

F. Consultation and Coordination With 

Indian Tribal Governments 

OSHA reviewed this proposed rule in 

accordance with Executive Order 13175 

(65 FR 67249) and determined that it 

does not have ‘‘tribal implications’’ as 

defined in that order. As proposed, the 

rule does not have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes. 

G. Consultation With the Advisory 

Committee on Construction Safety and 

Health 

Under 29 CFR parts 1911 and 1912, 

OSHA must consult with the Advisory 

Committee on Construction Safety and 

Health (ACCSH or Committee), 

established pursuant to Section 107 of 

the Contract Work Hours and Safety 

Standards Act (40 U.S.C. 3701 et seq.), 

in setting standards for construction 

work. Specifically, § 1911.10(a) requires 

the Assistant Secretary to provide the 

ACCSH with a draft proposed rule 

(along with pertinent factual 

information) and give the Committee an 

opportunity to submit 

recommendations. See also § 1912.3(a) 

(‘‘[W]henever occupational safety or 

health standards for construction 

activities are proposed, the Assistant 

Secretary [for Occupational Safety and 

Health] shall consult the Advisory 

Committee’’). 

On June 20, 2017, ACCSH 

unanimously recommended that OSHA 

delay, for one additional year until 

November 10, 2018, the compliance 

date for the crane operator certification 

and extend the employer duty for the 

same period. [Include citation to 

ACCSH docket, OSHA–2017–0007– 

####] 

H. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 

Consistent with EO 13771 (82 FR 

9339, February 3, 2017), OSHA has 

estimated the annualized cost savings 

over 10 years for this proposed rule to 

range from $4.4 million to $5.2 million, 

depending on the discount rate. This 

proposed rule is expected to be an EO 

13771 deregulatory action. Details on 

the estimated cost savings of this 

proposed rule can be found in the rule’s 

economic analysis. 

I. Legal Considerations 

The purpose of the Occupational 

Safety and Health Act of 1970 (29 U.S.C. 

651 et seq.) is ‘‘to assure so far as 

possible every working man and woman 

in the nation safe and healthful working 

conditions and to preserve our human 

resources.’’ 29 U.S.C. 651(b). To achieve 

this goal, Congress authorized the 

Secretary of Labor to promulgate and 

enforce occupational safety and health 

standards. 29 U.S.C. 654(b), 655(b). A 

safety or health standard is a standard 

‘‘which requires conditions, or the 

adoption or use of one or more 

practices, means, methods, operations, 

or processes, reasonably necessary or 

appropriate to provide safe or healthful 

employment or places of employment.’’ 

29 U.S.C. 652(8). A standard is 

reasonably necessary or appropriate 

within the meaning of Section 652(8) 

when a significant risk of material harm 

exists in the workplace and the standard 

would substantially reduce or eliminate 

that workplace risk. See Industrial 

Union Department, AFL–CIO v. 

American Petroleum Institute, 448 U.S. 

607 (1980). In the crane rulemaking, 

OSHA made such a determination with 

respect to the use of cranes and derricks 

in construction (75 FR 47913, 47920– 

21). This proposed rule does not impose 

any new requirements on employers. 

Therefore, this proposal does not 

require an additional significant risk 

finding (see Edison Electric Institute v. 

OSHA, 849 F.2d 611, 620 (D.C. Cir. 

1988)). 

In addition to materially reducing a 

significant risk, a safety standard must 

be technologically feasible. See UAW v. 

OSHA, 37 F.3d 665, 668 (D.C. Cir. 

1994). A standard is technologically 

feasible when the protective measures it 

requires already exist, when available 

technology can bring the protective 

measures into existence, or when that 

technology is reasonably likely to 

develop (see American Textile Mfrs. 

Institute v. OSHA, 452 U.S. 490, 513 

(1981); American Iron and Steel 

Institute v. OSHA, 939 F.2d 975, 980 

(D.C. Cir. 1991)). In the 2010 Final 

Economic Analysis for the crane 

standard, OSHA found the standard to 

be technologically feasible (75 FR 

48079). OSHA also found the previous 

extension to be technologically feasible 

(79 FR 57798). This proposed rule 

would, therefore, be technologically 

feasible as well because it would not 

require employers to implement any 

additional protective measures; it would 

simply extend the duration of existing 

requirements. 

List of Subjects in 29 CFR Part 1926 

Construction industry, Cranes, 

Derricks, Occupational safety and 

health, Safety. 

Signed at Washington, DC, on August 25, 

2017. 

Loren Sweatt, 

Deputy Assistant Secretary of Labor for 

Occupational Safety and Health. 

Amendments to Standards 

For the reasons stated in the preamble 

of this proposed rule, OSHA proposes to 

amend 29 CFR part 1926 as follows: 

PART 1926—[AMENDED] 

Subpart CC—Cranes and Derricks in 

Construction 

■ 1. The authority citation for subpart 

CC of 29 CFR part 1926 continues to 

read as follows: 

Authority: 40 U.S.C. 3701 et seq.; 29 

U.S.C. 653, 655, 657; and Secretary of Labor’s 

Orders 5–2007 (72 FR 31159) or 1–2012 (77 

FR 3912), as applicable; and 29 CFR part 

1911. 

■ 2. Amend § 1926.1427 by revising 

paragraph (k) to read as follows: 

§ 1926.1427 Operator qualification and 

certification. 

* * * * * 

(k) Phase-in. (1) The provisions of this 

section became applicable on November 

8, 2010, except for paragraphs (a)(2) and 

(f), which are applicable November 10, 

2018. 

(2) When § 1926.1427(a)(1) is not 

applicable, all of the requirements in 

paragraphs (k)(2)(i) and (ii) of this 

section apply until November 10, 2018. 

(i) The employer must ensure that 

operators of equipment covered by this 

standard are competent to operate the 

equipment safely. 

(ii) When an employee assigned to 

operate machinery does not have the 

required knowledge or ability to operate 

the equipment safely, the employer 

must train that employee prior to 

operating the equipment. The employer 

must ensure that each operator is 

evaluated to confirm that he/she 

understands the information provided 

in the training. 

[FR Doc. 2017–18441 Filed 8–29–17; 8:45 am] 

BILLING CODE 4510–26–P 

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