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Secretary of Labor Hilda L. Solis
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OSHA Final Rules

Cranes and Derricks in Construction   [8/9/2010]
[PDF]
FR Doc 2010-17818
[Federal Register: August 9, 2010 (Volume 75, Number 152)]
[Rules and Regulations]               
[Page 47905-48177]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au10-10]                         
 

[[Page 47905]]

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Part II





Department of Labor





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 Occupational Safety and Health Administration



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29 CFR Part 1926



Cranes and Derricks in Construction; Final Rule


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0066]
RIN 1218-AC01

 
Cranes and Derricks in Construction

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

ACTION: Final rule.

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SUMMARY: OSHA is revising the Cranes and Derricks Standard and related 
sections of the Construction Standard to update and specify industry 
work practices necessary to protect employees during the use of cranes 
and derricks in construction. This final standard also addresses 
advances in the designs of cranes and derricks, related hazards, and 
the qualifications of employees needed to operate them safely. Under 
this final rule, employers must determine whether the ground is 
sufficient to support the anticipated weight of hoisting equipment and 
associated loads. The employer is then required to assess hazards 
within the work zone that would affect the safe operation of hoisting 
equipment, such as those of power lines and objects or personnel that 
would be within the work zone or swing radius of the hoisting 
equipment. Finally, the employer is required to ensure that the 
equipment is in safe operating condition via required inspections and 
that employees in the work zone are trained to recognize hazards 
associated with the use of the equipment and any related duties that 
they are assigned to perform.

DATES: This final rule will become effective November 8, 2010.
    The incorporation by reference of specific publications listed in 
this final rule is approved by the Director of the Federal Register as 
of November 8, 2010.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency 
designates Joseph M. Woodward, Associate Solicitor of Labor for 
Occupational Safety and Health, Office of the Solicitor, Room S-4004, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: General information and press 
inquiries. Contact Ms. Jennifer Ashley, Director, Office of 
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1999 or fax (202) 693-1634.
     Technical inquiries. Contact Mr. Garvin Branch, 
Directorate of Construction, Room N-3468, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone 
(202) 693-2020 or fax (202) 693-1689.
     Copies of this Federal Register notice. Available from the 
OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1888.
     Electronic copies of this notice. Go to OSHA's Web site 
(http://www.osha.gov), and select ``Federal Register,'' ``Date of 
Publication,'' and then ``2010.''

SUPPLEMENTARY INFORMATION: Availability of Incorporated Standards. The 
standards published by the American National Standards Institute 
(ANSI), the American Society of Mechanical Engineers (ASME), the 
American Welding Society (AWS), the British Standards Institution 
(BSI), the International Organization for Standardization (ISO), the 
Power Crane and Shovel Association (PCSA), and the Society of 
Automotive Engineers (SAE) required in subpart CC are incorporated by 
reference into this subpart with the approval of the Director of the 
Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce 
any edition other than the editions specified in subpart CC, the 
Occupational Safety and Health Administration (OSHA) must publish a 
notice of change in the Federal Register and the material must be 
available to the public.
    All approved material is available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, telephone 202-741-6030, or go 
to: http://www.archives.gov/federal_register/code_of_federal_
regulations/ ibr_locations.html. Also, the material is available for 
inspection at any OSHA Regional Office or the OSHA Docket Office (U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-2625, 
Washington, DC 20210; telephone 202-693-2350 (TTY number: 877-889-
5627)).

I. General

A. Table of Contents

    The following Table of Contents identifies the major preamble 
sections in this notice and the order in which they are presented:

I. General
    A. Table of Contents
II. Background
    A. History
    B. The Cranes and Derricks Negotiated Rulemaking Advisory 
Committee (C-DAC)
    C. Hazards Associated with Cranes and Derricks in Construction 
Work
III. The SBREFA Process
IV. Summary and Explanation of the Rule
V. Procedural Determinations
    A. Legal Authority
    B. Executive Summary of the Final Economic Analysis; Final 
Regulatory Flexibility Analysis
    C. OMB Review Under the Paperwork Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Applicability of Existing Consensus Standards
    H. List of Subjects in 29 CFR Part 1926
V. Authority and Signature
VI. Amendments to Standards

II. Background

A. History

    The Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 
U.S.C. 651 et seq.) (the OSH Act) authorizes the Secretary of Labor to 
adopt safety and health standards to reduce injuries and illnesses in 
American workplaces. Pursuant to that authority, the Secretary adopted 
a set of safety and health standards applicable to the construction 
industry, 29 CFR part 1926. Initially, standards for the construction 
industry were adopted under the Construction Safety Act, 40 U.S.C. 333. 
Under the Construction Safety Act, those standards were limited to 
employers engaged in Federally-financed or Federally-assisted 
construction projects. The Secretary subsequently adopted them as OSHA 
standards pursuant to Sec. 6(a) of the OSH Act, 29 U.S. C. 655(a), 
which authorized the Secretary to adopt established Federal standards 
as OSH Act standards within the first two years the OSH Act was 
effective (see 36 FR 25232, Dec. 30, 1971). Subpart N of 29 CFR part 
1926, entitled ``Cranes, Derricks, Hoists, Elevators, and Conveyors,'' 
was originally adopted through this process.
    The section of subpart N of 29 CFR part 1926 that applied to cranes 
and derricks was former Sec.  1926.550. That section relied heavily on 
national consensus standards that were in effect in 1971, in some cases 
incorporating the consensus standards by reference. For example, former 
Sec.  1926.550(b)(2) required crawler, truck, and locomotive cranes to 
meet applicable requirements for design, inspection, construction, 
testing, maintenance, and operation prescribed in ANSI B30.5-1968, 
``Crawler, Locomotive and Truck Cranes.'' Similarly, former Sec.  
1926.550(e)

[[Page 47907]]

required derricks to meet applicable requirements for design, 
construction, installation, inspection, testing, maintenance, and 
operation prescribed in ANSI B30.6-1969, ``Derricks.'' Until today, 
former Sec.  1926.550 was amended substantively only twice. In 1988, 
former Sec.  1926.550(g) was added to establish clearly the conditions 
under which employees on personnel platforms may be hoisted by cranes 
and derricks (see 53 FR 29116, Aug. 2, 1988). In 1993, former Sec.  
1926.550(a)(19) was added to require that all employees be kept clear 
of lifted and suspended loads.
    Considerable technological advances have been made since the 1971 
OSHA standard was issued. For example, hydraulic cranes were rare at 
that time, but are now prevalent. In addition, the construction 
industry has updated the consensus standards on which the original OSHA 
standard was based. For example, the industry consensus standard for 
derricks was most recently updated in 2003, and that for crawler, 
locomotive and truck cranes in 2007.
    In recent years, a number of industry stakeholders asked the Agency 
to update subpart N's cranes and derrick requirements. They were 
concerned that accidents involving cranes and derricks continued to be 
a significant cause of fatal and other serious injuries on construction 
sites and believed that an updated standard was needed to address the 
causes of these accidents and to reduce the number of accidents. They 
emphasized that the considerable changes in both work processes and 
technology since 1971 made much of former Sec.  1926.550 obsolete.
    In response to these requests, in 1998 OSHA's Advisory Committee 
for Construction Safety and Health (ACCSH) established a workgroup to 
develop recommended changes to the subpart N requirements for cranes 
and derricks. The workgroup developed recommendations on some issues 
and submitted them to the full committee in a draft workgroup report. 
(ID-0020.) In December 1999, ACCSH recommended to OSHA that the agency 
consider using a negotiated rulemaking process as the mechanism to 
update subpart N. (OSHA-ACCSH1999-4-2006-0187-0035.)

B. The Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-
DAC)

    In July 2002, OSHA announced plans to use negotiated rulemaking 
under the Negotiated Rulemaking Act (NRA), 5 U.S.C. 561 et seq., to 
revise the cranes and derricks standard. The Agency made this decision 
in light of the stakeholder interest in updating subpart N, the 
constructive discussions and work of the ACCSH workgroup, ACCSH's 
recommendation, a positive assessment of the criteria listed in the NRA 
(5 U.S.C. 563(a)) for the use of negotiated rulemaking, and the 
Department of Labor's policy on negotiated rulemaking (see ``Notice of 
Policy on Use of Negotiated Rulemaking Procedures by Agencies of the 
Department of Labor,'' 57 FR 61925, Dec. 29, 1992). The Agency 
published a Notice of Intent to Establish a Cranes and Derricks 
Negotiated Rulemaking Advisory Committee (``C-DAC'' or ``the 
Committee'')) (see 67 FR 46612, Jul. 16, 2002).
    Negotiated rulemaking is a process by which a proposed rule is 
developed by a committee comprised of members who represent the 
interests that will be significantly affected by the rule. Section 562 
of the NRA defines ``interest'' as follows:

    ``[I]nterest'' means, with respect to an issue or matter, 
multiple parties which have a similar point of view or which are 
likely to be affected in a similar manner.

By including different viewpoints in the negotiation process, the 
members of a negotiated rulemaking committee learn the reasons for 
different positions on the issues as well as the practical effect of 
various approaches. Each member of the committee participates in 
resolving the interests and concerns of other members. Negotiation 
allows interested parties, including members who represent the 
interests of employers subject to the prospective rule and the 
employees who will benefit from the safer workplaces the rule will 
produce, to become involved at an earlier stage of the rulemaking 
process. As a result, the rule that OSHA proposes would receive close 
scrutiny by affected parties at the pre-proposal stage.
    The goal of the negotiated rulemaking process is to develop a 
proposed rule that represents a consensus of all the interests. The NRA 
defines consensus as unanimous concurrence among the interests 
represented on a negotiated rulemaking committee unless the committee 
itself unanimously agrees to use a different definition of consensus. 
As discussed below, C-DAC agreed by unanimous vote to a different 
definition: A consensus would be reached on an issue when not more than 
two non-Federal members dissented on that issue.
    In the July 2002 Federal Register notice announcing negotiated 
rulemaking on cranes and derricks mentioned earlier, the Agency listed 
key issues that it expected the negotiations to address, and the 
interests that OSHA tentatively identified as being significantly 
affected by the rulemaking. The key interests were:

--Crane and derrick manufacturers, suppliers, and distributors.
--Companies that repair and maintain cranes and derricks.

--Crane and derrick leasing companies.
--Owners of cranes and derricks.
--Construction companies that use cranes and derricks.
--General contractors.
--Labor organizations representing construction employees who operate 
cranes and derricks.
--Labor organizations representing construction employees who work in 
conjunction with cranes and derricks.
--Owners of electric power distribution lines.
--Civil, structural and architectural engineering firms and engineering 
consultants involved with the use of cranes and derricks in 
construction.
--Training organizations.
--Crane and derrick operator testing organizations.
--Insurance and safety organizations, and public interest groups.
--Trade associations.
--Government entities involved with construction safety and with 
construction operations involving cranes and derricks.
    In the Federal Register notice, OSHA asked for public comment on 
whether interests other than those listed would be significantly 
affected by a new rule. It also solicited requests for membership on 
the Committee. OSHA also urged interested parties form coalitions to 
support individuals identified for nomination to the Committee.
    The Agency noted that the need to limit the Committee's membership 
to a number that could conduct effective negotiations may result in 
some interests not being represented on the Committee. OSHA further 
noted that interested persons had means other than Committee membership 
available to participate in the Committee's deliberations, including 
attending meetings and addressing the Committee, providing written 
comments to the Committee, and participating in Committee workgroups 
(see 67 FR 46612, 46615, Jul. 16, 2002).
    In response to its request for public input, the Agency received 
broad support for using negotiated rulemaking, as well as 55 
nominations for committee membership. To keep membership to a 
reasonable size, OSHA tentatively listed 20 potential committee 
members, and asked for public comment on the proposed list (see 68 FR 
9036,

[[Page 47908]]

Feb. 27, 2003). In response to the comments, OSHA added three members 
to the committee--individuals from the mobile crane manufacturing 
industry, the Specialized Carriers & Rigging Association, and the 
outdoor advertising industry (see 68 FR 39879, Jul. 3, 2003).
    The members of the Committee, the organizations and interests they 
represent, and a summary of their qualifications at the time the 
Committee was formed are in Table 1 below:

              Table 1--The Qualifications of C-DAC Members
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Stephen Brown, International Union of Operating Engineers (labor)
    Title: Director of Construction Training, International Union of
     Operating Engineers.
    Organizations/interests represented: Organized construction
     employees who operate cranes and derricks, and work with such
     equipment.
    Experience: Worked in numerous positions in the construction
     industry over 28 years, including Equipment Operator, Mechanic, and
     Training Director.
Michael Brunet, Manitowoc Cranes, Inc. (manufacturers and suppliers)
    Title: Director of Product Support for Manitowoc Cranes.
    Organizations/interests represented: Crane manufacturers, suppliers,
     and distributors.
    Experience: Extensive engineering experience in crane engineering;
     participated in development of SAE and ISO standards for cranes.
Stephen P. Chairman, Viacom Outdoor, Inc. (employer users)
    Title: Vice President (New York) of Viacom Outdoor Group.
    Organizations/interests represented: Billboard construction.
    Experience: Over 43 years' experience with the construction
     industry, including specialized rigging.
Joseph Collins, Zachry Construction Corporation (employer users)
    Title: Crane Fleet Manager.
    Organizations/interests represented: Highway and railroad
     construction.
    Experience: Over 30 years' experience with the construction industry
     in a variety of positions including crane operator, mechanic, and
     rigger.
Noah Connell, U.S. Department of Labor, Occupational Safety and Health
 Administration (government)
    Title: Director, Office of Construction Standards and Guidance.
    Organization/interests represented: Government.
    Experience: 22 years' experience with government safety and health
     programs.
Peter Juhren, Morrow Equipment Company, L.L.C. (manufacturers and
 suppliers)
    Title: National Service Manager.
    Organization/interests represented: Tower crane distributors and
     manufacturers.
    Experience: 22 years' experience with Morrow Equipment Company,
     L.L.C.
Bernie McGrew, Link-Belt Construction Equipment Corp. (manufacturers and
 suppliers)
    Title: Manager for Crane Testing, Product Safety, Metal Labs and
     Technical Computing.
    Organization/interests represented: Mobile crane manufacturers.
    Experience: Extensive engineering experience in crane engineering.
Larry Means, Wire Rope Technical Board (manufacturers and suppliers)
    Title: Rope Engineer.
    Organization/interests represented: Wire rope manufacturing
     industry.
    Experience: 36 years' wire rope engineering experience.
Frank Migliaccio, International Association of Bridge, Structural,
 Ornamental and Reinforcing Iron Workers (labor organization)
    Title: Executive Director for Safety and Health.
    Organization/interests represented: Organized construction employees
     who operate cranes and derricks, and work with such equipment.
    Experience: 31 years' experience in the ironworking industry,
     including 10 years as Director of Safety and Health Training for
     the Ironworker's National Fund.
Brian Murphy, Sundt Corporation (employer users)
    Title: Vice President and Safety Director.
    Organization/interests represented: General contractors; crane
     owners and users.
    Experience: Over 35 years' experience in the construction industry,
     most of them with Sundt Corp.
George R. ``Chip'' Pocock, C.P. Buckner Steel Erection (employer users)
    Title: Safety and Risk Manager.
    Organization/interests represented: Steel erection crane users and
     employers.
    Experience: Over 22 years' experience in the construction and steel
     erection industry.
David Ritchie, St. Paul Companies (trainer and operator testing)
    Title: Crane and Rigging Specialist.
    Organization/interests represented: Employee training and
     evaluation.
    Experience: Over 31 years' experience in the construction industry.
Emmett Russell, International Union of Operating Engineers (IUOE)
 (labor)
    Title: Director of Safety and Health.
    Organization/interests represented: Organized construction employees
     who operate cranes and derricks, and work with such equipment.
    Experience: Over 32 years' experience in the crane and construction
     industry, including 10 years in the field as well as over 20 years
     with IUOE.
Dale Shoemaker, Carpenters International Training Center (labor)
    Organization/interests represented: Labor organizations representing
     construction employees who operate cranes and derricks and who work
     with cranes and derricks.
    Experience: Became a crane operator in 1973; served as a rigging
     trainer for labor organizations since 1986.
William Smith, Maxim Crane Works (lessors/maintenance)
    Title: Corporate Safety/Labor Relations Manager.
    Organization/interests represented: Crane and derrick repair and
     maintenance companies.
    Experience: 24 years' experience in the crane, rigging, and
     construction industry, both public and private sectors.
Craig Steele, Schuck & Sons Construction Company, Inc. (employer users)
    Title: President and CEO.
    Organization/interests represented: Employers and users engaged in
     residential construction.
    Experience: 30 years' experience in the construction industry with
     Schuck & Sons Construction Company, Inc.

[[Page 47909]]


Darlaine Taylor, Century Steel Erectors, Inc. (employer users)
    Title: Vice President.
    Organization/interests represented: Steel erection and leased crane
     users.
    Experience: 19 years' with Century Steel Erectors, over 12 years' in
     the construction safety field.
Wallace Vega III, Entergy Corp. (power line owners)
    Organization/interests represented: Power line owners.
    Experience: 35 years' experience in the power line industry.
William J. ``Doc'' Weaver, National Electrical Contractors Association
 (employer users)
    Organization/interests represented: Electrical contractors engaged
     in power line construction.
    Experience: Over 53 years' electrical construction experience, 37 of
     which spent in management positions.
Robert Weiss, Cranes, Inc. and A.J. McNulty & Company, Inc. (employer
 users)
    Title: Vice President and Project Manager for Safety.
    Organization/interests represented: Employers and users engaged in
     precast concrete erection.
    Experience: 20 years' experience in the precast and steel erection
     industry.
Doug Williams, C.P. Buckner Steel Erection (employer users)
    Title: President.
    Organization/interests represented: Buckner Heavy Lift Cranes.
    Experience: 32 years' experience in the construction industry.
Stephen Wiltshire, Sports and Public Assembly Group, Turner Construction
 Corp. (employer users)
    Title: National Safety Director.
    Organization/interests represented: Employers and users of owned and
     leased cranes.
    Experience: 28 years' experience in construction safety.
Charles Yorio, Acordia (Wells Fargo) (insurance)
    Title: Assistant Vice President.
    Organization/interests represented: Insurance.
    Experience: 17 years' experience in loss prevention and regulatory
     compliance.
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    As this summary of qualifications shows, the Committee members had 
vast and varied experience in cranes and derricks in construction, 
which gave them a wealth of knowledge in the causes of accidents and 
other safety issues involving such equipment. The members used this 
knowledge to identify issues that required particular attention and to 
devise regulatory language that would address the causes of such 
accidents. Their extensive practical experience in the construction 
industry and the other industries represented on the Committee helped 
them to develop revisions to the current subpart N requirements.
    C-DAC was chaired by a facilitator, Susan L. Podziba of Susan 
Podziba & Associates, a firm engaged in public policy mediation and 
consensus building. Ms. Podziba's role was to facilitate the 
negotiations by: (1) Chairing the Committee's meetings in an impartial 
manner; (2) Assisting the members of the committee in conducting 
discussions and negotiations; and (3) Ensuring minutes of the meetings 
were taken, and relevant records retained; (4) Performing other 
responsibilities such as drafting meeting summaries to be reviewed and 
approved by C-DAC members.
    C-DAC first met from July 30 to August 1, 2003. Before addressing 
substantive issues, the Committee developed ground rules (formally 
approved on September 26, 2003) that would guide its deliberations. 
(OSHA-S030-2006-0663-0373.) In addition to procedural matters, the 
ground rules addressed the Committee's decision-making process. C-DAC 
agreed that it would make every effort to reach unanimous agreement on 
all issues. However, if the facilitator determined that unanimous 
consent could not be achieved, the Committee would consider consensus 
to be reached when not more than two non-Federal members (i.e., members 
other than the OSHA member) dissented; no consensus could be achieved 
if OSHA dissented.
    This consensus process reflects the non-Federal members' view that 
Agency support of the Committee's work was essential. The non-Federal 
members believed that, if OSHA dissented, the Committee's work product 
likely would not be included in the final rule. Therefore, the 
Committee members would make every effort to resolve the Agency's 
concerns using the negotiation process.
    Under the ground rules, if C-DAC reached final consensus on some or 
all issues, OSHA would use the consensus-based language in its proposed 
standard, and C-DAC members would refrain from providing formal written 
negative comment on those issues in response to the proposed rule.
    The ground rules provided that OSHA could only depart from the 
consensus-based language by (1) reopening the negotiated rulemaking 
process, or (2) providing the C-DAC members with a detailed statement 
of the reasons for revising the consensus-based language, and do so in 
a manner that would allow the C-DAC members to express their concerns 
to OSHA before it published the proposed rule. The Committee members 
also could provide negative or positive comments in response to these 
revisions during the public-comment phase of the rulemaking. (OSHA-
S030-2006-0663-0373.)
    A tentative list of issues for the Committee to address was 
published along with the final list of Committee members (68 FR at 
39877, Jul. 3, 2003). At its initial meeting, the Committee reviewed 
and revised the issue list, adding several issues. (OSHA-S030-2006-
0663-0372.) The Committee met 11 times between July 30, 2003 and July 
9, 2004. As the meetings progressed, the Committee reached consensus 
agreement on various issues and, at the final meeting, reached 
consensus agreement on all outstanding issues.
    The Committee's work product, which was the Committee's recommended 
regulatory text for the proposed rule, is referred to in this notice as 
the ``C-DAC Document.'' (OSHA-S030-2006-0663-0639.) On October 12, 
2006, ACCSH adopted a resolution supporting the C-DAC Document and 
recommending that OSHA use it as the basis for a proposed standard. 
(OSHA-ACCSH2006-1-2006-0198-0021.)
    OSHA issued a proposed rule based on the C-DAC Document on October 
9, 2008 (73 FR 59713, Oct. 9, 2008). In reviewing the C-DAC Document 
and drafting the proposed rule, OSHA identified several problems in the 
C-DAC Document. These problems ranged from misnumbering and other 
typographical and technical errors, to

[[Page 47910]]

provisions that appeared to be inconsistent with the Committee's 
purpose, or that were worded in a manner that required clarification. 
The proposed rule deviated from the C-DAC Document when revisions were 
clearly needed to validly represent the Committee's purpose or to 
correct typographical and technical errors. With respect to substantive 
revisions, the Agency identified and explained these revisions in the 
portions of the preamble to the proposed rule that addressed the 
affected provisions. OSHA also prepared a draft of the proposed 
regulatory language identifying each instance in which the proposed 
rule differed from the C-DAC Document. In accordance with the ground 
rules, prior to publication of the proposed rule in the Federal 
Register, OSHA provided the draft showing the revisions to the C-DAC 
Document, along with its draft of the summary and explanation of the 
proposed rule, to the C-DAC members.
    Additionally, the Agency identified other instances in which the 
regulatory text drafted by the Committee did not appear to conform to 
the Committee's purpose, or instances in which a significant issue did 
not appear to have been considered by C-DAC. In these instances, OSHA 
retained the regulatory language used in the C-DAC Document, but asked 
for public comment on whether specific revisions should be made to the 
proposed regulatory language in the final rule.
    The proposed rule set a deadline of December 8, 2008, for the 
public to submit comments on the proposal. At the request of a number 
of stakeholders, this deadline was subsequently extended to January 22, 
2009 (73 FR 73197, Dec. 2, 2009). On March 17, 2009, OSHA convened a 
public hearing on the proposal, with Administrative Law Judge John M. 
Vittone presiding. The hearing lasted four days, closing on March 20. 
In addition to Judge Vittone, Administrative Law Judge William S. 
Colwell presided during the last part of the hearing. At the close of 
the hearing, Judge Colwell established a posthearing comment schedule. 
Participants were given until May 19, 2009 to supplement their 
presentations and provide data and information in response to questions 
and requests made during the hearing, make clarifications to the 
testimony and record that they believed were appropriate, and submit 
new data and information that they considered relevant to the 
proceeding. Participants also were given until June 18, 2009, to 
comment on the testimony and evidence in the record, including 
testimony presented at the hearing and material submitted during the 
first part of the posthearing comment period.

C. Hazards Associated With Cranes and Derricks in Construction Work

    OSHA estimates that 89 crane-related fatalities occur per year in 
construction work. The causes of crane-related fatalities were recently 
analyzed by Beavers, et al. (See J.E. Beavers, J.R. Moore, R. Rinehart, 
and W.R. Schriver, ``Crane-Related Fatalities in the Construction 
Industry,'' 132 Journal of Construction Engineering and Management 901 
(Sept. 2006) (ID OSHA-2007-0066-0012 \1\).) The authors searched OSHA's 
Integrated Management Information System (IMIS) database for all fatal 
accidents for 1997-2003 investigated by OSHA involving cranes in the 
construction industry. By searching the database for cases using the 
key words ``crane,'' ``derrick,'' or ``boom,'' they identified 381 IMIS 
files for the covered year in the Federal program states, which include 
states with about 57% of all workers throughout the country. The 
authors requested the case files from OSHA so that they could confirm 
that a crane or derrick was involved in the fatality. Of the 335 case 
files that OSHA provided, the authors identified 125 (involving 127 
fatalities) as being crane or derrick related. From these files, they 
determined the percentages of fatalities caused by various types of 
incidents (see Table 2 below).
---------------------------------------------------------------------------

    \1\ The term ``ID'' refers to the column labeled ``ID'' under 
Docket No. OSHA-2007-0066 on the Federal eRulemaking Portal, http://
www.regulations.gov. This column lists individual records in the 
docket. Hereafter, this notice will identify each of these records 
only by the last four digits of the record. Records from dockets 
other than OSHA-2007-0066 are identified by their full ID number.

  Table 2--The Causes of Fatalities During the Performance of Hoisting
                               Activities
------------------------------------------------------------------------

------------------------------------------------------------------------
Struck by load (other than failure of boom/cable)..........          32%
Electrocution..............................................          27%
Crushed during assembly/disassembly........................          21%
Failure of boom/cable......................................          12%
Crane tip-over.............................................          11%
Struck by cab/counterweight................................           3%
Falls......................................................           2%
------------------------------------------------------------------------

    A study by Suruda et al. examined the causes of crane-related 
deaths for the 1984-1994 period. (See A. Suruda, M. Egger, and D. Liu, 
``Crane-Related Deaths in the U.S. Construction Industry, 1984-94,'' 
The Center to Protect Workers' Rights (Oct. 1997) (ID-0013).) The 
authors examined OSHA IMIS data to identify the number of fatal 
accidents involving cranes, and determined their causes. For the years 
in question, they found 479 accidents involving 502 fatalities. In the 
worst year, 1990, 70 deaths occurred. The authors noted some 
limitations in the data they examined: Data for California, Michigan, 
and Washington State were not available for 1984-1989; the proportion 
of fatal accidents investigated by OSHA and states having OSHA-approved 
State plans is unknown; and some of the investigation reports were not 
sufficiently detailed to allow the authors to determine the cause of 
the accident or the type of crane involved.
    The Suruda study determined the number and the percentage of 
fatalities from various causes (see Table 3 below).

                 Table 3--The Causes of Crane Incidents
------------------------------------------------------------------------

------------------------------------------------------------------------
Electrocution..............................................    198 (39%)
Crane assembly/disassembly.................................     58 (12%)
Boom buckling/collapse.....................................      41 (8%)
Crane upset/overturn.......................................      37 (7%)
Rigging failure............................................      36 (7%)
Overloading................................................      22 (4%)
Struck by moving load......................................      22 (4%)
Accidents related to manlifts..............................      21 (4%)
Working within swing radius of counterweight...............      17 (3%)
Two-blocking...............................................      11 (2%)
Hoist limitations..........................................       7 (1%)
Other causes...............................................      32 (6%)
------------------------------------------------------------------------

    This final standard addresses the major causes of the equipment-
related fatalities identified in the Beavers and Suruda studies. The 
following synopsis identifies the sections in the final standard that 
address the major causes of equipment-related fatalities.
    Electrocution hazards are addressed by Sec. Sec.  1926.1407-
1926.1411, which deal with power-line safety. These sections contain 
requirements to prevent equipment from contacting energized power 
lines. The final standard delineates systematic, reliable procedures 
and methods that employers must use to prevent a safe clearance 
distance from being breached. If maintaining the safe clearance 
distance is infeasible, additional protections are required, including 
grounding the equipment, covering the line with an insulating sleeve, 
and using insulating links and nonconductive tag lines.
    These procedures and methods are supplemented by requirements for 
training the operator and crew in power-line safety (see Sec.  
1926.1408(g)), and requirements for operator qualification and 
certification in Sec.  1926.1427. C-DAC concluded that compliance with 
these training and certification requirements will not only reduce the 
frequency of power-line contact, but will give the

[[Page 47911]]

workers the knowledge they need to help avoid injury in the event such 
contact occurs.
    Fatalities that involve employees being struck or crushed during 
assembly/disassembly are addressed in Sec. Sec.  1926.1403-1926.1406. 
These sections require employers to follow specific safe-practice 
procedures, and to address a list of specific hazards. Also, assembly 
and disassembly of a crane must be supervised by an individual who is 
well qualified to ensure that these requirements of these provisions 
are properly implemented.
    As the above-mentioned studies show, and the Committee's experience 
confirms, many disassembly accidents occur when sections of lattice 
booms unexpectedly move and strike or crush an employee who is 
disassembling the boom. The final standard addresses this hazard in 
Sec.  1926.1404(f) by prohibiting employees from being under the boom 
when pins are removed unless special precautions are taken to protect 
against boom movement.
    Accidents resulting from boom or cable failure are addressed in a 
number of provisions. For example, the standard includes requirements 
for: proper assembly procedures (Sec.  1926.1403); boom stops to 
prevent booms from being raised too far and toppling over backwards 
(Sec.  1926.1415, Safety devices); a boom-hoist limiting device to 
prevent excessive boom travel, and an anti two-block device, which 
prevents overloading the boom from two-blocking (Sec.  1926.1416, 
Operational aids). Also, the inspection requirements (Sec.  1926.1412) 
detect and address structural deficiencies in booms before an accident 
occurs. Cable failure will be avoided by compliance with sections such 
as Sec.  1926.1413, Wire rope--inspection, and Sec.  1926.1414, Wire 
rope--selection and installation criteria.
    Crane tip-over is caused by factors such as overloading, improper 
use of outriggers and insufficient ground conditions. Section 
1926.1417, Operations, includes provisions to prevent overloading. This 
section prohibits the equipment from being operated in excess of its 
rated capacity, and includes procedures for ensuring that the weight of 
the load is reliably determined and within the equipment's rated 
capacity. Section 1926.1404(q) has requirements for outrigger/
stabilizer use that will ensure that outriggers and stabilizers provide 
stability when a load is lifted. Section 1926.1402 contains 
requirements to ensure sufficient ground conditions, which will prevent 
crane tip-over.
    The provisions addressing operator training, qualification, and 
certification also will prevent tip-over accidents by ensuring that the 
operator is sufficiently knowledgeable and skilled to recognize 
situations when the crane may be overloaded.
    Fatalities that result from workers being struck by the cab or 
counterweights will be avoided under Sec.  1926.1424, Work area 
control. That section requires that workers who are near equipment with 
a rotating superstructure be trained in the hazards involved, that 
employers mark or barricade the area covered by the rotating 
superstructure, and that the operator be notified whenever a worker 
must enter that area, and instructed not rotate the superstructure 
until the area is clear. Protection against being struck by a 
counterweight during assembly or disassembly is provided by Sec.  
1926.1404(h)(9), which requires the assembly/disassembly supervisor to 
address this hazard and take steps when necessary to protect workers 
against that danger.
    The final rule addresses a number of equipment failures that can 
result in the load striking a worker. Such accidents are directly 
addressed by Sec.  1926.1425, Keeping clear of the load, and Sec.  
1926.1426, Free fall/controlled load lowering. In addition, improved 
requirements in Sec. Sec.  1926.1419-1926.1422 for signaling will help 
avoid load struck-by accidents caused by miscommunication.
    Improper operation, including failure to understand and compensate 
for the effects of factors such as dynamic loading, can also cause 
workers to be struck by a load. Such incidents will be reduced by 
compliance with Sec.  1926.1427, Operator qualification and 
certification and Sec.  1926.1430, Training. Other provisions, such as 
those for safety devices and operational aids (Sec. Sec.  1926.1415 and 
1926.1416), and the requirement for periodic inspections in Sec.  
1926.1412, will also reduce these accidents.
    Protection against falling from equipment is addressed by Sec.  
1926.1423, Fall protection. That section requires that new equipment 
provide safe access to the operator work station, using devices such as 
steps, handholds, and grabrails. Some new lattice-boom equipment must 
be equipped with boom walkways. The final standard also contains fall-
protection provisions tailored to assembly and disassembly work, and to 
other work. Section 1926.1431, Hoisting personnel, addresses fall 
protection when employees are being hoisted.
    OSHA has investigated numerous crane accidents that resulted in 
fatalities. Below are examples from OSHA's IMIS investigation reports 
that describe accidents that compliance with this final standard would 
prevent.
    1. February 16, 2004: four fatalities, four injuries. A launching 
gantry collapsed and fatally injured four workers and sent four other 
workers to the hospital. The launching gantry was being used to erect 
pre-cast concrete segments span by span. The manufacturer required that 
the rear legs and front legs be properly anchored to resist 
longitudinal and lateral forces that act on the launching gantry. The 
legs of the launching gantry were not properly anchored. (ID-0017.)
    OSHA believes that this type of accident will be prevented by 
compliance with the provisions of this final standard for assembling 
equipment. Section 1926.1403 requires that equipment be assembled in 
compliance with the manufacturer's procedures, or with alternative 
employer procedures (see Sec.  1926.1406) to prevent the equipment from 
collapsing. In addition, under Sec.  1926.1404, assembly must be 
conducted under the supervision of a person who understands the hazards 
associated with an improperly assembled crane and is well-qualified to 
understand and comply with the proper assembly procedures.
    2. January 30, 2006. One fatality. An employee was crushed by the 
lower end section of the lattice boom on a truck-mounted crane while 
working from a position underneath the boom to remove the 2nd lower 
pin. When the 2nd lower pin was removed, the unsecured/uncribbed boom 
fell on the employee. (ID-0017.1.)
    Section 1926.1404(f) will prevent this type of accident by 
generally prohibiting employees from being under the boom when pins are 
removed. In situations in which site constraints require that an 
employee be under the boom when pins are removed, the employer must 
implement other procedures, such as ensuring that the boom sections are 
adequately supported, to prevent the sections from falling on the 
employee.
    3. July 23, 2001: One fatality. Employee failed to extend the 
outriggers before extending the boom of a service-truck crane to lift 
pipes. As the employee extended the boom, the crane tipped over on its 
side, and another employee standing near the truck was struck on the 
head by the hook block. (ID-0017.10.)
    This type of accident will be prevented by compliance with Sec.  
1926.1404(q), which contains several provisions to ensure that 
outriggers and stabilizers are deployed properly before lifting a load. 
In addition, the operator

[[Page 47912]]

qualification and certification requirements of Sec.  1926.1427, which 
ensure that operators understand and follow the safety-requirements for 
the equipment they are operating, will help prevent this type of 
accident.
    4. March 8, 1999. One fatality. Employees were using a mobile crane 
to maneuver a load of steel joists. The crane contacted a 7,200-volt 
overhead power line, electrocuting an employee who was signaling and 
guiding the load. The crane operator jumped clear and was not injured. 
(ID-0017.11.)
    Section 1926.1408 includes provisions that will prevent this type 
of accident. This section requires the use of ``encroachment 
prevention'' measures to prevent the crane from breaching a safe 
clearance distance from the power line. It also requires that, if tag 
lines are used to guide the load, the lines must be non-conductive. 
Finally, if maintaining the normal clearance distance is infeasible, a 
number of additional measures must be implemented, one of which is the 
use of an insulating link between the end of the load line and the 
load.
    These measures protect employees guiding the load in several ways, 
including: reducing the chance that a crane would contact a power line; 
employees using tag lines to guide a load from being electrocuted 
should the load become energized.
    5. August 21, 2003. Three fatalities. A crane operator and two co-
workers were electrocuted when a truck crane's elevated boom contacted 
a 7,200 volt uninsulated primary conductor 31 feet above the ground. 
When the operator stepped from the cab of the truck, a conduction 
pathway to the ground was established through the operator's right hand 
and right foot, resulting in electrocution. A co-worker attempted to 
revive the incapacitated crane operator with cardio-pulmonary 
resuscitation (``CPR''), while a third co-worker contacted 911, and 
then returned to the incident location. When the third co-worker 
simultaneously touched the energized truck crane and the back of the 
co-worker performing CPR, the resulting pathway conducted the 
electrical charge through the workers, electrocuting them all. (ID-
0017.12.)
    The final standard will avoid this type of accident. Section 
1926.1408 ensures that a minimum safe distance from the power line is 
maintained, which prevents equipment from becoming energized. Also, 
when working closer than the normal minimum clearance distance, the 
crane must be grounded, which reduces the chance of an electrical 
pathway through the workers.
    In addition, Sec.  1926.1408(g) requires that the operator be 
trained to remain inside the cab unless an imminent danger of fire or 
explosion is present. The operator also must be trained in the hazards 
associated with simultaneously touching the equipment and the ground, 
as well as the safest means of evacuating the equipment. The crane's 
remaining crew must be trained to avoid approaching or touching the 
equipment. The required training is reinforced by the electrocution 
warnings that must be posted in the cab and on the outside of the 
equipment.
    6. September 28, 1999: One fatality. A 19-year old electrical 
instrument helper was at a construction site that was on a 
manufacturing company's property. A contractor positioned a 50-ton 
hydraulic crane in an open area that consisted of compacted fill 
material. This area was the only location that the crane could be 
situated because the receiving area for the equipment was too close to 
the property border.
    The crane's outriggers were set, but matting was placed only under 
one of the outrigger pads. As the crane was moving large sections of 
piping to a new location, the ground collapsed and the crane 
overturned, striking the helper. (ID-0017.13.)
    Section 1926.1402, Ground conditions, will prevent this type of 
accident. Under that section, employers must ensure that the surface on 
which a crane is operating is sufficiently level and firm to support 
the crane in accordance with the manufacturer's specifications. In 
addition, Sec.  1926.1402 imposes specific duties on both the entity 
responsible for the project (the controlling entity) and the entity 
operating the crane to ensure that the crane is adequately supported. 
It places responsibility for ensuring that the ground conditions are 
adequate on the controlling entity, while also making the employer 
operating the crane responsible notifying the controlling entity of any 
deficiency in the ground conditions, and having the deficiency 
corrected before operating the crane.
    7. June 17, 2006: One fatality. A spud pipe, used to anchor a 
barge, was being raised by a crane mounted on the barge when the 
hoisting cable broke, causing the headache ball and rigging to on an 
employee. (ID-0017.3.)
    This type of accident can have various causes: an improperly 
selected wire rope (one that has insufficient capacity); a damaged or 
worn wire rope in need of replacement; or two-blocking, in which the 
headache ball is forced against the upper block, causing the wire rope 
to fail. The provisions of Sec. Sec.  1926.1413 and 1926.1414 address 
wire rope inspection, selection, and installation, and will ensure that 
appropriate wire rope is installed, inspected and removed from service 
when continued use is unsafe. Section 1926.1416, Operational aids, 
contains provisions to protect against two-blocking.
    8. July 13, 1999: Three fatalities. Three employees were in a 
personnel basket 280 feet above the ground. They were in the process of 
guiding a large roof section, being lifted by another crane, into 
place. Winds gusting to 27 miles per hour overloaded the crane holding 
the roof section; that crane collapsed, striking the crane that was 
supporting the personnel basket, causing the boom to fall. All three 
employees received fatal crushing injuries. (ID-0018.)
    This type of accident will be prevented by Sec.  1926.1417(n), 
which requires the competent person in charge of the operation adjust 
the equipment and/or operations to address the effect of wind and other 
adverse weather conditions on the equipment's stability and rated 
capacity. In addition, Sec.  1926.1431, Hoisting personnel, requires 
that, when wind speed (sustained or gust) exceeds 20 mph, employers 
must not hoist employees by crane unless a qualified person determines 
it is safe to do so.
    9. November 7, 2005: One fatality. A construction worker was 
crushed between the outrigger and the rotating superstructure of a 
truck crane. The worker apparently was trying to retrieve a level and a 
set of blueprints located horizontal member of one of the outriggers 
when the operator began to swing the boom. (ID-0017.5.)
    Section 1926.1424, Work area control, will prevent this type of 
accident. This section generally requires that employers erect barriers 
to mark the area covered by the rotating superstructure to warn workers 
of the danger zone. However, workers who must work near equipment with 
a rotating superstructure must be trained in the hazards involved. If a 
worker must enter a marked area, the crane operator must be notified of 
the entry, and must not rotate the superstructure until the area is 
clear.
    10. March 19, 2005: Two fatalities and one injury. During steel-
erection operations, a crane was lifting three steel beams to a parking 
garage. The crane tipped over and the boom collapsed. The boom and 
attached beams struck concrete workers next to the structure, killing 
two workers and injuring one worker. The accident apparently occurred 
because the crane was overloaded. (ID-0017.6.)

[[Page 47913]]

    Overloading a crane can cause it to tip over, causing the load or 
crane structure to strike and fatally injure workers in the vicinity of 
the crane. Section 1926.1417, Operations, includes provisions to 
prevent overloading. This section prohibits employers from operating 
equipment in excess of its rated capacity, and includes procedures for 
ensuring that the weight of the load is reliably determined and within 
the equipment's rated capacity.
    The provisions of the final standard addressing operator training, 
certification, and qualification (Sec.  1926.1427) will also prevent 
this type of accident by ensuring that operators recognize conditions 
that would overload the crane.
    11. December 7, 2005. One fatality. Two cranes were used to lower a 
concrete beam across a river. During the lowering process, one end of 
the beam dropped below the other end, causing the load's weight to 
shift to the lower end; this shift in weight overloaded the crane 
lifting the lower end, and it tipped over. The lower end of the beam 
fell into the river, while the higher end landed on a support mat 
located on the bank of the river, causing a flagger to be thrown into 
the beam. (ID-0017.7.)
    Section 1926.1432, Multiple crane/derrick lifts--supplemental 
requirements, will prevent this type of accident. This section 
specifies that, when more than one crane is supporting a load, the 
operation must be performed in accordance with a plan developed by a 
qualified person. The plan must ensure that the requirements of this 
final standard are met, and must be reviewed by all individuals 
involved in the lifting operation. Moreover, the lift must be 
supervised by an individual who qualifies as both a competent person 
and a qualified person as defined by this final standard. For example, 
in the accident just described, the plan must include a determination 
of the degree of level needed to prevent either crane from being 
overloaded. In addition, the plan must ensure proper coordination of 
the lifting operation by establishing a system of communications and a 
means of monitoring the operation.
    12. May 7, 2004: One fatality. An employee, a rigger/operator-in-
training, was in the upper cab of a 60-ton hydraulic boom-truck crane 
to set up and position the crane boom prior to a lift. The crane was 
equipped with two hoists--a main line and auxiliary. The main hoist 
line had a multi-sheave block and hook and the auxiliary line had a 285 
pound ball and hook. When the employee extended the hydraulic boom, a 
two-block condition occurred with the auxiliary line ball striking the 
auxiliary sheave head and knocking the sheave and ball from the boom. 
The employee was struck in the head by the falling ball. (ID-0017.8.)
    This type of accident will be prevented by Sec.  1926.1416, 
Operational aids, which requires protection against two-blocking. A 
hydraulic boom crane, if manufactured after February 28, 1992, must be 
equipped with a device that automatically prevents two-blocking.
    Also, the final rule, under Sec.  1926.1427(a) and (f), prohibits 
an operator-in-training from operating a crane without being monitored 
by a trainer, and without first having sufficient training to enable 
the operator-in-training to perform the assigned task safely.
    13. April 26, 2006: One fatality. A framing crew was installing 
sheathing for a roof. A crane was hoisting a bundle of plywood 
sheathing to a location on the roof. As the crane positioned the bundle 
of sheathing above its landing location, the load hoist on the crane 
free spooled, causing an uncontrolled descent of the load. An employee 
was under the load preparing to position the load to its landing spot 
when the load fell and crushed him. (ID-0017.9.)
    Section 1926.1426, Free fall and controlled load lowering, will 
prevent this type of accident. This section prohibits free fall of the 
load-line hoist, and requires controlled lowering of the load when an 
employee is directly under the load.
    As discussed later in the section titled, Executive Summary of the 
Final Economic Analysis; Final Regulatory Flexibility Analysis, OSHA 
finds that construction workers suffer 89 fatal injuries per year from 
the types of equipment covered by this final standard. Of that number, 
OSHA estimates that 21 fatalities would be avoided by compliance with 
the final standard. In addition, OSHA estimates that the final standard 
would prevent 175 non-fatal injuries each year. Based on its review of 
all the available evidence, OSHA finds that construction workers have a 
significant risk of death and injury resulting from equipment 
operations, and that the risk would be substantially reduced by 
compliance with this final standard.
    The OSH Act requires OSHA to make certain findings with respect to 
standards. One of these findings, specified by Section 3(8) of the OSH 
Act, requires an OSHA standard to address a significant risk and to 
reduce this risk substantially. (See UAW v. OSHA, 37 F.3d 665, 668 (DC 
Cir. 1994) (``LOTO'').) As discussed in Section II of this preamble, 
OSHA finds that crane and derrick operations in construction constitute 
a significant risk and estimates that the final standard will prevent 
22 fatalities and 175 injuries annually. Section 6(b) of the OSH Act 
requires OSHA to determine if its standards are technologically and 
economically feasible. As discussed in Section V of this preamble, OSHA 
finds that this final standard is economically and technologically 
feasible.
    The Regulatory Flexibility Act (5 U.S.C 601, as amended) requires 
that OSHA determine whether a standard will have a significant economic 
impact on a substantial number of small firms. As discussed in Section 
V, OSHA examined the small firms affected by this standard and 
certifies that the final standard will not have a significant impact on 
a substantial number of small firms.
    Executive Order 12866 requires that OSHA estimate the benefits, 
costs, and net benefits of its standards. The table below summarizes 
OSHA's findings with respect to the estimated costs, benefits, and net 
benefits of this standard. As is clear, the annual benefits are 
significantly in excess of the annual costs. However, it should be 
noted that under the OSH Act, OSHA does not use the magnitude of net 
benefits as decision-making criterion in determining what standards to 
promulgate.

         Annual Benefits, Costs, and Net Benefits, 2010 Dollars
------------------------------------------------------------------------

------------------------------------------------------------------------
Annualized Costs*:
    Crane Assembly/Disassembly........  $16.3 million.
    Power Line Safety.................  68.2 million.
    Crane Inspections.................  16.5 million.
    Ground Conditions.................  2.3 million.
    Operator Qualification and          50.7 million.
     Certification.
                                       ---------------------------------
        Total Annualized Costs........  154.1 million.


[[Page 47914]]


Annual Benefits:
    Number of Injuries Prevented......  175.
    Number of Fatalities Prevented....  22.
    Property Damage from Tipovers       7 million.
     Prevented.
                                       ---------------------------------
        Total Monetized Benefits......  $209.3 million.
                                       ---------------------------------
Annual Net Benefits (Benefits minus     $55.2 million.
 Costs).
------------------------------------------------------------------------
Source: OSHA Office of Regulatory Analysis.
*Costs with 7% discount rate. Total costs with 3% discount rate: $150.4
  million annually.

    During the SBREFA process, several Small Entity Representatives 
expressed concern that the C-DAC Document was so long and complex that 
small businesses would have difficulty understanding it and complying 
with it. The SBREFA Panel recommended that OSHA solicit public comment 
on how the rule could be simplified and made easier to understand. In 
the proposal, OSHA requested public comment on this issue. The Agency 
did not receive any comments objecting to the length or clarity of the 
overall rule, or any comment on how to simplify the final rule. Some 
commenters recommended that specific provisions be clarified, and these 
comments are addressed later in this preamble.

III. The SBREFA Process

    Before proceeding with a proposed rule based on the C-DAC Document, 
OSHA was required to comply with the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. (SBREFA). This 
process required OSHA to draft an initial regulatory flexibility 
analysis that would evaluate the potential impact of the rule on small 
entities (defined as small businesses, small governmental units, and 
small nonprofit organizations) and identify the type of small entities 
that may be affected by the rule. In accordance with SBREFA, OSHA then 
convened a Small Business Advocacy Review Panel (``Panel'') composed of 
representatives of OSHA, the Office of Management and Budget, and the 
Office of Advocacy of the Small Business Administration. Individuals 
who were representative of affected small entities (i.e., Small Entity 
Representatives, or ``SERs'') were identified for the purpose of 
obtaining advice and recommendations regarding the potential impacts of 
the proposed rule.
    OSHA provided the SERs with the C-DAC Document and the draft 
Regulatory Flexibility Analysis, and requested that they submit written 
comments on these documents. The Agency also drafted questions asking 
for their views on the specific aspects of the C-DAC Document that OSHA 
believed may be of concern to small entities.
    The Panel conducted two conference calls with the SERs in which the 
SERs presented their views on various issues. After reviewing the SERs' 
oral and written comments, on October 17, 2006, the Panel submitted its 
report summarizing the requirements of the C-DAC proposal and the 
comments received from the SERs, and presenting its findings and 
recommendations. (OSHA-S030A-2006-0664-0019.) In its findings and 
recommendations, the Panel identified issues that it believed OSHA 
should address in the proposal (1) through further analysis, and (2) by 
soliciting public comment. In the proposed rule, OSHA addressed each of 
the Panel's findings and recommendations in the section pertaining to 
the issue involved, and also solicited public comment on the issues 
raised by the Panel. The following table lists the recommendations made 
by the Panel, and OSHA's responses to these recommendations.

        Table 4--SBREFA Panel Recommendations and OSHA Responses
------------------------------------------------------------------------
      SBREFA Panel Recommendation                 OSHA Response
------------------------------------------------------------------------
The Panel recommends that OSHA provide   OSHA has developed a full
 full documentation for how it            preliminary economic analysis
 estimated the number of affected small   (PEA) for the proposal which
 entities and all other calculations      explains all assumptions used
 and estimates provided in the PIRFA.     in estimating the costs and
                                          benefits of the proposed
                                          standard. The Final Economic
                                          Analysis (FEA) also explains
                                          the changes made to the
                                          analysis as a result of
                                          comments on the proposed rule,
                                          and OSHA's responses to these
                                          comments.
The Panel recommends that OSHA           OSHA included homebuilding
 reexamine its estimate of crane use in   industries in the ``Own but Do
 home building, the coverage of crane     Not Rent'' and ``Crane
 trucks used for loading and unloading,   Lessees'' industrial profile
 and the estimates of the number of       categories.
 jobs per crane. Changes in these        OSHA has also made a number of
 estimates should be incorporated into    additions to the industrial
 the estimates of costs and economic      profile to cover firms in
 impacts.                                 general industry that
                                          sometimes use cranes for
                                          construction work, and has
                                          added costs for these sectors.
The Panel recommends that OSHA review    OSHA sought comments on the
 its estimates for the direct costs of    estimates and methodology. As
 operator certification and seek          a result of these comments,
 comment on these cost estimates.         OSHA has increased its
                                          estimate of the unit costs of
                                          certification.
The Panel recommends that OSHA           OSHA sought public comment on
 carefully examine certain types of       all aspects (including
 impact that could result from an         economic impacts, wages,
 operator certification requirement,      number of operators, demand,
 including reports of substantial         etc.) of the operator
 increases in the wages of operators;     certification requirements,
 the possibility of increased market      specifically as it pertains to
 power for firms renting out cranes;      the State of California.
 and loss of jobs for existing           OSHA has included 2 hours of
 operators due to language, literacy,     travel time per operator into
 or knowledge problems; and seek          the unit costs for operator
 comment on these types of impacts. The   certification.
 Panel also recommends studying the      OSHA also increased the unit
 impacts of the implementation of         costs of operator
 operator certification in CA.            certification as a result of
                                          comments. However, based on
                                          comments, OSHA also reduced
                                          the OSHA percentage of crane
                                          operators still needing
                                          certification.

[[Page 47915]]


                                         The Agency reviewed data on
                                          wage rates for operators in
                                          California immediately before
                                          and after operator
                                          certification was required
                                          (Employment Development
                                          Department, Labor Market
                                          Information Division, State of
                                          California, 2007). The data
                                          did not show much change in
                                          operators' wages.
                                         OSHA also evaluated the changes
                                          in crane related fatality
                                          rates in California and found
                                          these had significantly
                                          declined after the California
                                          certification requirements
                                          were put into place.
The Panel recommends that OSHA           OSHA sought comment on the
 reexamine its estimates for the amount   methodology used to calculate
 of time required to assess ground        all of the costs in the PEA,
 conditions, the number of persons        which includes the costs for
 involved in the assessment, and the      assessing ground conditions.
 amount of coordination involved;        As a result of these comments,
 clarify the extent to which such         OSHA has added costs for
 assessments are currently being          examination of ground
 conducted and what OSHA estimates as     conditions. This addition of
 new costs for this rule represent; and   costs does not change OSHA's
 seek comments on OSHA's cost estimates.  conclusion that this standard
                                          is economically feasible.
The Panel recommends that OSHA           The Agency describes the
 carefully review the documentation       documentation requirements,
 requirements of the standard,            along with cost estimates, in
 including documentation that employers   the section of this preamble
 may consider it prudent to maintain;     entitled ``OMB Review Under
 estimate the costs of such               the Paperwork Reduction Act of
 requirements; seek ways of minimizing    1995.''
 these costs consistent with the goals
 of the OSH Act; and solicit comment on
 these costs and ways of minimizing
 these costs.
The Panel recommends that OSHA examine   As explained in the discussion
 whether the inspection requirements of   of Sec.   1926.1412,
 the proposed rule require procedures     Inspections, OSHA's former
 not normally conducted currently, such   standard at former Sec.
 as lowering and fully extending the      1926.550 requires inspections
 boom before the crane can be used, and   each time the equipment is
 removing non-hinged inspection plates    used, as well as thorough
 during the shift inspection, estimate    annual inspections. In
 the costs of any such requirements,      addition, national consensus
 and seek comment on these issues.        standards that are
                                          incorporated by reference
                                          include additional inspection
                                          requirements. This final
                                          standard would list the
                                          inspection requirements in one
                                          place rather than rely on
                                          incorporated consensus
                                          standards. This final standard
                                          does not impose significant
                                          new requirements for
                                          inspections. OSHA received
                                          comments on the issue of
                                          lowering and fully extending
                                          the boom before the crane can
                                          be used. However, OSHA
                                          concludes that the comments
                                          were based on a general
                                          misunderstanding of the
                                          requirements. Section
                                          1926.1413(a) explicitly says
                                          that booming down is not
                                          required for shift (and
                                          therefore monthly)
                                          inspections.
                                         Similarly, OSHA stated in the
                                          proposed preamble (73 FR
                                          59770, Oct. 9, 2008) that it
                                          does not believe inspection of
                                          any of those items would
                                          require removal of non-hinged
                                          inspection plates. In the
                                          discussion of proposed Sec.
                                          1926.1412, OSHA requested
                                          public comment on this point.
                                          OSHA finalized Sec.
                                          1926.1412 as proposed because
                                          comments did not confirm that
                                          non-hinged plates needed to be
                                          removed to meet the
                                          requirements of a shift
                                          inspection.
The Panel recommends that OSHA consider  Previous subpart N, at former
 the costs of meeting the requirements    Sec.   1926.550(a)(2),
 for original load charts and full        required load charts; this is
 manuals, and solicit comments on such    not a new cost. Subpart N did
 costs.                                   not require manuals. OSHA
                                          concludes that most crane
                                          owners and operators have and
                                          maintain crane manuals, which
                                          contain the load charts and
                                          other critical technical
                                          information about crane
                                          operations and maintenance.
                                          The Agency determined that the
                                          cost of obtaining a copy of a
                                          manual should be modest and
                                          solicited comment on how many
                                          owners or operators do not
                                          have full manuals for their
                                          cranes or derricks. Few
                                          commenters saw this as a major
                                          problem.
The Panel recommends that OSHA provide   The Agency placed additional
 full documentation for its analysis of   materials in the rulemaking
 the benefits the proposed rule are       docket to aid in the
 expected to produce and assure that      reproduction of the benefits
 the benefits analysis is reproducible    analysis. The Agency also
 by others.                               developed a full benefits
                                          analysis (sec. 4 of the FEA)
                                          which includes the methodology
                                          and data sources for the
                                          calculations.
The Panel recommends that OSHA consider  In the discussion of proposed
 and solicit public comment on whether    Sec.   1926.1400(c)(8), OSHA
 the scope language should be clarified   requested public comment on
 to explicitly state whether forklifts    this issue.
 that are modified to perform tasks
 similar to equipment (cranes and
 derricks) modified in that manner
 would be covered.
The Panel recommends that there be a     OSHA explained in the
 full explanation in the preamble of      discussion of proposed Sec.
 how responsibility for ensuring          1926.1402(e) how the various
 adequate ground conditions is shared     employers, including the
 between the controlling entity, and      controlling entity, the
 the employer of the individual           employer whose employees
 supervising assembly/disassembly and/    operate the equipment, and the
 or the operator.                         employer of the A/D director
                                          share responsibility for
                                          ensuring adequate ground
                                          conditions. OSHA did not
                                          receive any significant
                                          comments on this issue and,
                                          therefore, considers this
                                          matter resolved.
The Panel recommends that OSHA restate   OSHA addressed this
 the applicable corrective action         recommendation in the
 provisions (which are set forth in the   discussion of proposed Sec.
 shift inspection) in the monthly         1926.1412(e) and requested
 inspection section.                      public comment on the issue.
                                          Based on these comments, OSHA
                                          concludes that the
                                          requirements were clear as
                                          proposed, and repeating the
                                          provisions will create
                                          confusion. Therefore, OSHA did
                                          not restate the corrective
                                          actions in Sec.
                                          1926.1412(e).

[[Page 47916]]


The Panel recommends that OSHA solicit   OSHA addressed this
 public comment on whether, and under     recommendation in the
 what circumstances, booming down         discussion of proposed Sec.
 should be specifically excluded as a     1926.1412(d) and requested
 part of the shift inspection, and        public comment on the issues
 whether the removal of non-hinged        raised in the recommendation.
 inspection plates should be required
 during the shift inspection.
The Panel recommends that OSHA solicit   OSHA solicited comments on this
 public comment on whether to include     issue, but the Agency did not
 an exception for transportation          receive any significant
 systems in proposed Sec.                 comments supporting an
 1926.1412(a), which requires an          exception for transportation
 inspection of equipment that has had     systems. Based on the analysis
 modifications or additions that affect   of comments received about
 its safe operation, and, if so, what     Sec.   1926.1412(a), OSHA
 the appropriate terminology for such     concludes that the inspections
 an exception would be.                   of modifications as required
                                          by the final rule are
                                          sufficient to ensure that safe
                                          equipment is used. Therefore,
                                          OSHA did include the
                                          recommended exclusion in the
                                          final rule.
The Panel recommends that OSHA explain   In the explanation of Sec.
 in the preamble that the shift           1926.1412(d)(1) of the
 inspection does not need to be           proposed rule, OSHA explained
 completed prior to each shift but may    that the shift inspection may
 be completed during the shift.           be completed during the shift.
                                          OSHA finalized Sec.
                                          1926.1412(d)(1) as proposed
                                          because the comments did not
                                          demonstrate how it was safer
                                          to deviate from the rule as
                                          proposed.
The Panel recommends that OSHA solicit   OSHA requested public comment
 public comment about whether it is       on this issue and revised the
 necessary to clarify the requirement     regulatory text of Sec.
 of proposed Sec.   1926.1412(d)(1)(xi)   1926.1412(d)(1)(xi) to provide
 that the equipment be inspected for      more clarity, in response to
 ``level position.''.                     the comments the Agency
                                          received.
The Panel recommends that OSHA solicit   There is no requirement to
 comment on whether proposed Sec.         check the pressure ``at each
 1926.1412(f)(2)(xii)(D) should be        and every line.'' The
 changed to require that pressure be      provision simply states that
 inspected ``at the end of the line,''    relief valves should be
 as distinguished from ``at each and      checked for failure to reach
 every line,'' and if so, what the best   correct pressure. If this can
 terminology would be to meet this        be done at one point for the
 purpose. (An SER indicated that          entire system, then that would
 proposed Sec.                            satisfy the requirement.
 1926.1412(f)(2)(xiv)(D) should be
 modified to ``checking pressure
 setting,'' in part to avoid having to
 check the pressure at ``each and every
 line'' as opposed to ``at the end of
 the line.'').
The Panel recommends that OSHA solicit   Section 1926.1412(f)(2)(xx) of
 public comment on whether proposed       the final rule does not
 Sec.   1926.1412(f)(2)(xx) should be     require the corrective action
 deleted because an SER believes that     to which the SER refers. If an
 it is not always appropriate to retain   inspection under Sec.
 originally-equipped steps and ladders,   1926.1412(f) reveals a
 such as in instances where they are      deficiency, a qualified person
 replaced with ``attaching dollies.''.    must determine whether that
                                          deficiency is a safety hazard
                                          requiring immediate
                                          correction. If the inspection
                                          reveals that original
                                          equipment, such as stairs and
                                          ladders, have been replaced
                                          with something equally safe,
                                          there would be no safety
                                          hazard and no requirement for
                                          corrective action.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on the extent of          Sec.   1926.1412(f)(7), OSHA
 documentation of monthly and annual/     requested public comment on
 comprehensive inspections the rule       this issue. OSHA finalized
 should require.                          Sec.   1926.1412(f)(7) as
                                          proposed because the comments
                                          did not demonstrate a need to
                                          modify the extent of required
                                          documentation.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on whether the            Sec.   1926.1412(e), OSHA
 provision for monthly inspections        requested public comment on
 should, like the provision for annual    this issue. In response to
 inspections, specify who must keep the   these comments, OSHA has
 documentation associated with monthly    explained in the final
 inspections.                             preamble that the employer who
                                          performs the inspection must
                                          maintain documentation. If
                                          another employer wants to rely
                                          on this inspection, but cannot
                                          ensure completion and
                                          documentation of the
                                          inspection, then that employer
                                          must conduct a monthly
                                          inspection.
The Panel recommends that OSHA consider  OSHA addressed this
 ways to account for the possibility      recommendation in the
 that there may sometimes be an           discussion of proposed Sec.
 extended delay in obtaining the part     1926.1416(d), and requested
 number for an operational aid for        public comment on the issue.
 older equipment and solicit public       The Agency did not receive any
 comment on the extent to which this is   significant comments.
 a problem.
The Panel recommends that the provision  Except for a minor change to
 on fall protection (proposed Sec.        Sec.   1926.1423(h), which was
 1926.1423) be finalized as written and   made for clarity purposes,
 that OSHA explain in the preamble how    OSHA has finalized Sec.
 and why the Committee arrived at this    1926.1423 as proposed. OSHA
 provision.                               explained the Committee's
                                          rationale in the proposed
                                          preamble discussion of Sec.
                                          1926.1423.
The Panel recommends that OSHA consider  OSHA addressed these
 the potential advantages of and          recommendations in the
 solicit public comment on adding         discussion of proposed Sec.
 provisions to proposed Sec.              1926.1427, and requested
 1926.1427 that would allow an operator   public comment on the issues
 to be certified on a particular model    raised by the Panel. Based on
 of crane; allow tests to be              these comments, OSHA is not
 administered by an accredited            permitting certification on a
 educational institution; and allow       particular crane model because
 employers to use manuals that have       the body of knowledge and
 been re-written to accommodate the       skills required to be
 literacy level and English proficiency   qualified/certified on a
 of operators.                            particular model of crane is
                                          not less than that needed to
                                          be qualified/certified for
                                          that model's type and
                                          capacity. OSHA is not allowing
                                          an institution accredited by
                                          the Department of Education
                                          (DOE) to certify crane
                                          operators solely on the basis
                                          of DOE accreditation; such
                                          institutions would, like other
                                          operator-certification
                                          entities used to fulfill
                                          Option (1), be accredited by a
                                          ``nationally recognized''
                                          accrediting body. Finally,
                                          OSHA is permitting employers
                                          to re-write manuals to
                                          accommodate the literacy level
                                          and English proficiency of
                                          operators.

[[Page 47917]]


The Panel recommends that OSHA clarify   In the discussion of proposed
 in the preamble how the proposed rule    Sec.   1926.1427(h), OSHA
 addresses an SER's concern that his      proposed to allow the oral
 crane operator would not be able to      administration of tests if two
 pass a written qualification/            prerequisites are met. None of
 certification exam because the           the comments explained why the
 operator has difficulty in taking        rule as proposed was not
 written exams.                           effective for evaluating the
                                          knowledge of the candidate.
The Panel recommends soliciting public   OSHA received public comments
 comment on whether the phrase            on this issue. In the final
 ``equipment capacity and type'' in       preamble discussion of Sec.
 proposed Sec.   1926.1427(b)(1)(ii)(B)   1926.1427(b)(1)(ii)(B), OSHA
 needs clarification, suggestions on      explains that the Agency added
 how to accomplish this, and whether      a definition of ``type'' in
 the categories represented in Figures    response to public comment.
 1 through 10 contained in ANSI B30.5-    The Agency also references
 2000 (i.e., commercial truck-mounted     ANSI crane categories to
 crane--telescoping boom; commercial      illustrate the meaning of
 truck-mounted crane--non-telescoping     ``type'' in this standard.
 boom; crawler crane; crawler crane--
 telescoping boom; locomotive crane;
 wheel-mounted crane (multiple control
 station); wheel-mounted crane--
 telescoping boom (multiple control
 station); wheel-mounted crane (single
 control station); wheel-mounted crane--
 telescoping boom (single control
 station)) should be used.
The Panel recommends that OSHA ask for   OSHA addressed this
 public comment on whether the rule       recommendation in the
 needs to state more clearly that Sec.    discussion of proposed Sec.
  1926.1427(j)(1)(i) requires more        1926.1430(c), and explained
 limited training for operators of        that Sec.   1926.1427(j)(1)'s
 smaller capacity equipment used in       requirement for operator
 less complex operations as compared      training in ``the information
 with operators of higher capacity,       necessary for safe operation
 more complex equipment used in more      of the specific type of
 complex situations.                      equipment the individual will
                                          operate'' addressed the SERs'
                                          concern. However, the Agency
                                          sought public comment on this
                                          issue. OSHA finalized Sec.
                                          1926.1427(j)(1) as proposed
                                          because the comments failed to
                                          explain how the hazards
                                          related to the operation of
                                          smaller equipment differed
                                          from larger equipment. OSHA
                                          then concluded that the
                                          comments also were not
                                          persuasive as to why operators
                                          of smaller capacity equipment
                                          should be allowed limited
                                          training.
The Panel recommends that OSHA consider  OSHA addressed this
 and ask for public comment on whether    recommendation in the
 a more limited training program would    discussion of proposed Sec.
 be appropriate for operations based on   1926.1430(c) requested public
 the capacity and type of equipment and   comment on the issue. The
 nature of operations.                    comments failed to explain how
                                          the hazards related to smaller
                                          equipment were any different
                                          from larger equipment. OSHA
                                          then concluded that the
                                          comments also were not
                                          persuasive as to why operators
                                          of smaller capacity equipment
                                          should be allowed limited
                                          training.
The Panel recommends that OSHA consider  OSHA addressed this
 and ask for public comment as to         recommendation in the
 whether the supervisor responsible for   discussion of proposed Sec.
 oversight for an operator in the pre-    1926.1430(c). and requested
 qualification period (Sec.               public comment on the issue.
 1926.1427(f)) should have additional     In the proposed preamble, OSHA
 training beyond that required in the C-  stated that, where a
 DAC document at Sec.                     supervisor is not a certified
 1926.1427(f)(2)(iii)(B).                 operator, ``he/she must be
                                          certified on the written
                                          portion of the test and be
                                          familiar with the proper use
                                          of the equipment's controls;
                                          the supervisor is not required
                                          to have passed a practical
                                          operating test.'' OSHA
                                          finalized this requirement
                                          without substantive change in
                                          Sec.   1926.1427(f)(3)(ii) as
                                          proposed because none of the
                                          comments demonstrated a need
                                          to require additional training
                                          for this qualified individual.
The Panel recommends OSHA solicit        In the discussion of proposed
 comment on whether there are qualified   Sec.   1926.1437(n)(2), OSHA
 persons in the field with the            requested public comment on
 necessary expertise to assess how the    this issue. Based on these
 rated capacity for land cranes and       comments, OSHA has concluded
 derricks used on barges and other        that there are qualified
 flotation devices needs to be modified   persons with dual expertise,
 as required by proposed Sec.             and that the requirement in
 1926.1437(n)(2).                         Sec.   1926.1437(n)(2) is
                                          necessary for safety when
                                          equipment is engaged in duty
                                          cycle work.
The Panel also recommends that OSHA
 solicit comment on whether it is
 necessary, from a safety standpoint,
 to apply this provision to cranes used
 only for duty cycle work, and if so,
 why that is the case, and how ``duty
 cycle work'' should be defined.
The Panel recommends that OSHA consider  In the discussion of proposed
 and ask for comment on whether it        Sec.   1926.1440(a), OSHA
 would be appropriate to exempt from      requested public comment on
 the rule small sideboom cranes           this issue. These comments did
 incapable of lifting above the height    not provide any specific
 of a truck bed and with a capacity of    reason for exempting these
 not more than 6,000 pounds.              small sideboom cranes and,
                                          therefore, OSHA has not
                                          provided a small capacity
                                          sideboom crane exemption from
                                          this standard.
The Panel recommends that OSHA solicit   The length and
 public comment on how the proposed       comprehensiveness of the
 rule could be simplified (without        standard is an issue for this
 creating ambiguities) and made easier    rulemaking. In the proposed
 to understand. (Several SERs believed    preamble Introduction, OSHA
 that the C-DAC document was so long      requested public comment on
 and complex that small businesses        this issue; however, the
 would have difficulty understanding it   Agency did not receive any
 and complying with it.).                 comments objecting to the
                                          length or clarity of the
                                          overall rule or offer any
                                          suggestions as to how it could
                                          be simplified.
The Panel recommends that OSHA consider  OSHA will consider developing
 outlining the inspection requirements    such an aid as a separate
 in spreadsheet form in an Appendix or    guidance document.
 developing some other means to help
 employers understand what inspections
 are needed and when they must be done.

[[Page 47918]]


The Panel recommends that OSHA consider  Some SERs requested
 whether use of the words ``determine''   clarification as to when
 and ``demonstrate'' would mandate that   documentation was required,
 the employer keep records of such        believing that the document
 determinations and if records would be   implicitly requires
 required to make such demonstrations.    documentation when it states
                                          that the employer must
                                          ``determine'' or
                                          ``demonstrate'' certain
                                          actions or conditions. OSHA
                                          notes that it cannot cite an
                                          employer for failing to have
                                          documentation not explicitly
                                          required by a standard. See
                                          also the discussion under
                                          proposed Sec.   1926.1402(e).
The Panel recommends soliciting public   In the discussion of proposed
 comment on whether the word ``days''     Sec.   1926.1416(d), OSHA
 as used in Sec.  Sec.   1926.1416(d)     requested public comment on
 and 1926.1416(e) should be clarified     this issue. As a clarification
 to mean calendar days or business days.  in response to the comments
                                          received, OSHA determines that
                                          the term ``days'' refers to
                                          calendar days.
The Panel recommends that OSHA           OSHA proposed a scope section,
 carefully discuss what is included and   Sec.   1926.1400, and
 excluded from the scope of this          discussed in detail the types
 standard.                                of machinery proposed to be
                                          included and excluded under
                                          this standard. OSHA received
                                          public comments on this
                                          proposed scope, analyzed the
                                          comments, and provided more
                                          discussion of the scope
                                          section in the final preamble.
The Panel recommends that OSHA gather    OSHA obtained and evaluated a
 data and analyze the effects of          study by the Construction
 already existing certification           Safety Association of Ontario
 requirements.                            showing that Ontario's
                                          certification requirement led
                                          to a substantial decrease in
                                          crane-related fatalities
                                          there. OSHA also examined both
                                          economic data of crane
                                          operator wage rates before and
                                          after the certification
                                          requirements, and fatality
                                          rates before and after the
                                          certification requirements.
                                         This data shows that costs
                                          disruptions were minimal, and
                                          that crane fatalities were
                                          significantly reduced as a
                                          result of the California
                                          certification standard.
The Panel recommends that OSHA consider  In the discussion of proposed
 excluding and soliciting comment on      Sec.   1926.1400(c), OSHA
 whether equipment used solely to         requested public comment on
 deliver materials to a construction      this issue. Based on the
 site by placing/stacking the materials   analysis of the comments
 on the ground should be explicitly       received, OSHA recognized an
 excluded from the proposed standard's    exclusion for delivery
 scope.                                   materials that should exclude
                                          most true deliveries, while
                                          avoiding creating a loophole
                                          to the standard that would
                                          allow materials-delivery firms
                                          to engage in extensive
                                          construction activities.
The Panel recommends that OSHA should    The information and opinions
 consider the information and range of    submitted by the SERs are part
 opinions that were presented by the      of the record for this
 SERs on the issue of operator            rulemaking, and OSHA
 qualification/certification when         considered them along with the
 analyzing the public comments on this    other public comments on the
 issue.                                   proposed rule.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on            recommendation in the
 expanding the levels of certification    discussion of proposed Sec.
 so as to allow an operator to be         1926.1427, and requested
 certified on a specific brand's model    public comment on the issue.
 of crane.                                Based on these comments, OSHA
                                          is not permitting
                                          certification on a particular
                                          crane model because the body
                                          of knowledge and skills
                                          required to be qualified/
                                          certified on a particular
                                          model of crane is not less
                                          than that needed to be
                                          qualified/certified for that
                                          model's type and capacity.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on            recommendation in the
 expanding the levels of operator         discussion of proposed Sec.
 qualification/certification to allow     1926.1427(j)(1), and requested
 an operator to be certified for a        public comment on this issue.
 specific, limited type of                Though several commenters were
 circumstance. Such a circumstance        in favor of this option, they
 would be defined by a set of             did not explain how these
 parameters that, taken together, would   lifts could objectively be
 describe an operation characterized by   distinguished from lifts
 simplicity and relatively low risk.      generally. Several other
 The Agency should consider and solicit   commenters indicated that the
 comment on whether such parameters       types of hazards present and
 could be identified in a way that        the knowledge needed to
 would result in a clear, easily          address those hazards,
 understood provision that could be       remained the same, regardless
 effectively enforced.                    of the capacity of the crane
                                          involved or the ``routine''
                                          nature of the lift (see
                                          discussion of Sec.
                                          1926.1427(a)). Based on these
                                          comments, the Agency has not
                                          promulgated such a provision.
The Panel recommends that OSHA consider  OSHA addressed this
 and solicit public comment on allowing   recommendation in the
 the written and practical tests          discussion of proposed Sec.
 described in Option (1) to be            1926.1427(b)(3), and requested
 administered by an accredited            public comment on the issue.
 educational institution.                 Several comments were
                                          submitted in favor of allowing
                                          this option; however, they did
                                          not establish that Department
                                          of Education (DOE)
                                          accreditation would guarantee
                                          the same efficacy in
                                          certification as accreditation
                                          as a personnel certification
                                          entity.
                                         The hearing testimony of Dr.
                                          Roy Swift explained the
                                          difference in the types of
                                          accreditation and the reasons
                                          why DOE accreditation would
                                          not adequately address
                                          operator certification issues.
                                          Therefore, OSHA has finalized
                                          this provision as it was
                                          proposed.
The Panel recommends that OSHA solicit   In the discussion of proposed
 public comment on making it clear        Sec.   1926.1427(h)(1), OSHA
 that: (1) an employer is permitted to    requested public comment on
 equip its cranes with manuals re-        this issue. Based on the
 written in a way that would allow an     analysis of the comments
 operator with a low literacy level to    received, OSHA concludes that
 understand the material (such as         these manuals may not be re-
 substituting some text with pictures     written as recommended because
 and illustrations), and (2) making it    it could cause information
 clear that, when the cranes are          important for safety to be
 equipped with such re-written manuals    omitted.
 and materials, the ``manuals'' and
 ``materials'' referred to in these
 literacy provisions would be the re-
 written manuals.

[[Page 47919]]


The Panel recommends that OSHA explain   OSHA will issue a Small
 in a Small Business Compliance Guide     Business Compliance Guide
 that the certification/qualification     after the final rule is
 test does not need to be administered    issued, and will explain these
 in English but can be administered in    points in the Guide.
 a language that the candidate can
 read; and that while the employee
 would also need to have a sufficient
 level of literacy to read and
 understand the relevant information in
 the equipment manual, that requirement
 would be satisfied if the material is
 written in a language that the
 employee can read and understand.
------------------------------------------------------------------------

IV. Summary and Explanation of the Rule

Authority Citations

    For all subparts affected by this rulemaking, the authority 
citations have been amended to refer to the documentation that permits 
the promulgation of this rule.

Removal of Sec.  1926.31 and Addition of Sec.  1926.6--Incorporation by 
Reference

    Section 1926.31 of 29 CFR part 1926 provided information about 
locating documents incorporated by reference into all of the 
construction standards in that part. The Agency is removing this 
section and relocating the majority of its text to new 29 CFR 1926.6 
for several reasons. First, the change in the location of the section 
from Sec.  1926.31 to Sec.  1926.6 is for organizational purposes. New 
Sec.  1926.6 is within 29 CFR part 1926 subpart A (``General''), which 
is a more logical placement than Sec.  1926.31, which is within subpart 
C (``General Safety and Health Provisions''), and is the same section 
number (6) as the incorporation reference section for general industry 
standards: 29 CFR 1910.6. Second, OSHA is relocating the list of all 
documents incorporated by reference into 29 CFR part 1926 from its 
previous location in the ``Finding Aids'' of the CFR to Sec.  1926.6 
because the Federal Register is no longer publishing the list in the 
hardcopy versions of the CFR.\2\
---------------------------------------------------------------------------

    \2\ The list will still be available online at http://
www.gpoaccess.gov/ecfr from the link to ``Incorporated by 
Reference.''
---------------------------------------------------------------------------

    The Agency is restructuring the text previously located in Sec.  
1926.31 to make Sec.  1926.6 parallel 29 CFR 1910.6, which lists the 
documents incorporated by reference into the general industry standards 
in 29 CFR part 1910. OSHA is not including the text formerly in 29 CFR 
1926.31(b), which could be read as implying that OSHA intended to 
incorporate into its standards, without following the procedures 
specified in 1 CFR part 51, revised versions of documents previously 
incorporated by reference.
    OSHA determined that the addition of Sec.  1926.6 and the removal 
of Sec.  1926.31 are not subject to the procedures for public notice 
and comment specified by sec 4 of the Administrative Procedures Act (5 
U.S.C. 553), sec. 6(b) of the Occupational Safety and Health Act of 
1970 (29 U.S.C. 655(b)), and 29 CFR part 1911. New Sec.  1926.6, like 
the Sec.  1926.31 it replaces, is a rule of agency organization, 
procedure, or practice within the meaning of 5 U.S.C. 553(b)(3)(A), and 
the addition of Sec.  1926.6 constitutes a technical amendment that 
does not affect or change any existing rights or obligations. No member 
of the regulated community is likely to object to it. In conclusion, 
OSHA finds good cause that the opportunity for public comment is 
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 
655(b), and 29 CFR 1911.5.
    In addition to relocating the list of documents from the Finding 
Aids list, OSHA is adding to the list of documents incorporated by 
reference those documents that are newly incorporated by reference in 
these final rules. The Federal Register approved these documents, which 
are listed as follows, for incorporation by reference as of November 8, 
2010: ANSI B30.5-1968; ASME B30.2-2005; ASME B-30.5-2004; ASME B30.7-
2001; ASME B30.14-2004; AWS D1.1/D1.1M:2002; ANSI/AWS D14.3-94; BS EN 
13000:2004; BS EN 14439:2006; ISO 11660-1:2008(E); ISO 11660-2:1994(E); 
ISO 11660-3:2008(E); PCSA Std. No. 2 (1968); SAE J185 (May 2003); SAE 
J987 (Jun. 2003); and SAE J1063 (Nov. 1993).

Subpart L--Scaffolds

Amendments to Sec.  1926.450
    The agency is removing the reference to former Sec.  1926.550(g) 
from this section because former Sec.  1926.550(g) has been 
redesignated and reserved by this rulemaking. Section 1926.450(a) 
explains that this section applies to all scaffolds used in work 
covered by subpart L. Prior to the promulgation of this final rule, it 
referenced former Sec.  1926.550(g) to explain that Sec.  1926.450 did 
not apply to crane- or derrick-suspended personnel platforms. Prior to 
the promulgation of this final rule, former Sec.  1926.550(g)(2) 
regulated crane- or derrick-suspended personnel platforms. Personnel 
platforms suspended by cranes or derricks are now regulated by Sec.  
1926.1431. This change does not affect the requirements of Sec.  
1926.450(a), does not change any existing rights or obligations, and no 
member of the regulated community is likely to object to it. OSHA, 
therefore, finds good cause that the opportunity for public comment is 
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 
655(b), and 29 CFR 1911.5.

Subpart M--Fall Protection

Amendments to Sec.  1926.500
    Prior to the promulgation of this final rule, Sec.  
1926.500(a)(2)(ii) stated that subpart N set forth the workplaces, 
conditions, operations, and circumstances for which fall protection 
must be provided for employees working on ``certain cranes and 
derricks.'' Because subpart CC now provides comprehensive requirements 
for the provision of fall protection to workers on equipment covered by 
subpart CC, the Agency amended Sec.  1926.500(a)(2)(ii) by replacing 
the reference to subpart N with a reference to subpart CC and deleting 
the word ``certain.''
    Section 1926.500(a)(3) provided that the requirements for the 
installation, construction, and proper use of fall protection for 
construction workers were set forth in Sec.  1926.502 of subpart M, 
with certain exceptions. OSHA amended Sec.  1926.500(a)(3) to provide 
an exception for steps, handholds, ladders, and grabrails/guardrails/
railings required by subpart CC because the criteria for those forms of 
fall protection are provided in subpart CC. This exception, Sec.  
1926.500(a)(3)(v), also clarifies that Sec. Sec.  1926.502(a), (c)-(e), 
and (i) apply unless otherwise stated in subpart CC, and that no other 
paragraphs of Sec.  1926.502 apply to subpart CC. The exception reduces 
the

[[Page 47920]]

extent to which Sec.  1926.502 applies to work covered under subpart 
CC, and clarifies that subpart CC generally sets forth the criteria for 
the fall protection systems required under subpart CC.
    Section 1926.500(a)(4) stated that Sec.  1926.503 sets forth the 
requirements for training in the installation and use of fall 
protection systems, except in relation to steel erection activities. 
The Agency added the phrase ``and the use of equipment covered by 
subpart CC'' at the end of the exception to make clear that the fall 
protection training requirements in Sec.  1926.503 of subpart M do not 
apply to fall protection systems when used to comply with subpart CC. 
Training for fall protection systems required by subpart CC is governed 
by Sec.  1926.1423(k).

Subpart N--Helicopters, Hoists, Elevators, and Conveyors

    The heading of subpart N has been changed to ``Helicopters, Hoists, 
Elevators, and Conveyors.'' The revision of the heading reflects both 
the equipment that is now regulated by subpart N and the removal of 
sections regulating cranes and derricks from subpart N to subpart CC.

Amendments to Sec.  1926.550

    Cranes and derricks used in construction had been regulated by 
Sec.  1926.550. Subpart CC is now the applicable standard for 
regulating the use of cranes and derricks in construction. Section 
1926.550 has been redesignated as Sec.  1926.1501 and reserved.

Amendments to Sec.  1926.553

    OSHA revised Sec.  1926.553 to include a new provision, Sec.  
1926.553(c). This section explains that Sec.  1926.553 does not apply 
to base-mounted drum hoists used in conjunction with derricks. Instead, 
base-mounted drum hoists used with derricks must conform to the 
requirements of Sec.  1926.1436. This change was made in response to a 
request by a commenter who wanted to clarify that the requirements for 
base-mounted drum hoists used with derricks could be found in new 
subpart CC. (ID-0130.1.) No information was submitted to the record 
that indicates OSHA should not make the revision to Sec.  1926.553.
    OSHA determined that the revision addresses the commenter's 
concerns regarding the applicability of Sec.  1926.553 and enhances the 
clarity of the final rule. This revision ensures that base-mounted drum 
hoists used in the design of derricks meet the updated requirements of 
ASME B30.7-2001, which is referenced in Sec.  1926.1436. The older ANSI 
B30.7-1968, which is referenced in Sec.  1926.553, continues to apply 
to all base-mounted drum hoists not used in conjunction with derricks.

Subpart O--Motorized Vehicles, Mechanical Equipment, and Marine 
Operations

Amendments to Sec.  1926.600
    This section regulates motor vehicles, mechanized equipment, and 
marine operations. Prior to the promulgation of this final rule, Sec.  
1926.600(a)(6) referenced Sec.  1926.550(a)(15), which has been 
redesignated and reserved. Because the Agency inadvertently did not 
propose any revision of Sec.  1926.600(a)(6), OSHA is preserving the 
same requirements imposed by former Sec.  1926.550(a)(15) pursuant to 
this section by incorporating language substantively identical to that 
of former Sec.  1926.550(a)(15) into revised Sec.  1926.600(a)(6). The 
revision of Sec.  1926.600(a)(6) does not alter any of the substantive 
requirements of that section, does not change any existing rights or 
obligations, and no member of the regulated community is likely to 
object to it. OSHA, therefore, finds good cause that the opportunity 
for public comment is unnecessary within the meaning of 5 U.S.C. 
533(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart R--Steel Erection

Amendments to Sec.  1926.753 Hoisting and Rigging
    With the exception of former Sec.  1926.550(g)(2), Sec.  
1926.753(a) applied all of the provisions of former Sec.  1926.550 to 
hoisting and rigging during steel erection. Similarly, Sec.  
1926.753(c)(4) allowed cranes and derricks to hoist workers on a 
personnel platform in accordance with all of former Sec.  1926.550 
except former Sec.  1926.550(g)(2). Because former Sec.  1926.550 has 
been redesignated and reserved, Sec.  1926.753 has been revised to 
avoid changing the requirements of that section. Section 1926.753(a) 
applies all of subpart CC except Sec.  1926.1431(a) to hoisting and 
rigging, and Sec.  1926.753(c)(4) applies all of Sec.  1926.1431 except 
Sec.  1926.1431(a). These two paragraphs of Sec.  1926.753 reference 
Sec.  1926.1431(a) because the requirement formerly found in Sec.  
1926.550(g)(2) is now contained in Sec.  1926.1431(a) of subpart CC.

Subpart S--Underground Construction, Caissons, Cofferdams, and 
Compressed Air

Amendments to Sec.  1926.800
    This section regulates hoisting unique to underground construction. 
Prior to the promulgation of this final rule, Sec.  1926.800(t) of this 
section referenced former Sec.  1926.550(g), which has been 
redesignated Sec.  1926.1501(g). The Agency intended that the reference 
to former Sec.  1926.550(g) be replaced by a reference to new subpart 
CC, but inadvertently omitted that action from the Federal Register 
notice for the proposed rule. To avoid any potential notice issues that 
might arise if the Agency substituted a reference to subpart CC in 
place of the prior reference to former Sec.  1926.550(g), the Agency 
has instead elected to redesignate Sec.  1926.550 as Sec.  1926.1501 in 
new subpart DD, which has been created for this purpose. The Agency 
intends to revisit this issue in the near future.
    References to former Sec.  1926.550(g) have been replaced with 
references to Sec.  1926.1501(g). This redesignation of Sec.  1926.550 
and the replacement of references do not alter any of the substantive 
requirements of Sec.  1926.800(t), do not change any existing rights or 
obligations, and no member of the regulated community is likely to 
object to it. OSHA, therefore, finds good cause that the opportunity 
for public comment is unnecessary within the meaning of 5 U.S.C. 
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart T--Demolition

Amendments to Sec. Sec.  1926.856 and 1926.858
    These sections regulate the use of cranes and in demolition work. 
Prior to the promulgation of this final rule, Sec. Sec.  1926.856(c) 
and 1926.858(b) referenced subpart N, part of which (former Sec.  
1926.550) has been redesignated as Sec.  1926.1501. The Agency intended 
for the reference to subpart N in Sec.  1926.856(c) to be supplemented 
with a reference to new subpart CC, and intended that the reference to 
subpart N in Sec.  1926.858(b) be replaced by a reference to new 
subpart CC, but inadvertently omitted that action from the Federal 
Register notice for the proposed rule. To avoid any potential notice 
issues that might arise if the Agency substituted a reference to new 
subpart CC in place of the prior reference to subpart N, the Agency has 
instead elected to redesignate Sec.  1926.550 as Sec.  1926.1501 in

[[Page 47921]]

a new subpart DD which has been created for this purpose. The Agency 
intends to revisit this issue in the near future.
    References to subpart N in Sec. Sec.  1926.856(c) and 1926.858(b) 
have been supplemented or replaced with references to Sec.  1926.1501. 
This redesignation of Sec.  1926.550 and the replacement of references 
do not alter any of the substantive requirements of Sec. Sec.  
1926.856(c) and 1926.858(b), do not change any existing rights or 
obligations, and no member of the regulated community is likely to 
object to it. OSHA, therefore, finds good cause that the opportunity 
for public comment is unnecessary within the meaning of 5 U.S.C. 
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Subpart V--Power Transmission and Distribution

Amendment to Sec.  1926.952
    The subpart V provisions have been changed to reflect the 
terminology used in the scope section of this standard and its new 
subpart designation. Accordingly, Sec.  1926.952(c), which referenced 
subpart N with respect to derrick trucks and cranes, has been revised 
to reference subpart CC. Prior to this final rule, Sec. Sec.  
1926.952(c)(1)(i) and (ii) addressed minimum clearance distances. 
Because Sec. Sec.  1926.1407 through 1926.1411 address minimum 
clearance distances when clearance distances in Table V-1 would apply 
to derrick trucks and cranes used in subpart V work, Sec. Sec.  
1926.952(c)(1)(i) and (ii) have been deleted.
    In conformance with language in Sec.  1926.1400(c)(4), the agency 
is adding new Sec.  1926.952(c)(2) into subpart V. It states that 
digger derricks used for augering holes for electrical poles, placing 
and removing the poles, or handling associated materials to be 
installed or removed from the poles must comply with 29 CFR 1910.269. 
This provision ensures comparable safety requirements exist for digger 
derricks performing electrical pole work.
    What was Sec.  1926.952(c)(2) prior to the promulgation of this 
final rule has been redesignated Sec.  1926.952(c)(3). Former 
Sec. Sec.  1926.952(c)(2)(i) and (ii) listed precautions for operating 
mechanical equipment closer to energized power lines than allowed by 
Sec.  1926.950(c). The precautions (using an insulated barrier and 
grounding the equipment) that were specified in Sec. Sec.  
1926.952(c)(2)(i) and (ii) are now required under Sec.  1926.1410(d) 
when equipment used in subpart V work is operated closer than the Table 
V-1 clearances. Since these precautions are now required by Sec.  
1926.1410(d), OSHA is deleting them from subpart V. As a result of that 
deletion, former Sec. Sec.  1926.952(c)(2)(iii) and (iv) are 
redesignated Sec. Sec.  1926.952(c)(3)(i) and (ii).
    OSHA is also adding a note after new Sec.  1926.952(c)(3) to cross-
reference the safe harbor in Sec.  1926.1400(g), which provides that 
employers performing subpart V work have the option of complying with 
29 CFR 1910.269(p) in lieu of the requirements in Sec. Sec.  1926.1407 
through 1926.1411 of new subpart CC. For additional information, see 
the discussion of Sec.  1926.1400(g) in the preamble to this final 
rule.

Subpart X--Stairways and Ladders

Amendment to Sec.  1926.1050 Scope, Application, and Definitions 
Applicable to This Subpart
    This section applies the provisions of subpart X to all stairways 
and ladders used in construction. However, C-DAC concluded that the 
OSHA requirements of subpart X did not account for the characteristics 
of the equipment that would be regulated by subpart CC. OSHA agreed 
with the committee and, accordingly, is amending Sec.  1926.1050(a) to 
explain that subpart X does not apply to integral components of 
equipment covered by subpart CC. It further explains that only subpart 
CC establishes the circumstances when ladders and stairways must be 
provided on equipment covered by subpart CC. This revision is also 
discussed in the preamble section for Sec.  1926.1423(c).

Appendix A to Part 1926 Designations for General Industry Standards 
Incorporated Into Body of Construction Standards

    OSHA modified Appendix A to part 1926. Before the promulgation of 
this final rule, Appendix A referred to former Sec.  1926.550(a)(19), 
which has been redesignated and reserved. Therefore, the reference to 
this section and the reference to the general industry standard it 
incorporated, Sec.  1910.184(c)(9), have been deleted. This deletion is 
a technical and conforming change, does not change any existing rights 
or obligations, and no member of the regulated community is likely to 
object to it. OSHA, therefore, finds good cause that the opportunity 
for public comment is unnecessary within the meaning of 5 U.S.C. 
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5

29 CFR Part 1926 Subpart CC

    The Agency is promulgating Subpart CC for regulating the use of 
cranes and derricks in construction. Cranes and derricks used in 
construction had been regulated by Sec.  1926.550. Accordingly, Sec.  
1926.550 has been redesignated and reserved.
Section 1926.1400 Scope
    As explained in the proposed rule, C-DAC decided to describe the 
scope of the rule with both a functional description (``power-operated 
equipment used in construction that can hoist, lower, and horizontally 
move a suspended load'') together with a non-exclusive list of the 
types of existing equipment that are covered.\3\ By defining the scope 
in this way, C-DAC tried to provide the clearest possible notice as to 
the equipment that is covered by the standard while also including new 
and/or other existing equipment that is similar to the listed examples.
---------------------------------------------------------------------------

    \3\ The scope of the standard with respect to some of the listed 
equipment is further delineated in the section of the standard that 
specifically relates to that equipment (for example, Sec.  
1926.1436, Derricks and Sec.  1926.1438, Overhead & Gantry Cranes).
---------------------------------------------------------------------------

    One commenter objected to this approach, believing that the 
approach does not provide the regulated community with clear notice of 
the bounds of the regulated equipment. (ID-0286.1.) This commenter 
recommended that OSHA avoid this perceived notice problem by limiting 
the scope of the standard to equipment described in ASME B30 standards. 
It recommended adding the words ``and is described in American Society 
of Mechanical Engineers ASME B30 standards'' at the end of the first 
sentence of proposed paragraph (a) of this section.
    OSHA disagrees with this commenter that paragraph (a), when read 
together with the list of exclusions in paragraph (c) of this section, 
does not provide clear notice as to what equipment is covered and what 
is excluded. As explained earlier, paragraph (a) is designed to make 
clear the types of existing equipment that are covered while also 
covering newly-developed equipment that is similar to the listed 
examples. The approach suggested by the commenter would limit any 
coverage of newly developed equipment to any such equipment that might 
be included in an unspecified future ASME B30 standard, without the 
opportunity for OSHA to assess that equipment to determine whether its 
exemption from subpart CC would be appropriate. OSHA concludes that 
this approach may unduly limit the scope of subpart CC. In addition, it 
would contradict the intent of C-DAC with respect to several specific 
types of equipment. For example, at least three

[[Page 47922]]

types of covered equipment that meet the functional definition in 
paragraph (a), dedicated pile drivers,\4\ digger derricks (see the 
discussion of digger derricks below under paragraph (c)(4)), and 
straddle cranes are not covered in ASME B30 standards, while the ASME 
B30 standards include equipment (e.g., stacker cranes) not covered 
under this standard. Thus, adopting the commenter's suggestion would 
exclude certain equipment that C-DAC intended to include and would 
introduce ambiguity over whether certain types of equipment that C-DAC 
intended to exclude are included. Where the commenter has not made a 
compelling argument as to why the standard would be improved by 
adopting the ASME standards, OSHA defers to C-DAC's expertise on this 
issue.
---------------------------------------------------------------------------

    \4\ The proposed rule explained in detail why C-DAC decided to 
include dedicated pile drivers under this rule even though they are 
not traditionally considered to be cranes or derricks (see 73 FR 
59727, Oct. 9, 2008).
---------------------------------------------------------------------------

    A commenter objected to defining the scope of the standard in terms 
of types of equipment, saying that it represented an unexplained 
departure from OSHA's practice of describing the scope of construction 
standards in terms of conditions and practices. (ID-0203.1.) Contrary 
to this commenter's belief, OSHA has often defined construction 
standards in terms of equipment. See, e.g., subpart L, ``Scaffolds.'' 
Indeed, this rule for cranes and derricks replaces a previous rule for 
cranes and derricks at former Sec.  1926.550, the scope of which was 
also defined in terms of types of equipment.
    Several commenters asked OSHA to clarify the meaning of 
``construction'' as it is used in paragraph (a) of this section. (ID-
0147.1; -0165.1; -0214.1; -0235.1.) Some of these comments asked OSHA 
to clarify whether the use of lifting equipment to deliver materials to 
a construction site is covered under the standard. That issue is 
addressed below and is clarified in a new Sec.  1926.1400(c)(17). One 
commenter noted that OSHA draws a distinction between construction work 
and routine maintenance and asked for examples of activities that fall 
under ``construction'' and under ``maintenance.'' (ID-0147.1.) OSHA 
notes that considerable guidance on this distinction is already 
available. Several interpretive documents that discuss the distinction 
between construction and maintenance in the context of specific 
inquiries and issues are available on OSHA's Web site. See, e.g., 
November 18, 2003, Letter of Interpretation to Raymond V. Knobbs, 
Minnotte Contracting Corporation, available at http://www.osha.gov; 
February 1, 1999, Letter of Interpretation to Randall A. Tindell, 
Williams Power Company, available at http://www.osha.gov; August 11, 
1994, Memorandum from James W. Stanley, Deputy Assistant Secretary, 
available at http://www.osha.gov.
    Two commenters objected to the inclusion of overhead and gantry 
cranes on the basis that such cranes are rarely used in construction 
and that a number of the most significant provisions of the standard, 
such as those covering ground conditions and proximity to power lines, 
do not apply to overhead and gantry cranes. (ID-0122.0; -0191.1.) OSHA 
agrees that overhead and gantry cranes that are installed in general 
industry workplaces and used only incidentally for construction work in 
such facilities should be covered under the general industry standard. 
This final standard accommodates this objective by providing, in Sec.  
1926.1438, that overhead and gantry cranes that are permanently 
installed in a facility are covered by the general industry standard 
even though used in construction work, such as renovating the facility 
in which they are installed. However, under Sec.  1926.1438, overhead 
and gantry cranes that are not permanently installed in a facility, 
such as a launching gantry used in the construction of a bridge, are 
covered by this standard. Such cranes are intended to be used for 
construction work, present many of the same hazards as other equipment 
used in construction work, and are properly regulated under this 
construction standard.
    No other comments were received objecting to the inclusion of items 
on the non-exclusive list in paragraph (a).
    Several commenters asked that construction work performed in 
certain industries be excluded from the standard. The industries making 
such requests include railroads (ID-0170.1; -0176.1); shipbuilders (ID-
0195.1); electric utilities (ID-0203.1; -0215.1); and companies that 
install signs in buildings under construction (ID-0189.1). For all of 
these industries, the commenters identify what they believe are 
specific problems in applying the standard to their activities and 
suggest that the most direct way of solving those problems is to 
exclude them from the standard entirely. For the following reasons, 
OSHA declines to exempt construction work performed by employers in 
these industries from the scope of this standard.
    Two commenters ask that work along railroad rights-of-way be 
excluded from the standard. (ID-0170.1; -0176.1.) They claim that a 
number of provisions in the proposed rule are not suitable for railroad 
operations, including: (1) The operator qualification/certification 
requirement because no current certifying organization tests for the 
type of cranes used by railroads; (2) the requirements for ground 
conditions, work area control, and level positioning; and (3) the 
requirement for a dedicated channel if electronic signals are used. 
They also say that most such work is maintenance rather than 
construction. OSHA concludes there is merit in some of the specific 
concerns raised by these commenters and addresses those concerns in the 
sections of the standard pertaining to them. However, OSHA sees no 
basis for excluding work along railroad rights-of-way from this rule. 
Some such work, such as the replacement or renovation of automotive 
bridges over railroads, is plainly ``construction work'' that is 
appropriately regulated under this construction standard.
    Several commenters raised concerns with the effect that this 
rulemaking would have on electric utilities, including: (1) The limited 
exclusion for digger derricks used in the industry; (2) the proposed 
requirement that employers performing subpart V work show that it is 
infeasible to maintain the normal clearance from energized power lines 
before they can use the less restrictive clearances in subpart V; (3) 
application of the operator qualification/certification requirement to 
the industry; and (4) the duties imposed on utility employers when 
other employers operate equipment near power lines owned or operated by 
the utility employers. (ID-0201.1; -0203.1; -0215.1.) The commenters 
suggest that all of these issues can be resolved by excluding utilities 
entirely from the standard.
    OSHA does not agree that this limited group of concerns justifies 
completely excluding utilities from this standard. The use of cranes in 
utility construction work has always been subject to the construction 
crane standards (see Sec.  1926.952(c)), and these commenters have not 
advanced a persuasive argument to discontinue this practice. The 
specific issues addressed by these commenters with respect to the 
application of this rule to electric utilities will be addressed below 
in sections dealing with those issues.
    A commenter that operates shipyards in three states asks that 
shipyards be excluded from the standard. (ID-0195.1.) This commenter 
states that it currently has an excellent crane safety program that is 
based on general industry and shipyard standards, and asserts that its 
program would be adversely affected by the need to

[[Page 47923]]

administer a separate program for the ``small percentage of lifts'' 
that would fall under the construction standard. The commenter notes 
that the proposed standard has partially addressed its concern by 
providing that overhead and gantry cranes that are permanently 
installed in a facility are subject to the general industry standard 
for such cranes rather than this proposed construction standard. It 
states that shipyards ``could potentially'' use other types of cranes 
to support construction activities at its sites.
    OSHA finds that the proposed rule appropriately addressed this 
issue. Overhead and gantry cranes are one of the most common type of 
crane used in shipyards and, as the commenter notes, Sec.  1926.1438 
allows employers with permanently installed overhead and gantry cranes 
to continue to follow the general industry standard. Moreover, 29 CFR 
1915.2(a), provides that the shipyard standards ``apply to all ship 
repairing, shipbuilding and shipbreaking employments and related 
employments.'' Therefore, some work that would otherwise be considered 
construction work and subject to subpart CC is in fact included in such 
``related employments.'' Therefore, subpart CC will likely affect 
shipyards only to a limited extent.
    While it is understandable that the commenter may find it more 
convenient to administer a single program addressing only the general 
industry and shipyard standards, it has not substantiated its claim 
that the integration of this standard into that program or 
implementation of an additional program addressing this standard would 
not improve safety. The Agency notes that the commenter's construction 
operations have historically been subject to part 1926 subpart N.
    A representative of employers who install signs in buildings asks 
that sign erection be excluded from the standard. (ID-0189.1.) This 
commenter says that sign erection is low-risk work because most signs 
are relatively light (rarely exceeding 2,000 pounds) and the equipment 
used is ``light duty'' equipment with relatively simple operating 
controls. For heavier signs, it states that sign installers typically 
hire crane companies that employ certified and professional crane 
operators. The commenter notes that proposed Sec.  1926.1441 would 
exempt equipment with a rated capacity of 2,000 pounds or less from the 
standard but says this would not provide the industry with relief 
because sign installers must use higher capacity cranes due to the 
reach needed to install signs. Although it asks for complete exclusion, 
the commenter makes clear that its objection pertains to the 
requirement for operator qualification/certification in Sec.  
1926.1427. It asks for less stringent requirements for its industry, 
such as employer self-certification and a broader range of training and 
certifying entities, such as accredited educational institutions.
    OSHA declines to exempt sign installation from the standard. Using 
cranes for sign installation on construction sites involves the same 
hazards as when used for other purposes. Examples include installation 
of signs near power lines; operation of the crane at an extended radius 
due to the need for long reach, which can heighten the risk of tip-
over; the risk to the sign installers of losing the load; failures due 
to poor equipment condition or miscommunication between the operator 
and signal person. Finally, the commenter's objections to the operator 
qualification/certification requirements for its industry parallels 
objections raised by others and will be addressed in the discussion of 
Sec.  1926.1427.
    A commenter representing the propane gas industry says that 
industry does not use cranes in ``construction work'' and asks OSHA to 
``affirm'' this in the final rule. (ID-0198.1.) The commenter asserts 
that the industry installs propane storage tanks ranging from 120 to 
5,000 gallons capacity using truck-mounted cranes to lift and place the 
tanks onto supports.
    From this limited description of the industry's use of cranes, it 
is likely that at least some of the industry's work is construction 
work. If the site at which the tank is installed is a building under 
construction, installation of a propane tank would qualify as 
construction work, just as the installation of an air conditioning unit 
on that site would be construction work. At the other extreme, 
replacing a small tank at an existing site with a new tank of the same 
capacity would be considered general industry work. In sum, based on 
the information provided, it appears that some of the industry's work 
is construction work and some is general industry. OSHA therefore 
cannot ``affirm'' that the propane industry is excluded from the 
standard.
    For the foregoing reasons, OSHA is promulgating paragraph (a) as 
proposed except for a grammatical correction to clarify that the 
standard applies to only equipment used for construction activities. 
Employers who use covered equipment for both general industry work and 
construction work would not be required to comply with subpart CC when 
the equipment is used for general industry work and not construction 
work.
Paragraph (b)
    Proposed paragraph (b) of this section provided that equipment 
covered by paragraph (a) remains within the scope of the standard when 
used with attachments that are either ``crane-attached or suspended.'' 
As defined in Sec.  1926.1401, an ``attachment'' is ``any device that 
expands the range of tasks that can be done by the equipment. Examples 
include, but are not limited to: an auger, drill, magnet, pile-driver, 
and boom-attached personnel platform.'' C-DAC decided to include such 
attachments, even though they might not use the crane's hoisting 
mechanism, to avoid the confusion that would result if the equipment 
moved in and out of coverage of the rule as attachments are put on and 
taken off. Furthermore, most of the operational characteristics and 
hazards of the equipment remain the same while the attachment is in 
use. No comments were received regarding this paragraph, and it is 
being promulgated as proposed.
Paragraph (c)
    Proposed paragraph (c) of this section listed machinery that would 
be specifically excluded from the scope of the rule. As discussed 
below, several of these proposed exclusions generated public comment.
    Proposed paragraph (c)(1) provided that machinery otherwise 
included under Sec.  1926.1400(a) but ``converted or adapted for non-
hoisting/lifting use'' is excluded. Power shovels, excavators and 
concrete pumps are listed as nonexclusive examples of such 
``conversions/adaptations'' or modified machinery.
    A commenter suggested that OSHA consider including concrete pumping 
trucks because they are configured as cranes and suspend loads over a 
distance. (ID-0178.1.) C-DAC considered this issue but decided not to 
include them. While a concrete pumping truck does pose some of the same 
hazards as a crane, its load (i.e., the concrete being pumped) is 
carried in a piping system affixed to its boom, rather than being 
suspended. Consequently, it does not fit the functional definition in 
paragraph (a) of this section. This commenter noted that, like a crane, 
a concrete pumping truck may have outriggers or be located near a power 
line. However, this standard is designed to address the hazards that 
are specific to cranes and derricks rather than to address stability 
and power line

[[Page 47924]]

clearance issues for all types of construction equipment.
    A commenter asked that a type of equipment for which it holds 
patent rights, the ``Linemaster Robotic Arm,'' be excluded. (ID-
0209.1.) According to the commenter, this equipment is a hydraulically 
powered, boom mounted, rotating and telescopic robotic arm that is used 
to separate live power lines from poles. The commenter states that 
crews using the robotic arm use a crane only as a non-hoisting support 
machine, and that the crane cannot be used to lift or haul materials 
because its winch line is removed. The commenter believes that such 
equipment should be excluded under paragraph (c)(1) because the crane 
has been converted to a non-hoisting use.
    OSHA does not agree with this commenter. As discussed above, under 
paragraph (b) of this section, equipment otherwise covered by the 
standard remains covered when used with attachments that are either 
``crane-attached or suspended.'' The description of the robotic arm 
supplied by the commenter suggests that the robotic arm fits within 
paragraph (b). As explained above, paragraph (b) is designed to avoid 
having equipment move in and out of coverage as attachments are added 
and removed. Excluding a crane when a robotic arm is attached would be 
inconsistent with that objective. Moreover, as the preamble to the 
proposed rule stated, even when a crane is being used for a non-
hoisting purpose, its hoisting capability is still present, and most of 
its operational characteristics and hazards remain the same while the 
attachment is in use.
    For those reasons, and those explained in the preamble to the 
proposed rule, paragraph (c)(1) is promulgated as proposed (see 73 FR 
59729, Oct. 9, 2008).
    Proposed paragraph (c)(2) excluded power shovels, excavators, wheel 
loaders, backhoes, loader backhoes, and track loaders. It provided that 
such machinery is also excluded when used with chains, slings or other 
rigging to lift suspended loads. These types of material handling 
machinery were excluded even though, when used to lift suspended loads, 
they present hazards similar to those associated with equipment covered 
by the proposed rule. However, C-DAC proposed to exclude them because 
it determined that the differences between the equipment included in 
the standard and the material handling machinery that is excluded are 
such that one standard could not be readily designed to suit both. OSHA 
agrees. It should be noted that another construction standard, Sec.  
1926.602 in subpart O--Motor Vehicles, Mechanized Equipment, and Marine 
Operations, covers the material handling equipment that is excluded 
from this standard. No comments were received concerning paragraph 
(c)(2), and it is promulgated as proposed.
    Proposed paragraph (c)(3) excluded automotive wreckers and tow 
trucks ``when used to clear wrecks and haul vehicles'' (see explanation 
at 73 FR 59729, Oct. 9, 2008). No comments were submitted on this 
paragraph, and it is promulgated as proposed for the reasons provided 
in the preamble to the proposed rule.
    Proposed paragraph (c)(4) would have excluded service trucks with 
mobile lifting devices that are designed specifically for use in the 
power line and electric industries when those trucks are used either to 
auger holes to set power and utility poles or to handle associated 
materials that will be installed or removed from utility poles. A 
digger derrick, or radial boom derrick, is an example of such a truck.
    This machinery is currently covered by subpart N, with the 
exception of certain provisions, by virtue of Sec.  1926.952(c). We 
note that ASME B30.5-2004 excludes digger derricks and ``cranes 
manufactured specifically for, or when used for, energized electrical 
line service'' from the scope of that industry consensus standard.
    Digger derricks are a specialized type of equipment designed to 
install utility poles. They are equipped with augers to drill holes for 
the poles and with a hydraulic boom to lift the poles and set them in 
the holes. The booms can also be used to lift objects other than poles, 
and electric utilities use them both to place objects on utility poles 
and for general lifting purposes at worksites such as utility 
substations. (ID-0139.1.) Digger derricks have rated capacities as high 
as 36,000 pounds. (ID-0369.1.) When electric utilities are finished 
with them, they sell them to other construction companies. (ID-0341.)
    Since its promulgation in 1972, subpart V (``Power Transmission and 
Distribution'') has excluded digger derricks from certain requirements 
of subpart N. C-DAC considered whether to continue special treatment of 
digger derricks used in subpart V work and proposed to exclude digger 
derricks used in Subpart V work from the standard to the extent they 
are used to auger holes and to handle associated materials to be 
installed on or removed from utility poles. C-DAC determined that such 
an exclusion was appropriate because of the ``narrow, specialized range 
of activities and circumstances in which such trucks are used'' (73 FR 
59729, Oct. 9, 2008).
    Most of the commenters on this issue favored an exclusion for 
digger derricks but asked that the proposed exclusion be broadened to 
all uses of digger derricks by electric utilities. (ID-0129.1; -0139.1; 
-0144.1; -0162.1; -0200.1; -0215.1; -0217.1; -0226.) Several noted that 
the proposed exclusion would lead to the incongruous result in that 
digger derricks would move in and out of coverage depending on the task 
they are performing. Noting that most of the exclusions developed by C-
DAC applied to types of equipment rather than specific tasks, a 
commenter stated that C-DAC contradicts itself by proposing a task-
related exclusion instead of an equipment-related exclusion. (ID-
0200.1.) One commenter recommended that the proposed exclusion be 
extended to the setting and removal of poles. (ID-0209.1.) Another 
opposed any exclusion for digger derricks because digger derricks work 
in proximity to power lines. (ID-0092.20.)
    Some commenters suggested that any exclusion for digger derricks 
should also apply to other industries. One stated that a similar 
exclusion should apply to digger derricks used to auger holes and set 
poles in the telecommunication industry. (ID-0234.) Another contended 
that it would be inconsistent to exclude a digger derrick used to set 
an electric utility pole but not a telecommunications pole. (ID-
0129.1.) The same commenter also said that digger derricks are used to 
set poles for outdoor lighting along roadways and indicated that the 
exclusion should apply to such use. A commenter in the railroad 
industry said that the exclusion should apply to digger derricks used 
in the railroad industry to install utility and communication signal 
poles. (ID-0176.1.)
    Certain commenters criticized the description of the equipment in 
proposed paragraph (c)(4), which described the equipment subject to the 
exclusion as ``service trucks with mobile-lifting devices designed 
specifically for use in the power line and electric service industries, 
such as digger derricks (radial boom derricks).'' One objected to the 
limitation that the equipment be ``designed specifically for use in the 
power line and electric service industries'' on the basis that 
employers should not be required to show the purpose for which their 
equipment is designed. (ID-0215.1.) Another, a witness at the public 
hearing, stated that the term ``service truck'' used in the proposal 
has no commonly

[[Page 47925]]

understood meaning in the industry. (ID-0342.)
    OSHA agrees with these commenters that the description of the 
excluded machinery should be clarified and is using the term ``digger 
derrick'' exclusively to describe the equipment that is subject to the 
exclusion. The term ``digger derrick'' is well understood in the 
industry and is the only term used to describe the equipment by the 
ANSI standard applicable to such equipment, ANSI/ASSE A10.31-2006, 
Safety Requirements, Definitions, and Specifications for Digger 
Derricks. Accordingly, OSHA concludes that using ``digger derrick'' 
without reference to the purpose for which the equipment is designed or 
synonyms such as ``service truck'' is the clearest way to describe the 
exclusion. The Agency notes that despite its name, a ``digger derrick'' 
is not a ``derrick'' as defined in Sec.  1926.1436(a). Thus, the 
additional requirements applicable to derricks in Sec.  1926.1436 do 
not apply to digger derricks, and the exception from operator 
certification requirements in Sec.  1926.1427(c) for derrick operators 
does not apply to operators of digger derricks included within the 
scope of Sec.  1926 subpart CC.
    OSHA also agrees with the majority of commenters who argued that 
the exclusion should be broadened so that it encompasses all digger 
derrick work on electric utility poles. Digger derricks are 
specifically intended to be used for augering holes for utility poles, 
placing the poles in the holes (and removing them when necessary), and 
handling materials being installed on or removed from the poles. 
Excluding all of these uses will minimize the incongruous result of 
having digger derricks move in and out of coverage while they are being 
used for their intended purposes at the same worksites. OSHA also 
agrees with those commenters who argued that the exclusion should 
encompass similar work on poles carrying telecommunication lines, since 
the rationale described above is equally applicable.
    In addition, OSHA has drafted the exclusion in the final rule so 
that it is based on the type of work done with the digger derrick, 
rather than the industry classification of the employer performing the 
work. For example, digger derricks used by a railroad to install poles 
for telecommunication lines would be excluded.
    When digger derricks are used in the operation and maintenance of 
existing electric power lines, they are subject to the general industry 
standard at Sec.  1910.269. OSHA is currently conducting another 
rulemaking designed to avoid inconsistencies between subpart V of the 
construction standards, which applies to power line construction work, 
and Sec.  1910.269 (see 70 FR 34821, Jun. 15, 2005). Pending the 
completion of that rulemaking, digger derricks excluded from this rule 
will be subject to the same requirements regardless of whether they are 
used for work subject to subpart V or work subject to Sec.  1910.269. 
To ensure that digger derricks excluded from this rule (Subpart CC) are 
subject to appropriate safety requirements, OSHA is including language 
in Sec.  1926.1400(c)(4), and is amending subpart V, to explicitly 
state that the activities from which digger derricks are excluded from 
subpart CC are subject to applicable provisions of Sec.  1910.269. 
Those rules include Sec.  1910.269(p) (mechanical equipment), Sec.  
1910.269(a)(2) (training), and Sec.  1910.269(l) (work on or near 
exposed energized parts).
    Similarly, digger derricks used in general industry 
telecommunication work are subject to the general industry standard at 
Sec.  1910.268. Section 1910.268 includes requirements for working near 
energized power lines and requirements pertaining to the operation of 
the equipment, such as the need to comply with manufacturer load 
ratings. The requirements applicable to digger derricks under the 
general industry telecommunications standard (Sec.  1910.268) are 
comparable to those in the general industry electric utility standard 
(Sec.  1910.269). Accordingly, to ensure that comparable safety 
requirements apply to digger derricks during pole work, OSHA is 
including language in final Sec.  1926.1400(c)(4) stating that Sec.  
1910.268 applies when digger derricks are used in construction work for 
telecommunication service. Section 1910.268 includes requirements for 
working near energized power lines and requirements pertaining to the 
operation of the equipment, such as the need to comply with 
manufacturer load ratings.
    In addition, Sec.  1926.952(c)(2) is also being amended to conform 
subpart V to Sec.  1926.1400(c)(4).
    While OSHA agrees that the limited exclusion recommended by C-DAC 
should be broadened in this manner, the Agency does not agree that the 
exclusion should encompass all uses of digger derricks in electric 
utility construction work, as some commenters suggested. Digger 
derricks are specifically designed to be used to install and remove 
utility poles. However, their lifting ability is not limited to utility 
poles, and the record shows that they are used by electric utilities 
for general lifting work, such as setting transformers in substations.
    Their use with utility poles falls within the ``narrow, specialized 
range of activities and circumstances'' that led C-DAC to develop the 
proposed exclusion (see 73 FR 59729, Oct. 9, 2008). But when digger 
derricks are used for general lifting purposes, the hazards are the 
same as when other equipment of similar capacity is used for general 
lifting, and the exclusion developed by C-DAC is not appropriate for 
such work. OSHA determines that an exclusion limited to augering holes, 
setting and removing poles from those holes, and handling associated 
material to be installed on or removed from the poles will provide 
employees with an appropriate level of protection while accommodating 
the unique uses for which digger derricks are designed. It will also 
minimize the practical problems associated with equipment moving in and 
out of coverage at the same worksite.
    OSHA recognizes that excluding digger derricks only when they are 
used for pole work would mean that the same machinery might be excluded 
for some work but covered when it is used at different worksites. 
However, the general lifting work done at those other worksites would 
be subject to this standard if done by other types of lifting 
equipment, and the same standards should apply as apply to that 
equipment. OSHA concludes that excluding digger derricks only for the 
work for which they are primarily designed and used is a reasonable 
approach. It accommodates the considerations that led C-DAC to propose 
a partial exclusion while treating digger derricks used for other 
construction work the same as other, similar equipment used for such 
work.
    OSHA also declines to extend the exclusion broadly to installation 
of all poles for outdoor lighting along roadways, as one commenter 
suggested. OSHA notes that some poles that carry electric and 
telecommunication lines also have street lights installed on them, and 
use of digger derricks to install such lights would qualify for the 
exclusion to the extent that the employer complies with either 
Sec. Sec.  1910.268 or 1910.269. It is unclear whether, and to what 
extent, digger derricks are used to install other types of poles used 
for lighting alone which do not carry electric power lines or 
telecommunication lines. Many such poles are installed on aboveground 
concrete bases rather than set in holes in the ground, and it is 
unclear whether and to what extent digger derricks are used to install 
them. In this regard, OSHA notes that the commenter asking

[[Page 47926]]

for the exclusion to be extended to light poles represents equipment 
manufacturers, and no company that installs lighting poles suggested 
such an exclusion. To the extent that some light pole installation 
would not be covered by either Sec. Sec.  1910.268 or 1910.269, 
extending the exclusion to such work would leave the excluded work 
without coverage by an appropriate general industry standard and leave 
workers without the protection they receive when performing electric 
utility or telecommunication work.
    OSHA disagrees with the comment that digger derricks should not be 
excluded at all because of the danger of power line contact. As 
discussed above, the digger derrick exclusion is limited to situations 
in which certain general industry standards apply, and those general 
industry standards, both Sec. Sec.  1910.268 and 1910.269, contain 
requirements for protecting against power line contact.
    Proposed paragraph (c)(5) specifically excludes machinery 
originally designed as vehicle mounted aerial lifts and self-propelled 
elevating work platforms. The language of this provision reflects C-
DAC's intent to differentiate between equipment with an attachment such 
as a personnel platform pinned to the boom, which is within the scope 
of the proposed rule, and machinery originally designed to be 
configured only as an aerial lift, which is excluded. Another standard, 
Sec.  1926.453, addresses aerial lifts. The only comments to address 
this exclusion supported retaining it. (ID-0129.1; -0312.1.) 
Accordingly, paragraph (c)(5) is promulgated as proposed.
    Proposed paragraph (c)(6) excluded telescopic/hydraulic gantry 
systems. C-DAC excluded this machinery because it presents hazards that 
differ in many respects from those presented by the equipment covered 
by this standard. As a result, many provisions of this standard would 
not be workable or needed for this equipment, and hazards unique to 
this type of machinery would not be addressed. In the proposed rule, 
OSHA noted that the Specialized Carriers & Rigging Foundation recently 
issued a voluntary consensus standard for telescopic/hydraulic gantry 
systems. (73 FR 59730, Oct. 9, 2008; ID-0027.) As no comments on this 
exclusion were received, paragraph (c)(6) is promulgated as proposed.
    Under proposed paragraph (c)(7), stacker cranes were excluded. C-
DAC noted that these cranes are rarely used in construction, and their 
configuration is too unlike other equipment covered by the proposed 
standard to warrant inclusion. No comments on this exclusion were 
received, and paragraph (c)(7) is promulgated as proposed.
    Paragraph (c)(8) of the proposed rule excluded ``powered industrial 
trucks (forklifts).'' C-DAC proposed to exclude such machines because 
forklifts are mostly used in a manner that does not involve suspended 
loads and would often require different responses to the hazards 
presented than are provided in this standard.
    OSHA solicited public comment on whether the scope language should 
be modified to explicitly state that forklifts modified to perform 
tasks similar to cranes are covered. Two commenters stated that the 
inclusion in paragraph (a) of this section of multi-purpose machines 
when configured to hoist and lower by means of a winch or hook would 
include forklifts that are modified to perform tasks similar to a 
crane. (ID-0205.1; -0213.1.) Several other commenters argued that 
forklifts should be excluded even if they are configured to perform 
tasks similar to cranes and suggested adding specific language to that 
effect. (ID-0187.1; -0231.1; -0232.1) These commenters noted that 
forklifts are regulated under a different section, Sec.  1926.602(c), 
and believed that Sec.  1926.602(c) was better suited to the hazards 
presented by such equipment than this standard. One commenter stated 
that the challenges facing modified forklift operators are 
fundamentally different from the challenges facing crane operators, 
thus the standards regulating them should also be fundamentally 
different. (ID-0231.1.)
    The comments submitted on this issue highlight the need for greater 
clarity. This standard applies to equipment that can hoist, lower and 
horizontally move a suspended load. First, as a preliminary matter, the 
standard does not apply to forklifts used exclusively in their most 
traditional form: placing the forks underneath a load and using the 
forks to lift or lower the load. With a ``suspended'' load, the forks 
(or modified lifting device) would be above the load.
    Second, OSHA has included paragraph (c)(8) to exclude forklifts 
when used to suspend a load from its forks. OSHA recognized that a 
forklift could technically meet the criteria of subpart CC coverage 
whenever it is used to suspend a load from its forks (such as by 
hanging the load from a chain wrapped around the forks), hoist it 
vertically by raising or lowering the forks, and move the load 
horizontally by moving the entire forklift. Under such a scenario the 
forks are used as the primary support for a load suspended directly 
from the forks, but OSHA concludes that these forklifts warrant an 
exception from the scope of this subpart CC because they do not utilize 
the components in the same manner as other equipment covered by this 
standard. In contrast, a piece of equipment covered by this standard 
manipulates suspended loads by utilizing components such as winches, 
booms, jibs, gantries, and trolleys. Outriggers and stabilizers are 
also often needed to stabilize the equipment while hoisting a load.
    Third, OSHA is revising paragraph (c)(8) to clarify that the 
forklift exclusion applies only to forklifts that do not meet the 
definition of multi-purpose machines covered under subpart CC (those 
that are configured to hoist and lower (by means of a winch or hook) 
and horizontally move a suspended load). This standard covers multi-
purpose machines because they are configured with the above-mentioned 
components (winches, booms, jibs, gantries, trolleys, stabilizers, 
etc.), even though they also have a dual function. OSHA recognizes that 
a powered industrial truck could be modified so that it would qualify 
as a multi-purpose machine, such as by adding an after-market boom and 
hook attachment in addition to the fork attachment. It is the Agency's 
intent that forklifts that are capable of multiple configurations are 
treated as multi-purpose machines and excluded from coverage of subpart 
CC only as set forth in Sec.  1926.1400(a). A forklift with a boom 
attachment affixed to its forks that uses a hook to raise and lower the 
load like a crane would be covered by subpart CC. However, as noted in 
the preamble to the proposed rule, a forklift would be excluded from 
the coverage of subpart CC when its sole means of suspending a load is 
a chain wrapped around the forks.
    Proposed paragraph (c)(9) excluded mechanics' trucks with hoisting 
devices when used in activities related to equipment maintenance and 
repair. One commenter stated that similar trucks are used in the power 
line industry for tasks such as installing transformers and suggested 
that such equipment should also be excluded. (ID-0144.1.) However, as 
explained in the proposed rule, this provision was not intended to 
exclude mechanics' trucks when used to hoist materials during 
construction work but only to provide a limited exception when they are 
used for equipment maintenance and repair activities. Their use in this 
manner is similar to the way automotive wreckers and tow trucks, which 
are excluded under paragraph (c)(3) of this section, are used. OSHA 
determines that this exclusion should be

[[Page 47927]]

limited in the manner stated in the proposed rule, and paragraph (c)(9) 
is promulgated as proposed.
    In proposed paragraph (c)(10), machinery that hoists by using a 
come-a-long or chainfall was excluded for the reasons explained in the 
preamble to the proposed rule (see 73 FR 59730, Oct. 9, 2008). No 
comments were received on this provision, and it is promulgated as 
proposed.
    Proposed paragraph (c)(11) excluded dedicated drilling rigs. This 
exclusion received substantial attention during the C-DAC negotiations 
and was discussed at length in the proposed rule (see 73 FR 59730, Oct. 
9, 2008). OSHA requested public comment on issues related to this 
exclusion. No written comments were submitted but, in testimony at the 
public hearing, a trade association supported the proposed exclusion. 
(ID-0341.) Accordingly, paragraph (c)(11) is promulgated as proposed.
    Proposed paragraph (c)(12) excluded ``gin poles when used for the 
erection of communication towers.'' (See discussion at 73 FR 59730, 
Oct. 9, 2008). A commenter stated that this exclusion should be 
extended to also cover gin poles used to erect electrical transmission 
towers and lines, but gave no supporting rationale or information. (ID-
0209.1.)
    The use of gin poles for erecting communications towers is highly 
specialized; the communication tower industry has developed a detailed 
consensus standard that specifically addresses their use in that 
application.\5\ However, the Agency is unaware of a similar degree of 
specialization and development of safe practices for gin poles used for 
erecting electrical transmission towers. Accordingly, OSHA lacks a 
basis for extending the exclusion to work other than that covered in 
proposed paragraph (c)(12); paragraph (c)(12) is promulgated as 
proposed with the addition of the word ``when'' before ``used'' to 
clarify that the exclusion does not apply when gin poles previously 
used to erect communication towers are used for other purposes.
---------------------------------------------------------------------------

    \5\ See ANSI/TIA-1019 (2004), Structural Standards for Steel Gin 
Poles Used for Installation of Antenna Towers and Antenna Supporting 
Structures, which contains detailed provisions for installing and 
using gin poles to erect communication towers.
---------------------------------------------------------------------------

    Proposed paragraph (c)(13) excluded tree trimming and tree removal 
work from the scope of the proposed rule. One commenter favored the 
exclusion as written (ID-0040.1), but another suggested limiting the 
exclusion to tree trimming performed for maintenance and including tree 
trimming related to construction (ID-0172.1). The latter commenter 
stated that tree trimming related to construction is particularly 
dangerous because the weight of the pick is uncertain and the ground 
conditions to support the equipment may be inadequate.
    C-DAC agreed to exclude tree trimming and removal because the vast 
majority of the tree care industry's work does not take place in 
construction and is therefore governed by general industry standards. 
OSHA continues to agree that this is a valid reason for the exclusion. 
OSHA is promulgating paragraph (c)(13) as proposed.
    Proposed paragraph (c)(14) excluded anchor handling with a vessel 
or barge using an affixed A-frame. Two commenters suggested that the 
vessels to which this paragraph pertains should be excluded even when 
used for purposes other than anchor handling to avoid having the 
vessels move in and out of coverage depending on how they are used. 
(ID-0376.1; -0383.1.) These commenters stated that such vessels are 
sometimes used for dredging operations and suggested rewording the 
exclusion to state: ``Anchor handling or dredge related operations with 
a vessel or barge using an affixed A-frame.''
    OSHA is adopting these commenters' suggestion and their recommended 
wording of paragraph (c)(14). As explained in the proposed rule, C-DAC 
agreed to the exclusion in proposed paragraph (c)(14) because its 
Cranes on Barges Work Group concluded that the requirements of this 
rule could not readily be applied to the specialized equipment listed 
in the exclusion. That rationale favors the broader exclusion 
recommended by the commenters.
    Proposed paragraph (c)(15) excluded roustabouts because C-DAC 
concluded that the proposed standard was similarly unsuited to address 
these devices (see 73 FR 59731, Oct. 9, 2008). No commenters addressed 
this issue, and paragraph (c)(15) is promulgated as proposed.
    Paragraph (c)(16) excludes helicopter cranes. Such cranes are 
regulated under Sec.  1926.551 of subpart N, which is not affected by 
this final rule and continues in effect. C-DAC and OSHA did not intend 
to cover helicopter cranes under this subpart. However, such cranes fit 
the description in Sec.  1926.1400(a) of the equipment covered by this 
rule in that they are power-operated equipment that can hoist, lower, 
and horizontally move a suspended load. To avoid any uncertainty over 
whether they are subject to this rule or to Sec.  1926.551, OSHA is 
explicitly excluding them from this rule through paragraph (c)(16).
Paragraph (c)(17) Delivery of Material to Construction Sites
    It is common for material that is to be used in construction work 
to be delivered to the construction site on a truck equipped with a 
lifting attachment that is used either to place the materials on the 
ground or to place them on the structure. For example, articulating/
knuckle-boom truck cranes are often used to deliver bundles of drywall 
to the site and then move the bundles from the truck up to a floor of 
the building under construction. To the extent these cranes are used in 
``construction work,'' they fall within the scope of this final rule as 
defined in Sec.  1926.1400(a).
    OSHA has long taken the view that an employer who delivers 
materials to a construction site is not engaged in ``construction 
work'' if that employer's work once at the site is limited to simply 
placing/stacking the materials on the ground. OSHA requested comment 
from the public on whether the final rule should include an explicit 
exclusion to this effect (see 73 FR 59731, Oct. 9, 2008).
    Most commenters on this issue favored such an exclusion to clarify 
that such equipment was not being used in construction. (ID-0145.1; -
0147.1; -0165.1; -0184.1; -0206.1; -0218.1; -0232.1; -0233.1; -0235.1; 
-0299.1.) Certain commenters expressed the view that any such exclusion 
should also extend to delivery of materials onto structures at the 
construction site because, in their view, this was also not a 
construction activity. (E.g., ID -0184.1; -0233.1; -0235.1.) Some of 
these commenters represented employers who deliver building materials 
such as lumber, drywall, and roofing materials. (See, e.g., ID-0184.1; 
-0233.1.) Others represented employers in the heating, ventilation, air 
conditioning, and refrigeration (HVACR) industry. (ID-0165.1; -0235.1.) 
Several of the commenters pointed to the operator training and/or 
certification requirements in Sec.  1926.1427 of the proposed rule as 
particularly burdensome given the distinctions between delivery 
activities and what they characterized as the more complex activities 
typically associated with the equipment covered by the proposed rule. 
(ID-0165.1; -0184.1; -0218.1; -0231.1; -0233.1; -0235.1.)
    OSHA notes some commenter confusion regarding instances when the 
construction materials are not delivered to the curb or a stockyard but 
instead to a designated area on the construction site where the 
materials are staged/organized to facilitate hoisting activities. In 
these scenarios, OSHA construction

[[Page 47928]]

standards apply. See, e.g., Letter to Johnson (2/6/08) (stacking of 
materials), Letter to Reynolds (1/5/01) (delivery of materials onto 
structure). When hoisting equipment is used to arrange the materials in 
a particular sequence for hoisting or to lift materials onto a 
structure that is under construction, it is being used to expedite work 
that is integral to the construction process and is, therefore, 
construction work. However, to remain consistent with existing 
compliance guidance, this final rule states that when lifting equipment 
is used solely to deliver building supply materials from a supplier to 
a construction site by placing/stacking the materials on the ground, 
without arranging the materials in a particular sequence for hoisting, 
OSHA does not regard the delivery process as a construction activity. 
OSHA believes that this limited and conditional exclusion will exclude 
this equipment when used to perform such deliveries and address the 
concerns of commenters who only deliver construction materials to the 
ground.
    Construction typically consists of a process of assembling and 
attaching (or in some cases, disassembling) a vast variety of materials 
to form a building or other structure.\6\ In building construction, 
those materials typically include small, individual items (a few 
examples include: nails, lumber, pipes, duct work sections, electrical 
items, sheet goods), large individual items (a few examples include: 
structural steel or precast concrete columns and beams), and 
prefabricated structural and building system components (a few examples 
include: roof trusses, precast concrete wall sections, and building 
machinery such as boilers, pumps, and air handling equipment). All of 
these items must be delivered to the jobsite and unloaded from the 
vehicle delivering them before they can be used in the building or 
structure.
---------------------------------------------------------------------------

    \6\ Construction also includes the deconstruction or demolition 
of a portion, or all, of a structure.
---------------------------------------------------------------------------

    C-DAC indicated that to facilitate the assembling or attaching of 
such items, cranes and derricks are often used to hoist and hold, 
support, stabilize, maneuver, or place them. Sometimes they are used to 
place items in a convenient location for subsequent use. For example, 
they are often used to place a bundle of steel decking sheets onto the 
structure for later ``shaking out'' (i.e., after being landed on the 
structure, workers ``break'' the bundle and distribute the decking 
sheets for subsequent attachment). One of OSHA's construction standards 
contains specific requirements related to the landing and placing of 
such bundles (see Sec.  1926.754(e)(1)).
    Sometimes cranes and derricks are used to place an item in a 
specific location for immediate attachment. For example, cranes are 
typically used to precisely place steel columns on concrete footings, 
which involves aligning holes at the column's base with anchor rods/
bolts in the footing so that the column can be secured to the footing. 
In building and bridge construction, cranes are often used to precisely 
place precast concrete members so that workers can attach them to other 
precast members (or sometimes to a structural steel frame).
    Cranes are also used to place precast concrete components so that 
other items can be connected to them. For example, in utility and sewer 
construction, precast concrete manholes or vaults are placed for proper 
alignment with utility pipes; in residential construction, precast 
concrete septic systems are placed for proper location in an 
excavation. Clearly, such movement and placement of material by cranes 
and derricks is integral to the construction process, and the fact that 
this may be done by the vehicle that delivered the material to the site 
does not make it a non-construction activity.
    Cranes are also commonly used to hoist building materials onto a 
structure for subsequent use. Although this is also a construction 
activity,\7\ OSHA determines that a limited exclusion for articulating/
knuckle-boom truck cranes used for such work is appropriate to minimize 
having this equipment move in and out of coverage of this rule.
---------------------------------------------------------------------------

    \7\ Moving building materials onto a structure for subsequent 
use is an integral part of the construction process. This is the 
case whether the materials are brought onto the structure by hand, 
with the aid of a crane after the materials had been previously 
delivered to the ground, or by the same equipment that brought them 
to the site. See e.g., January 5, 2001, Letter of Interpretation to 
Mr. Jeff Reynolds, Division Safety Manager Pacific Supply, available 
at http://www.osha.gov.
---------------------------------------------------------------------------

    The record shows that articulating/knuckle-boom truck cranes are 
often used to deliver sheet goods (e.g., drywall), or packaged 
materials (e.g., roofing shingles) to construction sites and that it is 
common for the delivery to be made onto the structure. Delivering 
material to a structure can pose a hazard that is typically not present 
when material is placed on the ground: when the boom is extended, as 
when lifting the material to an upper floor, the possibility of 
exceeding the crane's rated capacity, with the resultant possibility of 
boom collapse and crane tipover, is present. A representative of a 
material delivery trade association testified that articulating/
knuckle-boom cranes are equipped with automatic safety systems that 
detect whether the crane is close to being overloaded and automatically 
prevent such overloading. (ID-0341; -0380.1; -0381.1.)
    The representative described a test on a crane with a load of 2,900 
pounds and a maximum extension of 78 feet, 11 inches, and said that the 
automatic device preventing the boom from extending beyond its maximum 
safe length for that load and angle of 46 feet. (ID-0341.) Thus, with a 
load that is typical of the loads that are often delivered, the hazard 
of the crane collapsing exists with the boom at far less than its 
maximum possible extension. Another representative of the material 
delivery industry, also noted the presence of such devices on the 
equipment used by its members and, while it asked for such equipment to 
be exempt completely from this rule, alternatively suggested an 
exemption for equipment with such devices installed. (ID-0184.1.)
    OSHA is, to a large extent, adopting the commenter's suggestion. 
The overloading and subsequent collapse of cranes is one of the primary 
hazards this final rule seeks to address. The trade association 
witness's testimony shows that the potential for collapse is present 
when articulating/knuckle-boom cranes are used to deliver materials 
onto a structure. The industry has, however, addressed this hazard by 
equipping such cranes with automatic overload prevention devices. 
Therefore, OSHA is excluding articulating/knuckle-boom cranes used to 
deliver materials onto a structure from the final rule, but only when 
the cranes are equipped with properly functioning automatic overload 
prevention devices. Without such a device, the crane is subject to all 
provisions of this final rule. It should be noted that electrical 
contact with power lines is another serious hazard covered by the final 
rule. The limited exemption for articulating/knuckle-boom cranes used 
for certain construction operations also exempts this equipment from 
the requirements for operations near power lines contained in the final 
rule. When performing an exempt operation, this equipment (like must of 
the other exempt equipment and operations) will be covered by revised 
Sec.  1926.600(a)(6).
    OSHA is limiting this exclusion to the delivery of sheet goods and 
packaged materials including, but not limited to: sheets of sheet rock, 
sheets of plywood, bags of cement, sheets or packages of roofing 
shingles, and rolls of roofing felt. The placement of other materials 
on a structure under construction is the type of core construction 
activity this rule seeks to address, and excluding the

[[Page 47929]]

hoisting and movement of other types of materials, such as precast 
concrete members, prefabricated building sections, or structural steel 
members, would severely reduce the rule's effectiveness. Moreover, 
equipment used to lift these types of materials on construction sites 
is rarely, if ever, used for non-construction activities on those sites 
and does not often present the problem of equipment moving in and out 
of coverage when used for different activities.
    OSHA is also limiting the exclusion by making it clear that it does 
not apply when the crane is used to hold, support or stabilize the 
material to facilitate a construction activity, such as holding 
material in place while it is attached to the structure. For example, 
while placing a package of shingles onto the roof of a structure would 
fall within the exemption, suspending the shingles in the air and 
moving them to follow the progress of the roofer would not. When the 
crane is being used to facilitate the construction activity, it has 
exceeded the ``delivery'' of goods and is therefore engaged in a 
process that is more complex than the scenarios addressed by the 
commenters who supported an exclusion for materials delivery. OSHA is 
also concerned that exempting this activity would provide an incentive 
for employers to use materials delivery cranes for other purposes, 
thereby undermining the rationale for the materials delivery exclusion.
    In particular, OSHA declines to exclude the handling of HVACR 
units, as some commenters urged. Using a crane to deliver HVACR 
equipment is an example of using a crane to hoist and position a 
component of the building's mechanical systems, which is an integral 
part of the construction process. According to one industry commenter, 
during a typical installation of a large commercial rooftop HVACR unit, 
a mobile crane delivers the equipment to its intended location on the 
roof, where an HVACR technician connects the equipment to the 
ventilation system. (ID-0165.1) Thus, unlike sheet goods and packaged 
materials, which are not placed in their location of final use by the 
delivery vehicle, delivery of HVACR equipment may be integral to its 
installation. Like the hoisting and movement of other building 
components, use of cranes and derricks to move HVACR equipment falls 
squarely within this rule.
    OSHA also received a comment from a representative of the precast 
concrete industry requesting the exclusion of equipment used to deliver 
materials such as concrete manholes, septic tanks, burial vaults, 
concrete block, and concrete pipe. (ID-0299.1) This commenter stated 
that their portion of the precast concrete industry solely delivers 
materials to a construction site, and believed that they simply supply 
materials for a construction project but are not involved in actual 
construction. (ID-0299.1)
    OSHA agrees that in circumstances where the equipment is used 
solely to deliver these types of concrete materials from a supplier to 
a construction site by placing/stacking the materials from the delivery 
vehicle to the ground in, for example, a storage or staging area, 
without arranging the materials in a particular sequence for subsequent 
hoisting, the equipment is not being used for a construction activity. 
However, if the equipment is used to hoist, hold, support, stabilize or 
place precast concrete material as part of the installation process, it 
is engaged in a construction activity and would be subject to this 
rule. For example, a truck-mounted articulating crane may be used to 
maneuver a precast component such as a vault or concrete pipe from the 
truck to its installation point in an excavation. As previously 
discussed, such use is a typical construction activity.
    To summarize, when a delivery vehicle is used solely to deliver 
building supply materials from a supplier to a construction site by 
placing/stacking the materials on the ground, without arranging the 
materials in a particular sequence for hoisting, the equipment is not 
being used for a construction activity and is not subject to this rule. 
When an articulating/knuckle-boom truck crane that brings material to a 
site is used to transfer building supply sheet goods or building supply 
packaged materials from the vehicle onto a structure, the activity is a 
construction activity but the crane is excluded from this rule if it is 
equipped with a properly functioning automatic overload prevention 
device and satisfies the other requirements of the exception in Sec.  
1926.1400(c)(17). All other equipment that falls under Sec.  
1926.1400(a) is subject to this rule when delivering materials onto a 
structure.
    OSHA is including in the final rule a new Sec.  1926.1400(c)(17) to 
clarify the circumstances under which material delivery is subject to 
the rule. Paragraph (c)(17)(i) excludes from the scope of this standard 
an articulating/knuckle-boom truck crane that delivers material to a 
construction site when it is used to transfer materials from it to the 
ground, without arranging the materials in a particular sequence for 
hoisting.
    Paragraph (c)(17)(ii) contains the exclusion for an articulating/
knuckle-boom truck crane that delivers material to a site when it is 
used to transfer building supply sheet goods or building supply 
packaged materials from it onto a structure, using a fork/cradle at the 
end of the boom. This provision conditions this exclusion on the truck 
crane being equipped with a properly functioning automatic overload 
prevention device and lists examples of the sheet goods or packaged 
materials that qualify for the exclusion, stating that these include, 
but are not limited to: sheets of sheet rock, sheets of plywood, bags 
of cement, sheets or packages of roofing shingles, and rolls of roofing 
felt. These are typical building supply materials that pose a reduced 
risk of falling when being lifted by the truck crane because of their 
configuration and/or packaging, and because the truck crane was 
designed to safely handle this type of material.
    Any delivery activities not excluded under paragraphs (c)(17)(i) 
and (ii) are subject to the standard. However, to avoid any possible 
ambiguity on this point, OSHA has included paragraph (c)(17)(iii). 
Paragraphs (c)(17)(iii)(A)-(C) list explicit activities for which the 
exclusion does not apply. Paragraph (c)(17)(iii)(D) is included to 
avoid any possible implication that paragraphs (c)(17)(iii)(A)-(C) 
represent an exclusive list of delivery activities that are subject to 
the final rule.
Paragraph (d)
    Paragraph (d) of this section is included because there are some 
types of equipment for which only limited requirements apply, and 
others where there are special requirements that supplement, rather 
than displace, the other requirements in the rule. To avoid confusion, 
this paragraph establishes that all parts of the rule apply unless a 
provision specifically identifies other parts of the rule as 
inapplicable, or identifies the only provisions of the standard that 
are applicable. No comments were received on this paragraph, and it is 
promulgated as proposed except that ``subpart CC'' replaces the phrase 
``this standard'' from the proposed rule.
Paragraph (e)
    Proposed paragraph (e) of this section provided that the duties of 
controlling entities \8\ are not limited to the duties specified in 
Sec. Sec.  1926.1402(c), 1926.1402(e) and 1926.1424(b). The paragraphs 
referenced in this provision listed specific duties imposed on 
controlling entities under this rule.

[[Page 47930]]

Paragraph (e) was included to avoid any implication that the listing of 
certain duties placed on controlling entities by this rule displaces 
the duties placed on them under OSHA's multi-employer policy.
---------------------------------------------------------------------------

    \8\ The definition of ``controlling entity'' is explained in the 
discussion of Sec.  1926.1402(c).
---------------------------------------------------------------------------

    Several commenters questioned OSHA's authority to enforce its 
multi-employer policy against controlling entities as well as the 
provisions in the proposed rule that would impose specific duties on 
controlling entities. (ID-0166.1; -0197.1; -0214.1; -0232.1.) OSHA 
explained in detail in the proposed rule why it has such authority (see 
73 FR 59731-59733, Oct. 9, 2008). Paragraph (e) is promulgated as 
proposed.
Paragraph (f)
    Paragraph (f) requires that where a provision in the rule directs 
an operator, crewmember or other employee to take a specified action, 
it is the employer's responsibility to establish work rules to require 
the relevant employees to take that action, and to effectively 
communicate and enforce those work rules. This paragraph clarifies the 
employer's obligations with regard to such provisions. No comments on 
this paragraph were received, and it is being promulgated as proposed 
with only a minor grammatical correction.\9\
---------------------------------------------------------------------------

    \9\ For clarity, OSHA is substituting references to ``shall'' in 
the proposed rule with ``must'' in this final rule to remove any 
implication that the sentence is descriptive, rather than 
imperative.
---------------------------------------------------------------------------

Paragraph (g)
    Some commenters requested that OSHA provide a complete exemption 
from subpart CC for subpart V work. As discussed in Sec.  1926.1410(k), 
OSHA has addressed their concerns through exclusions from specific 
requirements of the rule.
    Most employers engaged in construction work under subpart V are 
also engaged in general industry work under Sec.  1910.269, which 
covers the operation and maintenance of electric power generation, 
transmission, and distribution installations. The requirements for 
mechanical equipment in Sec.  1910.269(p) are at least as protective as 
the requirements in Sec. Sec.  1926.1407-1926.1411 of subpart CC. 
Therefore, OSHA determines it is appropriate to give employers doing 
subpart V work the option of complying with Sec.  1910.269(p) in lieu 
of the requirements in Sec. Sec.  1926.1407-1926.1411 of this final 
rule. This decision has been codified in paragraph (g) of this section 
and a note referencing this new paragraph has been added to Sec.  
1926.952(c)(3).
Paragraph (h)
    Paragraph (h) notes that Sec.  1926.1402, Ground conditions, does 
not apply to cranes used on railroad tracks that are part of a general 
railroad system that is regulated by the Federal Railroad 
Administration. OSHA added paragraph (h) to this section of the final 
rule to aid the public in finding this exception. (See discussion of 
this provision at Sec.  1926.1402(f).)
Section 1926.1401 Definitions
    OSHA includes a number of definitions to clarify the meaning of 
terms used in this subpart. Many of the defined terms are commonly used 
in the industry, and C-DAC in most instances relied on standard 
industry sources or its own understanding of how terms are used in the 
industry to help ensure that the definitions would be readily 
understood by employers and employees. Industry sources on which C-DAC 
relied include existing OSHA standards, consensus standards, and ``A 
Glossary of Common Crane and Rigging Terms'' (Specialized Carriers and 
Rigging Foundation 1997) (``SC&RF Handbook'') (ID-0019.). OSHA includes 
other definitions to ensure that certain terms used in the proposed 
standard have a precise, unambiguous meaning.
    One commenter noted that definitions as proposed were not identical 
to those in certain consensus standards and requested they be changed 
to match. (ID-0178.1.) The commenter cited to various consensus 
standards, including ANSI A10.31-2006, ANSI A10.28-1998, ANSI A10.33-
1998, and ANSI Z359.0-2007. The commenter did not explain why the 
definitions as proposed were inappropriate nor how the change would 
improve safety. As noted above, consensus standards were utilized as a 
resource in developing the definitions for this subpart. OSHA disagrees 
with the commenter's position that the definition must match consensus 
standards. OSHA established definitions that would work in the 
framework of the equipment covered by this subpart, would coordinate 
with other OSHA standards and provide a foundation for enforcing the 
requirements of this subpart. As a result, OSHA is not making 
modifications to definitions based on this commenter's request.
    A few definitions in this final rule have been modified from or 
added to those in the proposed rule. Those definitions are: A/D 
director; Assembly/Disassembly; Builder; Controlling entity; Digger 
derrick; Duty cycle; Freeboard; Hoist; Load moment (or rated capacity) 
indicator; Load moment (or rated capacity) limiter; Nationally 
recognized accrediting agency; Positioning device system; Range control 
limit device; Repetitive lift; Tower crane; Type; Upperworks; and Wire 
rope.
    The reasons for these additions or modifications are discussed in 
the preamble at the location indicated in Table 5 below, with the 
exception of the definition for hoist, which is discussed below.
    OSHA received one comment on the definition of ``hoist'' in the 
proposed rule. (ID-0122.0.) This commenter expressed concern that the 
proposed definition would exclude hoists that utilized wire rope or 
chains. To address this concern, OSHA modified the definition of 
``hoist'' in the final rule to refer to ``a line'' rather than 
``rope.'' The use of the more general term ``line'' is intended to 
refer to any material (e.g., rope, wire rope, chain, etc.) used to 
connect the hoist to that which is being hoisted.
    Definitions that did not receive comment are adopted for the 
reasons set forth in the preamble of the proposed rule (see 73 FR 
59733-59739, Oct. 9, 2008).
    The preamble location for discussion of all definitions provided in 
Sec.  1926.1401 can be found in Table 5 below.

                                                             Table 5--Index of Defined Terms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Term                        Location of preamble discussion                  Term                  Location of preamble discussion
--------------------------------------------------------------------------------------------------------------------------------------------------------
A/D director.........................  Sec.   1926.1404(a).......................  Load......................  Sec.   1926.1401
Articulating crane...................  Sec.   1926.1401..........................  Load moment (or rated       Sec.   1926.1416(e)(4)
                                                                                    capacity) indicator.
Assembly/Disassembly.................  Sec.   1926.1403..........................  Load moment (or rated       Sec.   1926.1416(e)(4)
                                                                                    capacity) limiter.
Assist crane.........................  Sec.   1926.1404(h)(4)....................  Locomotive crane..........  Sec.   1926.1401

[[Page 47931]]


Attachments..........................  Sec.   1926.1400(b)(2)....................  Luffing jib limiting        Sec.   1926.1416(d)(2)
                                                                                    device.
Audible signal.......................  Sec.   1926.1419(b).......................  Marine hoisted personnel    Sec.   1926.1431(b)(2)(iii)
                                                                                    transfer device.
Blocking.............................  Sec.   1926.1404(h)(2)....................  Marine worksite...........  Sec.   1926.1431(b)(2)(iii)
Boatswain's chair....................  Sec.   1926.1431(o).......................  Mobile cranes.............  Sec.   1926.1401
Bogie................................  Sec.   1926.1435..........................  Moving point-to-point.....  Sec.   1926.1423(e)(1)
Boom (equipment other than tower       Sec.   1926.1401..........................  Multi-purpose machine.....  Sec.   1926.1400(a)
 crane).
Boom (tower cranes)..................  Sec.   1926.1435(e)(5)(ii)................  Nationally recognized       Sec.   1926.1427(b)(1)(i)
                                                                                    accrediting agency.
Boom angle indicator.................  Sec.   1926.1416(d)(1)(i)(A)..............  Non-conductive............  Sec.   1926.1407(b)(2)
Boom hoist limiting device...........  Sec.   1926.1416(d)(1)....................  Operational aids..........  Sec.   1926.1416
Boom length indicator................  Sec.   1926.1416(e)(3)....................  Operational controls......  Sec.   1926.1417(b)(2)
Boom stop............................  Sec.   1926.1416(a)(2)....................  Operator..................  Sec.   1926.1401
Boom suspension systems..............  Sec.   1926.1404(h)(7)....................  Overhead and gantry cranes  Sec.   1926.1438
Builder..............................  Sec.   1926.1436(c).......................  Paragraph.................  Sec.   1926.1401
Center of gravity....................  Sec.   1926.1404(h)(6)....................  Pendants..................  Sec.   1926.1404(h)(8)
Certified welder.....................  Sec.   1926.1431(e)(5)....................  Personal fall arrest        Sec.   1926.1423(g)
                                                                                    system.
Climbing.............................  Sec.   1926.1435(b)(7)....................  Portal cranes.............  Sec.   1926.1415(a)(1)
Come-a-long..........................  Sec.   1926.1400(c)(10)...................  Positioning device system.  Sec.   1926.1423
Competent person.....................  Sec.   1926.1401..........................  Power lines...............  Sec.   1926.1407-1411
Controlled load lowering.............  Sec.   1926.1426(d).......................  Procedures................  Sec.   1926.1401
Controlling entity...................  Sec.   1926.1402(c).......................  Proximity alarm...........  Sec.   1926.1407(b)(3)
Counterweight........................  Sec.   1926.1404(h)(9)....................  Qualified evaluator (not a  Sec.   1926.1428(a)(2)
                                                                                    third party).
Crane/derrick........................  Sec.   1926.1400..........................  Qualified evaluator (third  Sec.   1926.1428(a)(2)
                                                                                    party).
Crawler crane........................  Sec.   1926.1401..........................  Qualified person..........  Sec.   1926.1401
Crossover points.....................  Sec.   1926.1413(a)(3)(iii)...............  Qualified rigger..........  Sec.   1926.1425(c)(3)
Dedicated channel....................  Sec.   1926.1420(b).......................  Range control limit device  Sec.   1926.1408(a)
Dedicated pile-driver................  Sec.   1926.1439(a).......................  Range control warning       Sec.   1926.1407(a)(3)
                                                                                    device.
Dedicated spotter (power lines)......  Sec.   1926.1407(b).......................  Rated capacity............  Sec.   1926.1401
Digger derrick.......................  Sec.   1926.1400(c)(4)....................  Rated capacity indicator..  Sec.   1926.1416(e)(4)
Directly under the load..............  Sec.   1926.1425(e)(1)....................  Rated capacity limiter....  Sec.   1926.1416(e)(4)
Dismantling..........................  Sec.   1926.1405..........................  Repetitive lift...........  Sec.   1926.1414(e)(2)
Drum rotation indicator..............  Sec.   1926.1416(e)(5)(ii)................  Repetitive pickup points..  Sec.   1926.1413(a)(3)(iii)
Duty cycle...........................  Sec.   1926.1414(e)(2)....................  Running wire rope.........  Sec.   1926.1413(a)(2)(ii)(A)
Electrical contact...................  Sec.   1926.1407-1411.....................  Runway....................  Sec.   1926.1431(k)(12)(ii)(A)
Employer-made equipment..............  Sec.   1926.1437(m)(4)....................  Section...................  Sec.   1926.1401
Encroachment.........................  Sec.   1926.1407-1411.....................  Side-boom crane...........  Sec.   1926.1440
Equipment............................  Sec.   1926.1400..........................  Special hazard warnings...  Sec.   1926.1417(c)(1)
Equipment criteria...................  Sec.   1926.1412(b)(1)(i).................  Stability (flotation        Sec.   1926.1437(m)
                                                                                    device).
Fall protection equipment............  Sec.   1926.1423(e).......................  Standard Method...........  Sec.   1926.1419(c)
Fall restraint system................  Sec.   1926.1423(d)-(e), (g)..............  Such as...................  Sec.   1926.1401
Fall zone............................  Sec.   1926.1425(b).......................  Superstructure............  Sec.   1926.1424(a)(1)
Flange points........................  Sec.   1926.1413(a)(3)(iii)...............  Tag line..................  Sec.   1926.1407(b)(2)
Floating cranes/derricks.............  Sec.   1926.1437..........................  Tender....................  Sec.   1926.1437(j)(3)
For example..........................  Sec.   1926.1401..........................  Tilt-up or tilt down        Sec.   1926.1425(e)
                                                                                    operation.
Free fall (of the load line).........  Sec.   1926.1426(d).......................  Tower crane...............  Sec.   1926.1401
Free surface effect..................  Sec.   1926.1437(m)(5)(ii)................  Travel bogie (tower         Sec.   1926.1435(d)(2)(iv)
                                                                                    cranes).
Freeboard............................  Sec.   1926.1437(m)(2)....................  Trim......................  Sec.   1926.1437(e)(1)
Hoist................................  Sec.   1926.1401..........................  Two blocking..............  Sec.   1926.1416(d)(3)
Hoisting.............................  Sec.   1926.1401..........................  Type......................  Sec.   1926.1427(b)(1)(ii)(B)
Include/including....................  Sec.   1926.1401..........................  Unavailable procedures....  Sec.   1926.1417(b)
Insulating link/device...............  Sec.   1926.1408(b)(4)(v).................  Up to.....................  Sec.   1926.1401
Jib stop.............................  Sec.   1926.1415(a)(3)....................  Upperstructure............  Sec.   1926.1424(a)(1)
Land crane/derrick...................  Sec.   1926.1437..........................  Upperworks................  Sec.   1926.1424(a)(1)
List.................................  Sec.   1926.1437(e)(1)....................  Wire rope.................  Sec.   1926.1413
--------------------------------------------------------------------------------------------------------------------------------------------------------

Section 1926.1402 Ground Conditions
    The Committee determined that the failure to have adequate ground 
conditions is a significant crane safety problem. Adequate ground 
conditions are essential for safe equipment operations because the 
equipment's capacity and stability depend on such conditions being 
present. In the Committee's view, there are two key problems regarding 
ground conditions: (1) Equipment is commonly brought on site by a 
subcontractor, who typically has neither control over ground conditions 
nor knowledge of hidden hazards, and (2) the entity that usually does 
have such authority--the controlling entity--may not have the expertise 
to know what changes are needed to make the ground conditions suitable 
for equipment operations. This section is designed to address these 
problems so that ground conditions will be made sufficient for safe 
equipment operations.
    One commenter asserted that, with respect to digger derricks, the 
ground conditions provision should be changed. In particular, the 
commenter stated that the Committee should incorporate by reference 
secs. 7 through 10 of ANSI/ASSE A10.31-2006, Safety Requirements, 
Definitions, and

[[Page 47932]]

Specifications for Digger Derricks; American National Standard for 
Construction and Demolition Operations. (ID-0178.1.) In addition, the 
commenter asserted that the ANSI/ASSE standard ``addresses worksite 
selection that is clearer than what OSHA has proposed. For example, the 
proposed rule does not recognize the danger that ditches can have on 
placement, which is a common occurrence.''
    OSHA first notes that these suggestions apply only to digger 
derricks and thus interprets the comment as a recommendation that 
digger derricks be treated differently than other equipment under Sec.  
1926.1402. As we noted in the preamble to the proposed rule, the 
Committee determined that the failure to have adequate ground 
conditions is a significant safety problem. The Committee's 
determination that this safety problem exists for various types of 
equipment is underscored by the application of Sec.  1926.1402 to 
nearly all equipment covered by this subpart. In addition, where the 
Committee intended for certain equipment to be exempted from Sec.  
1926.1402, it indicated that expressly (see, e.g., Sec.  1926.1440, 
Sideboom Cranes). OSHA defers to the expertise of the Committee on this 
issue.
    Secondly, OSHA has reviewed ANSI/ASSE A10.31-2006 and found that it 
is substantively distinguishable from Sec.  1926.1402. Specifically, 
the two standards differ in the assignment of responsibilities. ANSI/
ASSE A10.31-2006 divides responsibilities among digger derrick dealers/
installers, owners, users, and operators. Notably, controlling entities 
(who often do not fall into any of the ANSI/ASSE A10.31-2006 
categories) are assigned no responsibility at all. Furthermore, the 
discussion of worksite conditions is included only in sec. 10, 
Responsibilities of Operators. ANSI/ASSE A10.31-2006 places the 
responsibility of examining ground conditions entirely on the operator. 
Also, ANSI/ASSE A10.31-2006 does not require that the ground condition 
requirements be met before the equipment is installed; it requires only 
that the worksite be surveyed before the digger derrick is used. In 
sum, OSHA concludes that Sec.  1926.1402 is more effective than ANSI/
ASSE A10.31-2006 and declines to incorporate ANSI/ASSE A10.31-2006 by 
reference.
    The Agency disagrees with the commenter that Sec.  1926.1402 fails 
to adequately address ditches. The hazard posed by a ditch is that the 
ground is less firm in the area adjacent to it. Under Sec.  1926.1402, 
the ground must be sufficiently firm to provide ``adequate support'' 
for the equipment. The section as proposed therefore addresses this 
hazard.
Paragraph (a) Definitions
    Paragraph (a) provides definitions of key terms used in this 
section. The term ``ground conditions'' is defined as the ability of 
the ground to support the equipment (including slope, compaction and 
firmness). The Committee determined that slope, compaction and firmness 
are the key factors that are involved in the ability of the ground to 
support the equipment.
    ``Supporting materials'' is defined as meaning blocking, mats, 
cribbing, marsh buggies (in marshes/wetlands), or similar supporting 
materials or devices. Such materials typically help to distribute the 
load of the crane over a broad area and/or assist in leveling the 
equipment. The list in the definition of examples of such materials is 
nonexclusive--it includes similar materials and devices that would 
serve the same purpose(s).
    The one comment that was received that referenced this provision is 
addressed in the discussion below of Sec.  1926.1402(b). (See ID-
0178.1.)
Paragraph (b)
    Under paragraph (b) of this section, the equipment is prohibited 
from being assembled or used \10\ unless ground conditions are firm, 
drained, and graded to a sufficient extent so that, in conjunction (if 
necessary) with the use of supporting materials, the equipment 
manufacturer's specifications for adequate support and degree of level 
of the equipment are met. A crane's stability depends (in part) on the 
crane being level, and ``degree of level'' is a term used in the 
industry to describe the manufacturer's specification for how level the 
crane must be. The Agency determined that the text of the proposed rule 
did not make it clear that the drainage requirement did not apply to 
marshes/wetlands. Accordingly, the final rule's text has been modified 
to clearly state that this is the only exception. All other conditions 
related to have a stable surface for the equipment is applicable.
---------------------------------------------------------------------------

    \10\ Note that ``used'' is not limited to use of the equipment 
at a fixed location; it also includes when the equipment is 
traveling with a load.
---------------------------------------------------------------------------

    In the Committee's experience, crane tip-over incidents caused by 
inadequate ground conditions are a significant cause of injuries and 
fatalities. For example, on September 28, 1999, a 19 year old 
electrical instrument helper was killed by a crane that overturned 
because insufficient care was taken to ensure that the ground under the 
crane was firm and that the crane's outriggers were properly supported. 
(ID-0017.13.) Conditions that enhance the chance of such accidents 
include ground that is wet or muddy, poorly graded, or that is loose 
fill (or otherwise disturbed soil) that has not been compacted. The 
Committee determined that requiring adequate ground conditions will 
prevent many of these accidents. The exception for marshes and wetlands 
is included because the Committee was aware that, in many instances, 
the draining of marshes/wetlands is prohibited or restricted by 
environmental laws and there are devices available (such as marsh 
buggies) that are designed to provide adequate support to cranes in 
such areas.
    One commenter suggested that the term ``level'' could be confusing 
and suggested that it be defined as ``less than one degree of grade 
change or as required by the manufacturer.'' (ID-0178.1.) OSHA finds 
this comment unpersuasive. The suggested language is circular because 
it does not use the term ``level'' by itself; it refers to ``the 
equipment manufacturer's specifications for * * * degree of level of 
the equipment.'' The reason the provision refers to the manufacturer's 
specification in this regard is that it is the manufacturer that 
establishes the load chart, and the load chart is valid only for the 
parameters, including degree of level, established by the manufacturer.
    At the public hearing, a representative of the railroad industry 
raised an issue that OSHA determines could be the source of some 
confusion. The commenter indicated that the railroad industry regularly 
has to work in out-of-level conditions, since some sections of track 
are not level. (ID-0342.) The commenter explained that the 
manufacturers of track-mounted cranes provide specialized load charts 
which take into account these out-of-level conditions.
    The manufacturers of these cranes apparently specify that the 
cranes can be used in certain out-of-level circumstances, as evidenced 
by their provision of load charts for those conditions. Therefore, the 
use of equipment in accordance with manufacturer specifications 
regarding degree of level would meet Sec.  1926.1402(b)'s requirement 
because the provision permits use of the equipment in accordance with 
those specifications.

[[Page 47933]]

Paragraph (c)
    Under Sec.  1926.1402(c), the controlling entity has several 
specific duties regarding ground conditions. OSHA's authority to impose 
these duties is discussed in detail in the preamble to the proposed 
rule (see 73 FR 59731-59732, Oct. 9, 2008), and the Agency re-asserts 
the same authority with respect to the final rule. As it did with 
respect to the proposed rule, the Agency is again stating that the 
duties imposed on the controlling entity through the promulgation of 
this final rule are supplemental to, and do not displace, controlling 
entity duties under OSHA's multi-employer policy. (See Sec.  
1926.1402(e), discussed below; 73 FR 59731, Oct. 9, 2008).
    ``Controlling entity'' is defined in Sec.  1926.1401 as ``an 
employer that is a prime contractor, general contractor, construction 
manager or any other legal entity which has the overall responsibility 
for the construction of the project--its planning, quality and 
completion.'' This definition, which generally mirrors the definition 
of ``controlling contractor'' in the steel erection standard, 29 CFR 
part 1926, subpart R, reflects the core principle of general 
supervisory control over the construction site. In this final rule, 
OSHA is clarifying the definition to make it clear that the controlling 
entity must be an employer.
    Section 1926.1402(c)(1) requires the controlling entity to ensure 
that ground preparations necessary to meet the requirements in 
paragraph (b) of this section are provided. The Committee determined 
that it is necessary to specify who will have ground condition 
responsibility because in many instances the parties are unable to 
agree on who will have (or has) that contractual responsibility, with 
the result that often no one corrects inadequate ground conditions.
    In the Committee's view, the crane user and operator typically do 
not have the equipment or authority to make such preparations. In 
contrast, the controlling entity, due to its control of the worksite, 
has the requisite authority and is in the best position to arrange for 
adequate ground conditions. The Committee was concerned, however, that 
some controlling entities may lack the expertise to recognize when 
ground conditions are inadequate. To address this concern, the 
Committee developed Sec.  1926.1402(e).
    One commenter said that adequate site assessment requires defining 
ground bearing capacity compared to loading of the machine, along with 
soil testing and proper analysis for ground conditions. (ID-0143.1.) As 
explained in the preamble of the proposed rule, C-DAC considered, but 
rejected, including specification requirements regarding the soil 
conditions (see 73 FR 59739-59740, Oct. 9, 2008). This reflected the 
view that most sites and circumstances do not require sophisticated 
soil testing. In light of C-DAC's decision not to add new testing or 
soil specifications, the many variables that may affect ground 
conditions, and the existing body of law and OSHA guidance relating to 
testing duties under the Agency's multi-employer policy, the Agency 
concludes that it is appropriate to allow the controlling entity 
flexibility in the manner in which it satisfies its duties under Sec.  
1926.1402 and the multi-employer policy.
    Under Sec.  1926.1402(c)(2), the controlling entity is required to 
inform the user of the equipment and the equipment operator of the 
location of hazards beneath the equipment set-up area (such as voids, 
tanks, and utilities, including sewer, water supply, and drain pipes) 
that are identified in documents (such as site drawings, as-built 
drawings, and soil analyses) that are in the possession of the 
controlling entity. These underground hazards can compromise the 
ability of the ground above them to support the equipment. In the 
experience of members of the Committee, because of the hidden nature of 
these hazards, accidents have occurred when cranes have been set up 
above such hazards and a portion of the ground has given way.
    In developing this provision, the Committee was mindful that the 
controlling entity often possesses documents obtained or developed 
during the ordinary course of business that identify the location of 
such hazards. Under the provision as proposed, if the controlling 
entity has such a document, whether at the site or at an off-site 
location, it is required to inform the equipment user and operator of 
the location of the hazard as identified in it. If the controlling 
entity does not possess the information, it is not required to obtain 
it from another source. The Committee concluded that requiring the 
controlling entity to obtain such information from other sources would, 
in effect, require it to arrange for testing. As explained above, the 
Committee determined such a duty would be unduly burdensome and 
unnecessary.
    Some commenters indicated that clarification is needed regarding 
whether the controlling entity is required to possess particular 
documents. (ID-0166.1; -0214.1.) OSHA agrees that additional 
clarification is needed and is making two changes in the final text of 
paragraph (c)(2) of this section. Both of these clarifications are 
consistent with the rationale of the rule that the controlling entity 
need only share information that it possesses, and that the controlling 
entity has no obligation under Sec.  1926.1402 to seek out additional 
information not in its possession.
    First, OSHA is replacing the proposed phrase ``available to the 
controlling entity'' with ``in the possession of the controlling 
entity, whether at the site or off-site.'' As explained in the preamble 
to the proposed rule,

[i]n developing this proposed provision, the Committee was mindful 
that the controlling entity often has access to documents that may 
identify the location of such hazards. * * * Under this proposed 
provision, if the controlling entity has such a document, whether at 
the site or at an off-site location, it would be required to inform 
the equipment user and operator of the location of the hazard as 
identified in it. If the controlling entity does not possess such a 
document, it would not be required to obtain it from another source.

    The phrase ``available to'' may be interpreted as including 
documents that the controlling entity does not already have in its 
possession but has the ability to obtain, i.e., procure, from other 
entities. As is evident from the proposed rule explanation quoted 
above, the intent is to apply the duty only with respect to information 
that is already in the controlling contractor's possession, whether at 
the site or off-site.
    Second, OSHA is revising the text of paragraph (c)(2) of this 
section to emphasize that the employer's existing responsibilities 
under OSHA's multi-employer policy are not changed by this new rule. As 
noted above and in the preamble to the proposed rule, the duties 
provided in Sec.  1926.1402 supplement, and do not displace, the 
controlling entity's duties under the multi-employer policy.\11\ The 
multi-employer policy reflects the Secretary's reasonable 
interpretation of the OSH

[[Page 47934]]

Act and requires controlling employers to exercise reasonable care to 
prevent and detect violations on the site. See OSHA CPL 02-00-124, 
Multi-Employer Citation Policy, Dec. 10, 1999. Under this policy, the 
controlling employer has a duty to address hazards the employer either 
creates or controls, regardless of whose employees are threatened by 
the hazard. See, e.g. Universal Const. Co., Inc. v. Occupational Safety 
and Health Review Comm'n, 182 F3d 726, 730 (10th Cir. 1999). Implicit 
in those duties is a duty to notify employees of hazards the 
controlling employer controls and has already detected, particularly 
where such notification would prevent a violation. As noted in the 
preamble to the proposed rule, requiring employers to include hazard 
information needed by downstream employees is a necessary and 
appropriate means to ensure that the employees are apprised of all 
hazards to which they are exposed. (See 73 FR 59731, Oct. 9, 2008; see 
also American Petroleum Institute v. OSHA, 581 F.2d 493, 510 (5th Cir. 
1978).) (OSHA may require upstream employers to warn downstream 
employees of concealed hazards when the upstream employer knows of 
those hazards under remedial purpose of the OSH Act and OSHA's broad 
authority to prescribe warning labels under 29 U.S.C. 655(b)(7)).
---------------------------------------------------------------------------

    \11\ The Agency anticipates that the majority of controlling 
entities will also be controlling employers for the purposes of the 
multi-employer policy. However, even to the extent that a 
controlling entity does not also meet the definition of a 
controlling employer, the Agency has the authority to require the 
controlling entity to comply with the requirements of Sec.  
1926.1402. (See discussion of authority at 73 FR 59731-59732, Oct. 
9, 2008.) With respect to the controlling entity's duty to warn the 
operator and other users of the equipment about hidden ground 
condition hazards, Sec.  1926.1402(c) constitutes OSHA's exercise of 
its authority to ``prescribe the use of labels or other appropriate 
forms of warning as are necessary to insure that employees are 
apprised of all hazards to which they are exposed * * * and proper 
conditions and precautions of safe use or exposure.'' 29 U.S.C. 
655(b)(7).
---------------------------------------------------------------------------

    OSHA is therefore clarifying in paragraph (c)(2) that the 
controlling entity still must share both documentary and non-
documentary information about other hazards when the hazards are 
``known to the controlling entity.'' This requirement only applies to 
hazard information already in the possession of the controlling entity, 
and does not require the controlling entity to obtain any additional 
information. For example, if the controlling entity is setting up non-
crane equipment and discovers during the course of that work that there 
is an undocumented void in the area where the crane is to be set up, 
the controlling entity would be required to share that information with 
the crane operator. Although this requirement extends beyond the 
``documents'' specified in the proposed rule, it is consistent with the 
rationale provided in the proposed rule and is supported by those 
commenters who favor this provision: C-DAC sought to distinguish 
between information in the possession of the controlling entity, and 
information that must be sought out by the controlling entity. Thus, to 
comply with Sec.  1926.1402(c)(2) of the final rule, the controlling 
entity has no duty to seek out new information not already in its 
possession; it is only required to share information already in its 
possession, whether or not such information is contained in a document.
    OSHA received several comments about whether these responsibilities 
should rest with the controlling entity as it is defined in Sec.  
1926.1401 (prime contractor, general contractor, construction manager 
or any other legal entity which has the overall responsibility for the 
construction of the project--its planning, quality and completion).
    One commenter sought clarification on whether a construction 
manager/general contractor or a site/project owner is considered the 
controlling entity where the latter contracts with the former but 
retains responsibility for oversight of certain matters (e.g., quality 
control, safety). The commenter also wanted to know if the site/project 
owner is still responsible for inspecting ground conditions under Sec.  
1926.1402 if the construction manager/general contractor is the 
controlling entity. (ID-0107.1.) As explained above, the ``controlling 
entity'' is the entity which has the overall responsibility for the 
construction of the project--its planning, quality and completion. 
Where this responsibility is split among several entities, there may 
not be a controlling entity. In that case, Sec.  1926.1402(d) applies: 
whichever employer has authority to make or arrange for ground 
preparations is required to ensure that the necessary ground 
preparations are made. If more than one entity each possesses this 
authority, then OSHA holds each of those entities separately liable for 
the duty to ensure that the necessary ground preparations are made.
    Some commenters suggested that the provision is unclear as to which 
hazards, i.e., known or unknown, the controlling entity is required to 
disclose. (ID-0166.1; -0214.1.) The purpose of this requirement is to 
ensure that the user of the equipment and the operator are informed of 
hazards that might not be known to them, because they are beneath the 
set-up area, but are known to the controlling entity. In other words, 
under this provision, the controlling entity must examine information 
in its possession (such as site drawings, as-built drawings, and soil 
analyses) to see if there are hazards beneath the set-up area. If there 
are hazards identified in those documents, or if the controlling entity 
has already identified other hazards not in those documents, the 
controlling entity must inform the user and operator of the hazards. As 
explained above and in the proposed rule preamble, new Sec.  1926.1402 
does not place any new requirements on the controlling entity to 
discover hazards that are not already known to it (see 73 FR 59741, 
Oct. 9, 2008). The Agency concludes that the provision's language 
adequately reflects this intent.
    One commenter suggested that Sec.  1926.1402(c) be replaced with a 
section that would simply encourage a cooperative meeting between the 
controlling entity, the employer using the crane, and the employer best 
situated to control and prepare the ground conditions. (ID-0218.1.) 
OSHA determines that such a change would merely replicate the status 
quo, an arrangement which the Committee found to be inadequate for 
ensuring adequate ground conditions.
    Several commenters argued that the crane operator, not the 
controlling entity, should be required to obtain information about the 
location of hazards beneath the equipment set-up area. (ID-0165.1; -
0179.1; -0191.1; -0197.1; -0214.1; -0232.1; -0235.1; -0285.1.) These 
comments fell into one of two groups.
    The first group argued that some controlling entities are either 
not engaged in construction work,\12\ may have little to no expertise 
concerning ground conditions in general, or may hire subcontractors to 
work at a remote location of which the controlling entity may have 
little knowledge. (See, e.g., ID-147.1; -0165.1; -0232.1; -0235.1.) 
This group appears to read Sec.  1926.1402(c)(1) to mean that the 
controlling entity must personally determine and provide the ground 
conditions necessary to meet the requirements in Sec.  1926.1402(b).
---------------------------------------------------------------------------

    \12\ In most cases entity that meets the definition of 
``controlling entity'' will be engaged in construction.
---------------------------------------------------------------------------

    C-DAC considered the concern that some controlling entities would 
not have the expertise needed to determine if ground conditions were 
adequate. The final rule therefore addresses this concern in two ways. 
First, paragraph (c)(1) provides that the controlling contractor is 
responsible for ``ensuring'' that these ground conditions are provided. 
In other words, if the controlling contractor is not familiar with the 
crane's requirements or with the ground conditions at the particular 
site, then it must make sure that someone who is familiar with those 
requirements and conditions provides what is required by Sec.  
1926.1402(b). Second, under Sec.  1926.1402(e), if the A/D director or 
operator determines that ground conditions are inadequate, the 
controlling entity will, through a discussion, obtain the relevant 
information. (See discussion of

[[Page 47935]]

1926.1402(e) at 73 FR 59741, Oct. 9, 2008).
    One of the commenters suggested that Sec.  1926.1402(c) be revised 
to place requirements on either the controlling entity or a competent 
person designated by the controlling entity. (ID-0191.1.) As explained 
above, Sec.  1926.1402, as promulgated, does not preclude a controlling 
entity from using a competent person to provide the information it 
needs to meet its responsibilities under this section. However, C-DAC's 
experience indicates that it is important to ensure that one entity 
with the authority to address ground condition hazards has the 
responsibility to do so. To permit a controlling entity to divest 
itself of its ground condition responsibilities would unduly fragment 
responsibility for ground conditions, thus defeating one of the goals 
of the section.
    The second group argued that the rule may result in situations that 
are beyond the capacity and responsibility of certain subcontractors. 
(See, e.g., ID-0165.1; -0191.1; -0235.1.) One commenter suggested that 
the definition of ``controlling entity'' be revised ``to reflect that 
subcontractors and others who have little to do with the overall 
project including site conditions and do not have the expertise to 
determine compliance with crane manufacturer specifications are not 
included in the definition, purpose, or requirements of a controlling 
entity.'' (ID-0191.1) These commenters also argued that, because such 
subcontractors do not know or control the site conditions, the 
responsibilities in Sec.  1926.1402(c) should fall on the crane owner 
or operator. The other two commenters were concerned about the effect 
of the rule on heating, ventilating, air conditioning, and 
refrigeration (HVACR) contractors in particular. (ID-0165.1; -0235.1.)
    These commenters have misunderstood Sec.  1926.1402(c). For 
example, an HVACR contractor, if contracted to do only HVACR work and 
is not in control of the entire work site, would not be the controlling 
entity, and would be subject to the limited requirements in Sec.  
1926.1402(d) only if it had authority to make changes to the ground 
conditions.
    One commenter requested that the term ``user of the equipment'' be 
defined. (ID-0214.1.) OSHA determines this term does not need to be 
defined in Sec.  1926.1401, since its meaning is sufficiently clear. 
``User of the equipment'' refers to the employer that is using the 
equipment to perform a task. For example, a drywall installation 
employer engaged in erecting precast wall panels would be a ``user of 
the equipment'' if that employer directs a crane to hoist the panels 
into place. Similarly, an employer installing wooden roof trusses would 
be a ``user of equipment'' if that employer directs a crane to place 
the trusses on the structure. A general contractor handling several 
subcontracting areas, but not the controlling entity for the worksite, 
would also be a ``user of equipment'' if it directs its subcontractors 
to use a crane to hoist materials. In the latter example, the general 
contractor and the subcontractor would each be a ``user of equipment.''
Paragraph (d)
    In the event that no controlling entity exists, Sec.  1926.1402(d) 
provides that the requirement in Sec.  1926.1402(c)(1) must be met by 
the employer that has authority at the site to make or arrange for 
ground preparations needed to meet the requirements of Sec.  
1926.1402(b). For example, if the employer who hires the crane has the 
authority to get the ground prepared in the absence of a controlling 
entity, the responsibility for complying with Sec.  1926.1402(b) would 
fall to that employer. However, that employer would not be required to 
comply with Sec.  1926.1402(c)(2) because the information required to 
be disclosed under Sec.  1926.1402(c)(2) is not likely to be available 
to that employer.
    One commenter suggested that paragraph (d) of this section be 
revised to read that the requirements in Sec.  1926.1402(c)(1) must be 
met by a competent person designated by the employer that has authority 
at the site to make or arrange for ground preparations needed to meet 
the requirements of Sec.  1926.1402(b). (ID-0191.1.) As explained above 
with respect to a similar suggestion regarding Sec.  1926.1402(c), OSHA 
determines this would have the effect of unduly fragmenting the 
responsibility for ground conditions, which is contrary to the intent 
of the provision.
    For the reasons above, OSHA is promulgating Sec.  1926.1402(d) as 
proposed.
Paragraph (e)
    Proposed Sec.  1926.1402(e) established a mechanism for a 
controlling entity to obtain information from the A/D director or the 
equipment operator about insufficient ground conditions and the 
preparations needed to correct the problem. Specifically (as discussed 
above in the context of Sec.  1926.1402(c)(1)), if the A/D director or 
equipment operator determines that ground conditions do not meet the 
criteria in Sec.  1926.1402(b), that person's employer is required to 
have a discussion with the controlling entity regarding the ground 
preparations needed so that, with the use of suitable supporting 
materials/devices (if necessary), the requirements in Sec.  
1926.1402(b) can be met.
    The Committee determined that, in some instances, the controlling 
entity may lack the expertise needed to know what ground preparations 
may be needed. In such cases, it is necessary for the information it 
needs to be provided by the A/D director or operator, who has that 
expertise, so that the preparations needed for safe crane operations 
can be made. The Committee concluded that, in such circumstances, such 
a discussion would make it more likely that the requirements in Sec.  
1926.1402(b) would be met, which, as discussed above, is necessary for 
safe crane operations.
    One commenter suggested that the provision will encourage disputes. 
The commenter suggested that rental companies would not accept a 
controlling entity's ground conditions unless the controlling entity 
purchases services from the rental company to improve them. (ID-
0105.1.)
    OSHA determines that the commenter's concerns are unwarranted. 
Section 1926.1402(e) is a mechanism for a controlling entity to obtain 
information to facilitate its compliance with Sec.  1926.1402(c)(1). 
Once ground conditions meet the criteria in Sec.  1926.1402(b), the 
controlling entity is not required to make further improvements, even 
if the rental company objects.
    For the reasons above, OSHA is promulgating Sec.  1926.1402(e) as 
proposed, with the substitution of the word ``director'' for the word 
``supervisor'' to be consistent with the change made and discussed in 
Sec.  1926.1404.
Paragraph (f)
    At the public hearing, a representative of the railroad industry 
explained that, in his experience, railroads use cranes to: remove, 
replace or renew rails; build bridges; handle materials; and to pick up 
and repair railroad cars. (ID-0342.) In addition, the witness explained 
that the railroad industry uses a variety of construction equipment, 
some on the tracks (locomotive cranes, rubber-tired off-road cranes 
that are capable of being used on the tracks) and others off the tracks 
(rubber-tired off road cranes, truck cranes, and service trucks). (ID-
0342.) The witness estimated that 95% of railroad industry crane 
operations take place on or around railroad tracks. (ID-0342.)

[[Page 47936]]

    One commenter expressed concern about the application of Sec.  
1926.1402 to the railroad industry's use of cranes and requested an 
exemption for the use of cranes on and alongside tracks. (ID-0176.1; -
0292.1.) The commenter expressed two specific concerns. First, that, 
unlike most construction sites, a railroad construction site may 
include many miles of railroad track. The commenter elaborated that the 
time and cost associated with locating and checking site drawings and 
soil analyses--which the commenter said may arguably be available to 
the railroad industry--for thousands of miles of track would be 
``exorbitant'' and would ``not appreciably lower the risks to the crane 
operator.'' (ID-0176.1.)
    As for the cost associated with locating and checking documents, 
Sec.  1926.1402 does not require the controlling entity to possess or 
acquire any particular documents or other information, but requires 
that the controlling entity share any information about underground 
hazards that it has in its possession with the crane user and operator. 
As explained above, OSHA has replaced ``available to'' with ``in the 
possession of'' to make this clear.
    The commenter also suggested that there is no need to apply Sec.  
1926.1402 to cranes used by railroads along track rights of way because 
the Federal Railroad Administration (FRA) has regulations that specify 
minimum requirements for roadbeds and areas immediately adjacent to 
roadbeds that concern the ground conditions underneath and alongside 
the track, as well as requirements for how the track must be laid.
    The Federal Railroad Administration has established requirements 
for the ballasts beneath railroad tracks,\13\ limited requirements for 
the roadbed,\14\ and requirements for the track surface.\15\ The 
failure of any one of these elements (the ballast, the roadbed or sub-
grade, or the track) is detrimental to the effectiveness of the system 
as a whole. These provisions are designed to, in concert, enable trains 
to travel safely, and involve conditions adjacent to the track only to 
the extent that they affect track stability.
---------------------------------------------------------------------------

    \13\ The FRA regulations for the ballast (the foundation for 
most railroad tracks) can be found at 49 CFR 213.103 and 213.334, 
depending on the class of track. The provisions are otherwise 
identical, and provides:
    Unless it is otherwise structurally supported, all track shall 
be supported by material which will--
    (a) Transmit and distribute the load of the track and railroad 
rolling equipment to the subgrade;
    (b) Restrain the track laterally, longitudinally, and vertically 
under dynamic loads imposed by railroad rolling equipment and 
thermal stress exerted by the rails;
    (c) Provide adequate drainage for the track; and
    (d) Maintain proper track crosslevel, surface, and alignment.
    \14\ FRA requirements address issues other than ground support 
in the area adjacent to the track roadbed. Specifically, 49 CFR 
213.31 requires that each drainage or other water carrying facility 
under or immediately adjacent to the roadbed be maintained and kept 
free of obstruction, to accommodate expected water flow for the area 
concerned. Section 213.37 requires the control of vegetation on 
railroad property which is on or immediately adjacent to roadbeds to 
prevent fires, maintain visibility and signals, and to prevent 
interference with other duties.
    \15\ 49 CFR 213.51 et seq. contains requirements for the gage, 
alignment, and surface of the track.
---------------------------------------------------------------------------

    The comment is persuasive to the extent that it pertains to cranes 
that operate on railroad tracks that are part of the general railroad 
system of transportation because FRA's regulations address ground 
support for the tracks.\16\ Therefore, OSHA has decided to exempt from 
the requirements of Sec.  1926.1402 cranes used on railroad tracks that 
are part of the general railroad system of transportation subject to 
FRA regulation. To effectuate this change from the proposed rule, OSHA 
has added Sec.  1926.1402(f), which exempts cranes that are designed 
for use on railroad tracks and that are being used on tracks regulated 
by the Federal Railroad Administration requirements at 49 CFR part 213. 
In addition, OSHA has exempted railroad tracks and their underlying 
support from the ground conditions inspection requirements in Sec.  
1926.1412(d)(1)(x).
---------------------------------------------------------------------------

    \16\ The general railroad system of transportation is defined as 
``the network of standard gage track over which goods may be 
transported throughout the nation and passengers may travel between 
cities and within metropolitan and suburban areas.'' Appendix A to 
49 CFR part 209. If a railroad that is part of the general railroad 
system of transportation operates over track that is confined to an 
industrial installation, that plant trackage is also considered part 
of the general railroad system of transportation.
---------------------------------------------------------------------------

    The commenter also stated that the FRA has regulations that 
``concern[] the ground conditions * * * alongside the track.'' (ID-
0176.1.) The only aspects of the ground conditions of the area adjacent 
to the track roadbed addressed by the FRA regulations are drainage and 
vegetation.\17\ An area with adequate drainage can nonetheless present 
problems for equipment set-up with respect to slope, compaction and 
firmness, as well as have hazards beneath the set-up area. For this 
reason, the Agency has decided not to exempt equipment used alongside 
railroad tracks. Therefore, for example, a rubber tired off-road crane 
designed for use on tracks would be exempted from Sec.  1926.1402 while 
being operated on the tracks, but would be subject to the requirements 
of Sec.  1926.1402 if used adjacent to the tracks.
---------------------------------------------------------------------------

    \17\ See the description of FRA requirements that relate to the 
area adjacent to the track roadbed in footnote 11.
---------------------------------------------------------------------------

Sections 1926.1403--1926.1406 Assembly and Disassembly
    Sections 1926.1403 through 1926.1406 set out requirements designed 
to ensure the safety of employees while equipment is assembled and 
disassembled (and, in the case of tower cranes, during erecting, 
climbing and dismantling). C-DAC members indicated that, in their 
experience, the failure to adequately address hazards associated with 
these processes is a significant cause of injuries and fatalities. The 
Committee also concluded that the most effective way to reduce these 
injuries and fatalities would be to have a standard that 
comprehensively addresses these hazards (see also the Agency's 
discussion of fatality data associated with assembly/disassembly at 73 
FR 59741-59742, Oct. 9, 2008).
    Note that the term ``procedures,'' which is used in the assembly/
disassembly provisions, is defined to include (but is not limited to) 
instructions, diagrams, recommendations, warnings, specifications, 
protocols and limitations (see Sec.  1926.1401). The operation of an 
``assist'' crane used to help in the assembly/disassembly process is 
not covered by the assembly/disassembly requirements but is covered by 
the other sections of this standard.\18\
---------------------------------------------------------------------------

    \18\ However, the rigging requirements in Sec. Sec.  
1926.1404(r) and 1926.1425(c)(3) apply to the rigging used by the 
assist crane.
---------------------------------------------------------------------------

    One commenter suggested that the Agency clarify whether Sec. Sec.  
1926.1403 through 1926.1406 apply to activities that modify or increase 
the height of the crane such as ``jumping.'' (ID-0156.1.) ``Jumping'' 
(or ``climbing'') refers to the process of adding mast sections to a 
tower crane to increase its height. In many cases a tower crane is 
first erected and used at one height, and then as the height of the 
structure being built increases, the height of the tower crane is 
increased in stages to keep pace with it.
    Irrespective of whether the crane is initially erected to its full 
height, or is ``jumped'' in stages, the process of increasing the 
height of the crane is an assembly/erection process. Sections 1926.1403 
through 1926.1406 apply whenever the crane's height is modified. To 
ensure that this intent is reflected in the standard, OSHA has added a 
sentence to the definition of ``assembly/disassembly'' in Sec.  
1926.1401 to this effect.

[[Page 47937]]

    In proposed Sec.  1926.1401, ``assembly/disassembly'' was defined 
to mean ``the assembly and/or disassembly of equipment covered under 
this standard.'' With regard to tower cranes, `erecting and climbing' 
replaces the term `assembly,' and `dismantling' replaces the term 
`disassembly.' C-DAC did not originally include a definition of 
``assembly/disassembly,'' but OSHA included this definition in the 
proposed rule to avoid any implication that Sec. Sec.  1926.1403-
1926.1406 do not apply to tower cranes because the terms ``assembly'' 
and ``disassembly'' are not commonly used in the industry in referring 
to tower cranes. Instead, the words ``erecting,'' ``climbing,'' and 
``dismantling,'' are used, and the definition of ``assembly/
disassembly'' makes it clear that Sec. Sec.  1926.1403-1926.1406 also 
apply to tower cranes.
Section 1926.1403 Assembly/Disassembly--Selection of Manufacturer or 
Employer Procedures
    Final Sec.  1926.1403 requires that when assembling or 
disassembling equipment (or attachments), the employer must comply with 
all manufacturer prohibitions applicable to assembly and disassembly 
and must also comply with either manufacturer procedures, or employer 
procedures, for assembly and disassembly. Employer procedures may be 
used only where the employer can demonstrate that the procedures used 
meet the requirements in Sec.  1926.1406 and may not be used during 
rigging if the employer uses synthetic slings, as explained in the 
discussion below regarding Sec.  1926.1404(r).
    Two commenters suggested that only manufacturer procedures for 
crane assembly/disassembly be allowed. (ID-0151.1; -0305.1.) One of 
these commenters clarified its comment at the hearing (ID-0343.) and 
confirmed this clarification in post-hearing submissions (ID-0387.1.) 
that they did not believe the assembly/disassembly procedures should be 
limited to just manufacturer procedures. The commenter suggested using 
a procedure designed by a registered professional engineer or by a 
qualified person. (ID-0387.1.) Note that Sec.  1926.1406(b) of the 
final rule requires employer procedures to be developed by a qualified 
person.
    As explained in the proposed rule preamble, the Committee members 
discussed whether employers should be required to comply with the 
manufacturer's procedures, or if deviations from those procedures 
should be allowed. The Committee determined that deviations should be 
allowed for two reasons. First, manufacturers' procedures are typically 
designed for use in ``ideal'' environments: Large, flat, dry, 
unencumbered open areas. However, in C-DAC's experience, such 
conditions are not typical, especially in urban areas. Consequently, 
employers are currently unable to implement those procedures in those 
situations. Second, members were of the view that there is often more 
than one way to safely assemble and disassemble a crane, and that it is 
unnecessary to mandate that in every case the manufacturer procedures 
be used. The inclusion of specific requirements in the standard that 
employer procedures must meet (see Sec.  1926.1406) addresses the 
concern that those procedures ensure worker safety.
    Another commenter suggested that employer procedures not be allowed 
for climbing operations unless approved by the manufacturer. (ID-
0137.1.) As explained in the discussion below regarding Sec.  
1926.1404(r), the Agency has decided to require manufacturer procedures 
to be used with regard to the use of synthetic slings. Since the 
commenter has not provided information substantiating the need for 
manufacturer approval with respect to deviation from climbing 
procedures, the Agency is unaware of any basis to conclude that the 
requirements in Sec. Sec.  1926.1403 and 1926.1406 would be inadequate 
to ensure the safety of employer procedures in this regard. Therefore, 
OSHA has decided not to adopt the commenter's suggestion.
    Another commenter suggested that if the Agency is going to allow 
employer procedures, a written copy should be required to be kept on 
the job site for the use of the entire crew. (ID-0178.1.)
    The final rule requires that the A/D director understand the 
assembly/disassembly procedures. In addition, the A/D director must 
review the assembly/disassembly procedures prior to starting the 
assembly/disassembly process unless the A/D director is experienced in 
having used them on the same type and configuration of equipment and is 
able to recollect the procedures such that review is unnecessary. (See 
Sec.  1926.1404(b).) Furthermore, before beginning assembly/disassembly 
operations, the A/D director must determine that the crew members 
understand their tasks and the associated hazards, as well as any 
hazardous positions/locations that they need to avoid. (See Sec.  
1926.1404(d).) These requirements ensure that both the A/D director and 
crew members understand the assembly/disassembly procedures that are 
going to be undertaken.
    C-DAC declined to require the procedures to be in writing and at 
the site. In some cases, the procedures are not complex and are very 
familiar to the A/D director. In such cases C-DAC determined that 
having them in writing is not necessary. In other cases, such as where 
the procedures are complex, the equipment is new to the employer, or 
the A/D director has not often assembled/disassembled the equipment, 
there is an inherent incentive for the employer to have them in 
writing. In such instances, OSHA expects that the employer will have 
written procedures on site to facilitate meeting the requirements in 
Sec. Sec.  1926.1404(b) and (d). The Agency therefore finds that it is 
not necessary to have a requirement that they be in writing and at the 
site.
    Lastly, a commenter suggested that this section incorporate by 
reference the ANSI/ASSE A10.31 American National Standard, Safety 
Requirements, Definitions and Specifications for Digger Derricks. (ID-
0178.1.) Because the commenter did not explain how incorporating this 
standard would make the final rule more effective, OSHA has decided not 
to incorporate ANSI/ASSE A10.31 into Sec.  1926.1403.
    In the proposed rule, Sec.  1926.1404(n) set forth the requirement 
(now set forth in this section) that an employer must comply with 
manufacturer prohibitions. The Agency decided that this important 
caveat to Sec.  1926.1403 would be better understood if it was moved to 
this section. Therefore, Sec.  1926.1404(n) is now reserved and its 
text is integrated in this section.
    Additionally, OSHA has substituted an ``or'' in place of the 
``and'' separating ``assembling'' and ``disassembling'' to clarify that 
the listed requirements apply when the employer is assembling or 
disassembling. Finally, a reference to Sec.  1926.1404(r) has been 
added to Sec.  1926.1403(b) to clarify when employer procedures may not 
be used.
Section 1926.1404 Assembly/Disassembly--General Requirements (Applies 
to All Assembly and Disassembly Operations)
Paragraph (a) Supervision--Competent--Qualified Person
    Section 1926.1404(a) requires assembly/disassembly to be directed 
by a person who meets the criteria for both a competent person and a 
qualified person, or by a competent person who is assisted by one or 
more qualified persons (``A/D director''). Where the assembly/
disassembly is being performed by only one person, that person must 
meet the criteria for both a competent person and a qualified person. 
For purposes of this standard,

[[Page 47938]]

that person is considered the A/D director.
    Section 1926.1401 defines ``A/D director'' as ``an individual who 
meets this standard's requirements for an A/D director, irrespective of 
the person's formal job title or whether the person is non-management 
or management personnel.'' C-DAC constructed the definition in this way 
to make clear that it is the substance of the individual's 
qualifications, and not his or her job title or position in the company 
hierarchy, that determines whether the person is qualified to act as an 
A/D director.
    In the proposed rule, OSHA used the term ``A/D supervisor.'' Some 
commenters objected by written submission and at the hearing to the use 
of the word ``supervisor'' in this provision. (ID-0182.1; -0199.1; -
0172.1; -0341.) They were concerned that the use of this term would 
imply that anyone who serves in this role under Sec.  1926.1404 would 
be considered a supervisor under the National Labor Relations Act 
(``NLRA'').\19\ Their objections are rooted in the fact that the word 
``supervisor'' is used and defined in the NLRA. The commenters' only 
objection to Sec.  1926.1404(a) was the use of the term ``supervisor''; 
they did not object to the actual duties or prerequisites spelled out 
in the proposed rule applicable to this individual/team. Several 
commenters suggested that the word ``supervisor'' be replaced with the 
term ``designated individual'' and that the regulatory text be amended 
to definitively indicate that OSHA has no intention of creating NLRA 
implications by use of the term. (ID-0182.1; -0199.1; -0172.1.)
---------------------------------------------------------------------------

    \19\ 29 U.S.C. 159-169 (1935).
---------------------------------------------------------------------------

    The use of ``supervisor'' in this rule would not be determinative 
of supervisor status under the NLRA.\20\ Nonetheless, OSHA understands 
the commenters' concerns that workers in the industry may be confused 
by the use of this term. However, the term ``designated individual,'' 
suggested by a labor representative and other commenters, could also 
cause confusion, since it is ambiguous as to whether that person had 
been granted the authority to correct hazards. Such ambiguity in the 
minds of the A/D crew members regarding the authority of the A/D 
supervisor would undermine the effectiveness of the provision itself.
---------------------------------------------------------------------------

    \20\ With ``A/D supervisor,'' OSHA was merely creating a 
descriptive term for use solely in the application of an OSHA 
standard. OSHA's use of the term is a less significant designation 
for the purposes of the NLRA than even a job title, which is itself 
not determinative under the NLRA. See, e.g., N.L.R.B. v. St. Mary's 
Home, Inc., 690 F.2d 1062, 1066 (4th Cir. 1982) (``As the [NLRB] 
itself has put it, `job titles are meaningless).
---------------------------------------------------------------------------

    Therefore, OSHA has decided to use the term ``A/D director.'' 
``Director'' is not a defined term in the NLRA nor does it have any 
particular significance as a job title with respect to NLRA 
jurisprudence. Furthermore, like ``A/D supervisor,'' it is consistent 
with C-DAC's intent to use a term that conveys the concept of authority 
to oversee the assembly/disassembly process. To remain consistent with 
this new term, in Sec.  1926.1404(a)(1), OSHA has replaced the word 
``supervised'' with ``directed.''
    The A/D director has to meet the definition of both a ``competent'' 
and ``qualified'' person as OSHA defines those terms.\21\ The Committee 
determined that having an A/D director overseeing the assembly/
disassembly process who had both the authority to correct a hazard and 
who had the expertise of a qualified person was necessary to ensure the 
safety of the operation. Several commenters strongly endorsed the new 
A/D director requirement, believing the addition will improve workplace 
safety. (See, e.g., ID-0343.)
---------------------------------------------------------------------------

    \21\ Section 1926.1401, Definitions, defines a ``competent 
person'' as: ``one who is capable of identifying existing and 
predictable hazards in the surroundings or working conditions which 
are unsanitary, hazardous, or dangerous to employees, and who has 
authorization to take prompt corrective measures to eliminate 
them.'' Section 1926.1401 defines a ``qualified person'' in this 
proposed standard as: ``One who, by possession of a recognized 
degree, certificate, or professional standing, or who by extensive 
knowledge, training, and experience, has successfully demonstrated 
his ability to solve or resolve problems relating to the subject 
matter, the work, or the project.'' These definitions are 
essentially the same as the definitions in Sec. Sec.  1926.32(f) and 
1926.32(m).
---------------------------------------------------------------------------

    A commenter asserted that the qualifications for A/D directors are 
too abstract and allowed for too much interpretation. The commenter 
suggests that the qualifications for an A/D director should be more 
similar to the requirements for operator certification in Sec.  
1926.1427. (ID-0137.1.)
    C-DAC thoroughly discussed the necessary qualifications for an A/D 
director and determined that the best option for ensuring employee 
safety during assembly/disassembly was to require an A/D director to be 
both a qualified and a competent person. (See ID-0321.5.) Furthermore, 
the terms qualified person and competent person and their definitions 
are well established and well recognized in the construction industry. 
For these reasons, OSHA is deferring to the judgment of the Committee 
and is not making the suggested change.
Paragraphs (b) Knowledge of the Procedures and (c) Review of the 
Procedures
    Section 1926.1404(b) requires that the A/D director understand the 
assembly/disassembly procedures. In addition, Sec.  1926.1404(c) 
requires the A/D director to review the procedures immediately prior to 
starting the process unless the director's experience in having used 
them on the same type and configuration of equipment, and recollection 
and understanding of the procedures is such that it makes their review 
unnecessary.
    These two sections work together to ensure that an experienced A/D 
director understands the procedures. Even if an A/D director has 
experience, he/she must still meet the knowledge requirement in Sec.  
1926.1404(b). For example, if an A/D director configured a type of 
crane a number of years ago and no longer remembers the procedures 
applicable to such a crane, he/she does not fall within the experienced 
A/D director exception, and must, accordingly, review the procedures 
immediately prior to starting the process.
    No comments were received on these provisions. They are promulgated 
as proposed except that, in addition to a grammatical clarification, 
Sec.  1926.1404(c) now contains a clearer knowledge requirement to 
clarify the interplay between Sec. Sec.  1926.1404(b) and 1926.1404(c), 
as described above.
Paragraph (d) Crew Instructions
    Under this provision, before beginning assembly/disassembly 
operations, the A/D director would have to ensure that the crew members 
understand their tasks and the associated hazards, as well as any 
hazardous positions/locations that they need to avoid.
    No comments were received on this provision. It is promulgated as 
proposed except that ``ensure'' replaces ``determine,'' to better 
represent the role of the A/D director.
Paragraph (e) Protecting Assembly/Disassembly Crew Members Out of 
Operator View
    Section 1926.1404(e) requires that before a crew member goes to a 
location that is out of view of the operator and is either in, on, or 
under the equipment, or near the equipment (or load) where the crew 
member could be injured by movement of the equipment (or load), the 
crew member must inform the operator that he/she is going to that 
location. Where the operator knows that a crew member went to a 
location

[[Page 47939]]

covered by paragraph (e)(1) of this section, the operator must not move 
any part of the equipment (or load) until the operator is informed in 
accordance with a pre-arranged system of communication that the crew 
member is in a safe position. An example of such a system would be the 
use of a signal person who gives an all-clear signal to the operator 
once the signal person sees that the employee has exited the hazard 
area. Another example would be where the employee in the hazard area is 
equipped with a portable air horn and, in accordance with a pre-
arranged horn signal system, sounds an appropriate signal to the 
operator that the employee has exited the hazard area. To be effective, 
the pre-arranged signal system needs to be designed so that this all-
clear signal could not be confused with a horn signal from some other 
employee for another purpose.
    One of the hazards identified by the Committee is an operator 
swinging or moving the crane/derrick when assembly/disassembly 
personnel are in a crush/caught-in-between zone and out of the 
operator's view. The Committee concluded that an effective and 
practical means of preventing these accidents would be through a 
communication procedure that would provide key information to, and 
coordination between, the operator and these workers.
    One Committee member suggested that instead of requiring that the 
crew member directly inform the operator of his/her location, the rule 
should permit the crew member to provide this information to the 
operator through a third person. For example, the crew member would 
instruct his/her foreman to radio the information to the operator. OSHA 
requested public comment on this suggestion in the preamble of the 
proposed rule (see 73 FR 59743, Oct. 9, 2008).
    Several commenters stated that the requirements should remain as 
originally proposed and the Agency should not allow notification 
through a third person. (ID-0205.1; -0213.1; -0182.1; -0187.1; -
0379.1.) One commenter believed that third party notification could 
result in miscommunication or delays. (ID-0226; -0357.1.)
    One commenter testified that introducing a third person into the 
communications link would not present any danger so long as there was 
some verbal confirmation. (ID-0344.)
    OSHA agrees with C-DAC and the majority of the commenters. Indirect 
communication between the crane operator and the employee working out 
of view, through an intermediary, would increase the potential for 
miscommunication. Therefore, the Agency has not changed the provisions 
to allow third party notification.
    Commenters raised additional issues regarding Sec.  1926.1404(e). 
Proposed Sec.  1926.1404(e) provided two methods to assure that 
employees would not be injured while working outside of the operator's 
view. Under proposed Sec.  1926.1404(e)(2)(i), the operator would give 
a warning that is understood by the crew member as a signal that the 
equipment (or load) is about to be moved and would allow time for the 
crew member to get to a safe position. Under proposed Sec.  
1926.1404(e)(2)(ii), the operator was prohibited from moving any part 
of the crane until informed, in accordance with a pre-arranged system 
of communication, that the crew member is in a safe position.
    Two commenters raised concerns regarding crew members actually 
hearing warnings that were given in accordance with proposed Sec.  
1926.1404(e)(2)(i). One commenter suggested that the operator should be 
required to confirm that the employee has moved to a safe location 
prior to initiating crane movement. (ID-0292.1.) Another commenter 
suggested that a prearranged communications system should be required 
because audible warnings can be drowned out by ambient noise. (ID-
0122.)
    These comments identified two flaws in proposed Sec.  
1926.1404(e)(2)(i) that were not addressed by C-DAC. First, a crew 
member may not hear a warning signal that the equipment or load is 
about to move and may not respond appropriately. Second, the crew 
member may hear the warning signal but be unable to move from his/her 
position. This would leave the crew member exposed to struck-by and 
crushing hazards. As a result, the Agency has revised the provision by 
deleting the option that was in proposed Sec.  1926.1404(e)(2)(i). 
Proposed Sec.  1926.1404(e)(2) is otherwise included as proposed except 
for one grammatical correction.
Paragraph (f) Working Under the Boom, Jib or Other Components
    Section 1926.1404(f) requires that when pins (or similar devices) 
are being removed, employees must not be under the boom, jib, or other 
components, except where the employer demonstrates that site 
constraints require employees to be so positioned. In such instances 
the A/D director must implement procedures that minimize the risk of 
unintended dangerous movement and minimize the duration and extent of 
exposure under the boom. An example of such procedures is provided in 
non-mandatory Appendix B.
Paragraph (g) Capacity Limits
    This provision requires that the rated capacity limits for loads 
imposed on the equipment, each of its components (including rigging), 
lifting lugs and equipment accessories being assembled or disassembled 
not be exceeded. The provision applies ``during all phases of assembly/
disassembly.'' (See the discussion of this provision at 73 FR 59744, 
Oct. 9, 2008.) Note that where an assist crane is being used during the 
assembly/disassembly of another crane/derrick, the requirements for 
rated capacity during operations must be met under Sec.  1926.1417(o), 
Compliance with rated capacity, with respect to the assist crane.
    No comments were received on this provision. It is promulgated as 
proposed except for one grammatical correction.
Paragraph (h) Addressing Specific Hazards
    Section 1926.1404(h) requires that the A/D director supervising the 
assembly/disassembly operation address known hazards associated with 
the operation with methods to protect the employees from them, and 
provides a list of specific hazards that are likely to cause serious 
injury or death. The A/D director must consider each hazard, determine 
the appropriate means of addressing it, and oversee the implementation 
of that method.
    No comments were received on this provision. It is promulgated as 
proposed with a grammatical clarification and the addition of the words 
``which include'' at the end of the introductory language to 
acknowledge the employer's existing responsibility under Sec.  5(a)(1) 
of the OSH Act (the ``general duty clause'') to address other 
recognized hazards not listed in this paragraph.
Paragraph (h)(1) Site and Ground Bearing Conditions
    This provision works in conjunction with Sec.  1926.1402, which 
addresses ground conditions for both assembly/disassembly and use of 
the equipment, including ground condition criteria. Section 
1926.1404(h)(1) requires the A/D director to assess the ground 
conditions for conformance with those criteria, and to assess the site 
for suitability for assembly and disassembly. (See the discussion of 
this provision at 73 FR 59744, Oct. 9, 2008.) No comments were received 
on this provision; it is promulgated as proposed.

[[Page 47940]]

Paragraphs (h)(2) Blocking Material and (h)(3) Proper Location of 
Blocking
    These two provisions address the hazards associated with inadequate 
blocking. Section 1926.1404(h)(2) requires the size, amount, condition 
and method of stacking the blocking to be sufficient to sustain the 
loads and maintain stability. Section 1926.1404(h)(3) requires that 
when used to support booms or components, blocking must be 
appropriately placed to protect the structural integrity of the 
equipment, and prevent dangerous movement and collapse.
    ``Blocking'' (also referred to as ``cribbing'') is defined in Sec.  
1926.1401 as ``wood or other material used to support equipment or a 
component and distribute loads to the ground. Typically used to support 
latticed boom sections during assembly/disassembly and under outrigger 
floats.'' This definition is from A Glossary of Common Crane and 
Rigging Terms, a publication by the Specialized Carriers & Rigging 
Foundation (``SC&RF Handbook''). (ID-0035.)
    Proper blocking plays an important role in assembly/disassembly 
safety by reducing the risk of injuries from unplanned movement or the 
collapse of equipment. (See the discussion of blocking at 73 FR 59744, 
Oct. 9, 2008.)
    One commenter suggested including a strength requirement for 
blocking. (ID-0053.1.) OSHA determines that the provision as proposed, 
which requires that the ``size, amount, condition and method of 
stacking blocking must be sufficient to sustain the loads and maintain 
stability,'' appropriately addresses blocking strength. Therefore, OSHA 
has not made a change to the wording of the provision in this regard.
    The version of paragraph (h)(3) in the proposed rule was applicable 
only to lattice booms and components. In the proposed rule's preamble, 
OSHA asked for public comment on whether the provision should also 
apply to other types of booms and components (i.e., those for hydraulic 
cranes). (See the discussion of this provision at 73 FR 59745, Oct. 9, 
2008.)
    Several commenters stated that proper blocking is necessary for 
hydraulic cranes in addition to lattice boom cranes. (ID-0213.1; -
0205.1; -0118.1.) In addition, hearing testimony also indicated that 
there is a need for this requirement to apply to hydraulic cranes 
because they are sometimes assembled or disassembled, at least 
partially, in the field. (See ID-0343.1.)
    OSHA has concluded that the requirement is necessary for both 
hydraulic and lattice boom cranes and components. At times, portions of 
hydraulic cranes are assembled and disassembled in the field and need 
proper blocking. As a result, the word ``lattice'' in the proposed 
provision's language has not been included in the final rule so that 
the provision applies to hydraulic cranes and components as well as 
lattice boom cranes and components.
Paragraph (h)(4) Verifying Assist Crane Loads
    This paragraph requires that, when using an assist crane, the loads 
that will be imposed on the assist crane at each phase of assembly/
disassembly must be verified in accordance with Sec.  1926.1417(o)(3). 
The purpose of this requirement is to avoid exceeding the assist 
crane's rated capacity. ``Assist crane'' is defined in Sec.  1926.1401 
as ``a crane used to assist in assembling or disassembling a crane.'' 
When used for this purpose, an ``assist crane'' is subject to all 
applicable provisions of this standard, including the requirement of 
Sec.  1926.1417(o) that it not be used in a manner that exceeds its 
rated capacity. (See the discussion of this provision at 73 FR 59745, 
Oct. 9, 2008.)
    No comments were received on this provision; it is promulgated as 
proposed except that the purpose of the requirement is now included 
above in the preamble, rather than in the rule text, to increase the 
clarity of the requirement.
Paragraph (h)(5) Boom and Jib Pick Points
    This provision would require the A/D director to address the hazard 
of using improper boom and jib pick points. Specifically, the points of 
attachment of rigging to a boom/jib or boom/jib section(s) must be 
suitable for preventing structural damage. Such damage could compromise 
structural integrity and, in some cases, may not be immediately 
noticed. If that component were nonetheless used, the boom/component 
could fail.
    The points of attachment also need to facilitate the safe handling 
of these components. (See the discussion of this provision at 73 FR 
59745, Oct. 9, 2008.) No comments were received on this provision; it 
is promulgated as proposed.
Paragraph (h)(6) Center of Gravity
    In a variety of instances the method used for maintaining stability 
during assembly/disassembly depends on supporting or rigging a 
component (or set of components) so that it remains balanced throughout 
the process. In such instances the A/D director is required to identify 
the center of gravity of the load. (See the discussion of this 
provision at 73 FR 59745, Oct. 9, 2008.) No comments were received on 
this provision. It is promulgated as proposed except for one 
grammatical change.
Paragraph (h)(7) Stability Upon Pin Removal
    This paragraph requires that each of the following must be rigged 
or supported to maintain stability upon the removal of the pins: Boom 
sections, boom suspension systems (such as gantry A-frames and jib 
struts), and components. ``Boom suspension system'' is defined in Sec.  
1926.1401 as ``a system of pendants, running ropes, sheaves, and other 
hardware which supports the boom tip and controls the boom angle.'' 
This definition is the same as that for ``boom suspension'' in the 
SC&RF Handbook. (See the discussion of this provision at 73 FR 59745, 
Oct. 9, 2008.)
    No comments were received on this provision; it is promulgated as 
proposed except that the conjunctive ``and'' is substituted for ``or'' 
to make it clear that all three of the listed items (boom sections, 
boom suspension systems, and components) must be properly rigged, not 
just any one of those.
Paragraph (h)(8) Snagging
    As explained in the preamble to the proposed rule, ``snagging'' 
occurs when pendant cables hung alongside the boom are caught 
(``snagged'') on the pins, bolts, or keepers as the operator raises the 
boom (see 73 FR 59746, Oct. 9, 2008.) Snagging could damage the cables 
or other equipment and result in injury. This paragraph requires that 
suspension ropes and pendants not be allowed to catch on the boom or 
jib connection pins or cotter pins (including keepers and locking 
pins). The definition for pendants can be found in Sec.  1926.1401. 
This definition is similar to that in the SC&RF Handbook, but with the 
addition of the reference to ``bar type'' pendants. (See the discussion 
of this provision at 73 FR 59746, Oct. 9, 2008). No comments were 
received on this provision; it is promulgated as proposed.
Paragraph (h)(9) Struck by Counterweights
    Final Sec.  1926.1404(h)(9) requires the A/D director to address 
the potential for unintended movement from inadequately supported 
counterweights and from hoisting counterweights. ``Counterweight'' is 
defined in Sec.  1926.1401 as a ``weight used to supplement the weight 
of equipment in providing stability for lifting loads by 
counterbalancing those loads.'' This

[[Page 47941]]

definition is taken from the SC&RF Handbook. (See the discussion of 
this provision at 73 FR 59746, Oct. 9, 2008.)
    No comments were received on this provision; it is promulgated as 
proposed except that OSHA has replaced the adjective ``unexpected'' 
with ``unintended'' to remain consistent throughout this section.
Paragraph (h)(10) Boom Hoist Brake Failure
    This provision addresses a hazard that can occur both during 
assembly and disassembly, although it is more typically a hazard during 
assembly. In many older cranes the boom hoist brake mechanism has an 
external or internal mechanical brake band that operates by pressing 
against the hoist drum. As the configuration of the crane changes and, 
for example, more boom is added, this type of boom hoist brake may slip 
unless it has been adjusted to hold the extra weight. The Committee was 
concerned that the inability of an unadjusted brake to hold the 
increased load will not be evident until the additional boom section(s) 
has been added and the operator attempts to rely on the brake in a 
subsequent phase of the operation. If the operator does not first raise 
the boom a small amount after the section has been added (with the crew 
clear of the boom) to test the brake, employees could be injured later 
in the process when the operator manipulates the boom and finds that 
he/she is unable to brake it.
    To address this hazard, the employer is required to test the brake 
to determine if it can hold the load. In many cases, if it is 
insufficient, an adjustment to the brake will correct the problem. If 
it remains insufficient, the employer is required to use a boom hoist 
pawl, other locking device, back-up braking device, or another method 
of preventing dangerous boom movement (such as blocking or using an 
assist crane to support the load) from a boom hoist brake failure.
    The Agency was concerned that the text of the proposed provision 
was not sufficiently clear regarding the timing of this brake test, so 
it solicited public comment on this issue. OSHA's interpretation was 
that the test would need to be done immediately after each section (or 
group of sections) is installed, and after all sections are in place 
(see 73 FR 59746, Oct. 9, 2008).
    One commenter recommended revising the provision to specify that 
the brake be tested prior to the commencement of lifting. (ID-0214.1.) 
However, two other commenters wrote that the regulatory text should 
remain as is and should not specify when to perform the brake test. 
They point out that C-DAC's intent in Sec.  1926.1404(h) was to 
identify hazards and require that they be addressed by the A/D 
director. C-DAC designed Sec.  1926.1404(h) so that, for the most part, 
the A/D director could determine the procedures (or how to implement 
specified requirements) that would be best suited in each situation to 
protect against those hazards. They also state that, in some cases, the 
specific procedure that OSHA referred to in the proposed rule preamble 
could result in a greater hazard. (ID-0205.1; 0213.1.)
    OSHA agrees that specifying an overly-detailed procedure to address 
this hazard would be inappropriate given the myriad of circumstances in 
which this issue may arise. However, the Agency also determined that 
the proposed rule's regulatory text did not identify the purpose of the 
provision with sufficient clarity. Therefore, the final standard does 
not specify that the test has to be performed at a certain time that is 
tied to the installation of any particular section, but instead 
requires a test whenever the A/D director will be relying on the boom 
hoist brake to function properly. In short, the test needs to be 
performed, prior to reliance being placed on the brake, and the test 
needs to accurately account for the loads that will be placed on the 
brake. The provision in the final rule, therefore, requires the boom 
hoist brake to be tested prior to each time reliance on the boom hoist 
brake is anticipated.
Paragraph (h)(11) Loss of Backward Stability
    The Committee identified three points during the assembly/
disassembly process at which there is a heightened risk of loss of 
backward stability. These are: when swinging the upperworks, during 
travel, and when attaching or removing equipment components. Therefore, 
under this provision, before any of these occur, the A/D director is 
required to consider whether precautions need to be instituted to 
ensure that backward stability is maintained. No comments were received 
on this provision. However, OSHA is not including the drawing described 
as Figure 1 in the proposed rule. See the discussion of the removal of 
this figure below in Sec.  1926.1405. Except for the removal of any 
reference to figure 1, OSHA is promulgating the provision as proposed.
Paragraph (h)(12) Wind Speed and Weather
    Section 1926.1404(h)(12) requires the A/D director to address 
hazards caused by wind speed and weather to ensure that the safe 
assembly/disassembly of the equipment is not compromised.
    The Committee considered the option of establishing a maximum wind 
speed, as well as the option of incorporating ANSI's provisions 
regarding wind speed. However, it determined that selecting any one 
particular speed as a maximum would be arbitrary because of the variety 
of factors involved. For example: different cranes and crane types vary 
with respect to the ``sail'' area they present; an assembly process 
involving use of an assist crane may require lower wind speeds than one 
in which no assist crane is used; and assembly/disassembly operations 
done ``in the air'' (that is, with the boom elevated in the air, 
without ground support for the boom) may require lower wind speeds than 
a boom assembled/disassembled on the ground. The Committee ultimately 
decided that a better approach would be to have the A/D director 
determine the maximum safe wind speed under the circumstances.
    Other weather conditions that can affect the safety of assembly/
disassembly would include, for example, ice accumulation on crane 
components. Ice can both add to the weight of the components and create 
slippery, dangerous surfaces on which employees work. The A/D director 
must address weather conditions that affect the safety of the 
operation. No comments were received on this provision; it is 
promulgated as proposed with a slight rewording for clarity.
Paragraph (i) [Reserved.]
Paragraph (j) Cantilevered Boom Sections
    Members of the Committee determined that a common mistake in 
assembly/disassembly is cantilevering too much boom. When too much boom 
is cantilevered, structural failure can occur in components such as the 
mast/gantry, boom sections and lifting lugs. Employees may be struck by 
falling components from this type of failure. To prevent accidents from 
cantilevering too much boom during assembly/disassembly, this provision 
requires manufacturer's limitations on cantilevering not to be 
exceeded.
    If the manufacturer's limitations are not available, the employer 
is required to have a registered professional engineer (RPE) determine 
the appropriate limitations, and to abide by those limitations. The 
Committee concluded that in such cases there would need to be a 
requirement that the RPE's determination be in writing to ensure that 
the assessment has been done.

[[Page 47942]]

    This provision is promulgated as proposed with one grammatical 
correction to make it clear that it is the limitations that must not be 
exceeded.
Paragraph (k) Weight of Components
    As with any load to be lifted by a crane/derrick, the weight of the 
components must be available to the operator so that the operator can 
determine if the lift can be performed within the crane/derrick's 
capacity. This requirement applies irrespective of whether the 
component is being hoisted by the crane being assembled/disassembled or 
by an assist crane.
    No comments were received on this provision. OSHA is promulgating 
this provision largely as proposed, but has modified the text to make 
it clear that assembly/disassembly is prohibited when the weight of 
each of the components is not readily available.
Paragraph (l) [Reserved.]
Paragraph (m) Components and Configuration
    This provision deals with the selection of components that will be 
used to comprise the crane/derrick, the configuration of the equipment, 
and its inspection upon completion of assembly. (See the discussion of 
this provision at 73 FR 59747, Oct. 9, 2008.)
    No comments were received on this provision. However, to be 
consistent with the requirements of Sec.  1926.1403, the word 
``prohibition'' has been added to Sec.  1926.1404(m)(1)(i); otherwise, 
it is promulgated as proposed with the addition of commas to clarify 
that this paragraph only applies to the selection of components and 
configuration to the extent that either one affects the capacity or 
safe operation of the equipment.
    Note that another section (Sec.  1926.1434) allows cranes/derricks 
to be modified under certain circumstances. To the extent a crane/
derrick is modified in accordance with Sec.  1926.1434, the employer is 
not required to follow the manufacturer's original instructions, 
limitations and specifications regarding component selection and 
configuration regarding those modifications. Instead, under Sec.  
1926.1404(m)(1)(ii), the employer is required to follow the component 
selection and configuration requirements approved in accordance with 
Sec.  1926.1434.
Paragraph (n)
    For clarity, OSHA has reserved this paragraph and incorporated its 
substance in Sec.  1926.1403, as explained above in the discussion 
regarding Sec.  1926.1403. (See the discussion of this provision at 73 
FR 59747, Oct. 9, 2008.)
Paragraph (o) Shipping Pins
    This provision requires reusable shipping pins, straps, links and 
similar equipment to be removed. Once they are removed they must either 
be stowed or otherwise stored so that they do not present a falling 
object hazard. No comments were received for this paragraph; it is 
promulgated as proposed.
Paragraph (p) Pile Driving
    This provision prohibits equipment used in pile driving operations 
from having a jib attached. An attached jib could be dislodged during 
pile driving operations and cause structural damage to the boom, 
potentially causing the boom to fail or diminishing its capacity. (See 
the discussion of this provision at 73 FR 59748, Oct. 9, 2008.) No 
comments were received on this provision; it is promulgated as 
proposed.
Paragraph (q) Outriggers and Stabilizers
    This paragraph specifies requirements regarding outriggers. (See 
the discussion of this paragraph at 73 FR 59748, Oct. 9, 2008.)
    OSHA received several comments with regard to Sec.  1926.1404(q)(2) 
in relation to stabilizers. One commenter stated that it is necessary 
to add the term ``stabilizers'' to the regulatory text for the 
provision to properly apply to articulating cranes. (ID-0206.1.) The 
commenter explains that, as opposed to outriggers, which are designed 
to take all load off of the tires, stabilizers are designed to relieve 
some, but not all, of the sprung weight for the purpose of increasing 
the stability of the vehicle. The commenter believes that the provision 
as written in the proposed rule would lead to improper use of 
stabilizers in such a way that is dangerous and against manufacturer 
recommendations. A second commenter emphasized that cranes equipped 
with stabilizers (and not outriggers) do not raise the wheels off the 
ground. (ID-0292.)
    OSHA agrees with the commenters that it is necessary to address 
stabilizers in Sec.  1926.1404(q). With the exception of Sec.  
1926.1404(q)(2), the term ``stabilizers'' has been added so that each 
provision also applies to stabilizers. Section 1926.1404(q)(2) does not 
apply to stabilizers because they are not designed to remove all weight 
from the vehicle's wheels.
    One comment was received in regards to Sec.  1926.1404(q)(4). Under 
that provision, each outrigger must be visible to the operator or to a 
signal person during extension and setting. The commenter suggested 
that the requirement be modified so that it would also apply to the 
retraction of outriggers. (ID-0053.1.) The commenter indicated that 
employees can be subject to crushing and pinching hazards during 
outrigger retraction and this would be less likely to occur if it the 
outrigger had to be visible to the operator or signal person during 
retraction.
    OSHA agrees that crushing and pinching hazards exist during 
outrigger retraction. However, Sec.  1926.1404(q) is designed to 
prevent the overturning of the crane; it does not address the crushing 
and pinching hazards posed by operation of the equipment in struck-by 
or crushed/by locations outside the operator's view. The final rule 
contains other provisions that are designed to address such hazards. 
(See, e.g., Sec.  1926.1404(e).) Therefore, the Agency is not 
incorporating the commenter's suggestion into Sec.  1926.1404(q) and is 
promulgating the provision largely as proposed.
Paragraph (r) Rigging
    This paragraph specifies requirements regarding rigging during the 
crane assembly/disassembly process. It includes a requirement for a 
qualified rigger and sets forth specifications regarding the use of 
synthetic slings.
    C-DAC did not focus on the proper use of synthetic sling rigging 
during the crane assembly/disassembly process, primarily because 
another standard--29 CFR 1926 Subpart H (Materials handling, storage, 
use, and disposal)--already addresses some of the hazards associated 
with the use of synthetic slings in construction.
    However, after C-DAC completed its work, a catastrophic crane 
collapse resulted in a reevaluation of subparts N and H with regard to 
synthetic slings and rigging expertise. On March 15, 2008, a tower 
crane in New York City collapsed, killing six construction workers. 
OSHA's investigation of that incident focused on the use of synthetic 
slings to hold a bracing collar that was being installed.
    The Agency determined that neither subpart H (Rigging equipment for 
material handling) nor subpart N specifically address the hazard posed 
when a synthetic sling is used in a manner causing compression or 
distortion of a sling, or when the sling is in contact with a sharp 
edge. The Agency asked for public comment on whether to prohibit using 
synthetic slings altogether in the assembly/disassembly process or, 
alternatively, to

[[Page 47943]]

require padding or similar measures to protect the slings from being 
damaged (see 73 FR 59742, Oct. 9, 2008).
    Commenters generally opposed prohibiting the use of synthetic 
slings during assembly/disassembly, as long as appropriate precautions 
are taken. (See, e.g., ID-0205.1; -0213.1; -0343.) Specifically, 
commenters stated that synthetic slings have the advantage of helping 
to prevent damage to equipment components, but need to be protected 
from cuts, compression, distortion and reduction of capacity, by the 
use of ``softeners'' (i.e., padding). (See, e.g., ID-0187.1; -0343.) 
One commenter testified that it does not oppose synthetic slings if 
they are listed in the manufacturer's procedures or if they are not 
specifically prohibited by the manufacturer. (ID-0343.) Some commenters 
also emphasized the need for such slings to be properly rated and 
inspected. (See, e.g., ID-0226.) Another commenter recommended 
requiring rigging equipment for material handling to be inspected. One 
commenter advocated prohibiting synthetic slings used in conjunction 
with tower crane erection, unless the manufacturer specifically allows 
their use. (ID-0156.)
    Commenters also suggested adding requirements regarding the 
qualifications and training of riggers. Specifically, several 
commenters suggested requiring certification of riggers similar to 
operator certification requirements in Sec.  1926.1427. (ID-0126; -
0132.1; -0136; -0204.1; -0311.1; -0362.1.) One commenter opposed 
certification, but supported requiring training. Another suggested 
third party certification or licensing of supervisors. (ID-0156.1.) 
Another advocated employer qualification of riggers. (ID-0197.1.)
    OSHA acknowledges that synthetic slings have certain advantages, 
such as preventing damage to equipment components, and no commenters 
advocated a prohibition in all instances. OSHA has therefore decided 
not to prohibit the use of synthetic slings in assembly/disassembly. 
There must, however, be adequate safeguards for their use.
    OSHA agrees with the comment that stressed the importance of 
inspecting slings. However, as Sec.  1926.251(a)(1) already requires 
that all rigging equipment be inspected, no additional requirement is 
needed in subpart CC regarding the inspection and removal of synthetic 
slings.
    The Agency finds that it is vital that synthetic slings be 
protected from abrasive, sharp or acute edges, since any of those 
conditions can damage a synthetic sling, resulting in a failure. Also, 
based on its review of the record, the Agency concludes that such 
slings must be protected from configurations that could cause 
compression or distortion of the sling, since that can also cause 
failure. For example, wrapping a synthetic sling through a V-angled 
junction point of steel members in a tower mast section can cause the 
sling to compress and distort under load, compromising its capacity.
    As was demonstrated by the March 2008 collapse in New York City, 
such protection is needed whenever the object that is in contact with 
the sling--whether it is a load or something else, such as a crane 
component used to anchor the sling--has such an edge or configuration. 
Therefore, OSHA is including a requirement in the final Sec.  
1926.1404(r)(2) to protect employees from such synthetic slings hazards 
when used in assembly/disassembly.
    OSHA also learned from its investigation of the March 2008 collapse 
that it is vital that synthetic slings be selected and used properly. 
In particular, the sling manufacturer's recommendations must be 
observed strictly as the capacity ratings set by the manufacturer are 
highly dependent on the sling being used as specified by the 
manufacturer. (See ID-0336.) Consequently, employers, even with the 
assistance of a qualified rigger, will typically not have the ability 
to develop safe alternative procedures regarding their use. Therefore, 
the Agency is including a requirement in the final Sec.  
1926.1404(r)(3) (also noted in Sec.  1926.1403(b)) that when a 
synthetic sling is used during assembly/disassembly, the sling 
manufacturer's instructions, limitations, specifications and 
recommendations must be followed.
    Note that Sec.  1926.1403 requires that the employer ``comply with 
all applicable manufacturer prohibitions.'' Therefore, if a 
manufacturer prohibits the use of synthetic slings during assembly/
disassembly, OSHA prohibits that use of such slings. Furthermore, while 
Sec.  1926.1403 requires the employer to comply with either the 
manufacturer's or the employer's assembly/disassembly procedures (see 
Sec.  1926.1403(a) and (b)), employer procedures may be used only if 
the employer meets a two-prong test. First, the employer must not be 
using synthetic slings. Second, the employer must demonstrate that its 
procedures meet the requirements in Sec.  1926.1406.
    There may be cases in which the equipment manufacturer does not 
prohibit the use of synthetic slings during assembly/disassembly, but 
identifies wire rope slings in its procedures. In such cases, the 
employer may only use synthetic slings if it establishes and implements 
its own procedures under Sec.  1926.1403(b) and can demonstrate that 
those procedures, including the use of synthetic slings, meet the 
criteria requirements in Sec.  1926.1406.
    As noted above, several commenters advocated adding a requirement 
that rigging be performed by qualified riggers. One local government 
stated that although rigging operations are critical to completing 
crane work, rigging operations involve a high level of risk if not 
performed properly. (ID-0362.1.) The local government's experience 
supports the proposition that human error causes most rigging 
accidents. (ID-0362.1.) The New York crane collapse and the subsequent 
OSHA investigation further highlight the dangers associated with 
improper rigging during assembly/disassembly, and the need to address 
this hazard was supported by all of the commenters who addressed this 
issue. OSHA notes that although several commenters pointed to the need 
for qualified riggers early on in the comment process, and again during 
the hearing, no one expressed any disagreement about the need to 
address the hazard by requiring riggers to be qualified. This means of 
addressing the hazard is consistent with the means that C-DAC applied 
when it identified a hazard related to rigging in Sec.  1926.1425(c), 
and the Agency relies on C-DAC's expertise in selecting the appropriate 
method to address a rigging hazard. OSHA is therefore requiring in 
Sec.  1926.1404(r)(1) that all rigging for crane assembly/disassembly 
be performed by a qualified rigger.
    Finally, the fact that the commenters did not limit their 
suggestions on rigging qualifications to rigging synthetic slings leads 
the Agency to conclude that all rigging done for assembly/disassembly, 
irrespective of type, is a safety-critical function. One person 
testified about how he was involved with improper rigging which led to 
the death of his coworker. He stressed the importance of having 
qualified riggers, stating that in his experience most of the accidents 
he has seen and been involved with or investigated have involved 
problems with rigging. (ID-0343.)
    After considering the record, OSHA is including the qualified 
rigger requirement in the final rule and it applies to all rigging used 
for assembly/disassembly.

[[Page 47944]]

Section 1926.1405 Disassembly--Additional Requirements for Disassembly 
of Booms and Jibs (Applies to Both the Use of Manufacturer Procedures 
and Employer Procedures)
    Section 1926.1405 requires that none of the pins in the pendants be 
removed (partly or completely) when the pendants are in tension. In 
addition, none of the pins (top or bottom) on boom sections located 
between the pendant attachment points and the crane/derrick body are to 
be removed, partly or completely, when the pendants are in tension. 
None of the pins (top or bottom) on boom sections located between the 
uppermost boom section and the crane/derrick body are to be removed, 
partly or completely, when the boom is being supported by the uppermost 
boom section resting on the ground (or other support). Finally, none of 
the top pins on boom sections located on the cantilevered portion of 
the boom being removed (the portion being removed ahead of the pendant 
attachment points) are to be removed (partly or completely) until the 
cantilevered section to be removed is fully supported. (See the 
discussion of these requirements at 73 FR 59748, Oct. 9, 2008.)
    The Committee determined that many of the accidents associated with 
cranes occur during the removal of pendant, boom and jib pins. The 
Committee determined that accidents typically occur because of a 
failure to recognize that, in certain situations, particular pins are 
``in tension.'' If partly or fully removed while in that state the 
result can be unplanned movement of a component or the collapse of the 
boom or jib.
    Consequently, the Committee concluded that the removal of pendant, 
boom section and jib pins warrants heightened attention. This section 
focuses on protecting employees from these hazards during the 
dismantling of booms and jibs, either when disassembling the crane/
derrick or when changing the length of a boom or jib. To make clear 
that ``dismantling'' includes activities such as shortening a boom, 
final Sec.  1926.1401 defines ``dismantling'' to include ``partial 
dismantling (such as dismantling to shorten a boom or substitute a 
different component).''
    In this section, the Committee identified particular scenarios 
that, in the experience of many of the Committee members, pose specific 
hazards in disassembly if the wrong pins (that is, pins that are in 
tension) are partly or completely removed. The Committee concluded that 
the failure to follow the provisions would very likely result in 
unintended movement and/or collapse of the components. OSHA agrees that 
these requirements will help to prevent unintended movement or collapse 
of booms or jibs as they are being disassembled.
    Several comments were received regarding the illustrations in this 
section of the proposed rule. Two commenters noted the illustration of 
a tower crane in figure 2 of the proposed rule and suggested it be 
replaced with a mobile crane. (ID-0205.1;-0213.1.) Two commenters 
recommended that figures 4 and 6 be changed such that no pins would be 
permitted to be removed without blocking the entire boom. (ID-0131.1; -
0292.) Specifically, these commenters did not believe that the bottom 
boom connecting pins could be removed due to the weight of the 
cantilevered boom exerting force on these bottom connecting pins. They 
stated that if there was sufficient clearance between the connecting 
lugs to enable the pins to be removed, the boom could move downward 
upon the removal of the pins.
    Based upon C-DAC's expertise, OSHA determines that figures 2, 4 and 
6 in the proposed rule were accurate depictions as to blocking, but the 
proposed arrows may have been confusing to the extent that commenters 
incorrectly understood that the removal of pins would be allowed where 
arrows did not appear. To avoid confusion, OSHA is not including any of 
the assembly/disassembly figures from the proposed rule in the final 
rule.
Section 1926.1406 Assembly/Disassembly--Employer Procedures--General 
Requirements
    Section 1926.1406 sets requirements that must be met if an employer 
elects to use its own procedures for assembling and disassembling a 
crane/derrick instead of those of the manufacturer. (See the discussion 
of this provision at 73 FR 59748, Oct. 9, 2008.)
    One commenter wrote that, to ensure safe assembly and disassembly, 
employer procedures must not be allowed. In the preamble to the 
proposed rule, OSHA explained its rationale and the basis of C-DAC's 
recommendation that employer procedures be allowed where they meet the 
specified criteria in Sec.  1926.1406. (See full discussion at 73 FR 
59742, 59748, Oct. 9, 2008). The commenter did not challenge the 
rationale or provide any evidence of why employer procedures that 
comply with Sec.  1926.1406 would be insufficient. The Agency is 
therefore adopting Sec.  1926.1406 as proposed for the reasons 
explained in the preamble to the proposed rule, with several minor 
clarifications.
    In Sec.  1926.1406(a), the phrase ``assembly/disassembly'' replaces 
``assembling or disassembling'' to make this section consistent with 
other sections of the rule. Also in Sec.  1926.1406(a), OSHA has 
removed the phrase ``are designed to'' to increase clarity. In Sec.  
1926.1406(a)(1), the phrase ``any part'' replaces ``all parts'' to make 
it clear the duty to prevent dangerous movement in any part of the 
equipment. This provision is otherwise promulgated as proposed with 
several grammatical corrections.
Sections 1926.1407-1926.1411 Power Lines
Introduction
    Final Sec. Sec.  1926.1407 through 1926.1411 contain requirements 
designed to help ensure the safety of employees while cranes/derricks 
are being assembled, disassembled, operated, or while they travel under 
power lines.
    Previously, subpart N, in former Sec.  1926.550(a)(15), addressed 
power line hazards by specifying the minimum distance that must be 
maintained between a crane and an energized power line. For lines rated 
50 kilovolts (kV) or below, the minimum distance was 10 feet; for lines 
over 50 kV, the minimum distance was generally 10 feet plus 0.4 inches 
for each 1 kV over 50 kV (we will refer to this subpart N requirement 
in this preamble as the ``10-foot rule'').
    However, the subpart N provisions, which instructed employers to 
maintain a minimum clearance distance, did little by way of requiring 
employers to implement measures to help prevent operators from 
inadvertently breaching that distance. The only preventative measure in 
subpart N was a requirement, in former Sec.  1926.550(a)(15)(iv), to 
use a spotter ``where it is difficult for the operator to maintain the 
desired clearance by visual means.'' In discussing how to reduce power 
line fatalities, the Committee determined that a systematic, proactive 
approach to preventing power line contact is needed (see the Agency's 
explanation for the need for these provisions in the proposed rule 
preamble at 73 FR 59748-59750, Oct. 9, 2008).
Brief Overview of Requirements
    The standard requires the implementation of a systematic, proactive 
approach to dealing with the hazard of power lines. This approach is 
comprised of the following steps: (1)

[[Page 47945]]

Identify the work zone and assess it for power lines--determine how 
close the crane could get to them. The employer has the option of doing 
this assessment for the area 360 degrees around the crane or for a more 
limited, demarcated area; (2) If the assessment shows that the crane 
could get closer than a trigger distance--20 feet for lines rated up to 
350 kV (50 feet for lines rated over 350 kV)--then requirements for 
additional action will be triggered.
    The voltages given in the final rule are phase-to-phase system 
voltages on the power lines. It should be noted that the system 
voltages for power lines generally take three forms. First, there is 
the actual voltage on the line. This voltage varies from one moment to 
the next as conditions on the power line change. Second, there is the 
nominal voltage on the line that is used to designate its voltage. The 
actual operating voltage varies above and below this voltage. (See the 
definition of ``voltage, nominal'' in subpart K of the Construction 
Standards, Sec.  1926.449.) Third, there is the maximum operating 
voltage on the line. This represents the maximum voltage that can 
appear on a power line and is 5 percent above the nominal voltage on 
the line. (See IEEE Std. 516-2009.) For purposes of the final rule, the 
power line voltage is the maximum operating voltage for that line. This 
approach, which is consistent with the determination of minimum 
approach distances in Sec.  1910.269,\22\ ensures that the minimum 
clearance distance is appropriate when the voltage on the line rises to 
its maximum. The following table lists the maximum operating voltages 
over 50 kV for power line systems commonly found in the U.S.
---------------------------------------------------------------------------

    \22\ For further information, see Appendix B to Sec.  1910.269.

------------------------------------------------------------------------
                                                             Maximum
                                                            operating
               Nominal voltage range (kV)                  voltage (kV)
                                                               \1\
------------------------------------------------------------------------
46.1 to 72.5...........................................             72.5
72.6 to 121............................................            121
138 to 145.............................................            145
161 to 169.............................................            169
230 to 242.............................................            242
345 to 362.............................................            362
500 to 550.............................................            550
765 to 800.............................................            800
------------------------------------------------------------------------
Source: 29 CFR 1910.269 Table R-6 and Appendix B to that section.
Note 1: This is the ``voltage'' of the power line for the purposes of
  the final rule.

    Unless the power lines are deenergized and grounded, encroachment/
electrocution prevention measures have to be implemented to prevent the 
crane from breaching a minimum clearance distance and protect against 
electrocution. The employer is allowed to choose among several minimum 
clearance distance options.
    For example, for lines up to 350kV, the minimum clearance distance 
options would be: (1) 20 feet; or (2) the distance specified in Table A 
of Sec.  1926.1408 for the line's voltage (Table A is the ``10-foot 
rule''; see discussion of Table A in discussion of Sec.  1926.1408); or 
(3) a distance closer than what is specified in Table A.
    However, there are limitations to the availability of some of these 
options, and the number of mandatory encroachment prevention (and 
other) measures increases when using a clearance distance closer than 
Table A.
    A commenter stated that use of the term ``employer'' was confusing 
when there are multiple employers on a given construction site, and 
raised the issue of whether each employer was responsible for employing 
its own dedicated spotter and its own set of barricades and similar 
safety measures. (ID-0143.1.)
    In general, except where otherwise specified in this standard, the 
requirements of this standard apply to employers whose employees are 
exposed to hazards addressed by this standard, and also to other 
employers in certain situations as explained in OSHA's multi-employer 
policy (see OSHA CPL 02-00-124, Multi-Employer Citation Policy, Dec. 
10, 1999). For example, with respect to situations in which barricades, 
a dedicated spotter, or other measures are required under Sec. Sec.  
1926.1407-1926.1411, each such employer is responsible for ensuring 
that the required measures are in place. However, that does not mean 
that each employer is required to install or provide duplicate sets of 
those measures. In multiple employer worksites, one employer may rely 
on measures provided by another employer as long as those measures meet 
the requirements of the standard.
    Several commenters asked that OSHA specify in the standard that 
utility owner/operators may charge fees for the services they are 
required to perform under the standard. (ID-0155.1; -0203.1.) For 
example, where the employer uses Sec.  1926.1408(a)(2)(iii)'s Option 
(3) for setting the clearance distance (i.e., the clearance distance 
under Table A), under Sec.  1926.1408(c), the utility owner/operator 
must provide requested voltage information within two working days of 
the request.
    The standard does not address the issue of fees; the Agency 
determined that fees will generally be addressed as a contractual 
matter between the parties involved.\23\
---------------------------------------------------------------------------

    \23\ Note that in the Regulatory Flexibility Analysis, OSHA has 
assumed that the cost of providing this information would be passed 
on to the employer requesting the information, not the utility 
owner/operator. See section V.B of this preamble.
---------------------------------------------------------------------------

Section 1926.1407 Power Line Safety (Up to 350 kV)--Assembly and 
Disassembly
    The requirements in Sec.  1926.1407 address the hazards of 
assembling and disassembling equipment near power lines up to 350 kV. 
The requirements in Sec.  1926.1407 are similar in most respects to the 
requirements in Sec.  1926.1408, which address operations of equipment 
near power lines.
    One commenter suggested that OSHA amend Sec.  1926.1407 to include 
cranes used to assist the assembly and disassembly of other cranes. 
(ID-0131.) As OSHA noted in the preamble to the proposed rule, when an 
assist crane is used during the assembly or disassembly of another 
crane/derrick, the use of the assist crane, with respect to power line 
safety, would be considered ``operations'' and therefore covered by 
Sec.  1926.1408 (or, for power lines over 350 kV, Sec.  1926.1409). 
This is because the assist crane has already been assembled and is 
being used for a crane operation. Therefore, use of the assist crane 
must comply with Sec.  1926.1408 during the assembly/disassembly 
process rather than with Sec.  1926.1407.
    In contrast, a crane that is not yet fully assembled is often used 
to complete its own assembly. For example, a crane is often used to 
load its own counterweights. Similarly, it may unload its 
counterweights in its own disassembly process. Such activities would be 
covered under Sec.  1926.1407 since it is being assembled/disassembled. 
Therefore, the provision is promulgated in the final rule without 
change.
Paragraph (a)
    Under this paragraph, before beginning assembly or disassembly, the 
employer must determine if any part of the crane, load or load line 
(including rigging and lifting accessories) could get, in the direction 
or area of assembly, closer than 20 feet to a power line.
    As stated in the preamble of the proposed rule, the phrase ``in the 
direction or area of assembly/disassembly'' was included to address the 
fact that, in some cases, the assembly or disassembly of a crane takes 
place not just in an ``area,'' that is, a fixed portion of the work 
site, but also in a ``direction.'' For example, when

[[Page 47946]]

disassembling a crane, the disassembly process takes place in an area 
that includes the area under and around the boom's path as it is 
lowered to the ground (in most, but not all cases, the boom is lowered 
to the ground for the disassembly process). Under this provision, the 
employer must assess the proximity that the boom will be in to the 
power line in its path of travel to (and on) the ground.
    Two commenters expressed confusion about the meaning of the phrase 
``in the direction or area of assembly/disassembly.'' (ID-0122; -
0178.1.) C-DAC's intent in including this phrase was to ensure that 
employers make the initial 20-foot clearance assessment based on not 
only the area which the crane equipment occupies at the beginning of 
the assembly/disassembly process, but also with respect to other areas 
radiating from the initial area, both horizontally and vertically, that 
will be occupied as the equipment components are added, removed, 
raised, and lowered during the assembly/disassembly process. For 
example, when assembling a lattice boom crane, the ``area'' involved 
will expand as boom sections are added.\24\ This area expands in the 
``direction'' in which the boom sections are added. The power line 
assessment has to be made for the portion of the site that will be 
involved as these boom sections are added.
---------------------------------------------------------------------------

    \24\ This also occurs with telescopic extensible boom cranes 
when a ``dead man section'' is added to the boom.
---------------------------------------------------------------------------

    As stated in the preamble to the proposed rule, ``direction'' 
includes the direction that, for example, the boom will move as it 
rises into the air after the boom has been assembled on the ground. For 
example, the boom, when fully assembled on the ground, may be more than 
20 feet from a power line. However, when raising it from the ground, it 
may get closer than 20 feet. Accordingly, under this language, the 
``direction'' that the boom will travel as it is raised must also be 
evaluated for proximity to power lines.
    Another example is the assembly of a tower crane. As tower sections 
are added, the assembly process may reach a point where components are 
closer to power lines than when the process began. That ``direction'' 
of assembly upwards must also be evaluated.
    If an employer determines that the 20 foot ``trigger'' 
determination is positive, then the employer is required to take 
additional steps. Specifically, the employer must meet the requirements 
under either Option (1), Option (2), or Option (3) of Sec.  
1926.1407(a).\25\ Some commenters were concerned that the three 
compliance options in Sec.  1926.1407(a) could be construed as a 
prioritization of compliance preferences, e.g., a preference for 
deenergization over the other options. (ID-0203.1; -0214.1.) In 
response, OSHA wishes to clarify that the three options are in no 
particular order. In the Agency's view they represent three adequately 
protective compliance methods. The standard offers employers the 
flexibility to select the method most suitable for each specific work 
situation.
---------------------------------------------------------------------------

    \25\ If no part of the crane, load or load line could come 
closer than 20 feet to a power line, the employer is not required to 
take any further action under this section. However, the employer 
may encounter a situation where it needs to get closer than 
anticipated to the power lines during the assembly/disassembly 
process. In such a case the employer is required to go back and 
conduct a new 20 foot ``trigger assessment.''
---------------------------------------------------------------------------

Paragraph (a)(1) Option (1)
    An employer choosing Option (1) of this section will protect 
against electrocution by having the power lines deenergized and visibly 
grounded. Where the employer elects this option, it will not have to 
implement any of the encroachment/electrocution prevention measures 
listed in Sec.  1926.1407(b). This option helps to minimize the 
electrical hazards posed by power lines.\26\
---------------------------------------------------------------------------

    \26\ Grounding the lines helps minimize the electrical hazard 
from possible reenergizing of the lines; however, some voltage will 
still appear on the line until the circuit protective devices open 
the circuit. In addition, under certain conditions, the circuit 
protective devices will not open the line, and the voltage will 
remain.
---------------------------------------------------------------------------

    A number of commenters confirmed the Committee's determination that 
because of the time and cost considerations in arranging for the 
utility owner/operator \27\ to deenergize and ground the line, 
deenergizing and grounding has not been routinely done. (ID-0155; -
0203; see the discussion in the proposed rule preamble of deenergizing 
and grounding with regard to proposed Sec.  1926.1408(a)(2)(i), 73 FR 
59755, Oct. 9, 2008.)
---------------------------------------------------------------------------

    \27\ OSHA notes that the phrase ``utility owner/operator'' 
reflects scenarios where utilities may not be operated by an owner 
but by some entity other than the owner. Therefore wherever the 
phrase ``utility owner/operator'' is used in the standard or in the 
preamble it is meant to apply to utility owners or utility 
operators. The final rule also uses the word ``utility'' in its 
broadest sense. It includes traditional utilities as well as other 
entities (such as steel or paper companies) that own or operate the 
power lines.
---------------------------------------------------------------------------

    Therefore, OSHA continues to conclude that providing other safe and 
practical options in the final rule will help to reduce unsafe 
practices in the industry. Those other options (Options (2) and (3) in 
Sec.  1926.1407(a)) combined with Sec.  1926.1407(b) are designed to be 
effective protection against the hazards of electrocution.
    One commenter requested that OSHA provide guidance on whether 
written confirmation of deenergization and grounding from the utility 
owner/operator will be required. (ID-0214.1.) He further recommended 
that the requested guidance should be set forth in the regulatory text 
rather than in the preamble if OSHA expects employers to obtain a 
written confirmation. OSHA did not determine that written confirmation 
is necessary. As long as the utility owner/operator confirms that the 
line is deenergized and it is visibly grounded, employee safety is 
assured. Thus, the final rule does not require written confirmation 
that the line is deenergized.
    For a discussion of comments related to the requirement for visible 
grounding, see the section later in this preamble addressing Sec.  
1926.1408(a)(2)(i).
    One commenter suggested that in some situations deenergizing and 
grounding could place the utility owner/operator in conflict with other 
Federal and State regulatory requirements. (ID-0203.1.) The commenter 
did not provide information for OSHA to consider regarding any specific 
conflicts, and OSHA has not identified any such conflicts. Moreover, in 
the event that such a conflict does arise, the employer could choose, 
as an alternative to deenergizing, Options (2) or (3) as described 
below.
    This paragraph is being adopted without change from the proposal.
Paragraph (a)(2) Option (2)
    Under Option (2) (Sec.  1926.1407(a)(2)), the employer is required 
to maintain a minimum clearance distance of 20 feet. To help ensure 
that this distance is not breached, the employer has to implement the 
encroachment prevention measures in Sec.  1926.1407(b). Under this 
option, no part of the equipment, load or load line, including rigging 
and lifting accessories, is permitted closer than 20 feet to the power 
line.
    Employers using this option will have to stay further away from the 
power line than had been required under subpart N's 10-foot rule 
(employers wanting to use the 10-foot rule would have to use Option 
(3), discussed below).\28\ However, an advantage of this option to many 
employers is that they do not have to determine the voltage of the 
power line; they only have to determine that the line voltage is no 
more than 350 kV.
---------------------------------------------------------------------------

    \28\ As discussed above, the 10-foot rule requires varying 
clearance distances increasing with voltage with clearance distances 
that begin at 10 feet.
---------------------------------------------------------------------------

    Under the old subpart N formula, an employee was required at most 
to

[[Page 47947]]

maintain a 20-foot distance away from a power line. Under the new 
option, employees are required to stay at least 20 feet away from the 
power line, so the Committee determined that there would be no 
diminution of safety under this new option. In fact, in the Committee's 
experience, most power lines encountered by most employers have 
voltages that, under the current subpart N formula, require a minimum 
clearance distance of 10 feet. Therefore, use of this option will 
result in a higher margin of safety. Employers who do not need to get 
closer than 20 feet to assemble/disassemble the crane could use this 
option and would be saved the step of obtaining the line voltage.
    As noted above, in addition to maintaining a minimum clearance 
distance of 20 feet, employers using this option are required to 
implement the encroachment prevention and other measures specified in 
Sec.  1926.1407(b).
Paragraph (a)(3) Option (3)
    Under Option (3) (Sec.  1926.1407(a)(3)), the employer is required 
to maintain a minimum clearance distance in accordance with Table A of 
Sec.  1926.1408. Under Table A, depending on the voltage of the power 
line, the minimum clearance distance ranges from 10 feet to 20 feet for 
lines up to 350 kV. Under this option the employer is required to 
determine the line's voltage.
    As a practical matter, in the Committee's experience, the power 
lines most typically encountered by most employers would require a 
minimum clearance distance of 10 feet under Table A. As a result, 
employers can assemble/disassemble equipment closer to power lines 
under this option than under Option (2).
    Table A is based upon the same formula that was used in subpart N 
(the 10-foot rule) and is similar to Table 1 in ASME B30.5-2004. Unlike 
subpart N, which had required employers to calculate the minimum 
clearance distance from a formula, Table A sets forth specified 
clearance distances in a readily understood table and requires no 
calculations. In addition to maintaining the minimum clearance distance 
specified in the Table, employers using this option are required to 
implement the encroachment prevention and other measures specified in 
proposed Sec.  1926.1407(b).
    Several commenters verified C-DAC's determination that obtaining 
voltage information in practice can often be difficult and time-
consuming. (ID-0118; -0143.1; -0146.1; -0155.1.) OSHA determines that 
providing a mechanism under Sec.  1926.1407(a)(2) (``Option (2)'') to 
proceed with construction operations without having to obtain voltage 
information from utilities provides employers with a viable alternative 
to obtaining voltage information without compromising the safety of 
workers. This section of the final rule provides a mechanism by which 
employers can, using Table A, perform work with clearance distances of 
less than 20 feet. It is promulgated as proposed.\29\
---------------------------------------------------------------------------

    \29\ The proposed regulatory text for Sec.  1926.1407(a)(3)(i) 
used the phrase ``minimum clearance distance'' while that for Sec.  
1926.1407(a)(3)(ii) used ``minimum approach distance.'' For 
consistency, OSHA has, in Sec.  1926.1407(a)(3)(ii), changed the 
phrase ``minimum approach distance'' to ``minimum clearance 
distance.'' Provisions in Sec.  1910.269 and proposed subpart V of 
29 CFR 1926 use the phrase ``minimum approach distance.'' OSHA 
believes that employers who are covered by those standards are 
familiar with that term. In contrast, the Agency believes that 
employers that do not perform electric power work will better 
understand the term ``minimum clearance distances.'' OSHA considers 
the terms ``approach distance'' and ``clearance distance'' to be 
interchangeable; no substantive distinctions are intended.
---------------------------------------------------------------------------

Paragraph (b) Preventing Eencroachment/Electrocution
    Once an employer has determined that some part of the crane, load 
or load line could come within the trigger distance of 20 feet of a 
power line (see Sec.  1926.1407(a)), if it chooses either Option (2) or 
(3) of Sec.  1926.1407(a) it is required to implement encroachment 
prevention measures to help ensure that the applicable minimum 
clearance distance (20 feet under Option (2) or the Table A distance 
under Option (3) is not breached.\30\
---------------------------------------------------------------------------

    \30\ Alternatively, under Option (1), the employer could have 
the lines deenergized and grounded. If Option (1) were selected, no 
further action under this section would be required.
---------------------------------------------------------------------------

    Most of the measures in this paragraph are designed to help the 
employer maintain the appropriate clearance distance and thereby 
prevent electrical contact while in the process of assembling or 
disassembling equipment. One of the measures is designed to prevent 
electrocution in the event of electrical contact.
Paragraph (b)(1)
    Under paragraph (b)(1) of this section, the employer is required to 
conduct a planning meeting with the Assembly/Disassembly Director \31\ 
(A/D Director), operator, assembly/disassembly crew and other workers 
who will be in the assembly/disassembly area (including the area of the 
load). This planning meeting must include reviewing the location of the 
power line(s) and the steps that will be implemented to prevent 
encroachment and electrocution.
---------------------------------------------------------------------------

    \31\ As explained in the preamble accompanying Sec.  1926.1404, 
the term ``assembly/disassembly director'' replaces the proposed 
term ``assembly/disassembly supervisor.''
---------------------------------------------------------------------------

    In the planning meeting, the employer is required to select a 
protective measure from paragraph (b)(3) of this section (see 
discussion below) and review all the measures that will be used to 
comply with this section.
    The purpose of the meeting requirement is to ensure that the 
operator and other workers who will be in the area understand these 
measures and how they will be implemented. That understanding is 
important to their successful implementation. Because of the critical 
nature of these measures, and the seriousness of the consequences to 
the safety of the employees if they are not implemented correctly, the 
Committee concluded that it is necessary for there to be a structured 
process by which the employer communicates this information.
    As noted below, a planning meeting to discuss implementing 
encroachment prevention measures is also required under Sec.  
1926.1408(b)(1). Refer to the preamble section related to that 
provision for a discussion about public comments received regarding 
responsibilities for ensuring that such a meeting takes place. That 
discussion is equally relevant to this section. With the exception of 
the use of the term ``director'' instead of ``supervisor,'' as 
explained above, this section is promulgated as proposed.
Paragraph (b)(2)
    Paragraph (b)(2) of this section requires that where tag lines are 
used they must be nonconductive. This provision uses two terms that are 
defined in Sec.  1926.1401. ``Tag lines'' is defined as ``a rope 
(usually fiber) attached to a lifted load for purposes of controlling 
load spinning and pendular motions or used to stabilize a bucket or 
magnet during material handling operations.'' Thus, one end of a tag 
line is attached to the load and the other end is held by an employee 
who controls the load's motion by exerting force on the line.
    If the equipment or load were to make electrical contact with a 
power line while an employee was holding a tag line that was able to 
conduct electricity, the employee could be electrocuted. The 
requirement that the tag line be nonconductive is designed to protect 
against such an event. Section 1926.1401 defines ``nonconductive'' as 
meaning that, ``because of the nature and conditions of the materials 
used, and the conditions of use (including environmental conditions and 
condition of the material), the object in question has the property of 
not becoming

[[Page 47948]]

energized (that is, it has high dielectric properties offering a high 
resistance to the passage of current under the conditions of use).''
    This definition recognizes that it is not only the inherent 
property of the tag line material that results in it being 
nonconductive but also the conditions of use. For example, in some 
cases, if an otherwise nonconductive material were to become wet and 
therefore able to conduct electricity, it would no longer qualify as 
nonconductive under this paragraph.
    One commenter requested that OSHA specify test procedures to assist 
employers in making the determination of whether a tag line is 
nonconductive. (ID-0178.1.) C-DAC considered the utility of setting 
specifications for materials required to be nonconductive but 
determined that it would be impractical. American Society for Testing 
and Materials (ASTM) Standard Specification for Unused Polypropylene 
Rope With Special Electrical Properties, ASTM F1701-05 contains 
specifications and test methods for live-line rope used in electric 
power work. These ropes are used to insulate power line workers from 
energized power lines. Tag lines meeting this standard are acceptable 
under the final rule. However, to meet the requirement for 
``nonconductive'' tag lines, they need not meet this standard, which 
requires a degree of insulation beyond that intended by the final rule. 
In addition, several other OSHA general industry and construction 
standards call for nonconductive materials, including Sec.  
1910.268(n)(13)(ii) (requiring nonconductive measuring devices to 
measure clearance distances from overhead power lines), Sec. Sec.  
1910.269(l)(6)(i) and 1910.333(c)(8) (requiring metal articles worn by 
employees to be rendered nonconductive), and Sec.  1926.955(a)(8) 
(requiring nonconductive tag lines). In general these and other 
standards that call for nonconductive materials require the use of 
insulating material that does not have a voltage rating; thus, there is 
no need to specify a test method. In fact, setting test criteria for 
these materials would produce a voltage rating and render them 
insulating rather than nonconductive. (Because nonconductive materials 
have no voltage rating, there is still a risk of injury from electric 
shock should contact occur. However, these materials reduce that risk 
substantially.) In practice, under dry conditions nonmetallic fiber 
rope typically satisfies the definition for nonconductive.\32\ The 
Agency concludes that this guidance is sufficient to help employers 
determine whether their tag lines meet the definition and has 
therefore, declined to specify test procedures in the final rule. The 
provision is promulgated as proposed, without change.
---------------------------------------------------------------------------

    \32\ Wet, muddy, or high humidity conditions can cause such rope 
to stop being nonconductive. Similarly, the presence of metal or 
other conductive fibers or conductive sheaths or reinforcement would 
render the tag line conductive.
---------------------------------------------------------------------------

Paragraph (b)(3)
    Under this paragraph the employer is required to implement one of 
five listed encroachment prevention measures (Sec.  1926.1407(b)(3)(i) 
through (v)). The Committee concluded that the use of any one of these 
measures, in combination with the required measures listed elsewhere in 
Sec.  1926.1407(b), would be feasible and effective in protecting 
against encroachment. Specifically, the employer is required to choose 
either: (i) The use of a dedicated spotter; (ii) a proximity alarm; 
(iii) a device that automatically warns the operator when to stop 
(i.e., a range control warning device); (iv) a device that 
automatically limits the range of movement of the equipment; or (v) an 
elevated: warning line, barricade, or line of signs, in view of the 
operator, equipped with flags or similar high-visibility markings. 
Providing the ability to choose among these options gives the employer 
flexibility so that it can pick one that is well suited and efficient 
in the circumstances.
    A definition of ``dedicated spotter (power lines)'' is included in 
Sec.  1926.1401, Definitions. A dedicated spotter must meet the signal 
person qualification requirements of Sec.  1926.1428 and his/her sole 
responsibility must be to watch the separation between the power line 
and the equipment, load line, and load, and to ensure through 
communication with the operator that the applicable minimum distance is 
not breached.
    When the employer uses a dedicated spotter to prevent encroachment 
under this section, that person has the critical responsibility of 
ensuring, through communication with the operator, that the equipment 
maintains a specified minimum clearance distance from a power line. 
This definition makes clear that the dedicated spotter cannot have any 
other responsibilities.\33\ The dedicated spotter must have the 
qualifications required of a signal person under Sec.  1926.1428, 
discussed below. Those qualifications will ensure that the signal 
person can communicate effectively with the operator. They also ensure 
that the signal person is knowledgeable about crane dynamics and 
therefore is able to recognize situations in which the minimum 
clearance distance may inadvertently be breached if, for example, the 
load is stopped quickly while it is being moved near a power line.
---------------------------------------------------------------------------

    \33\ The preamble language of the proposed rule stated that 
``the dedicated spotter cannot have any other responsibilities that 
detract him/her from this task.'' (73 FR 59752, Oct. 9, 2008.) The 
phrase ``that detract him/her from this task'' incorrectly implied 
that a dedicated spotter could have other tasks provided those other 
tasks did not distract the dedicated spotter from his/her task of 
maintaining the required separation between the power line and the 
equipment, the load, and the load line. This implication was 
incorrect. As stated in the definition section, the dedicated 
spotter's duty to maintain the required separation from the power 
line must be his/her ``sole responsibility.''
---------------------------------------------------------------------------

    One commenter requested that OSHA include a clarification that the 
dedicated spotter can also be the signal person. (ID-0292.1.) As noted 
in the definition of ``dedicated spotter'' quoted above, although the 
dedicated spotter must be a qualified signal person under the 
requirements of Sec.  1926.1428, that definition also mandates that the 
sole responsibility of the dedicated spotter be to ensure the required 
separation between the power line and the equipment, the load line, and 
the load (including loading and lifting accessories). Thus, in 
situations where the equipment operator requires the assistance of a 
signal person to provide signals related to maneuvering the equipment 
or the load other than maintaining the required power line clearance 
distance, a different person must serve as signal person.\34\
---------------------------------------------------------------------------

    \34\ If a dedicated spotter also served as a signal person for 
purposes other than maintaining the clearance distance, the 
dedicated spotter would be vulnerable to a typical cause of power 
line contact--focusing on something else and forgetting about, or 
being distracted from, maintaining the clearance distance.
---------------------------------------------------------------------------

    The devices listed in Sec. Sec.  1926.1407(b)(3)(ii) and (iii) are 
also defined in Sec.  1926.1401. A ``proximity alarm,'' is a device 
that warns of proximity to a power line and must be listed, labeled, or 
accepted by a Nationally Recognized Testing Laboratory in accordance 
with Sec.  1910.7.\35\ A Nationally Recognized Testing Laboratory is an 
organization that has been recognized by OSHA pursuant to Sec.  1910.7 
as competent to evaluate equipment for conformance to appropriate test 
standards for that type of equipment. Thus, approval of a

[[Page 47949]]

proximity alarm by a nationally recognized testing laboratory provides 
assurance that the device will work as intended. (For a discussion of 
public comments submitted relating to proximity alarms, see discussion 
of Sec.  1926.1408(b)(4).) A ``range control warning device,'' is 
defined in Sec.  1926.1401 and is a device that can be set by an 
equipment operator to warn that the boom or jib tip is at a plane or 
multiple planes.
---------------------------------------------------------------------------

    \35\ The C-DAC version of this provision defined proximity alarm 
as: ``a device that provides a warning of proximity to a power line 
that has been approved by a Nationally Recognized Testing 
Laboratory.'' OSHA has modified the provision to conform its 
language to that used in Sec.  1910.7, the OSHA rule governing 
nationally recognized testing laboratories, and to explicitly refer 
to Sec.  1910.7 to make clear that the listing, labeling, or 
acceptance of a device under this rule must be accord with Sec.  
1910.7.
---------------------------------------------------------------------------

    OSHA realized that some of the devices listed in Sec.  
1926.1407(b)(3) would not be operational or effective against 
electrocution during certain phases of the assembly or disassembly 
process of certain types of cranes. For example, for lattice boom 
cranes, proximity alarm devices may not be able to be used when the 
boom is not yet fully assembled; at that point the proximity alarm 
typically cannot be connected and functioning. Therefore, during 
certain phases of assembly/disassembly, one of the other options would 
need to be used (such as a dedicated spotter) to provide the needed 
protection.
    However, the proposed regulatory text would have permitted an 
employer to select an option under paragraph (b)(3) of this section 
irrespective of whether it would be effective under the circumstances. 
To address this concern, OSHA requested public comment on whether to 
modify proposed Sec.  1926.1407(b)(3) to preclude the employer from 
selecting an option that, in the employer's situation, would be 
ineffective, such as by revising the provision to read:

    (3) At least one of the additional measures listed in this 
paragraph must be in place. The measure selected from this list must 
be effective in preventing encroachment. The additional measures 
are: * * *.

    Two of four commenters on this issue supported amending the 
language of this provision as described above. (ID-0067; -0118.) The 
two commenters who disagreed with requiring that the chosen method be 
effective in preventing encroachment thought that this provision would 
prove problematic for employers; they favored the original wording from 
the Committee that did not specifically require efficacy. (ID-0205.1; -
0213.1.) These latter two commenters did not present any evidence to 
counter OSHA's concern that some of the listed encroachment prevention 
measures may not be fully effective under all circumstances. OSHA 
concludes that prudence dictates amending this provision to require 
that the selected measure be effective in preventing encroachment; the 
final rule therefore reflects the change described above.
    In situations where an employer chooses the option of using a 
dedicated spotter to prevent encroachment under Sec.  1926.1407(b)(3), 
the employer is required to meet the requirements for spotters in Sec.  
1926.1407(b)(3)(i). As specified in paragraph (b)(3)(i)(A) of this 
section, the spotter must be equipped with a visual aid to assist in 
identifying the minimum clearance distance. The Committee concluded 
that a visual aid is needed for the spotter because of the difficulty 
in visualizing the minimum clearance distance boundary in the air.
    Under paragraphs (b)(3)(i)(B)-(D) of this section, the spotter must 
be positioned so that he/she can effectively gauge the clearance 
distance from the power line; the spotter, where necessary, must use 
equipment that enables him/her to communicate directly with the 
equipment operator; and the spotter must give timely information to the 
operator so that the required clearance distance can be maintained. C-
DAC determined that each criterion is needed for the spotter to be able 
to be effective.
    One commenter on this provision asked whether an airhorn is 
appropriate communication equipment for purposes of paragraph (C). (ID-
0120.) OSHA determines that an airhorn would not enable the dedicated 
spotter to communicate with the operator as effectively as a radio, 
telephone, or other electronic communication device, and, in any event, 
might not be an effective means of communication on a noisy 
construction site; therefore, OSHA does not consider use of an airhorn 
to constitute compliance with paragraph (C).\36\
---------------------------------------------------------------------------

    \36\ The cross-reference to Sec.  1926.1420 originally included 
in this provision as proposed was deleted in the final rule for 
consistency with the parallel provisions for dedicated spotters in 
Sec. Sec.  1926.1408(b)(4)(ii)(C) and 1926.1410(d)(2)(iii). This is 
a ministerial change not intended to have any substantive 
enforcement implications.
---------------------------------------------------------------------------

Paragraph (c) Assembly/Disassembly Below Power Lines Prohibited
    This paragraph precludes employers from assembling or disassembling 
cranes/derricks beneath energized power lines. The Agency agreed with 
the Committee's conclusion that assembly/disassembly below energized 
power lines presents an extreme risk and needs to be prohibited. The 
assembly/disassembly process necessarily involves moving and hoisting 
parts of the equipment into place. If some of this work takes place 
beneath a power line, the risk that a part, load, load line, or other 
equipment would make electrical contact is very high. Also, in both 
assembly and disassembly, maneuvering an assembled crane out from under 
the power lines, or maneuvering a crane that is about to be 
disassembled under them, itself poses a high risk of such contact.
    C-DAC's agreement on this provision indicates a determination by 
the Committee that, in almost all cases, the employer can plan the 
assembly/disassembly so that there will be no need to be beneath power 
lines. The Committee and OSHA also concluded that, in the very few 
instances where this is not possible, in light of the extreme risk 
involved, it is essential that the lines be deenergized and visibly 
grounded. No comments were received on this provision; it is 
promulgated as proposed.
Paragraph (d) Assembly/Disassembly Closer Than Table A Clearance 
Prohibited
    Assembly and disassembly of cranes/derricks closer than the minimum 
clearance distance in proposed Table A of Sec.  1926.1408 to an 
energized power line is prohibited under this paragraph. If assembly or 
disassembly needs to take place closer than that distance, the employer 
is required to have the line deenergized and visibly grounded. The 
rationale for this provision is similar to that discussed above for 
assembly/disassembly beneath power lines (that rationale is set forth 
in the discussion in the proposed rule preamble of proposed Sec.  
1926.1407(c), 73 FR 59753, Oct. 9, 2008). Engaging in assembly/
disassembly activity closer to an energized power line than the Table A 
distance was considered by the Committee to be too hazardous to be 
permitted under any circumstances.
    This reflects certain inherent characteristics of the assembly/
disassembly process that preclude the employer from being able to 
reliably maintain clearance distances closer than Table A of Sec.  
1926.1408. For example, when disassembling a lattice boom, pins that 
hold boom sections together are removed. Even when done properly, this 
can release stored kinetic energy and cause the boom section being 
removed, as well as the remaining sections, to move. It is too 
difficult to estimate the amount of such potential movement with the 
precision that would be necessary when working closer than the Table A 
distances.
    Another example is when assembling a boom, an error in the assembly 
process may similarly cause unanticipated movement. Using clearances 
closer than those in Table A would not allow sufficient room in light 
of the difficulty

[[Page 47950]]

of predicting the amount of such movement.\37\
---------------------------------------------------------------------------

    \37\ In this respect this provision differs from Sec.  
1926.1410. As discussed below, Sec.  1926.1410 allows use of minimum 
clearance distances closer than Table A in some circumstances for 
crane ``operations.'' In contrast, Sec.  1926.1407(d) reflects a 
determination by the Committee that there are no circumstances for 
``assembly/disassembly'' when it would be safe for any part of the 
crane, load or load line (including rigging and lifting accessories) 
to get closer than the Table A minimum clearance distance.
---------------------------------------------------------------------------

    This paragraph is being adopted as proposed.
Paragraph (e) Voltage Information
    This section operates in conjunction with Sec.  1926.1407(a)(3). 
Under Sec.  1926.1407(a)(3), employers who elect to use Option (3) of 
Sec.  1926.1407(a) must determine the line's voltage. Under Sec.  
1926.1407(e), where the employer asks the utility owner/operator for 
that voltage information, the utility owner/operator of the line is 
required to provide the voltage information within two working days of 
the request.\38\
---------------------------------------------------------------------------

    \38\ One commenter suggested that utility owners/operators be 
required to label all power lines with voltage information. (ID-
0143.1.) OSHA rejected this suggestion because it believes the cost 
of labeling every overhead power line in the country would be 
prohibitive.
---------------------------------------------------------------------------

    This reflects a conclusion of the Committee that, in the absence of 
such a time limitation on the utility owner/operator, in many instances 
Option (3) Sec.  1926.1407(b) would not be useful because the employer 
would not be able to get the voltage information in sufficient time to 
be able to use it. Many employers will rely on the utility owner/
operator to get this information. The Committee was concerned that an 
extended delay in getting it would result in employers, to some extent, 
doing the work anyway without the information. Therefore, for Option 
(3) Sec.  1926.1407(b) to be viable, the Committee concluded that a 
reasonable time limitation for the utility owner/operator to respond 
was needed.\39\
---------------------------------------------------------------------------

    \39\ As noted in the introduction, C-DAC included two members 
from the electric utility industry.
---------------------------------------------------------------------------

    Some utility owner/operators asserted that OSHA cannot require them 
to provide voltage information because OSHA does not have authority to 
impose such requirements on an electric utility that does not have 
employees at the construction site in question. (ID-0166.1; -0203.1; -
0226.1.)
    OSHA's authority to require that electric utilities disclose 
voltage information derives from secs. 6(b) and 8(g)(2) of the Act. 
While sec. 6(b) generally authorizes the Secretary to promulgate and 
enforce occupational safety and health standards, sec. 6(b)(7) 
specifically permits the Secretary to ``prescribe the use of labels or 
other appropriate forms of warning as are necessary to insure that 
employees are apprised of all hazards to which they are exposed * * * 
and proper conditions and precautions of safe use or exposure.'' 29 
U.S.C. 655(b)(7). Thus, OSHA may include information-gathering 
requirements among the provisions of a standard. Section 1926.1407(e) 
falls within the scope of sec. 6(b)(7), because voltage information is 
necessary to the determination of safe clearance distances for 
employees who work near power lines.
    The Agency previously exercised its authority under sec. 6(b)(7) of 
the Act to promulgate the Hazard Communication Standard, which requires 
that chemical manufacturers and importers provide information for the 
benefit of downstream employees (see Sec.  1910.1200). As a rationale 
for these provisions, OSHA explained that chemical manufacturers and 
importers are in the best position to develop, disseminate, or obtain 
information about their products (see 48 FR 53280, 53322, Nov. 25, 
1983). Similarly, in an early case discussing sec. 6(b)(7), the Fifth 
Circuit found that ``[t]he ability of downstream employers to protect 
their own employees is also an appropriate consideration in determining 
where the duty to warn should lie.'' American Petroleum Institute v. 
OSHA, 581 F.2d 493, 509 (5th Cir. 1978).
    Section 8(g)(2) of the Act affords the Secretary additional 
authority for Sec.  1926.1407(e). According to this section, the 
Secretary may ``prescribe such rules and regulations as he may deem 
necessary to carry out responsibilities under the Act.'' The enumerated 
purposes of the Act indicate that the Secretary's responsibilities 
include:

    -- Setting mandatory occupational safety and health standards 
applicable to businesses affecting interstate commerce (29 U.S.C. 
651(b)(3));
    --Developing innovative methods, techniques, and approaches for 
dealing with occupational safety and health problems (29 U.S.C. 
651(b)(5)); and
    --Providing for appropriate reporting procedures with respect to 
occupational safety and health which procedures will help achieve the 
objectives of this Act and accurately describe the nature of the 
occupational safety and health problem (29 U.S.C. 651(b)(12)).

    An electric utility representative asserted that, because employees 
of electric utilities are not likely to perform work under the 
circumstances that the standard contemplates, sec. 4(a) prevents OSHA 
from including requirements that target electric utilities. OSHA 
disagrees. Section 4(a) broadly provides that the OSH Act applies 
``with respect to employment performed in a workplace,'' 29 U.S.C. 
653(a), and does not bar the statute's application to any class of 
employers. Section 4(a) contains no language to suggest that the Act's 
application depends on the relationship between the employees at risk 
and the employer with the power to reduce their risk.
    Additionally, the commenter stated that Sec.  1910.12(a) precludes 
OSHA from regulating electric utilities, because employees of electric 
utilities will not be present at construction worksites and therefore 
will not be ``engaged in construction.'' \40\ The commenter cites Reich 
v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4-5 (1st Cir. 1993), in 
which the First Circuit relied on the second sentence of Sec.  
1910.12(a) as a basis for vacating citations that OSHA had issued to an 
engineering firm under the multi-employer worksite doctrine.
---------------------------------------------------------------------------

    \40\ It should be noted that utility employees will be at these 
worksites from time to time to perform work on the power lines.
---------------------------------------------------------------------------

    Simpson, Gumpertz is inapposite; the multi-employer worksite 
doctrine has no bearing on the validity of Sec.  1926.1407(e), which 
explicitly holds electric utilities responsible for the distribution of 
voltage information. A more relevant case is Sec'y of Labor v. Trinity 
Indus., Inc., 504 F.3d 397 (3d Cir. 2007), in which the Third Circuit 
upheld information disclosure requirements that are analogous to those 
in Sec.  1926.1407(e). In Trinity, the Third Circuit affirmed OSHA's 
authority for provisions in the Asbestos Standard for the Construction 
Industry that require building owners to communicate the presence of 
asbestos or presumed asbestos-containing materials to certain 
prospective employers. Id. at 402. The court distinguished OSHA's 
authority to require that specific employers disclose information from 
the Agency's authority under the multi-employer doctrine to cite a 
general contractor for violations committed by a subcontractor:

    Unlike the regulations at issue in Summit Contractors, Inc., the 
regulation at issue here specifically applies to building owners * * 
*. We are not convinced that the Secretary is powerless to regulate 
in this field, especially given the findings she has made regarding 
the importance of building owners in the discovery and communication 
of asbestos hazards.

Id. As Trinity confirms, the multi-employer worksite doctrine does not 
govern the validity of regulatory provisions that require specific 
employers to provide information. As a

[[Page 47951]]

result, the interpretation that the multi-employer case law has given 
to Sec.  1910.12(a) is not controlling in relation to Sec.  
1926.1407(e). Moreover, the requirement that electric utilities provide 
voltage information is not in conflict with the plain language of Sec.  
1910.12(a), which states:

    The standards prescribed in part 1926 of this chapter are 
adopted as occupational safety and health standards under section 6 
of the Act and shall apply, according to the provisions thereof, to 
every employment and place of employment of every employee engaged 
in construction work. Each employer shall protect the employment and 
places of employment of each of his employees engaged in 
construction work by complying with the appropriate standards 
prescribed in this paragraph.

    As the Agency noted in the proposal, the first sentence in Sec.  
1910.12(a) makes the construction standards applicable to every 
employment and to every ``place of employment'' of every construction 
employee. The second sentence of Sec.  1910.12(a), by providing that 
each employer must protect the employment and the places of employment 
of each of his employees, does not negate the broad reach of the first 
sentence. The Secretary did not include language to indicate that an 
employer has obligations only toward his employees and the worksites of 
his employees.
    Furthermore, the history of Sec.  1910.12(a) reveals that the 
Secretary did not intend for it to limit her authority. Indeed, Sec.  
1910.12(a) is located within a subpart entitled ``Adoption and 
Extension of Federal Standards,'' which the Secretary created to extend 
her jurisdiction through the adoption of the Construction Safety Act's 
standards. Sec.  1910.11(a), subpart B. The opening paragraph of 
subpart B states that the subpart's provisions ``adopt and extend the 
applicability of established Federal standards * * * with respect to 
every employer, employee, and employment covered by the Act.'' Sec.  
1910.11(a). Thus, neither the language nor the context of Sec.  
1910.12(a) suggest a conflict with the requirement that electric 
utilities provide voltage information when employers request it.
    The commenter also cites United States v. MYR Group, Inc., in which 
the Seventh Circuit held that OSHA could not cite a parent corporation 
for the failure of a subsidiary to train its employees. 361 F.3d 364 
(7th Cir. 2004). Yet the court distinguished the facts of that case 
from circumstances where ``[e]ach employer at the worksite controls a 
part of the dangerous activities occurring at the site and is the 
logical person to be made responsible for protecting everyone at the 
site from the dangers that are within his power to control.'' Id. at 
367. Consistent with the Seventh Circuit's reasoning, OSHA has placed 
on utilities the responsibility to inform construction workers about 
power line voltage, as electric utilities are in the best position to 
disseminate voltage information.
    In summary, OSHA has firmly-established precedent, under part 1926 
and beyond, for requiring that an employer with special knowledge of 
occupational hazards provide information to protect workers. Like the 
provisions of the Hazard Communication Standard and the Asbestos 
Standard for the Construction Industry, Sec.  1926.1407(e) imposes 
requirements on employers who possess essential information and are in 
the best position to distribute it.
    The Committee determined that two business days would be a 
reasonable amount of time to allow the utility owners/operator to 
respond and be sufficiently short to be useful to the employer 
requesting the information. Most of the utility owner/operators who 
submitted comments or testimony on this issue did not indicate that a 
two-day requirement was unworkable so long as weekends and holidays 
were excluded from the two-day calculation.\41\ (ID-0203.1; -0205.1; -
0213.1.) Similarly, although one contractor indicated a desire to be 
able to obtain power line voltage information immediately at all times 
through Internet services provided by the utility owner/operator (ID-
0118.1), other contractors indicated that a two working day time frame 
was manageable from a construction planning standpoint (ID-0205.1; -
0213.1). In light of these comments, OSHA concludes that the proposed 
two-day requirement to fulfill voltage information requests was a 
reasonable time frame for both contractors and utility owners/
operators.
---------------------------------------------------------------------------

    \41\ One electric utility representative at the public hearing 
did request, however, that the time period for responding to a 
request be changed to four business days. (ID-0342.)
---------------------------------------------------------------------------

    In the proposed rule preamble, the Agency noted that the C-DAC 
provision read:

    Voltage information. Where Option (3) is used, owner/operators 
of power lines must provide the requested voltage information within 
two working days of the employer's request.

In a different context--determining the timeliness of notices of 
contest to OSHA citations--OSHA defines ``working days'' to mean 
``Mondays through Fridays but shall not include Saturdays, Sundays, or 
Federal holidays.'' 29 CFR 1903.22(c). Since the term is already 
defined in an OSHA regulation, the Agency stated that it would apply 
the same definition here unless this rule were to specify a different 
definition and solicited comments on whether the phrase ``working 
days'' should be defined differently for purposes of this rule than it 
is in Sec.  1903.22(c). All comments received on this issue indicated 
that the Sec.  1903.22(c) definition was appropriate in this context. 
(ID-0203.1; -0205.1; -0213.1.) Although OSHA is not specifically 
incorporating the Sec.  1903.22 definition by reference, the Agency 
intends to rely on that definition for purposes of enforcing Sec.  
1926.1407(e). One commenter sought clarification that the two working 
day time period would start to run on the first full business day after 
the request for information is received. (ID-0215.1.) This is, in fact, 
an accurate representation of how this provision will be enforced. If, 
for example, the utility receives a request for voltage information on 
Monday, it will have until the end of the business day on Wednesday to 
provide the necessary information.
    Another commenter asked OSHA to provide guidance on whether the 
voltage information needed to be provided in written form. (ID-0214.1.) 
Given the inherent difficulties of obtaining written information 
expeditiously in many construction sites, OSHA concurs with C-DAC's 
recommendation not to require that voltage information be provided in 
writing.
Paragraph (f) Power Lines Presumed Energized
    This paragraph requires that employers always assume that all power 
lines are energized unless the utility owner/operator confirms that the 
power line has been and continues to be deenergized and visibly 
grounded at the worksite. No adverse comments were received on this 
provision; it is promulgated as proposed.
Paragraph (g) Posting of Electrocution Warnings
    This paragraph requires the posting of electrocution warnings as 
follows: one inside the cab in view of the operator and (except for 
overhead gantry and tower cranes) at least two on the outside of the 
equipment. The Committee concluded and OSHA agrees that these 
electrocution warnings are necessary to protect the operator as well as 
any employees working in the area around the crane by increasing their 
awareness of the hazard. This provision is similar to sec. 5-3.4.5.2(d) 
of ASME B30.5-

[[Page 47952]]

2004. No adverse comments were received on this provision; it is 
promulgated as proposed.
Section 1926.1408 Power Line Safety (Up to 350 kV)--Operations
    As discussed with respect to power line safety in assembly/
disassembly, the standard requires the implementation of a systematic 
approach to power line safety for crane/derrick operations. This 
approach consists of two basic steps. First, the employer must identify 
the work zone, assess it for power lines, and determine how close the 
crane could get to them. The employer has the option of doing this 
assessment for the area 360 degrees around the crane or for a more 
limited, demarcated area. Second, if the assessment shows that the 
crane could get closer than a trigger distance--20 feet for lines rated 
up to 350 kV--then requirements for additional action are triggered.
    Specifically, unless the power lines are deenergized and grounded, 
encroachment prevention measures have to be implemented to prevent the 
crane from breaching a minimum clearance distance. The employer is 
allowed to choose among three minimum clearance distance options. For 
example, for lines up to 350 kV, the minimum clearance distance options 
are 20 feet, or the distance specified in Table A of this section for 
the line's voltage (Table A is the ``10-foot rule''; see discussion of 
Table A below), or a distance closer than what is specified in Table A. 
However, there are limitations to the availability of some of these 
options, and the number of mandatory encroachment prevention (and 
other) measures increases when using a clearance distance closer than 
Table A.
Paragraph (a) Hazard Assessments and Precautions Inside the Work Zone
    Before beginning crane/derrick operations, the employer is required 
to determine if power lines would pose a hazard. The first step in this 
process is to identify the work zone for which this hazard assessment 
will be made (Sec.  1926.1408(a)(1)). The employer has two options for 
defining the work zone.
    Under the first option (Sec.  1926.1408(a)(1)(i)), the employer is 
required to define the work zone by marking boundaries and prohibiting 
the operator from operating the equipment past those boundaries. 
Examples of how to demarcate the boundaries include using flags or 
devices such as a range limit device or range control warning device. 
``Range control warning device'' is defined in Sec.  1926.1401 as ``a 
device that can be set by an equipment operator to warn that the boom 
or jib tip is at a plane or multiple planes.''
    OSHA noted in the proposed rule that the term ``range limit 
device'' was used in proposed Sec.  1926.1408(a)(1)(i) but that no 
definition of this term was provided in proposed Sec.  1926.1401. OSHA 
stated that it determined that C-DAC understood a range limit device to 
be a device that physically limits how far a crane can boom out and the 
angle within which the boom can swing. OSHA requested public comment on 
whether a definition of ``range limit device'' should be added to Sec.  
1926.1401 and, if so, whether the definition described in the proposed 
rule preamble is appropriate (73 FR 59759, Oct. 9, 2008).
    Three commenters responded, endorsing the need for a definition and 
suggesting language along the lines discussed in the proposed rule. 
(ID-0118; -0205.1; -0213.1.) OSHA has added a definition for a ``range 
control limit device'' that defines it as ``a device that can be set by 
an equipment operator to limit movement of the boom or jib tip to a 
plane or multiple planes.''
    Employers are not permitted to use existing landmarks to demarcate 
work zone boundaries unless they are marked. For example, a line of 
trees would be insufficient. Without anything more the trees would not 
signal a reminder to the operator of there being a boundary that must 
be maintained. However, adding flags to those trees would be sufficient 
because the flags would serve as a reminder that the trees are located 
along a boundary that the operator must not breach.
    The boundaries must mark the limits of all crane movement. For 
example, a work zone could be defined by demarcating boundaries: (1) To 
the left and right of the operator, to limit the lateral movement of 
the boom, and (2) in front of the operator, in a line connecting the 
side boundaries, limiting the boom's radius.
    In identifying the work zone, the employer must consider the entire 
area in which the crane will need to operate. If the crane will need to 
be positioned in more than one spot to accomplish its work, or to 
travel with a load, the employer must consider the total area in which 
it will need to operate and set the boundaries accordingly.
    The second option for identifying the work zone (Sec.  
1926.1408(a)(1)(ii)) is to define the work zone as the area 360 degrees 
around the crane, up to the crane's maximum working radius. In other 
words, under this option, the work zone is the area within a circle, 
with the crane at the center, and the radius defined by the maximum 
working radius of the crane. No boundaries would have to be marked 
under this option since the crane would be permitted to operate in the 
entire area that it could reach.
Paragraph (a)(2)
    Once the employer has identified the work zone according to Sec.  
1926.1408(a)(1), it is then required to make the power line hazard 
assessment. Specifically, it must determine if any part of the crane, 
load or load line (including rigging and lifting accessories) could 
come within a ``trigger'' distance--20 feet of a power line. This 
determination must be made based upon the assumption that the crane 
would be operated up to its maximum working radius (or, if a demarcated 
boundary is used, the assessment must be made with the assumption that 
the crane would be operated up to that boundary).
    Three commenters expressed concern over OSHA's use of the term 
``maximum working radius'' in describing the methodology for defining 
the work zone. (ID-0146.1; -0206.1; -0209.1.) Their concern is that 
using ``maximum working radius'' would trigger the encroachment-
prevention requirements of Sec.  1926.1408(b) on construction sites 
where the equipment operator has no intention of using the equipment up 
to the equipment's maximum working distance. Another commenter 
questioned whether the phrase ``any part of the equipment'' would 
include the boom if the boom ``could be lowered within 20 feet of a 
power line even though the working radius will not require encroachment 
into the 20-foot zone.'' (ID-0178.1.)
    OSHA notes that these concerns are already addressed through a 
mechanism in the provision as proposed: the employer's ability, under 
Sec.  1926.1408(a)(1)(i), to define the work zone boundaries and then 
prohibit operation of the equipment beyond those boundaries. In other 
words, employers may define the boundary of a work zone at the outer 
boundary of the intended working radius of any part of the equipment, 
including the boom.
    To illustrate, if an employer is using a crane with a maximum 
working radius of 100 feet, but intends to extend the crane boom out 
only 75 feet beyond the center point of the crane, that employer can 
demarcate the outer boundary of the work zone using such measures as a 
line of flags, and then prohibit crane operations beyond that 75-foot 
work zone boundary. Therefore, in the one commenter's example of where 
the boom could come within 20 feet of a power line but the work does 
not

[[Page 47953]]

require it, the employer need not take encroachment-prevention measures 
if it prohibits working beyond a radius that would bring the boom 
within 20 feet of the line. OSHA concludes, therefore, that no change 
to the proposed regulatory language is needed to address these concerns 
and is promulgating this paragraph as proposed.
    If, after defining a work zone, an employer determines that the 20 
foot ``trigger'' determination is positive, then the employer is 
required to take additional steps. Specifically, the employer must meet 
the requirements under either, Option (1), Option (2), or Option (3) of 
Sec.  1926.1408(a)(2).\42\ See above discussion of Sec.  1926.1407(a) 
for additional information about how OSHA intends to enforce these 
compliance options.
---------------------------------------------------------------------------

    \42\ If no part of the crane, load or load line could come 
closer than 20 feet to a power line, the employer is not required to 
take any further action under this section. However, the employer 
may encounter a situation where it unexpectedly needs to increase 
the size of the work zone. This may occur, for example, as a result 
of an unanticipated need to change the crane's position or to have 
the crane operate beyond the original work zone boundaries. In such 
a case the employer is required to go back to the first step under 
Sec.  1926.1408(a)(1), re-identify a work zone and conduct a new 20 
foot ``trigger'' assessment.
---------------------------------------------------------------------------

    Section 1926.1408(a)(2) is adopted without change from the 
proposal.
Paragraph (a)(2)(i) Option (1)
    An employer choosing Option (1) of this section will protect 
against electrocution by having the power lines deenergized and visibly 
grounded at the worksite. This option minimizes the probability that 
equipment that contacts the power line will become energized. The power 
line must be ``visibly grounded at the worksite.''
    One commenter believed that the requirement for visible grounding 
was ``impractical and overly burdensome.'' (ID-0146.1.) A second 
commenter believed that this requirement was needed to permit the 
employer to visually verify that the power line has been deenergized. 
(ID-0190.0.)
    After reviewing these comments, OSHA continues to conclude, as C-
DAC did, that visible grounding of the deenergized line is necessary to 
protect workers. First, it minimizes the voltage that can appear on the 
power line from a number of causes, including induced current and 
capacitive coupling, lightning, other energized lines falling onto the 
power line (for example, where there is a traffic accident involving a 
motor vehicle striking a utility pole supporting the power line), and 
accidental reenergizing of the lines. It also facilitates the operation 
of circuit protective devices to deenergize the line after it is 
reenergized from the last two causes. It also serves as a visual 
confirmation that the power line has been deenergized. (See discussion 
of Sec.  1926.1407(a)(1) where OSHA declines to amend the proposal to 
require written confirmation that the power line has been deenergized.)
    Where the employer elects to deenergize the power line, it will not 
have to implement any of the encroachment/electrocution prevention 
measures listed in Sec.  1926.1408(b). However, some amount of time is 
needed to arrange for the utility owner/operator to deenergize and 
ground the line. Also, in some instances, especially where the 
construction project is small, the cost of deenergizing and grounding 
may be a substantial portion of the cost of the project. Because of 
these factors, deenergizing and grounding, which was also a permissible 
option under former Sec.  1926.550(a)(15), has not been routinely done. 
Accordingly, the rule provides other safe and practical options to 
reduce unsafe practices in the industry. Those other options (Options 
(2) and (3) in Sec.  1926.1408(a)(2)(ii) and (iii), discussed below) 
combined with Sec.  1926.1408(b) are designed to afford effective 
protection against the hazard of electrocution.
    Section 1926.1408(a)(2)(i) is adopted as proposed.
Paragraph (a)(2)(ii) Option (2)
    Under Option (2) (Sec.  1926.1408(a)(2)(ii)), the employer is 
required to maintain a minimum clearance distance of 20 feet. To help 
ensure that this distance is not breached and that employees are 
protected from electrocution, the employer is required to implement the 
encroachment/electrocution prevention measures in Sec.  1926.1408(b).
    Employers using this option will have to stay further away from the 
power line than had been required under subpart N's 10-foot rule 
(employers wanting to use the 10-foot rule will have to use Option (3) 
of this section, discussed below).\43\ However, an advantage of this 
option to many employers is that they do not have to determine the 
voltage of the power line; they only have to determine that the line 
voltage is not more than 350 kV.
---------------------------------------------------------------------------

    \43\ As discussed above, the 10-foot rule requires varying 
clearance distances increase with voltage with clearance distances 
that begin at 10 feet.
---------------------------------------------------------------------------

    Several commenters verified the Committee's conclusion that 
obtaining voltage information from utilities can often be difficult and 
time-consuming. (ID-0118.1; -0143.1; -0146.1; -0155.1.) OSHA determines 
that by providing a mechanism under Sec.  1926.1408(a)(2)(ii) for 
employers to proceed with construction operations without having to 
obtain voltage information, employers will have more flexibility 
without compromising the safety of workers.
    One commenter believed that the maximum clearance distance for this 
option should be 15 feet instead of the proposed 20 feet because it 
believed such a distance would be safe for what it described as 
``relatively small cranes.'' (ID-0184.1.) However, OSHA does not agree 
that a distinction based on crane size is justified. When smaller 
cranes operate near power lines, they present the same hazard as larger 
cranes and need to take similar precautions. OSHA further notes that 
smaller cranes, i.e., cranes with shorter booms, will have a smaller 
work zone than larger cranes and therefore should be better able to 
avoid coming within the permitted 20-foot clearance and, as a result, 
may be less likely to trigger the protective steps required under 
paragraph (a)(2) of this section in any event. Moreover, if OSHA were 
to adopt a 15-foot minimum clearance distance for this option as 
advocated by the commenter, it would have to make a corresponding 
reduction in the maximum voltage covered by Sec. Sec.  1926.1407 and 
1926.1408 and a corresponding increase in the minimum voltage covered 
by Sec.  1926.1409 to retain the protection afforded by the 10-foot 
rule previously contained in subpart N. Therefore, OSHA has concluded 
that it would be inappropriate to decrease the proposed 20 foot minimum 
clearance distance under Sec.  1926.1408(a)(2)(ii); this paragraph is 
therefore promulgated as proposed.
    As noted above, in addition to maintaining a minimum clearance 
distance of 20 feet, employers using this option are required to 
implement the encroachment prevention and other measures specified in 
Sec.  1926.1408(b).
Paragraph (a)(2)(iii) Option (3)
    Under Option (3) (Sec.  1926.1408(a)(2)(iii)), the employer is 
required to maintain a minimum clearance distance \44\ in accordance 
with

[[Page 47954]]

Table A of this section.\45\ Under Table A, depending on the voltage of 
the power line, the minimum clearance distance ranges from 10 feet to 
20 feet.\46\ Under this option the employer is required to determine 
the line's voltage.
---------------------------------------------------------------------------

    \44\ The proposed regulatory text for this section used the 
phrase ``minimum approach distance'' instead of ``minimum clearance 
distance.'' As pointed out by two commenters the latter phrase is 
what was used in the proposed Sec.  1926.1407(a)(3)(i) regulatory 
text. (ID-0205.1; -0213.1.) For consistency, OSHA has, in this 
section, changed the phrase ``minimum approach distance'' to 
``minimum clearance distance.'' Provisions in Sec.  1910.269 and 
proposed subpart V of 29 CFR 1926 use the phrase ``minimum approach 
distance.'' OSHA believes that employers who are covered by those 
standards are familiar with that term. In contrast, the Agency 
believes that employers that do not perform electric power work will 
better understand the term ``minimum clearance distances.'' OSHA 
considers the terms ``approach distance'' and ``clearance distance'' 
to be interchangeable; no substantive distinctions are intended.
    \45\ The information in Table A of the final rule is similar to 
information in Table 1 of ASME B30.5-2004. A table with specified 
clearance distances is more easily applied than the formula set out 
in former Sec.  1926.550(a)(15). Table A is intended to be a clear 
way of conveying the minimum clearance distances.
    \46\ The range referred to here is the range in the part of the 
table that is applicable up to 350 kV.
---------------------------------------------------------------------------

    In addition to maintaining the minimum clearance distance specified 
in the Table, employers using this option are required to implement the 
encroachment prevention and other measures specified in Sec.  
1926.1408(b).
    A labor representative urged OSHA to require a minimum clearance 
distance of 20 feet rather than the lower clearance distances allowed 
under Table A, in essence eliminating Option (3). (ID-0201.1.) The 20-
foot clearance is needed because, in the commenter's view, under the 
options in the proposal, crane operations can easily encroach on an 
absolute safe distance from power lines. OSHA does not agree. The 
clearance distances permitted under Table A are ``safe'' distances, as 
indicated by their inclusion in ASME B30.5-2004 as well as the 
consensus reached by C-DAC. As discussed in the preamble to the 
proposed rule, the 10-foot rule was not effective under prior subpart N 
because subpart N provided little guidance as to how to maintain the 
required clearance. In the proposed rule, OSHA discussed how the 
provisions of this rule addressed two major problems employers faced in 
complying with the minimum clearance requirements of former subpart N: 
(1) The lack of a means to enable operators to judge when the crane was 
breaching the minimum required clearance distance; and (2) the problem 
of temporary operator inattention to a power line as he/she 
concentrated on tasks related to moving the load. (73 FR 59749, Oct. 9, 
2008.) The provisions of paragraph (b) of this section, discussed 
below, are designed to overcome these two problems and ensure 
compliance with the minimum clearance distances in this rule. Even 
where Table A permits the clearance distance to be the same as the 10-
foot rule of former subpart N, this final rule provides far greater 
protection against equipment violating the allowed clearance. It does 
not allow a crane ``to very easily encroach'' on a safe clearance 
distance, as IBEW suggests.
    The labor representative also proposed more stringent requirements 
than those currently contained in Sec.  1926.1410 when it is infeasible 
to maintain the Table A clearances. OSHA addresses this issue below in 
the discussion of Sec.  1926.1410. Accordingly, paragraph (a)(2)(iii) 
is promulgated as proposed.
Paragraph (b) Preventing Encroachment/Electrocution
    Once the employer has determined that some part of the crane, load 
or load line could come within the work zone assessment trigger 
distance of 20 feet of a power line (see Sec.  1926.1408(a)), if it 
chooses either Option (2) or (3) (of Sec.  1926.1408(a)(2)(ii) and 
(iii)), it must implement encroachment prevention measures to help 
ensure that the applicable minimum clearance distance (20 feet under 
Option (2) or the Table A distance) under Option (3) is not 
breached.\47\ Most of the measures in this paragraph are designed to 
help the employer maintain the appropriate distance and thereby prevent 
electrical contact while operating the equipment. One of the measures 
is designed to prevent electrocution in the event of electrical 
contact.
---------------------------------------------------------------------------

    \47\ Alternatively, under Option (1) of Sec.  1926.1408(a)(i), 
the employer could have the lines deenergized and grounded. If 
Option (1) were selected, no further action under this section would 
be required.
---------------------------------------------------------------------------

Paragraph (b)(1)
    Under 1926.1408(b)(1) the employer is required to conduct a 
planning meeting with the operator and other workers who will be in the 
area of the crane or load. This planning meeting must include reviewing 
the location of the power line(s) and the steps that will be 
implemented to prevent encroachment and electrocution.
    One commenter raised the issue of who is responsible for ensuring 
that the planning meeting takes place. (ID-0218.1.) Where encroachment 
precautions are required under Option (2) or Option (3) (see Sec.  
1926.1408(a)(2)(ii) and Sec.  1926.1408(a)(2)(iii)), the employers of 
the operator and other workers who will be in the area of the equipment 
or load must ensure that the required planning meeting under Sec.  
1926.1408(b)(1) takes place. Other employers at the work site may also 
be responsible for such compliance in certain situations; see OSHA CPL 
02-00-124, Multi-Employer Citation Policy, Dec. 10, 1999 for further 
information.
    As discussed below, under this paragraph, certain encroachment/
electrocution prevention measures are required (they are listed in 
Sec.  1926.1408(b)(1) through (3)). In addition, the employer is 
required to select at least one additional measure from the list in 
Sec.  1926.1408(b)(4). In the planning meeting, the employer must make 
that selection and review all the measures that will be used to comply 
with this section. The purpose of this requirement is to ensure that 
the operator and other workers who will be in the area understand these 
measures and how they will be implemented. That understanding is 
important to their successful implementation. Paragraph (b)(1) is 
adopted as proposed.
Paragraph (b)(2)
    Section 1926.1408(b)(2) requires that where tag lines are used they 
must be nonconductive. This provision provides additional protection to 
those employees who would be exposed to electrical hazards in the event 
that the equipment, load line, tag line or load contacts a power line 
and the tag line they are holding becomes energized. Note the 
discussion above related to Sec.  1926.1407(b)(2). This provision is 
promulgated as proposed.
Paragraph (b)(3)
    Section 1926.1408(b)(3) requires elevated warning lines, barricades 
or a line of signs, in view of the crane operator, equipped with flags 
or similar high-visibility markings, at 20 feet from the power line (if 
using Option (2) of Sec.  1926.1408(a)(2)(ii)) or at the minimum 
clearance distance under Table A (if using Option (3) of Sec.  
1926.1408(a)(2)(iii)). The steps required by this provision are 
designed to remind the operator that there are power lines with 
associated minimum clearance distances that must be met. Warning lines, 
barricades or a line of signs in the operator's view equipped with 
high-visibility markings also indicate to the operator where the 
minimum clearance distance boundary is located. This serves as one of 
two layers of protection (the second layer consists of an additional 
means selected by the employer under Sec.  1926.1408(b)(4), discussed 
below).
    A commenter urged OSHA to reconsider this requirement because there 
is nothing outside of the traveled roadway to which a warning line, 
barricade, or line of signs could be affixed. (ID-0114.) OSHA 
recognizes that this requirement will often require the employer to 
install a series of poles or other supports to install an elevated 
warning line. However, temporary

[[Page 47955]]

supports are routinely installed on construction sites, and installing 
them for the purpose of enabling the operator to maintain a safe 
distance from a power line serves an important safety purpose without 
being overly difficult or time-consuming.
    A visual line on the ground to mark the minimum clearance distance 
is not permitted under Sec.  1926.1408(b)(3) because an operator would 
generally not notice or see a line on the ground and because, from 
where the operator sits, it would be particularly difficult for the 
operator to extrapolate from that line the location of the boundary in 
the air. By contrast, visual reminders that are sufficiently elevated 
from the ground level enable the operator to more accurately judge the 
distance between the load, load line (including rigging and lifting 
accessories) or crane and the boundary marked by the elevated warning 
line.
    In reviewing the C-DAC draft of this provision, OSHA realized that 
there may be situations where the employer would not be able to place 
such a line so that it would be visible to the operator. In such a 
case, to have two layers of protection, it would be necessary to 
require that a dedicated spotter be used in addition to one of the 
other (non-spotter) methods described below in Sec.  1926.1408(b)(4). 
Therefore, in the proposed rule, OSHA stated that it was planning to 
modify the proposed provision by adding the following after the last 
sentence in Sec.  1926.1408(b)(3):

    If the operator is unable to see the elevated warning line, a 
dedicated spotter must be used as described in Sec.  
1926.1408(b)(4)(ii) in addition to implementing one of the measures 
described in Sec.  1926.1408(b)(4)(i), (iii), (iv) and (v).

    The Agency requested public comment on this issue. Two commenters 
agreed with the substance of the proposed addition to this provision 
(ID-0205.1; -0213.1); a third commenter agreed with the proposed 
addition but recommended that OSHA go a step further and require a 
dedicated spotter at all times (ID-0113). For the reasons explained in 
the discussion of Sec.  1926.1408(b)(4) below, OSHA has decided not to 
accept this latter recommendation for a dedicated spotter in all cases. 
The Agency has, however, included the additional regulatory text 
delineated above in the final rule.
Paragraph (b)(4)
    This section sets out a list of five prevention measures, from 
which the employer must select at least one, when the employer elects 
to use either Option (2) or Option (3) under Sec.  1926.1408(a)(2). The 
first four measures are methods for encroachment prevention. The fifth 
measure is a method of electrocution prevention in the event of 
electrical contact with a power line. Specifically, the employer is 
required to choose one of the following: (i) A proximity alarm; (ii) 
the use of a dedicated spotter; (iii) a device that automatically warns 
the operator when to stop (i.e., a range control warning device); (iv) 
a device that automatically limits the range of movement of the 
equipment; or (once they are available) (v) an insulating link/device, 
as defined in Sec.  1926.1401.\48\
---------------------------------------------------------------------------

    \48\ See discussion later in this section for an explanation of 
the delay in the effective date for this provision.
---------------------------------------------------------------------------

    Proximity alarm performance was the subject of a study conducted by 
the National Institute for Occupational Safety and Health (NIOSH) 
published in January 2009, and submitted as an exhibit to this 
rulemaking. (ID-0141.2.) This study tested the efficacy of two 
proximity alarm models under various simulated construction conditions. 
The study indicated that the accuracy of the proximity alarms could be 
adversely affected by such factors as: (1) Operating the equipment with 
a boom angle and length significantly different than that used for the 
device's last sensitivity adjustment; and (2) operating the equipment 
on sites with multiple overhead power lines, especially where those 
power lines had differing voltages or involved intersecting 
installations. Two other commenters also questioned the efficacy of 
proximity alarms. (ID-0118.1; -0206.1.)
    OSHA shares the concerns expressed by NIOSH and other commenters 
over the accuracy of currently available proximity alarms.\49\ However, 
such concerns are addressed by the definition of ``proximity alarm'' in 
Sec.  1926.1401, which states that the term refers to a device ``that 
has been listed, labeled, or accepted by a Nationally Recognized 
Testing Laboratory in accordance with Sec.  1910.7.'' To be so listed, 
labeled, or accepted, the Nationally Recognized Testing Laboratory 
(NRTL) must determine that the device works properly by concluding that 
it conforms to an appropriate test standard. Accordingly, no proximity 
alarm can be listed, labeled, or accepted by a Nationally Recognized 
Testing Laboratory (NRTL) in accordance with Sec.  1910.7 until the 
problems identified by the commenters have been rectified. OSHA 
concludes that retaining this option in the final rule will provide an 
incentive for proximity alarm manufacturers to improve these devices to 
the point where they will meet the definition's criteria.
---------------------------------------------------------------------------

    \49\ Neither of the proximity alarm models tested in the NIOSH 
study had obtained NRTL listing, labeling, or acceptance.
---------------------------------------------------------------------------

    In situations where an employer chooses the option of using a 
dedicated spotter, the employer is required to meet the requirements 
for spotters in Sec.  1926.1408(b)(4)(ii). As specified in Sec.  
1926.1408(b)(4)(ii)(A), the spotter has to be equipped with a visual 
aid to assist in identifying the minimum clearance distance.
    Under Sec.  1926.1408(b)(4)(ii)(B)-(D), the spotter has to be 
positioned so that he/she can effectively gauge the clearance distance 
from the power line; the spotter, where necessary, must use equipment 
that enables him/her to communicate directly with the equipment 
operator; and the spotter must give timely information to the operator 
so that the required clearance distance can be maintained.
    Some commenters recommended that dedicated spotters be required at 
all times. (ID-0112; -0113.) OSHA declines to impose such a 
requirement. The Agency determines that allowing the employer to choose 
from a variety of options for this second layer of protection allows 
the employer to select a method that it believes would be suitable, 
increases the likelihood of employer compliance, and will be an 
effective approach to reducing power line related injuries and 
fatalities.
    One commenter also advocated adding a provision requiring dedicated 
spotters to pass a visual acuity exam. (ID-0071.) OSHA determines that 
it is unnecessary to require a specific level of visual acuity. 
Wherever this standard requires an employer to have an individual 
perform a particular task, that duty is met only where the individual 
has the ability to perform the task. If an employer assigns an 
individual to serve as a spotter, but his/her vision is insufficient to 
perform the task of a spotter, the employer will not have met the 
spotter requirement. For additional discussion of spotter requirements 
see the discussion of Sec.  1926.1407(b)(3)(i) earlier in this 
preamble.
    Section 1926.1408(b)(4)(iii) gives the employer the option of using 
a device that automatically warns the operator when to stop movement, 
such as a range control warning device. Such a device must be set to 
give the operator sufficient warning to prevent encroachment. ``Range 
control warning device'' is defined in Sec.  1926.1401 as ``a device 
that can be set by an equipment operator to warn that the boom or jib 
tip is at a plane or multiple planes.''
    For example: An employer has chosen the option of maintaining a 20-
foot

[[Page 47956]]

distance from the power line. Under Sec.  1926.1408(b)(4)(iii), it has 
chosen to use a range control warning device to help maintain that 
distance. The device would have to be set to alert the operator in time 
to prevent the boom, load line or load (whichever is closest to the 
power line) from breaching that 20-foot distance. As a practical 
matter, the device would have to be set to sound the warning more than 
20 feet from the line, since the operator will need some time to react 
and to account for the momentum of the equipment, load line and 
load.\50\
---------------------------------------------------------------------------

    \50\ One commenter questioned whether range control warning 
devices exist. (ID-0151.1.) OSHA has confirmed that some cranes are 
equipped with such a device.
---------------------------------------------------------------------------

    Section 1926.1408(b)(4)(iv) gives the employer the option of using 
a device that automatically limits the equipment's range of motion and 
is set to prevent encroachment. Such a device can be particularly 
suitable for tower cranes, for which the swing angle can be programmed 
so that the operator cannot move the boom or jib past a certain range. 
While it may be more technically difficult to apply swing limitation 
devices for use in mobile cranes, the technology may develop so that 
they could be used in such cranes as well.
    The insulating link option that is available under Sec.  
1926.1408(b)(4)(v) would not protect against encroachment but would 
provide protection to employees handling the load against electrocution 
in the event encroachment did occur. Such a device must be installed 
between the end of the load line and the load. When so installed, it 
prevents the load from becoming energized in the event the load line or 
other part of the equipment makes electrical contact with a power line. 
Preventing the load from becoming energized helps protect riggers, who 
often guide crane loads manually and who are therefore at high risk of 
being electrocuted if a load becomes energized.
    Some commenters expressed concern about the effectiveness of 
insulating links. (ID-0206.1; -0378.1.) As stated in Sec.  1926.1401, 
``Insulating link/device'' is defined as ``an insulating device that 
has been listed, labeled, or accepted by a Nationally Recognized 
Testing Laboratory in accordance with Sec.  1910.7.'' This definition 
addresses this concern, since an insulating link used under this 
provision must have been found by a Nationally Recognized Testing 
Laboratory (``NRTL'') to conform to an appropriate test standard as 
required in Sec.  1910.7.
    Because insulating links previously have not been required by any 
OSHA standard, OSHA has not yet recognized any testing laboratory as a 
NRTL for purposes of insulating link listing, labeling, or acceptance. 
A period of time will be needed to review laboratory requests for such 
recognition. Once there are NRTLs for testing insulating links, some 
time will also be needed for the NRTLs to conduct the tests. As a 
result, where Sec.  1926.1408(b) applies, Sec.  1926.1408(b)(4)(v) will 
be unavailable as an additional measure in the list contained in Sec.  
1926.1408(b)(4) until employers acquire NRTL-approved insulating links. 
Therefore, during that period, in addition to implementing the 
requirements in Sec.  1926.1408(b)(1)-(3), the employer must implement 
at least one of the measures listed in Sec.  1926.1408(b)(4)(i)-(iv).
    A commenter suggested that Sec.  1926.1408(b)(4)(v) be deleted 
because it involves a live line procedure covered under Sec.  1910.269, 
which, it says, requires an operator to be a qualified worker to get 
this close to an insulating link. (ID-0161.1.) This commenter 
misunderstands the provision. Paragraph (b)(4)(v) allows employers to 
use an insulating link between the load line and load as an alternative 
to other protective measures. It has nothing to do with live line 
procedures under Sec.  1910.269, which is a general industry standard 
that applies to operation and maintenance of power lines and which has 
no provision regulating the proximity of an operator or a qualified 
person to an insulating link.
    One commenter pointed out that insulating links do not provide 
protection for those employees, such as equipment operators, who are in 
contact with the equipment ``upstream'' of the insulating link. (ID-
0053.1.) That is incorrect. Insulating links serve a dual purpose. They 
protect a rigger who is handling the load if the equipment upstream of 
the link makes electrical contact with a power line. And they protect 
employees who are upstream of the insulating link if the load makes 
electrical contact with a power line. The workers who are at the 
greatest risk of electrocution--the riggers who handle the load, are 
also protected by the requirement for nonconductive tag lines. But the 
best protection for all workers, and the primary focus of paragraph 
(b), is to employ effective encroachment prevention measures to prevent 
electrical contact of any part of the equipment and/or load with a 
power line. For additional discussion of insulating links, see later in 
this preamble where OSHA addresses Sec.  1926.1410(d)(4).
Paragraph (b)(5)
    Employers engaged in construction of electric transmission and 
distribution lines, which is addressed by 29 CFR part 1926 subpart V 
(Sec. Sec.  1926.950-1926.960), also have to meet the requirements in 
Sec.  1926.1408, with several exceptions.\51\ The first exception is 
found in Sec.  1926.1408(b)(5). The other exceptions are discussed 
elsewhere in this preamble. In accordance with Sec.  1926.1408(b)(5), 
employers engaged in work involving cranes/derricks that is covered by 
subpart V are not required to comply with the requirements in Sec.  
1926.1408(b)(4). Subpart V applies to the construction of electric 
transmission and distribution lines and equipment, which includes the 
alteration, conversion, and improvement of existing lines and 
equipment. Thus, when employees are engaged in subpart V work near 
energized lines, by the nature of the job, their full attention is on 
the power lines. Non-subpart V workers, by contrast, do not work 
directly with the lines, and their attention is primarily directed 
elsewhere.
---------------------------------------------------------------------------

    \51\ As discussed in Sec.  1926.1400, Scope, construction of 
electric transmission and distribution lines is covered under this 
subpart.
---------------------------------------------------------------------------

    Subpart V contains additional requirements to protect those 
employees against making electrical contact with the lines. These 
include requirements in Sec.  1926.950(c) for guarding the line or 
using insulation (such as insulating gloves) to prevent electrical 
contact. This paragraph is promulgated as proposed.
Paragraph (c) Voltage Information
    This section operates in conjunction with Sec.  
1926.1408(a)(2)(iii) (Option (3)--Table A clearance). Where an employer 
elects to use Option (3) (Sec.  1926.1408(a)(2)(iii)), the employer 
must, under Sec.  1926.1408(a)(2)(iii)(A), determine the voltage of the 
power lines. Under Sec.  1926.1408(c), utility owner/operators of these 
lines must provide the requested voltage information within two working 
days of the request (see the discussion above of Sec.  1926.1407(e) for 
a description of the public comments received on this requirement and 
OSHA's resolution of the issues raised by those comments).
    As discussed above with respect to Sec.  1926.1407(e), ``working 
days'' means Monday through Friday, excluding Federal holidays. This 
provision is promulgated as proposed.

[[Page 47957]]

Paragraph (d) Operations Below Power Lines
    When a crane operates below a power line, the likelihood of 
breaching the minimum clearance distance is enhanced by several 
factors, including the greater difficulty of judging the distance to 
the power line when it is above the equipment and the fact that in most 
such situations the operator has to purposely look up to see the line 
(and therefore is more likely to forget its location or that it is 
there).
    This section addresses this problem by prohibiting any part of a 
crane, load or load line (including rigging and lifting accessories) 
from being below a power line unless the employer has confirmed with 
the utility owner/operator that the power line is deenergized and 
visibly grounded at the worksite or unless the employer can demonstrate 
that it meets one of the four exceptions in Sec.  1926.1408(d)(2).
    The first exception, Sec.  1926.1408(d)(2)(i), is for work covered 
by 29 CFR part 1926 subpart V. Subpart V work involves work on the 
power line itself and commonly requires equipment to operate below a 
power line. As explained above with respect to Sec.  1926.1408(b)(5), 
subpart V work does not require all of the precautions required of 
other work because the full attention of the workers is directed at the 
power line.
    The second exception, Sec.  1926.1408(d)(2)(ii), is for equipment 
with non-extensible booms and the third exception, Sec.  
1926.1408(d)(2)(iii), is for equipment with articulating or extensible 
booms. These exceptions apply when the uppermost part of the boom (for 
non-extensible booms) or with the boom at its fullest extension (for 
extensible booms), will be more than 20 feet below the plane of the 
power line or more than the Table A minimum clearance distance below 
the plane of the power line at the boom's most vertical point.\52\ 
Where this criterion is met, it is not possible for the minimum 
clearance distance to be breached.
---------------------------------------------------------------------------

    \52\ The plane of the power line is the horizontal plane that 
touches the lowest point on the lowest power line.
---------------------------------------------------------------------------

    The last exception, Sec.  1926.1408(d)(2)(iv), is for situations in 
which the employer can demonstrate that it is infeasible to comply with 
Sec.  1926.1408(d)(1), which prohibits any part of a crane, load or 
load line from being below a power line unless the line is deenergized 
and visibly grounded. Under this exception, the employer must not only 
show that compliance with Sec.  1926.1408(d)(1) is infeasible, it must 
also comply with the requirements in Sec.  1926.1410. Section 1926.1410 
governs equipment operations closer than the Table A minimum clearance 
distances.
    Two commenters requested that OSHA define the term ``infeasible.'' 
(ID-0203.1; -0214.1.) Infeasibility determinations are fact-dependent, 
and OSHA generally considers compliance with a measure to be infeasible 
when it is impossible or would prevent performance of the work in 
question. See OSHA CPL 02-00-148, ch. 5, sec. VI.B.2, Field Operations 
Manual, Nov. 10, 1999. OSHA notes that this is not the first standard 
to incorporate feasibility considerations; the Agency has incorporated 
feasibility language into many other standards. See, e.g., Fall 
Protection (Sec.  1926.502(k)); Permit-Required Confined Spaces (Sec.  
1910.146(d)(5)(i)); Bloodborne Pathogens (Sec.  1910.1030(f)(3)(ii)); 
and Electrical Work Practices (Sec.  1910.333(a)(1)). In letters of 
interpretation and guidance documents explaining these and other 
standards, OSHA has elaborated on the meaning of infeasibility in 
numerous factual contexts. Because infeasibility is a concept of broad 
applicability in the OSHA context, and its meaning depends on the 
particular facts present in a given worksite situation, a single 
definition would not provide useful guidance to employers. Accordingly, 
the Agency declines to adopt a definition of that term specific to 
subpart CC. Paragraph (d) is adopted as proposed.
Paragraph (e) Power Lines Presumed Energized
    This provision requires employers to assume that all power lines 
are energized unless the utility owner/operator confirms that the power 
line has been and continues to be deenergized and visibly grounded at 
the worksite. This fundamental precaution is essentially the same as it 
was in subpart N at former Sec.  1926.550(a)(15)(vi). The one commenter 
on this proposed provision supported it (ID-0161.1); this provision is 
promulgated as proposed.
Paragraph (f)
    Paragraph (f) of this section addresses the danger that employees 
could receive an electric shock from equipment that is operating near a 
transmitter or communication tower. During such operation, the 
equipment can act as an antenna and become energized by the 
electromagnetic signal emitted from the tower. As proposed, Sec.  
1926.1408(f) stated that when the equipment is close enough for an 
electrical charge to be induced in the equipment or load, the 
transmitter must be deenergized or the following precautions taken: The 
equipment must be grounded, and non-conductive rigging or an insulating 
link/device must be used.
    Previously, subpart N, at former Sec.  1926.550(a)(15)(vii), 
required that when equipment is close enough to a transmitter tower for 
an electrical charge to be induced, the equipment had to be grounded 
and a ground jumper cable used to connect the load to the equipment. In 
addition, nonconductive poles having large alligator clips or other 
similar protection had to be used to connect the ground jumper cable to 
the load. Connecting the load to the grounded equipment dissipated any 
electrical charge induced in the load. The Committee determined that 
subpart CC's proposed requirement for nonconductive rigging or an 
insulating link instead of grounding the load better reflected current 
industry practice and better protected employees.
    The requirement for nonconductive rigging or an insulating link in 
proposed Sec.  1926.1408(f) was a fundamentally different approach than 
requiring a ground jumper cable to be connected to the load as was 
specified in former Sec.  1926.550(a)(15)(vii). The latter connects the 
load to a ground, while proposed Sec.  1926.1408(f) would have 
insulated the load from the equipment or employees handling the load.
    The Agency requested public comment on whether the proposed 
requirement was preferable to that in former Sec.  
1926.550(a)(15)(vii). Some commenters agreed that the proposed 
requirements would provide better protection of workers and argued that 
they were more feasible than the requirements of former Sec.  
1926.550(a)(15)(vii). (ID-0205.1; -0213.1.) One commenter believed that 
Sec.  1926.1408(f) as proposed was inferior to former Sec.  
1926.550(a)(15)(vii) because ``insulating links are generally rated for 
distribution voltages and would not properly protect employees working 
near power lines.'' \53\ (ID-0209.1.) Another commenter recommended 
that the proposed Sec.  1926.1408(f) requirements be supplemented with 
a requirement that any insulating link used be rated for the applicable

[[Page 47958]]

transmission tower frequencies, and that nonconductive tag lines be 
used.
---------------------------------------------------------------------------

    \53\ Another commenter opposed the proposed language because it 
believed that grounding the equipment under the provisions of former 
Sec.  1926.550(a)(15)(vii) would better protect employees, the 
crane, and the power line because it would result in a very quick 
trip of the line. (ID-0144.1.) This comment is not relevant because 
grounding the crane would not cause the transmitter or communication 
towers to trip.
---------------------------------------------------------------------------

    The problem addressed by these comments involves how to protect a 
worker, such as a rigger, who may come into electrical contact with the 
load. Under the proposed rule, the load would be insulated from the 
grounded crane to isolate the load from circulating current that could 
cause it to be energized. However, it may be possible that the load 
itself could become energized by absorbing energy from the transmitter 
or communication tower. The former rule addresses this possibility by 
requiring an electrical connection between the load and the (grounded) 
equipment. However, in the event there is either a poor electrical 
connection or a ground that is not fully effective, this method might 
not provide complete protection. Therefore, OSHA has decided not to 
require either precaution, but instead to require that any tag line 
used be nonconductive. This precaution is required in other provisions, 
discussed above, to protect the rigger from the possibility that the 
equipment may come into electrical contact with a power line. It will 
be equally appropriate here. Section 1926.1408(f) is modified 
accordingly.
    OSHA notes that former Sec.  1926.550(a)(15)(vii) of subpart N 
required employers to provide crews ``with nonconductive poles having 
large alligator clips or other similar protection to attach the ground 
cable to the load.'' This requirement protected employees from the 
electric shock hazard that exists when employees apply grounds. Due to 
what the Agency determined was an inadvertent oversight on the part of 
the Committee, the proposed rule did not contain provisions addressing 
these hazards. Although no commenters raised this issue, OSHA is aware 
that employees are exposed to serious electric shock hazards when they 
are attaching grounds in accordance with Sec.  1926.1408(f). For 
example, when attaching the rigging to the load or the ground to the 
crane, the crane and load will be energized. OSHA views this condition 
as a recognized hazard and expects employers to ensure that employees 
are adequately protected when they are attaching grounds. Employers who 
fail to properly protect their employees in this regard will, in 
appropriate circumstances, be subject to citation under the General 
Duty Clause (sec. 5(a)(1)) of the OSH Act.
    It should also be noted that work covered by Sec. Sec.  1926.1407 
and 1926.1410 that is performed near transmitter or communication 
towers can pose electric shock hazards similar to those addressed by 
Sec.  1926.1408(f). Due to another oversight by the Committee, however, 
neither Sec.  1926.1407 nor Sec.  1926.1410 contains provisions 
addressing these hazards. OSHA considers these to be recognized hazards 
and will use its enforcement authority under the General Duty Clause, 
as appropriate, to ensure that employers are taking measures, such as 
those required in Sec. Sec.  1926.600(a)(6)(vii) or 1926.1408(f), to 
protect employees from electric shock and fires while performing work 
covered by Sec. Sec.  1926.1407 and 1926.1410 near transmitter or 
communication towers. OSHA will consider addressing both of these 
oversights through future rulemaking.
    A commenter suggested adding a provision to paragraph (f) whereby 
the owner of a transmitter communication tower would be required to 
evaluate whether power level density levels were high enough to 
endanger employees working near the tower and, if so, implement 
precautions to prevent them. (ID-0130.1.) The issue raised by this 
comment is beyond the scope of this rule, which addresses hazards 
related to the use of equipment and not employee exposure to possible 
radiation hazards. Such hazards are covered by Sec.  1926.54, 
Nonionizing radiation.
Paragraph (g) Training
    Paragraph (g) of this section sets forth training requirements for 
crane operators and other crew members assigned to work with the 
equipment. The training topics listed are designed to ensure that both 
the operator and the other crew members have the information they need 
to help protect themselves from power line hazards. One commenter 
suggested that, in addition to the topics listed in the proposed rule, 
employees working on equipment operating closer than Table A clearance 
distances also be trained on induction, step and touch potentials, and 
proper equipment grounding procedures. (ID-0161.1.) Other commenters 
also recommended training in grounding procedures and in the 
limitations of the protection that grounding provides. (ID-0131.1; -
0155.1.) OSHA concludes that training on induction, step, and touch 
potentials would get into issues that are highly technical and would 
not help workers understand what they must do to protect themselves and 
others. OSHA does, however, agree with the suggestion that workers be 
trained in proper grounding procedures and in the limitations of the 
protection that grounding provides. As discussed under Sec.  1926.1410, 
equipment grounding is one of the additional precautions required when 
it is infeasible to maintain the Table A clearances, and training in 
proper grounding procedures will help ensure the effectiveness of this 
provision. In addition, employees must understand that grounding may 
not afford complete protection. Accordingly, OSHA is adding a new Sec.  
1926.1408(g)(1)(v) that requires training in the procedures to be 
followed to properly ground equipment and the limitations of grounding.
    In addition, proposed Sec.  1926.1408(g)(1)(i)(E) stated that 
training was required in the need to avoid approaching or touching 
``the equipment.'' In the proposed rule's preamble, OSHA stated that it 
determined that C-DAC inadvertently failed to add the phrase ``and the 
load'' to that provision, since whenever the equipment is in electrical 
contact with a power line, the load may also be energized. OSHA 
requested public comment on whether that provision should be modified 
to correct this omission. Commenters agreed that adding the phrase 
``and the load'' was appropriate. (ID-0051.0; -0205.1; -0213.1.) 
Therefore, OSHA has made this addition in the final rule.
    In the proposed rule, the Agency noted that proposed Sec.  
1926.1408(g) did not address the timing and frequency of this training. 
OSHA requested public comment on whether and, if so, how the standard 
should address training timing and frequency.
    The one commenter on this issue advocated not dictating the timing 
or frequency of training in this provision. For the final rule, OSHA 
has decided to cross reference the testing administration requirements 
of Sec.  1926.1430. That training section requires that employees be 
evaluated to confirm that they understand the information provided in 
the training, and that refresher training be provided when, based on 
employee conduct, there is an indication that retraining is necessary. 
Section 1926.1408(g) is modified accordingly.
Paragraph (h)
    In the proposed rule, this provision required that where devices 
originally designed by the manufacturer for use as safety devices, 
operational aids, or a means to prevent power line contact or 
electrocution are used to comply with Sec.  1926.1408, they must meet 
the manufacturer's procedures for use and conditions of use. The 
Committee concluded that this provision is necessary to ensure that the 
devices work as intended. No comments were received on this provision, 
and it is promulgated without change. (See

[[Page 47959]]

Sec.  1926.1417 for a discussion of OSHA's authority to require 
compliance with manufacturer procedures.)
Section 1926.1409 Power Line Safety (Over 350 kV)
    As proposed, the requirements in Sec. Sec.  1926.1407 and 1926.1408 
would apply to power lines rated over 350 kV in all respects except 
one: Wherever the regulatory text states ``20 feet,'' ``50 feet'' would 
be substituted. Therefore, the ``trigger'' distance that would be used 
when assessing an assembly/disassembly area or work zone would be 50 
feet. In addition, an employer engaged in assembly/disassembly that is 
using Option (2) of proposed Sec.  1926.1407(a)(2), or an employer 
engaged in crane operations that is using Option (2) of proposed Sec.  
1926.1408(a)(2)(ii), would be required to maintain a minimum clearance 
distance of 50 feet. This would apply to all power lines rated over 350 
kV, including power lines over 1,000 kV.
    For power lines over 1,000 kilovolts,\54\ employers electing to use 
Table A of Sec.  1926.1408 in either assembly/disassembly (Option (3) 
in Sec.  1926.1407(a)(3)) or crane operations (Option (3) in Sec.  
1926.1408(a)(2)(iii)) are required, pursuant to instructions in the 
Table, to maintain a minimum clearance distance determined by the 
utility owner/operator or a registered professional engineer who is a 
qualified person with respect to electrical power transmission and 
distribution.
---------------------------------------------------------------------------

    \54\ OSHA does not believe that there are any electric power 
transmission lines in the United States that operate at more than 
800 kV. However, there may be some power lines associated with 
research laboratories or other similar facilities that operate at 
more than 1,000 kV. In addition, it is possible that utilities may 
install new power lines operating at more than this voltage or may 
upgrade existing lines to operate at higher voltages.
---------------------------------------------------------------------------

    In reviewing this regulatory language, OSHA recognized that a 
minimum clearance distance of 50 feet may be inadequate for the open-
ended category of ``over 1,000 kV.'' In fact, at some point in that 
range, a utility owner/operator or a registered professional engineer 
may well specify a minimum clearance distance of more than 50 feet. 
However, as drafted in the proposed rule, employers using Option (2) 
(in both proposed Sec. Sec.  1926.1407(a)(2) and 1926.1408(a)(2)(ii)) 
would only have to maintain a minimum clearance distance of 50 feet. 
OSHA requested public comment on whether proposed Option (2) is 
insufficiently protective for power lines rated over 1,000 kV. The one 
commenter on this issue agreed that the proposed provision was 
insufficiently protective for power lines carrying voltages greater 
than 1,000 kV. OSHA agrees and has modified Sec.  1926.1409 in the 
final rule to conform to the requirement of Table A that the minimum 
clearance distance for lines over 1,000 kV be determined by the utility 
owner/operator or a registered professional engineer who is a qualified 
person with respect to electrical power and distribution. OSHA notes 
that the minimum distance under Option (2) for voltages between 351 and 
1,000 kV is 50 feet. The Agency expects that the distances set by 
utilities and registered professional engineers in accordance with 
Sec.  1926.1409(b) will be at least 50 feet.
Section 1926.1410 Power Line Safety (All Voltages)--Crane Operations 
Closer Than the Table A Zone
    Subpart N did not permit work closer than the 10-foot rule \55\ 
unless the lines were deenergized and visibly grounded or where 
insulating barriers, separate from the equipment, were erected. 
However, the Committee recognized that many employers, without meeting 
the exceptions, nonetheless worked closer than the 10-foot rule. The 
Committee determined that most employers do not use the option to 
deenergize and ground because of the time, expense and difficulty in 
making those arrangements.\56\ In addition, the Committee concluded 
that an ``insulating barrier'' of the type that is currently available 
does not, by itself, adequately protect employees because these 
barriers are only effective for ``brush'' contact. If there is more 
than brush contact, they will not protect employees from electrocution 
because the equipment will damage the device.
---------------------------------------------------------------------------

    \55\ As described earlier, the ``10-foot rule'' is shorthand for 
the formula in former Sec.  1926.550(a)(15) for minimum clearance 
distances. Under the 10-foot rule, for lines rated 50 kV or less, 
work was not permitted closer than 10 feet to an energized power 
line. For lines rated more than 50 kV, a clearance of 10 feet plus 
.4 inch for each 1 kV over 50 kV was generally required.
    \56\ If power lines are deenergized and grounded, power is shut 
off to the utility owner/operator's customers. As a result, utility 
owner/operators are understandably reluctant to implement such 
measures.
---------------------------------------------------------------------------

    To address the insufficient protections provided to employees who 
work closer than the 10-foot rule, the Committee developed, and OSHA 
proposed, a new approach, which is contained in Sec.  1926.1410. It 
consists of prerequisites and criteria that apply when work must be 
conducted closer than the minimum clearance distance specified in Table 
A of Sec.  1926.1408.
    In this case, the Committee's rationale misrepresented existing 
OSHA enforcement policy under subpart N regarding insulating barriers 
in two respects. First, current policy recognizes other types of 
insulating barriers besides the type to which the Committee 
referred.\57\ OSHA also recognizes goal-post-type barriers and, in 
certain limited circumstances the insulation on insulated power lines 
operating at 480 volts or less. See, e.g., letters of interpretation 
dated February 8, 1994, to Mr. Ivan Blood (http://www.osha.gov) and 
August 9, 2004, to Mr. Mathew McFarland (http://www.osha.gov). Second, 
the Agency does accept barriers that protect against brush contact 
under limited circumstances. See, e.g., letter of interpretation dated 
February 8, 1994, to Mr. Ivan Blood (http://www.osha.gov).
---------------------------------------------------------------------------

    \57\ The barriers are known as electrically insulating plastic 
guard equipment. See ASTM F712-06 Standard Test Methods and 
Specifications for Electrically Insulating Plastic Guard Equipment 
for Protection of Workers.
---------------------------------------------------------------------------

    However, as these letters of interpretation recognize, these 
barriers have their limitations. Because of this, OSHA has concluded 
that, although the Committee's rationale with respect to Sec.  
1926.1410 was slightly flawed by a misunderstanding of subpart N 
requirements, their reasoning that the provisions of this section are 
more protective than the former standard still holds.
    This section starts out by explicitly prohibiting equipment from 
operating closer than the distances specified in Table A of Sec.  
1926.1408 to an energized power line except where the employer 
demonstrates compliance with the requirements in Sec.  1926.1410.
    Note that, in the discussion below of Sec.  1926.1410, references 
to a ``registered professional engineer'' are, in accordance with Sec.  
1926.1410(c)(1), references to a registered professional engineer who 
is a qualified person with respect to electrical power transmission and 
distribution.
    One commenter on the proposed rule asked for clarification 
regarding who determines whether a professional engineer is such a 
``qualified person.'' (ID-0155.1.) Under Sec.  1926.1401, a qualified 
person is a ``person who, by possession of a recognized degree, 
certificate, or professional standing, or who by extensive knowledge, 
training and experience, successfully demonstrated the ability to 
solve/resolve problems relating to the subject matter, the work, or the 
project.'' At a given construction site, the employer who is conducting 
crane operations and who uses the services of the engineer to carry out 
that employer's responsibilities under this section is responsible for 
determining whether the registered professional engineer is a

[[Page 47960]]

qualified person with respect to electrical power transmission and 
distribution.
Paragraphs (a) and (b)
    These paragraphs set forth prerequisites that must be met for the 
employer to be permitted to operate equipment closer to a power line 
than the applicable Table A of Sec.  1926.1408 distance. Section 
1926.1410(a) requires the employer to determine that it is infeasible 
to do the work without breaching the minimum clearance distance under 
Table A. If the employer determines it is infeasible to maintain the 
Table A distance, under Sec.  1926.1410(b) it also has to determine, 
after consulting with the utility owner/operator, that deenergizing and 
grounding the power line, as well as relocating the line, are 
infeasible. See discussion of infeasibility determinations in Sec.  
1926.1408(d).
    Two commenters argued that the requirement to demonstrate 
infeasibility was unnecessary for electric utility work regulated under 
subpart V. (ID-0203.1; -0209.1.) After careful review of these 
comments, OSHA has concluded that it is appropriate for subpart V work 
to be excluded from the need to show infeasibility under Sec.  
1926.1410.
    Subpart V applies to the erection of new electric transmission and 
distribution lines and equipment and the alteration, conversion, and 
improvement of existing transmission and distribution lines and 
equipment (Sec.  1926.950(a)(1)). Construction of new lines generally 
takes place some distance from existing lines, and the lines themselves 
are not energized until construction is complete. Hence, clearance 
distances are usually not an issue for new construction. However, 
alteration, conversion, and improvement of existing lines necessarily 
takes place on or near the lines themselves. To enable such work to be 
done safely, subpart V contains clearance requirements that permit 
equipment to operate much closer to the lines than either former Sec.  
1926.550 or Sec. Sec.  1926.1408-1926.1409 of this final rule, as well 
as supplementary protective requirements that must be followed when the 
subpart V clearance requirements cannot be observed.
    Subpart V's clearance requirements are found in Table V-1 of Sec.  
1926.950. Subpart V does not require a showing of infeasibility before 
allowing subpart V work to comply with these shorter clearance 
distances, and OSHA concludes that the record does not support 
requiring such a showing under the final rule either. The very nature 
of work that alters, converts, or improves existing power lines must 
necessarily be carried out close to those lines, and it would almost 
always be infeasible for the clearances in Sec. Sec.  1926.1408-
1926.1409 to be maintained. As a result, requiring such a finding would 
be a formality that would not add to worker safety.
    It is similarly inappropriate to require a showing that it is 
infeasible to deenergize and ground the lines or relocate the lines 
under paragraph (b) of this section for subpart V work. Subpart V 
provides for deenergizing and grounding as an alternative to live line 
precautions, but it also recognizes that subpart V work may take place 
on live lines to avoid power disruptions to the utility's customers and 
includes precautions for such live line work. Thus, subpart V leaves to 
the utility employer the discretion to decide whether to deenergize and 
ground without the need for an infeasibility determination, and OSHA 
concludes they should continue to have this same discretion under this 
final rule. OSHA also notes that paragraph (b) of this section requires 
the employer to consult with the utility owner/operator before deciding 
that it infeasible to deenergize and ground the lines or relocate them, 
and it would be anomalous to apply this provision where the utility 
owner/operator is itself the employer.
    For these reasons, OSHA has modified Sec.  1926.1410(c)(2) of the 
final rule to clarify that paragraphs (a),(b), and (c)(1) of Sec.  
1926.1410 do not apply to work covered by subpart V of 29 CFR 1926. 
Instead, the Sec.  1926.950 Table V-1 minimum clearances apply. Section 
1926.1410(c)(2) also explains that employers engaged in subpart V work 
may work closer than the Sec.  1926.950 Table V-1 distances where both 
the requirements of Sec.  1926.1410 and Sec.  1926.952(c)(3)(i) or (ii) 
are met.\58\
---------------------------------------------------------------------------

    \58\ OSHA is in the process of updating subpart V requirements. 
If the Agency makes changes to those provisions that necessitate 
updating the cross-references in Sec.  1926.1410(c)(2), those 
changes will be made as part of that rulemaking.
---------------------------------------------------------------------------

    See discussion later in this section regarding other provisions in 
Sec.  1926.1410 that deal specifically with subpart V work.
Paragraph (c) Minimum Clearance Distance
    After the employer makes the infeasibility determinations required 
by Sec.  1926.1410(a) and (b), a minimum clearance distance must be 
established. Under Sec.  1926.1410(c)(1), the employer can establish 
this distance by either having the utility owner/operator determine the 
minimum clearance distance that must be maintained or by having a 
registered professional engineer who is a qualified person with respect 
to electrical transmission and distribution determine the minimum 
clearance distance that must be maintained. The Committee believed that 
either of these sources of this information has sufficient expertise to 
accurately apply the factors discussed below in setting an appropriate 
minimum clearance distance.
    Commenters objected to requiring the utility owner/operator to be 
involved in setting the minimum clearance distance. (ID-0161.1; -
0162.1.) However, paragraph (c) of this section does not require the 
utility owner/operator to establish the minimum clearance distance. It 
gives the employer the option of engaging the utility owner/operator 
for this purpose but, if the utility owner/operator declines, the 
employer must engage a registered professional engineer who is a 
qualified person with respect to electrical transmission and 
distribution. In no case is the utility owner/operator required to 
establish the minimum clearance distance.
    Under Sec.  1926.1410(c)(1), regardless of whether it is the 
utility owner/operator or a registered professional engineer that makes 
this determination, several factors must be considered when 
establishing the minimum clearance distance. These factors include, but 
are not limited to: conditions affecting atmospheric conductivity; time 
necessary to bring the equipment, load and load line (including rigging 
and lifting accessories) to a complete stop; wind conditions; degree of 
sway in the power line; lighting conditions, and other conditions 
affecting the ability to prevent electrical contact.
    A commenter objected to allowing cranes to operate closer to power 
lines than the ``appropriate minimum approach distance to an energized 
line.'' (ID-0226.) He further noted that, under the proposed rule, an 
operator could take equipment closer to power lines than a qualified 
electrical worker. C-DAC concluded, and OSHA agrees, that workers will 
be better protected if employers are required to adhere to additional 
safety precautions when it is infeasible to maintain the Table A 
clearances. Accordingly, to the extent the commenter recommended that 
the standard not permit equipment to come within the Table A distances, 
OSHA rejects this commenter's suggestion.
    The same commenter objected to allowing equipment operated by 
nonelectrical workers to approach closer to power lines than a 
qualified electrical worker. The rule does not, however, allow this. 
This section requires the

[[Page 47961]]

employer to determine a minimum clearance distance that will prevent 
the equipment from making electrical contact with the line. Although 
existing subpart V permits employees to take equipment closer to power 
lines than Table V-1 of Sec.  1926.950, the corresponding general 
industry standard at Sec.  1910.269(p)(4)(i) prohibits the operation of 
equipment closer than the distances in Tables R-6 through R-10 of Sec.  
1910.269. In the proposed revision of subpart V, the proposed rule 
contains the same prohibition as the general industry standard. As a 
general matter, OSHA determines that it is not appropriate or safe for 
nonelectrical workers to bring equipment closer to power lines than is 
permitted under Sec.  1910.269(p)(4)(i) for qualified workers. 
Therefore, the Agency does not expect that distances shorter than those 
in Tables R-6 through R-10 of Sec.  1910.269 will be adequate ``to 
prevent electrical contact'' for purposes of Sec.  1926.1410(c)(1).
    Several commenters suggested that when equipment operations closer 
than the Table A of Sec.  1926.1408 zone are performed, (1) ``qualified 
employees'' (as defined under Sec.  1910.269) should be used (ID-
0161.1; -0199.1); (2) the equipment should be considered energized (ID-
0075.0; -0161.1); and/or (3) the power line should be deenergized (ID-
0161.1; -0226.0).
    Regarding the ``qualified employees'' suggestion, OSHA determines 
that the training required under Sec.  1926.1410(m), discussed below, 
is more appropriate for construction workers working with cranes and 
other hoisting equipment than the training required under Sec.  
1910.269(a)(2)(ii) for electrical workers. The training required under 
paragraph (m) focuses on the actions that employees can take to protect 
themselves when working near potentially energized equipment, while the 
training under Sec.  1910.269(a)(2)(ii) focuses on safe practices for 
working on energized lines.
    The second suggestion is valid because prudence dictates treating 
the equipment as energized when it is closer than the Table A distance 
to an energized power line. However, some provisions of the rule 
already treat the equipment as energized. These include paragraph 
(d)(8), which requires barricades around the equipment to prevent 
unauthorized personnel from entering the work area, and paragraph 
(d)(9), which prohibits employees from touching the equipment. OSHA 
determines that no additional benefit would be gained by a statement to 
treat the equipment as energized and therefore declines to add such a 
statement.
    The third suggestion misconstrues the standard, which prohibits 
work within the Table A clearance distances unless the employer can 
show, among other things, that deenergizing and grounding the line is 
infeasible. Therefore, except as noted above, Sec.  1926.1410(c) is 
promulgated as proposed.
Paragraph (d)
    Once a minimum clearance distance has been established under Sec.  
1926.1410(c), the employer may not proceed without first having a 
planning meeting with either the owner/operator of the power line or 
the registered professional engineer to determine what procedures will 
be implemented to prevent electrical contact and electrocution. In 
accordance with Sec.  1926.1410(e), these procedures have to be 
documented and immediately available on-site. In addition, in 
accordance with Sec.  1926.1410(f) and (g), these procedures have to be 
reviewed with the operator and other workers who will be in the area of 
the equipment and the procedures must be implemented (Sec.  
1926.1410(e)-(g) are discussed below).
    Section 1926.1410(d) sets out the minimum protective measures that 
must be included in the procedures set by the employer and utility 
owner/operator (or registered professional engineer). These procedures 
need to include more stringent protective measures than those set out 
in Sec.  1926.1408, because equipment will be in closer proximity to 
power lines and there is otherwise a greater risk of contacting a power 
line and causing electrocution. Therefore, these procedures have to 
include, at a minimum, those set out in the remainder of this section.
    Commenters objected to having the utility owner/operator involved 
in the planning meeting required by paragraph (d) of this section. (ID-
0161.1; -0162.1.) As with paragraph (c) of this section, discussed 
above, the utility owner/operator is not required to become involved 
with the decisions that must be made under this section. If the utility 
owner/operator declines to participate in the planning meeting, the 
employer must engage a registered professional engineer to help 
determine the procedures needed to prevent electrical contact. OSHA 
notes, however, that equipment making electrical contact with a power 
line can disrupt electrical service as well as create a hazard to 
employees on the worksite. Therefore, at least in some cases, the 
utility owner/operator may wish to help develop precautions to prevent 
such electrical contact.
Paragraph (d)(1)
    Under paragraph (d)(1) of this section, for power lines that are 
equipped with a device that automatically reenergizes the circuit in 
the event of a power line contact, the automatic reclosing feature of 
the circuit interrupting device must be made inoperative prior to 
beginning work. This will help ensure that, in the event of a power 
line contact and activation of the automatic reclosing feature, the 
line would not be automatically re-energized. One commenter stated that 
many circuit interrupting devices currently in use are incapable of 
having their automatic reclosing mechanisms disabled. (ID-0155.1.) OSHA 
verified that fact and has amended Sec.  1926.1410(d)(1) to clarify 
that the automatic reclosing feature must be made inoperative only if 
the design of the device permits.\59\
---------------------------------------------------------------------------

    \59\ This revised language is also consistent with the 
provisions of Sec.  1910.269(q)(3)(iv).
---------------------------------------------------------------------------

Paragraph (d)(2)
    Under paragraph (d)(2) of this section, a dedicated spotter who is 
in continuous contact with the operator must be used. In addition, the 
dedicated spotter must be equipped with a visual aid to assist in 
identifying the minimum clearance distance, must be positioned to 
effectively gauge the clearance distance, where necessary must use 
equipment that enables him or her to communicate directly with the 
operator, and must give timely information to the operator so the 
required clearance distance can be maintained. For a more in-depth 
analysis of the dedicated spotter requirement and the public comments 
received, consult the discussion of Sec. Sec.  1926.1407(b)(3)(i) and 
1926.1408(b)(4)(ii) above. This provision is promulgated as proposed.
Paragraph (d)(3)
    Under paragraph (d)(3) of this section, an elevated warning line, 
or barricade that is not attached to the equipment, positioned to 
prevent electrical contact, must be used. This warning line or 
barricade must be in view of the operator either directly or by use of 
video equipment and must be equipped with flags or similar high-
visibility markings. The need for an elevated warning line or barricade 
is explained above in the discussion of Sec.  1926.1408(b)(3). This 
provision does not apply to subpart V work.
    As discussed above in relation to Sec.  1926.1408(b)(3), there may 
be situations where the operator is not able

[[Page 47962]]

to see an elevated warning line or barricade. To address such 
situations, under Sec. Sec.  1926.1408 and 1926.1409, OSHA changed the 
regulatory text so that the employer is required to use both a 
dedicated spotter and one of the other (non-spotter) measures listed in 
Sec.  1926.1408(b)(4). Because the clearance distances are likely to be 
significantly smaller than the Table A distances, the Agency determines 
that more precise means of estimating the clearance distance are 
necessary. When the operator is not able to see an elevated warning 
line or barricade when working closer than the Table A clearance 
distance, it is necessary to provide an additional layer of protection 
by requiring the use of video equipment to enable the operator to see 
the warning line or barricade. Therefore, in all cases when working 
closer than the Table A clearance distance, the operator will have 
``two sets of eyes'' (in addition to other protection required under 
this section) to ensure that the equipment maintains the minimum 
clearance distance established under Sec.  1926.1410(c). This paragraph 
is adopted as proposed.
Paragraph (d)(4) Insulating Link/Device
    Under paragraph (d)(4) of this section, an insulating link/device 
must be installed at a point between the end of the load line (or 
below) and the load. As described in the discussion of Sec.  1926.1408, 
an insulating link is a barrier to the passage of electrical current. 
When used on a crane, it prevents the load from becoming energized if 
the boom or the load line makes electrical contact with a power line 
and prevents the equipment from becoming energized if the load contacts 
a power line.
    As explained in the discussion of Sec.  1926.1408(b)(4)(v), OSHA 
anticipates that NRTL approval of these devices, which is necessary 
from them to meet the definition of ``insulating link'' under Sec.  
1926.1401, will not be available for up to one year after the effective 
date of this rule. OSHA is providing two phase-in periods to allow time 
for the NRTL recognition process, and to phase in the requirement in a 
manner that will reduce the economic burden on employers with existing 
inventories of devices that would qualify as ``insulating links/
devices,'' as defined in Sec.  1926.1401, except that they have not 
been subject to NRTL approval (``non-approved links''). First, OSHA is 
providing for an alternative measure that will be available to all 
employers for one year after the effective date of the standard. Sec.  
1926.1410(d)(4)(iv). Second, OSHA is allowing employers who have 
existing inventory of non-approved links to continue to use these links 
for an additional two years (up to a total of three years after the 
effective date of the final rule), so long as the same protections 
required for the alternative measures available during the one-year 
interim period remain in place. Sec.  1926.1410(d)(4)(v). However, the 
use of links manufactured after the one-year interim period is 
prohibited unless they are NRTL-approved as required by the definition 
of ``insulating link/device'' in Sec.  1926.1401.
    The absence of an insulating link can result in the load becoming 
energized if the equipment makes electrical contact with a power line 
or the equipment becoming energized if the load makes electrical 
contact with a power line. When working inside the clearances permitted 
under Table A, the danger of such electrical contact is increased. As 
an interim precaution until insulating links (as defined in Sec.  
1926.1401) become available, OSHA is requiring that all employees who 
may come in contact with the equipment, the load line, or the load, 
excluding equipment operators located on the equipment, must be 
insulated or guarded from the equipment, the load line, and the load. 
Insulating gloves rated for the voltage involved are adequate 
insulation for the purposes of this alternative. This interim 
precaution will provide some degree of protection to employees working 
near the equipment or load by providing a layer of insulation should 
the equipment or the load become energized. During the one-year interim 
period following the effective date of subpart CC, OSHA is encouraging, 
but not requiring, the use of non-approved links as an extra form of 
protection (although they cannot be used to satisfy the standard).
    OSHA is also providing a separate alternative measure that would 
apply for an additional two-year transition period (following the 
first-year interim period, for a total of three years) to address 
employers who already own or purchase non-approved links. See Sec.  
1926.1410(d)(4)(v). Under this alternative, employers with non-approved 
links would be required to use them in addition to other alternative 
measures required under Sec.  1926.1410(d)(4)(iv) during the initial 
one-year interim period. To be eligible for this alternative measure, 
employers must use and maintain these non-approved links in compliance 
with manufacturer requirements and recommendations. While OSHA 
anticipates that NRTL-approved insulating links will be available for 
purchase within a year after the effective date of subpart CC, the 
Agency recognizes that some employers will have existing inventories of 
non-approved links. OSHA is, therefore, allowing employers the 
additional two years to phase out the use of the non-approved links to 
reduce the economic burden of replacing the existing inventory of non-
approved links.
    As noted above, OSHA encourages employers to use non-approved links 
during the initial one-year interim period as an extra measure of 
protection, but is not requiring employers to use them during this 
interim period. The Agency recognizes that some employers might not 
already own these devices because OSHA did not mandate their use under 
subpart N. If OSHA required the use of non-approved links during the 
initial one-year interim period, these employers would be forced to 
incur additional costs for devices that could only be used for a fixed 
period of one to three years.\60\ However, once the NRTL-approved links 
are available for purchase, the cost of purchasing the NRTL-approved 
links would be a capital investment that could be amortized over the 
normal life of the insulating link.
---------------------------------------------------------------------------

    \60\ While the record indicates that these devices are available 
for rental, it is not clear from the record that all employers would 
have access to the businesses renting these devices.
---------------------------------------------------------------------------

    Several commenters noted the limitations of insulating links/
devices and advocated for the ability to employ alternative measures 
when necessary. For example, commenters stated that no insulating 
links/devices were readily available for loads above 60 tons or 
voltages above 33 kV. (ID-0132.1; -0155.1; -0197.1.) In addition, 
commenters noted that the added length of rigging that results when 
insulating links are used can create problems in locations where there 
is limited overhead clearance. (ID-0132.1; -0155.1; -0197.1.)
    Another commenter who manufactures insulating links stated that 
insulating links are available with lifting capacities of up to 120 
tons and voltage capacities of up to 125 kV.\61\ (ID-0216.1.) 
Therefore, OSHA concludes that no changes are necessary to address the 
objections to the proposed insulating link requirement based on load or 
voltage capacities. However, OSHA has concluded that some accommodation 
may be necessary to address conditions associated with electric utility 
operations in work areas

[[Page 47963]]

with low overhead clearance from power lines.\62\ Accordingly, OSHA has 
added an alternative to this provision for subpart V operations where 
use of an insulating link is infeasible. However, this provision should 
rarely, if ever, be available to employers, as there are several 
alternatives to using a crane or derrick in this operation including 
use of an aerial lift with a material handler or a manual hoist. The 
alternative requires use of alternate electrical safety precautions; 
specifically, the alternate precautions are those required under the 
electric power generation, transmission, and distribution regulations 
applicable to general industry under Sec.  1910.269(p)(4)(iii)(B) or 
(C). Those precautions require either that the hoisting equipment be 
insulated for the voltage involved, or that each employee be protected 
from hazards that might arise from equipment contact with energized 
lines.\63\
---------------------------------------------------------------------------

    \61\ Refer to the discussion of Sec.  1926.1408(b)(4)(v) for a 
description of other comments received concerning insulating links 
in the context of that provision.
    \62\ The example provided by the commenter was replacement/
repair of utility pole transformers. (ID-0155.1.) Such operations 
frequently involve hoisting transformers onto and off of utility 
poles immediately beneath power lines. The commenter stated that 
frequently in those operations there is barely sufficient room for 
the boom head itself; when an insulating link is added to the load 
line, the extra 2-3 feet of rigging prevents the hoisting of the 
transformer to the required elevation. The commenter did not explain 
why an aerial lift or manual hoist could not be used.
    \63\ See discussion of this paragraph below under subpart V-
work.
---------------------------------------------------------------------------

Paragraph (d)(5)
    Under paragraph (d)(5) of this section, if the rigging may be 
closer than the Table A of Sec.  1926.1408 distance during the 
operation, it must be of the nonconductive type. This provides 
protection to those employees who would be exposed to electrical 
hazards in the event that the rigging contacts a power line, which 
otherwise could energize the rigging and the load.
    One commenter stated that he was unaware of any sling manufacturers 
who market their slings as being nonconductive, and that there are no 
test standards for testing the dielectric properties of slings. (ID-
0155.1.) As noted in the discussion of tag lines of Sec.  
1926.1407(b)(2), C-DAC considered the utility of setting specifications 
for material required to be nonconductive but determined that it would 
be impractical, and OSHA has additionally concluded that there is no 
need to specify test criteria for these materials. The guidance 
provided for determining whether a tag line is nonconductive applies 
equally here. Slings made from nonmetallic fibers will meet the 
standard provided they are not wet, dirty, or have substances on or in 
them that will conduct electricity. Therefore, OSHA has concluded that 
the requirement that rigging that may be closer than the Table A 
distance be nonconductive is appropriate, and the provision is 
promulgated as proposed.
Paragraph (d)(6)
    Under paragraph (d)(6) of this section, if the crane is equipped 
with a device that automatically limits range of movement, it must be 
used and set to prevent any part of the crane, load or load line 
(including rigging and lifting accessories) from breaching the minimum 
clearance distance established under Sec.  1926.1410(c). This paragraph 
is promulgated as proposed.
Paragraph (d)(7)
    Under paragraph (d)(7) of this section, if a tag line is used it 
must be nonconductive. This requirement provides additional protection 
to those employees who would be exposed to electrical hazards in the 
event that the equipment contacts a power line and the tag line they 
are holding becomes energized, or in the event that the tag line itself 
makes contact with the power line.
    Refer to the discussion of Sec.  1926.1407(b)(2) for further 
explanation of tag line non-conductivity and public comments received 
on this subject. This provision is promulgated as proposed.
Paragraph (d)(8)
    Under paragraph (d)(8) of this section, barricades must be used to 
form a perimeter at least 10 feet away from the equipment to prevent 
unauthorized personnel from entering the work area. In areas where 
obstacles prevent the barricade from being at least 10 feet away, the 
barricade is required to be as far from the equipment as feasible. This 
provision, along with Sec. Sec.  1926.1410(d)(9) and 1926.1410(d)(10), 
minimizes the likelihood that any more employees than are absolutely 
necessary to the operation will be near the equipment in the event the 
equipment, load or load line makes electrical contact with the power 
line. No comments were submitted on this provision; therefore, it is 
promulgated as proposed.
Paragraph (d)(9)
    Under paragraph (d)(9) of this section, employees other than the 
operator are prohibited from touching the load line above the 
insulating link/device and equipment. The reason C-DAC did not extend 
this prohibition to the operator is that the operator, by being in the 
cab, is going to be in electrical contact with both the equipment and 
load line. However, this assumes that the operator is in fact standing 
or sitting on the equipment. There may be some situations where this is 
not the case. For example, some equipment may be operated by pendant 
control or wireless control; in such cases the operator need not be on 
the equipment to control it. OSHA requested public comment on this 
issue.
    Commenters agreed that equipment operators operating from the 
ground via remote controls need to be protected from potential shocks 
by either (1) using wireless controls that physically isolate the 
operator from the equipment; or (2) using insulating mats that insulate 
the operator from the ground. (ID-0062.1; -0162.1.) OSHA agrees with 
these comments. Although rubber insulating matting is designed for use 
as a floor covering, the Agency determines that such mats can provide 
an additional measure of protection for workers operating the equipment 
from the ground.\64\ OSHA has amended paragraph (d)(9) accordingly.
---------------------------------------------------------------------------

    \64\ The proposed revision of subpart V also proposed a new 
construction standard for electrical protective equipment, which 
would cover rubber insulating matting. Until the subpart V revision 
is finalized, rubber insulating matting meeting ASTM D178-01(2005) 
Standard Specification for Rubber Insulating Matting, meets the 
requirement in final Sec.  1926.1410(d)(9) for insulating mats.
---------------------------------------------------------------------------

Paragraph (d)(10)
    Under paragraph (d)(10) of this section, only personnel essential 
to the operation are permitted to be in the area of the equipment and 
the load. In conjunction with Sec. Sec.  1926.1410(d)(8) and 
1926.1410(d)(9), this minimizes the likelihood that any more employees 
than are absolutely necessary to the operation would be in a position 
to make electrical contact with the equipment in the event the 
equipment, load or load line makes electrical contact with the power 
line. No comments were submitted on this provision; it is promulgated 
as proposed.
Paragraph (d)(11)
    Under paragraph (d)(11) of this section, the equipment must be 
properly grounded. As described in the summary and explanation of final 
Sec.  1926.1408(a)(2)(i) Option (1), in the event the equipment 
inadvertently makes electrical contact with the power line, proper 
grounding will protect employees in two ways. First, if the line is 
equipped with a circuit interrupting device, the grounding facilitates 
the operation of the device to deenergize the line. However, under some 
conditions, for example, if there is arcing contact or if the contact 
is near the end of a power

[[Page 47964]]

line, the fault current may not be high enough to open the circuit for 
the power line. Second, in the event an employee on the ground is 
touching the equipment when it contacts the power line or if the 
circuit protective device does not operate to deenergize the power 
line, proper grounding will reduce the danger to the employee by 
providing an additional, low resistance path to ground for the electric 
current, substantially lowering the voltage on the equipment while the 
power line remains energized.\65\
---------------------------------------------------------------------------

    \65\ It should be noted that hazardous potential differences can 
be created in the ground when a contact occurs, and employees 
standing close to, but not touching, anything in contact with the 
power line can still be injured or killed. The requirements in Sec.  
1926.1425, Keeping clear of the load, which are designed to protect 
employees from being struck or crushed by hazards, will also protect 
employees from these electrical hazards.
---------------------------------------------------------------------------

    Commenters on this provision stressed the need for worker training 
on proper equipment grounding procedures and the limitations of the 
protection that grounding provides. (ID-0131.1; -0155.1; -0161.1.) OSHA 
agrees. As discussed under Sec.  1926.1408(g), OSHA is requiring that 
the training under that paragraph include training in proper grounding 
procedures and the limitations of the protection grounding provides. To 
make clear that the training required under Sec.  1926.1408(g) is also 
required under this section, OSHA is adding Sec.  1926.1410(m), 
discussed below, to require that operators and crew assigned to 
equipment under this section be trained in accordance with Sec.  
1926.1408(g). Section 1926.1410(d)(11) is promulgated as proposed.
Paragraph (d)(12)
    Under paragraph (d)(12) of this section, insulating line hose or 
cover-up must be installed by the utility owner/operator except where 
such devices are unavailable for the line voltages involved. The 
Committee noted that prior subpart N, at former Sec.  1926.550(a)(15), 
allowed such insulating barriers to be used as a complete alternative 
to deenergizing and grounding or to maintaining the applicable minimum 
clearance distance from the power line. However, the Committee 
determined that such insulating devices do not provide complete 
protection because they can be pierced if the equipment makes more than 
brushing contact with the device. However, the Committee concluded that 
these insulating devices do provide protection if there is brushing 
contact and that such devices are useful to supplement the other 
protective measures provided by the requirements of this Sec.  
1926.1410(d).
    One commenter on this provision believed that when work is being 
performed under Sec.  1926.1410 around voltages above which insulating 
line hose or cover-up are available, OSHA should require that the power 
line be deenergized and visibly grounded. (ID-0161.1.) Another 
commenter stated that the Committee correctly limited the use of line 
hoses and similar rubber cover-ups as complete protection since it can 
be pierced, but stated that it was unfortunate that the Committee 
prohibited the use of other rigid plastic barriers that are effective 
insulation and are not easily pierced. (ID-0144.1.) Regarding the 
former comment, OSHA notes that the rule applies only when the employer 
demonstrates that it is infeasible to deenergize and ground the power 
line. Also, the provision does not require that line hose or cover-up 
be made of rubber; if rigid plastic barriers provide effective 
insulation for the voltage involved, they are permitted by this 
paragraph. OSHA also notes that rigid plastic barriers (that is, 
electrically insulating plastic guard equipment) is also intended for 
brush contact only. (See ASTM F712--06 Standard Test Methods and 
Specifications for Electrically Insulating Plastic Guard Equipment for 
Protection of Workers.) Although this equipment may be able to 
withstand higher forces, it is easier to displace than rubber 
insulating line hose. This provision is promulgated as proposed.
Paragraph (e)
    Under paragraph (e) of this section, the procedures that are 
developed to comply with Sec.  1926.1410(d) must be documented and 
immediately available on-site. This ensures that these procedures are 
available to be used as a reference while the work is in progress.
    No comments on this provision were submitted, and it is promulgated 
as proposed.
Paragraph (f)
    Under paragraph (f) of this section, the equipment user and utility 
owner/operator (or registered professional engineer) must meet with the 
equipment operator and the other employees who will be in the area of 
the equipment or load to review the procedures that are developed under 
Sec.  1926.1410(d) to prevent a breach of the minimum clearance 
distance established under Sec.  1926.1410(c). It is important that 
this review take place so that the operator and other employees 
understand this critical information and have the opportunity to 
discuss the procedures with the utility owner/operator or registered 
professional engineer who developed the procedures.
    OSHA notes that proposed Sec.  1926.1410(f) referred only to the 
utility owner/operator. However, under Sec.  1926.1410(d), the 
procedures are determined in a planning meeting with either the utility 
owner operator or a registered professional engineer, and whichever 
entity helped develop those procedures must also participate in the 
meeting required under paragraph (f). Therefore, OSHA has modified this 
paragraph by adding a reference to the registered professional engineer 
as an alternative to the utility owner/operator.
    Several electric utility representatives questioned OSHA's 
authority to impose these and other requirements upon power line owners 
and operators. (ID-0162.1; -0166.1; -0203.1; -0226.1.) As stated above 
in response to similar arguments, this paragraph does not require the 
utility owner/operator to take any action. Another commenter asked who 
was responsible for bearing the costs of deenergizing power lines and 
other safety precautions, and what would happen if a utility owner/
operator was unable to meet the equipment user at the requested time. 
(ID-0155.1) As stated above with respect to compliance costs, OSHA 
determines that issues of compliance costs and specific obligations are 
best handled as contractual matters among the parties involved, and/or 
as prescribed by local and regional utility regulatory authorities.
Paragraphs (g) and (h)
    Under paragraph (g) of this section, the employer must implement 
the procedures developed in accordance with Sec.  1926.1410(d). And 
under paragraph (h) of this section, the utility owner/operator (or 
registered professional engineer) and all employers of the employees 
involved in the work must identify one person who will direct the 
implementation of the procedures. This person must direct the 
implementation of the procedures and have the authority to stop work at 
any time to ensure safety. As with paragraph (f) of this section, OSHA 
is adding a reference to the registered professional engineer to 
paragraph (h) to ensure that the entity that helped develop the 
procedures participate in the decision required under paragraph (h).
    The Committee concluded that, in view of the fact that more than 
one employer is typically involved in these situations, coordination 
among the employers of these employees is needed for the protective 
measures to be effectively implemented. Once the

[[Page 47965]]

operation is underway, safety-related orders typically need to be given 
and followed without delay. Since an employee of one employer typically 
would not immediately follow an instruction from another employer, it 
is necessary that, before these operations begin, all employees 
understand that the one designated person will have this authority. For 
these reasons, the Committee determined that there needs to be one 
person who all involved in the operation recognize as having this role 
and authority.
    A commenter objected to having the utility owner/operator involved 
in determining which individual should direct implementation of the 
procedures, saying that the decision should be made by the contractors. 
(ID-0155.1.) OSHA notes that this provision is closely tied to 
paragraphs (d) and (f) of this section, under which the utility owner/
operator or registered professional engineer is involved in developing 
the procedures and in reviewing the procedures with the appropriate 
employees. At this point, the utility or registered professional 
engineer is well situated to help identify an individual who is able to 
direct the implementation of the procedures. As with the other 
provisions of this section that require the involvement of the utility 
or a registered professional engineer, the utility has the discretion 
not to participate, in which case the employer operating the equipment 
must use a registered professional engineer.
Paragraph (i) [Reserved]
Paragraph (j)
    This provision requires the employer to safely stop operations if a 
problem occurs with implementing the procedures in paragraph (d) of 
this section or if there is an indication that those procedures are 
inadequate to prevent electrocution. In addition, this provision 
requires that the employer either develop new procedures which comply 
with paragraph (d) or contact the utility owner/operator and have them 
deenergize and visibly ground or relocate the power line(s) before 
resuming operations.
    Two commenters suggested that the utility might not be able to 
deenergize the lines for medical or security reasons and asked what 
would happen in such a case. (ID-0155.1; -0162.1.) OSHA recognizes that 
utilities may not be willing or able to discontinue power to their 
customers, and Sec.  1926.1410(j) permits relocating the line as an 
alternative to deenergizing.
    An electric utility representative requested that OSHA clarify 
which employer has the responsibility to comply with this provision, 
stating it should be the equipment operator and not the utility owner/
operator. (ID-0161.1.) OSHA notes that this paragraph's requirement for 
the employer to ``safely stop operations'' applies to the employer(s) 
who are conducting the operation, and the requirement for that employer 
to contact the utility owner/operator after stopping operations makes 
clear that a utility owner/operator who is not conducting equipment 
operations near the power line is not the ``employer'' under this 
paragraph. OSHA concludes these points are sufficiently clear, and the 
provision is promulgated as proposed.
Paragraph (k)
    Proposed paragraph (k) required that, where a device originally 
designed by the manufacturer for use as a safety device, operational 
aid, or a means to prevent power line contact or electrocution is used 
to comply with Sec.  1926.1410, it must meet the manufacturer's 
procedures for use and conditions of use. (See Sec.  1926.1417 for a 
discussion of OSHA's authority to require compliance with manufacturer 
procedures.) No comments were received on this provision; it is 
promulgated as proposed.
General Comment
    A commenter suggested that OSHA consider requiring a written permit 
as a precondition to any work being done closer than 20 feet to a power 
line.\66\ (ID-0201.1.) The permit, according to this commenter, should 
document many of the requirements of this section, including the basis 
for the employer's infeasibility determinations, the utility owner/
operator's or registered professional engineer's determination of a 
minimum clearance distance, the specific procedures to be followed in 
performing the work, verification that the employees have received the 
required training, and other information relevant to the work. The 
commenter did not explain why it believed such a permit system would 
result in greater safety, but OSHA infers that the commenter believes 
that the need to document certain information, such as the basis for 
the employer's infeasibility findings, will lead to more careful 
consideration of the factors that enter into the decision that it is 
necessary to work closer to a power line than is normally permitted and 
more carefully thought out procedures when such work is done. OSHA is 
not convinced that a permit system is needed to ensure that employers 
act carefully under this section. OSHA expects that the stringent 
precautions required when employers work closer than the Sec.  
1926.1408 and Sec.  1926.1409 clearance distances will ensure that an 
employer will only determine that it is infeasible to work within those 
distances if there is really no other viable option. Similarly, the 
requirement that a minimum clearance distance must be determined by a 
utility owner/operator or registered professional engineer ensures that 
sound expert judgment will enter into that determination without the 
need for additional documentation.
---------------------------------------------------------------------------

    \66\ This commenter recommended that 20 feet should be the 
minimum clearance distance for all work and that Table A of Sec.  
1926.1408 should be deleted. OSHA explained in Sec.  1926.1408 why 
it was rejecting this suggestion.
---------------------------------------------------------------------------

Subpart V Work
    In the proposed rule, OSHA discussed in detail the compliance 
duties the rule would impose on employers engaged in subpart V work 
(see 73 FR 59762-59764, Oct. 9, 2008). Industry representatives 
objected to some of the changes from the requirements of subpart V. 
Among other things, they pointed to another ongoing rulemaking in which 
OSHA proposed to amend subpart V in ways that differ from the changes 
proposed by C-DAC (70 FR 34821, Jun. 15, 2005).\67\
---------------------------------------------------------------------------

    \67\ The subpart V proposed rule was published after C-DAC 
completed its work.
---------------------------------------------------------------------------

    OSHA proposed requirements in addition to those in subpart V 
because it had already concluded that the measures required by subpart 
V for the operation of equipment near power lines are insufficiently 
protective. (See the discussion of Sec.  1910.269(p)(4) in the preamble 
to the final rule promulgating the general industry standard on the 
operation and maintenance of electric power generation, transmission, 
and distribution installations (59 FR 4320, 4400-4404, Jan. 31, 1994)). 
Although proposed subpart V would require measures that are 
sufficiently protective, OSHA has not yet adopted it as a final rule. 
Consequently, the Agency is taking action today to increase the 
protection currently afforded by subpart V. In doing so, OSHA has also 
addressed the concerns raised by utility industry representatives.
    First, as discussed above, OSHA has made several changes to the 
final rule in response to comments from the electric utility industry. 
These include: (1) An expanded exclusion for digger derricks used in 
utility pole work; (2) deleting the requirement that employers engaged 
in subpart V work show the infeasibility of complying with the required 
clearance distances in Sec. Sec.  1926.1408

[[Page 47966]]

through 1926.1409; and (3) an alternative to the requirement for 
insulating links under Sec.  1926.1410(d)(4).
    In addition, employers engaged in subpart V activities are not 
required to implement certain other protective measures required by 
this standard when working near power lines. As discussed above, 
subpart V work would not be subject to the requirement for an 
additional protective measure from the list in Sec.  1926.1408(b)(4). 
Also, subpart V work would not be subject to the prohibition in Sec.  
1926.1408(d)(1) against equipment operating under power lines (see 
discussion above of Sec.  1926.1408(d)(2)(i)). And Sec.  
1926.1410(d)(3) provides that an employer engaged in subpart V work 
closer than the Table A of Sec.  1926.1408 distance is not required to 
use an elevated warning line or barricade.
    In recognition of the fact that much subpart V work necessarily 
takes place on or near energized power lines, employers engaged in such 
work may comply with shorter minimum clearance distances than those 
specified in Sec. Sec.  1926.1408 and 1926.1409: they must generally 
adhere to the clearance distances in Table V-1 of Sec.  1926.950. 
However, Sec.  1926.952(c)(2) (redesignated as Sec.  1926.952(c)(3) as 
a result of this rulemaking) permits clearances less than those in 
Table V-1 and includes requirements that must be met when equipment is 
operating closer to power lines that those distances. To make this 
clear, Sec.  1926.1410(c)(2) provides: ``Employers engaged in subpart V 
work are permitted to work closer than the distances in Sec.  1926.950 
Table V-1 where both the requirements of this section and Sec.  
1926.950(c)(3)(i) or (ii) are met.'' \68\ OSHA is also making 
conforming amendments to Sec.  1926.952(c)(3), which was formerly 
designated Sec.  1926.952(c)(2).
---------------------------------------------------------------------------

    \68\ The proposed rule referred to ``Sec.  1926.950(c)(2)(iii) 
or (iv).'' The final rule reflects the changes in numbering to Sec.  
1926.950(c)(2) that are made elsewhere in this final rule.
---------------------------------------------------------------------------

    Under this section, the precautions previously specified in 
Sec. Sec.  1926.952(c)(2)(i) and (ii) are required under Sec.  
1926.1410(d) when equipment used in subpart V work is operated closer 
than the Table V-1 clearances. Since these precautions are now required 
by Sec.  1926.1410(d), OSHA is deleting them from subpart V as 
redundant. Therefore, OSHA is including the non-redundant provisions 
from the proposed rule in the final rule, with proposed Sec.  
1926.952(c)(2) redesignated as Sec.  1926.952(c)(3).\69\
---------------------------------------------------------------------------

    \69\ In subpart V, when equipment is considered energized, a 
number of subpart V requirements are triggered. See, e.g., Sec.  
1926.951(c)(1) (restricting use of metal or conductive ladders near 
energized equipment); Sec.  1926.951(f)(3) (hydraulic tools used on 
or around energized equipment shall use nonconducting hoses); Sec.  
1926.953(c) (materials or equipment shall not be stored near 
energized equipment if it is practical to store them elsewhere).
---------------------------------------------------------------------------

    One commenter opposed deleting former Sec. Sec.  1926.952(c)(2)(i) 
and (ii) because the commenter believed that it would not be confusing 
to duplicate requirements now found in subpart CC in subpart V. OSHA 
disagrees. As amended by this rule, Sec.  1926.952(c)(3) states that 
its requirements are ``in addition to'' the requirements in Sec.  
1926.1410. Restating requirements in Sec.  1926.952(c)(3) that are also 
found in Sec.  1926.1410 can lead to uncertainty over whether the 
duplicate requirements are in fact redundant or are separate 
requirements.\70\
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    \70\ Amendments to Sec.  1926.950(c)(1) are discussed in Sec.  
1926.1400, Scope.
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    OSHA notes that in this zone, one of the options that an employer 
engaged in subpart V has under prior Sec.  1926.952(c)(3)(i) is to 
insulate the equipment. Under Sec.  1926.1410(d)(11), that employer 
also must ground the equipment. An employer can comply with both 
requirements by using equipment with an insulating boom and grounding 
the uninsulated portion of the equipment (that is, the portion below 
the insulated section of the boom).
    It should also be noted that, in the subpart V rulemaking, OSHA has 
proposed to prohibit equipment (other than insulated aerial lifts, 
which are not covered by this final rule) from being operated closer 
than the minimum approach distances from power lines. If this 
prohibition is carried into the final subpart V rule, then the 
requirements in this final rule relating to work inside the distance in 
Table V-1 will have no effect.
    Finally, Sec.  1926.1400(g) includes a new compliance alternative 
for subpart V work that has been added to the final rule.
Paragraph (l) [Reserved]
Paragraph (m)
    As noted above, the training requirements contained in Sec.  
1926.1408(g) are being added to this section as well to assure that 
employees engaged in activities under this section receive adequate 
training.
Section 1926.1411 Power Line Safety--While Traveling Under Power Lines 
With No Load
Paragraph (a)
    Proposed paragraph (a) provided that this section is designed to 
protect against electrical hazards while equipment is traveling with no 
load under power lines on a construction site. It did not address the 
potential hazards associated with equipment traveling without a load 
near power lines. OSHA requested public comment on whether it is 
necessary to expand the applicability of this section to include 
equipment traveling on a construction site without a load near power 
lines.
    Two commenters favored broadening the applicability of Sec.  
1926.1411 to include equipment traveling near power lines, with 
``near'' being defined as the distances listed in Table T. (ID-0205.1; 
-0213.1.) One commenter responded that adding an additional set of 
power line clearance distances to trigger the requirements of Sec.  
1926.1411 would be confusing. (ID-0144.1.) A fourth commenter thought 
that the requirements of Sec.  1926.1411 should extend to cover 
equipment traveling ``along side of'' power lines, but did not suggest 
a definition for the term ``along side of.'' (ID-0155.1.)
    After considering these public comments, OSHA concludes that this 
section should address the hazard of equipment traveling near, as well 
as under, power lines with no load. If equipment comes into electrical 
contact with a power line while traveling without a load, the same 
electrocution hazard is present as when it is operating with a load. 
The precautions in this section will protect workers against that 
hazard.
    OSHA agrees with the two commenters who suggested that Table T of 
this section contains appropriate clearances for equipment traveling 
near, as well as under, power lines. Applying Table T to equipment 
traveling near power lines will provide a uniform rule for this section 
and will ensure adequate worker protection. Although the Table T 
clearance distances are less than those required under Table A of Sec.  
1926.1408 during crane operations, additional protection is provided 
under this section by the requirement in paragraph (b)(1), discussed 
below, that the boom/mast and boom/mast support system be lowered 
sufficiently to meet the requirements of this paragraph. With the boom/
mast lowered, the highest point of the equipment will generally be 
below the plane of the power line, reducing the risk of accidental 
contact. Moreover, as also noted below, the dedicated spotter 
requirement of Sec.  1926.1411(b)(4) will be triggered whenever the 
equipment while traveling will get closer than 20 feet to a power line, 
thereby providing additional protection against accidental contact.

[[Page 47967]]

    Accordingly, in the final rule, paragraph (a) applies to 
``equipment traveling under or near a power line on a construction site 
with no load.'' In addition, in the proposed rule, the heading of Sec.  
1926.1411 read: ``Power line safety--while traveling.'' In the final 
rule, OSHA has added the words ``under or near power lines with no 
load'' so that the heading more clearly describes the activity to which 
the section applies.
    These requirements apply only to cranes/derricks while traveling on 
a construction site under or near power lines; they do not apply to 
equipment while traveling on roads (or in areas) that are not part of a 
construction site. In addition, this section does not apply to 
equipment traveling on a construction site with a load. That situation 
is governed by Sec. Sec.  1926.1408, 1926.1409, and 1926.1410. To make 
this clear, OSHA is adding the language to paragraph (a) specifying 
that Sec. Sec.  1926.1408, 1926.1409, and 1926.1410, whichever is 
appropriate, govern equipment traveling on a construction site with a 
load.
Paragraph (b)
    Under paragraph (b)(1) of this section, the boom/mast and boom/mast 
support system must be lowered sufficiently to meet the requirements of 
this paragraph. Paragraph (b)(2) specifies that the clearances 
specified in Table T of this section must be maintained. The values in 
Table T, which provides the minimum clearance distances while traveling 
with no load and a lowered boom, are substantially similar to the 
values used in sec. 5-3.4.5.5 of ASME B30.5-2004.
    In the proposed rule, the heading of Table T read: ``MINIMUM 
CLEARANCE DISTANCES WITH NO LOAD AND BOOM/MAST LOWERED.'' In addition, 
each clearance distance in the table was followed by the following 
parenthetical: ``(while traveling, boom lowered).'' OSHA determines 
that the references to the boom in the heading and parentheticals could 
be confusing. The intent of the table is to establish minimum clearance 
distances while the crane is traveling, not clearance distances with 
the boom lowered. As noted in the discussion of Sec.  1926.1411(b)(1), 
the boom and/or mast must be lowered sufficiently to comply with Table 
T; it is not a prerequisite to the applicability of Table T. 
Accordingly, in the final rule, the words ``AND BOOM/MAST LOWERED'' are 
deleted from the heading of Table T, and the parentheticals are also 
removed from the clearance distances in the table.
    Section 1926.1411(b)(3) requires the employer to ensure that the 
effects of speed and terrain are considered so that those effects do 
not cause the minimum clearance distances specified in Table T to be 
breached. Sections 1926.1411(b)(1)-(3) are promulgated as proposed.
    Section 1926.1411(b)(4) requires the employer to use a dedicated 
spotter if any part of the equipment while traveling will get closer 
than 20 feet to a power line. This provision also requires that the 
dedicated spotter be in continuous contact with the crane operator; be 
positioned to effectively gauge the clearance distance; where 
necessary, use equipment that enables the spotter to communicate 
directly with the crane operator; and give timely information to the 
crane operator so that the required clearance distance can be 
maintained. See the earlier discussion of spotters in Sec. Sec.  
1926.1407 and 1926.1408.
    In reviewing proposed Sec.  1926.1411(b)(4), OSHA noted that the 
language ``crane operator'' was used rather than ``driver.'' Because 
Sec.  1926.1411 deals with power line safety while equipment is 
traveling without a load, OSHA recognized that the language ``crane 
operator'' may not be appropriate in all situations. In some cases a 
crane operator may not be the driver of such equipment on the 
construction site. Therefore, OSHA solicited comments on whether the 
language ``crane operator'' used in proposed Sec.  1926.1411(b)(4) 
should be changed to ``driver'' or ``driver/operator.'' The two 
commenters who addressed this issue supported changing the language to 
``driver/operator.'' (ID-0205.1; -0213.1.) Therefore, this change to 
the regulatory text has been made in the final rule.
    Section 1926.1411(b)(5) requires the employer to ensure that, when 
traveling at night or in conditions of poor visibility, the power lines 
must either be illuminated or another means of identifying them are 
used and a safe path of travel is identified. No public comments 
concerning this provision were received; therefore, it is promulgated 
as proposed.
Section 1926.1412 Inspections
    This section seeks to prevent injuries and fatalities caused by 
equipment failures by establishing an inspection process that 
identifies and addresses safety concerns. The reasoning underlying the 
proposed requirements is discussed at 73 FR 59766-59776, Oct. 9, 2008. 
The following addresses public comments and differences between the 
proposed and final rules.
    Paragraphs (a) through (j) of this section provide inspection 
requirements for equipment covered by subpart CC. Those requirements 
are supplemented by other sections of this standard for specific types 
of equipment. This section is structured so that certain activities 
(e.g., equipment modification, repair/adjustment, assembly, severe 
service, or equipment not in regular use) and the passage of time 
(e.g., shift, monthly, and annual/comprehensive) trigger the inspection 
requirements.
    The proposed rule specified that the various inspections were to be 
conducted by either a ``competent person'' or a ``qualified person'' 
depending on the type of inspection. Both terms are defined in Sec.  
1926.01. OSHA solicited public comment on whether a protocol similar to 
that for signal person qualifications in Sec.  1926.28 is needed to 
ensure that the person who performs these inspections has the requisite 
level of expertise (73 FR 59766, Oct. 9, 2008). Section 1926.28 
establishes qualification requirements for signal persons and requires 
those individuals to have their qualifications evaluated by a qualified 
evaluator to act as signal persons under this subpart.
    Several commenters responded that there should be a verified 
testing system to ensure ``qualified inspectors'' have the requisite 
knowledge to inspect effectively or that the standard require 
inspectors to demonstrate that ability. (ID-0182.1; -0187.1; -0226.)
    Regarding paragraph (f) of this section (annual/comprehensive 
inspections of equipment) and Sec.  1926.1413(c) (annual wire rope 
inspections), a local government further recommended that OSHA require 
that a government agency or a third party crane inspector licensed or 
certified by the local government perform the annual inspection. (ID-
0156.1.) The commenter also believed that the individual who inspects 
an equipment modification in accordance with paragraph (a) of this 
section must possess a certification from the manufacturer or an 
independent third party and have the requisite training to inspect 
modified, repaired, or altered crane components.
    In contrast, a utility company and two trade associations did not 
support revising the final rule to include a more stringent inspector 
qualification requirement. (ID-0226; -0205.1; -0213.) The two trade 
associations expressed concerns that the Committee never discussed the 
required level of knowledge of inspection workers, which, in the 
commenter's view, means that consensus was not reached on the issue and 
that the issue should not be included in the final rule.

[[Page 47968]]

    In response to these comments, OSHA is retaining the qualification 
requirements for inspectors as specified in the proposed rule but is 
not mandating that the inspector be assessed by a qualified evaluator, 
certified, or licensed because there is not sufficient evidence in the 
record to warrant these additional requirements. A number of current 
OSHA construction standards, as did former Sec.  1926.550, require 
inspections to be conducted by competent persons or qualified persons. 
For example, Sec.  1926.651(k) requires that a competent person conduct 
a daily inspection of excavations for possible cave-in hazards. OSHA is 
not aware of evidence in the record indicating that accidents would be 
prevented if OSHA required inspectors to have additional qualifications 
or credentials. OSHA disagrees, and concludes that accidents do not 
occur due to the inability of competent or qualified persons to conduct 
adequate inspections of cranes under the former standard. Accordingly, 
OSHA is retaining the requirement in Sec.  1926.1412 that the various 
required inspections be conducted either by competent persons or 
qualified persons.
    The local government's request that OSHA not preempt local laws and 
allow local governments to continue to play a role in crane inspections 
is within the scope of the local government's broader preemption 
concerns addressed in the discussion of federalism in section V.D of 
this preamble. However, OSHA notes that Sec.  1926.1412 would not 
preclude local government inspectors or others who are not employees of 
the employer responsible for the inspections, from serving as 
inspectors in compliance with the requirements of this standard. The 
inspector need only meet the definition of a competent or qualified 
person in Sec.  1926.1401 (note that a ``competent person'' must have 
the authority to take corrective action.)
Paragraph (a) Modified Equipment
    Paragraph (a) of this section requires an inspection (that includes 
functional testing of the equipment) to be performed by a qualified 
person for equipment that has been modified or has additions that 
affect the safe operation of the equipment prior to initial use after 
that modification/addition.\71\ As proposed, this paragraph did not 
contain a documentation requirement. An industrial contractor stated 
that the standard should require documentation of this inspection (as 
well as the inspections required under paragraphs (b) and (c) of this 
section, discussed below) but offered no reasons to support its 
suggestion. (ID-0120.) Absent a basis in the record to add such a 
requirement, OSHA declines to require documentation of the inspections 
under paragraphs (a), (b), and (c).
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    \71\ The phrase ``modifications or additions'' and the term 
``modifications/additions,'' as used in this section, have the same 
meaning (an addition is a type of modification). C-DAC wanted to 
emphasize that additions are subject to the same approval procedures 
as other types of modifications. Wherever a form of the word 
``modification'' is used in this preamble, it is a reference to all 
modifications, including additions.
---------------------------------------------------------------------------

    Proposed Sec.  1926.1412(a)(1)(ii) stated that ``[t]he inspection 
shall include functional testing.'' OSHA requested public comment on 
whether it should modify the provision to limit the functional testing 
requirement to components that the modification affects or may affect 
(73 FR 59766-59767, Oct. 9, 2008). Several commenters asserted that 
functional testing is only necessary to test modifications of the 
equipment and other affected components. (ID-0205; -0213.) In contrast, 
a local government asserted that the functional testing should be of 
the entire crane. (ID-0156.1.)
    OSHA is concerned that there may be instances where a modification 
has an unanticipated effect on the equipment that would not become 
apparent if the test were limited. Therefore, the Agency has decided to 
require a functional test of the equipment as a whole. To make this 
clear, the words ``of the equipment'' have been added at the end of the 
sentence of the provision in the final rule.
    During the SBREFA process, a Small Entity Representative (SER) 
suggested adding an exception to Sec.  1926.1412(a) for 
``transportation systems,'' by which the SER meant any system 
dispersing the weight of the crane for movement on a highway. As 
recommended by the Panel, OSHA solicited public comment on whether to 
include such an exception and possible language for it (73 FR 59767, 
Oct. 9, 2008). No comments were submitted on this point. OSHA notes 
that Sec.  1926.1412 specifies the items that must be inspected, and 
these items do not include any items dealing with the movement of 
equipment on a highway.
Paragraph (b) Repaired/Adjusted Equipment
    Paragraph (b) of this section provides that equipment that has had 
a repair or adjustment that affects the safe operation of the equipment 
must be inspected by a qualified person prior to initial use after the 
repair/adjustment. In summary, the qualified person is required to 
determine if such repairs and adjustments were performed in accordance 
with manufacturer equipment criteria.
    Proposed Sec.  1926.1412(b)(1)(iii) stated that ``[t]he inspection 
shall include functional testing.'' As in the case of proposed Sec.  
1926.1412(a)(1)(ii) discussed above regarding modified equipment, OSHA 
requested public comment on whether the functional testing required for 
repaired/adjusted equipment should be limited to testing only those 
components that are or may be affected by the repair or adjustment (73 
FR 59767, Oct. 9, 2008).
    Several commenters asserted that functional testing is only 
necessary to test the repairs or adjustments and other affected 
components and systems of the equipment. (ID-0205; -0213.) In contrast, 
one commenter indicated that the functional testing should be of the 
entire crane. (ID-0156.)
    The standard requires that repairs or adjustments of equipment must 
be done in accordance with the manufacturer's or qualified person's 
recommendations. Repairs or adjustments are meant to restore equipment 
to original design specifications and safety factors. Otherwise, OSHA 
considers the maintenance activity performed a modification of the 
equipment. In essence, repair or adjustment of a system or component 
must be consistent with the engineering in the original equipment 
design. OSHA believes that a functional test that is limited to only 
those components that are or may be affected by the repair or 
adjustment, in conjunction with the inspection required under Sec.  
1926.1412(d). Each shift (discussed below), will sufficiently identify 
a deficient repair or adjustment. OSHA has therefore modified the 
language of Sec.  1926.1412(b)(1)(iii) in the final rule accordingly.
    A commenter stated that Sec.  1926.1412(b) should be structured 
similarly to Sec.  1926.1434, Modifications, in that the employer 
should be required to consult with the manufacturer before employers 
perform repairs or adjustments of equipment that relate to safe 
operation. (ID-0292.) In that case, the commenter stated, no third 
party would be able to overrule a manufacturer statement that a repair 
cannot be made. The commenter believed that an employer should only be 
able to go to paragraph (b)(1)(ii) if the manufacturer is unavailable.
    OSHA does not agree with the suggested change. Implicit in the 
comment is the suggestion that there are instances where a repair 
cannot be made without compromising the integrity of the equipment. 
That concern is already addressed by the standard. If the repair

[[Page 47969]]

cannot meet the criteria in accordance with Sec.  1926.1412(b)(1)(i) 
(or, if applicable, Sec.  1926.1412(b)(1)(i)), then the requirements in 
subpart CC for modifications would have to be met. Therefore, OSHA 
declines to adopt the suggested change.
Paragraph (c) Post-Assembly
    Paragraph (c) of this section requires a post-assembly inspection 
of equipment by a qualified person prior to its use. In sum, the 
provision requires the qualified person to assure that the equipment is 
configured in accordance with the manufacturer's equipment criteria. If 
manufacturer equipment criteria are unavailable, the qualified person 
must determine whether a registered professional engineer (RPE) is 
needed to develop criteria for the equipment configuration. If an RPE 
is not needed, the employer must ensure that a qualified person 
develops them. If an RPE is needed, the employer must ensure that an 
RPE develops them. Equipment must not be used until an inspection under 
this paragraph demonstrates that the equipment is configured in 
accordance with the applicable criteria. OSHA received no comments on 
the proposed paragraph; therefore, it is published as proposed.
Paragraph (d) Each Shift
    Paragraph (d) of this section requires a shift inspection, the 
first of three regularly scheduled equipment inspections that are 
required. Specifically, paragraph (d)(1) sets forth the frequency of 
this inspection, the degree of scrutiny required and the level of 
expertise required of the person performing this inspection. The 
paragraph lists the items that are required to be included in this 
inspection and specifies the corrective action that is required. The 
purpose of this provision is to identify and address safety hazards 
before they cause accidents.
    A utility company recommended that OSHA revise Sec.  1926.1412(d) 
to read ``each shift the equipment is used * * * .'' to clarify that 
the equipment does not have to be inspected when it will not be used on 
a shift. (ID-0226.) This suggested change is consistent with the intent 
of the proposed rule, and OSHA is adding similar language to final rule 
Sec.  1926.1412(d)(1) to clarify that intent.
    One commenter asserted that OSHA should prohibit operation of the 
equipment until the shift inspection is complete rather than permitting 
the inspection to be completed during the shift. (ID-0156.1.) A 
different commenter disagreed. (ID-0143.) OSHA does not agree with this 
suggestion. While some of the items that must be inspected can readily 
be inspected before each shift, e.g., cab windows for deficiencies that 
would hinder the operator's view, others can best be checked while the 
equipment is operating. For example, one item that must be inspected is 
control mechanisms for maladjustments that interfere with proper 
operation. During the shift, such maladjustments may be easier to 
detect than a check conducted before the equipment is operating. Still 
others may change during the shift and require additional inspection. 
For example, if the crane is moved to a new location during the shift, 
it would be necessary to inspect the ground conditions in that 
location.
    Regarding the frequency of this inspection, an energy utility 
representative commented that the per-shift crane inspection fails to 
take into account the frequency or severity of use. (ID-0203.1.) The 
commenter points out that if a crane is used once during the first 
shift, and once during the second shift, even if only to lift a minor 
load, the inspection would have to be conducted twice. The commenter 
agrees that the per shift inspection may be valuable and necessary on 
constructions sites where cranes are used continuously for heavy use, 
but states that the level of inspection should be adjusted to reflect 
the infrequent use of mobile cranes for construction activities at 
operating generating plants. The commenter suggests that the final 
standard should permit employers to use the inspection protocol in ASME 
B30.5, sec. 5-2.
    OSHA does not agree that minimal use during one shift negates the 
need for a shift inspection during the next shift. Since the completion 
of the last shift inspection, the equipment could have developed a 
deficiency or been damaged even if it was used to hoist one load. For 
example, fluids may expand or freeze, seals may leak due to a change in 
temperature, structural materials may crack, or electrical components 
may fail. A deficiency that might not have been apparent earlier might 
become more readily observable.
    Moreover, while some equipment may be used infrequently for 
construction work, the commenter did not disagree that it may be used 
heavily for other purposes. When a crack, leak, or other hazard 
appears, and the equipment is to be used in construction, the source of 
that hazard is immaterial; the fact that the problem may have developed 
during non-construction uses does nothing to reduce the safety hazard 
that would be posed by the use of that equipment in construction. 
Instead, the multiple uses of some of this equipment, potentially by 
different employees using it for different purposes, makes it all the 
more likely that important information might not be shared in a timely 
manner, and therefore more important to ensure that the equipment is 
inspected during each shift of construction work. An employer cannot 
assume that the condition of the equipment has not changed since the 
completion of the last shift inspection, even if the employer did not 
use the equipment extensively during that shift. OSHA is convinced that 
it is reasonable, and not overly burdensome, to require a competent 
person to complete this inspection of the equipment before or during 
each shift to ensure it is safe for use.
    A competent person is required to perform the shift inspection. A 
labor management association commented that OSHA should replace 
``competent person'' with ``operator'' for the purposes of who should 
perform the visual inspection required by Sec.  1926.1412(d). (ID-
0172.) As explained in the preamble to the proposed rule, OSHA 
anticipates that the employer will often use the equipment operator as 
the competent person who conducts the shift inspection. The operator, 
in most cases, by virtue of his or her qualification or certification 
under Sec. Sec.  1926.1427 and 1926.1430, experience, and familiarity 
with the equipment, is a competent person. However, the employer has 
the flexibility to use someone else to conduct the shift inspection as 
long as that person is a competent person. When the operator does not 
qualify as a competent person, the employer is required to choose a 
different person. For these reasons, in the final rule, OSHA is 
retaining the requirement that a competent person conduct the shift 
inspection.
    A local government requested that the standard require the employer 
to document the completion and results of the shift inspection. (ID-
0156.1.) In addition, it asked that the standard require employers to 
submit daily logs to the equipment owner at the end of each job that 
include a list of maintenance and repairs made to the equipment by the 
user at the jobsite. It also requested that the owner maintain these 
documents for the life of the equipment and transfer them from owner to 
owner when sold.
    OSHA determines the documentation described by the commenter would 
be burdensome for the user and owner of the equipment, with no added, 
industry-recognized, benefit to safe hoisting operations. There is no 
significant, safety-related evidence in the record to substantiate the 
documentation

[[Page 47970]]

requirements the commenter recommended. Therefore, OSHA is not 
requiring documentation of the shift inspection.
    The SBREFA Panel recommended that OSHA solicit public comment on 
whether, and under what circumstances, booming down should be 
specifically excluded as a part of the shift inspection, and whether 
the removal of non-hinged inspection plates should be required during 
the shift inspection. Section 1926.1413(a)(1), discussed below, 
explicitly states that booming down is not required as part of the 
shift inspection for wire rope. C-DAC did not include a similar 
provision in the general shift inspection provision in Sec.  
1926.1412(d) because booming down is not required to observe a 
deficiency in any of the items requiring inspection under that 
paragraph. Similarly, OSHA determines that inspection for a deficiency 
in any of those items does not require the removal of non-hinged 
inspection plates.
    Several commenters submitted comments that indicated a need for 
OSHA to clarify that it is not usually necessary to boom down to 
complete a visual inspection of the items listed in Sec.  1926.1412(d). 
(ID-0143.1; -0205; -0213.) In response to the apparent ambiguity 
suggested indicated by these comments, OSHA is revising Sec.  
1926.1412(d)(1), to clarify that booming down is not required 
routinely. The term ``disassembly'' was replaced with ``taking apart 
equipment component'' in paragraph (d)(1) of this section to avoid any 
confusion as to whether the provision was addressing disassembly as 
defined for the application of Sec. Sec.  1926.1403 through 1926.1406.
    Paragraphs (d)(1)(i) through (xiv) set forth the list of items 
that, at a minimum, a competent person must inspect each shift. 
Paragraph (d)(1)(x) of the proposed rule listed ``[g]round conditions 
around the equipment for proper support, including ground settling 
under and around outriggers and supporting foundations, ground water 
accumulation, or similar conditions.''
    A railroad association objected to the application of this 
provision to railroads. (ID-0170.1.) The association commented that the 
Sec.  1926.1412(d)(1)(x) requirement that an inspector verify the 
ground conditions around the equipment before each shift makes no sense 
for a crane moving down the track. OSHA notes that this provision does 
not require a railroad to inspect the ground conditions along the track 
if a railroad crane is simply traveling down the track. Section 
1926.1402, which contains requirements for ground conditions, makes 
clear that the conditions being addressed are those where the equipment 
is operating. To the extent that a railroad crane may move down the 
track during a construction operation, OSHA determines it is 
appropriate to require the ground conditions along the track to be 
inspected to ensure that no hazardous conditions, such as the erosion 
or other physical degradations of the support for railways, have 
developed that will adversely affect the support needed for equipment 
to perform safely during hoisting operations. However, OSHA is adding 
language to exempt railroad tracks and their underlying support from 
inspection when those rails are regulated by the FRA. OSHA concludes 
that the exemption is appropriate because the FRA already regulates the 
ground conditions for railroad tracks, including specific regulations 
addressing the inspection of those rails and their support. See, e.g., 
49 CFR 213.233 (track inspections) and 213.237 (inspection of rail). 
For consistency and clarity, OSHA is adding similar language exempting 
rails regulated by the FRA to paragraph (d)(1)(xiii).
    A crane rental company objected to the requirement to inspect 
ground conditions, stating that there is no similar provision for 
inspecting ground conditions in the elements of inspections required by 
ASME B30.5 sec. 5-2.1.2. (ID-0143.1.) It also believes listing this 
requirement in the elements for shift inspections is confusing and 
suggests that this requirement should either be removed or included in 
Sec.  1926.1402, Ground Conditions. As stated in the explanation of the 
proposed rule, this item was included because ground conditions can 
change from shift to shift, and sufficient ground support is of 
critical importance for safety. OSHA is retaining it in this section 
because it is more appropriately included in the list of items to be 
inspected than as a stand-alone inspection item in Sec.  1926.1402.
    In paragraph (d)(1)(x) in the final rule, OSHA is replacing the 
word ``outriggers'' with ``outriggers/stabilizers.'' The term 
``stabilizers'' was added because some pieces of equipment, like 
articulating cranes, are designed to use stabilizers instead of 
outriggers to add stability at their bases. A full discussion of the 
comments that prompted this regulatory text change is provided in the 
explanation of the rule for Sec.  1926.1404(q).
    Proposed Sec.  1926.1412(d)(1)(xi) included among the items to be 
inspected ``the equipment for level position, both shift and after each 
move and setup.'' The SBREFA Panel recommended that OSHA solicit public 
comment about whether it is necessary to clarify the requirement of 
proposed Sec.  1926.1412(d)(1)(xi) that the equipment be inspected for 
``level position'' by clarifying the amount of tolerance that would be 
allowed for the equipment to be considered ``level.'' OSHA requested 
public comment on this issue and several commenters asked OSHA not to 
specify tolerance limits. (ID-0143.1; -0170; -0205; -0213; -0226.) OSHA 
notes that Sec.  1926.1402(b), which pertains to ground conditions, 
requires the equipment, during use, to be level to the degree specified 
by the equipment manufacturer. For clarity, OSHA is adding language to 
Sec.  1926.1412(d)(1)(xi) to state that the equipment must be inspected 
for level position ``within the tolerances specified by the equipment 
manufacturer's recommendations.'' OSHA is also adding the words 
``before each'' before shift to clarify the provisions intent.
    Paragraphs (d)(2) and (d)(3) require the employer to take 
corrective action where the competent person identifies a deficiency 
during inspection. Once the inspector identifies any deficiency in the 
areas in (d)(1)(i) through (xiii),\72\ or pursuant to other equipment-
specific inspections (e.g., Sec.  1926.1436(p) (inspection of 
derricks)), the inspector must immediately determine whether that 
deficiency constitutes a safety hazard. If so, then equipment 
operations must cease and the employer must take the equipment out of 
service, following the tag-out procedure in Sec.  1926.1417(f), and may 
not use it again until the deficiency has been corrected. This approach 
reflects C-DAC's determination that not all deficiencies constitute 
safety hazards. However, regardless of whether the inspector determines 
that there is a safety hazard, if any deficiency affects a safety 
device or operational aid, then the employer must take the steps 
required under Sec. Sec.  1926.1415, Safety Devices, or 1926.1416, 
Operational aids.
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    \72\ Proposed Sec.  1926.1412(d)(2) inadvertently referred to 
deficiencies in paragraphs (d)(1)(i) through (xiv), but the preamble 
to the proposed rule explained correctly that it only applied to 
deficiencies in paragraphs (d)(1)(i) through (xiii) (not (xiv)) (73 
FR 59770, Oct. 9, 2008). The text of paragraph (xiv) addresses 
operational aides and safety devices, which are specifically 
addressed in paragraph (d)(3). Therefore, in the final paragraph 
(d)(2), OSHA refer to deficiencies in ``paragraphs (d)(1)(i) through 
(xiii).''
---------------------------------------------------------------------------

    OSHA is requiring the procedures in paragraphs (d)(2) and (d)(3) to 
ensure that the employer stops using unsafe equipment as soon as the 
safety hazard is identified. The correction procedure

[[Page 47971]]

set forth in paragraph (d)(2) is similar to that in ANSI B30.5-1968 and 
ASME B30.5-2004 for their Frequent Inspections. OSHA is requiring a 
competent person to make the determination to ensure that his or her 
findings are implemented; i.e., the competent person would have the 
authority to order the equipment out of service if the deficiency 
constituted a hazard. In the final rule, OSHA has replaced the phrase 
``removed from service'' with ``taken out of service,'' which is the 
phrase used in Sec.  1926.1417(f), to avoid any ambiguity about the 
employer's duty to tag out the unsafe equipment.
Paragraph (e) Monthly
    Paragraph (e) of this section requires a monthly inspection of the 
equipment, the second of the three regularly scheduled general 
inspections that are required by this standard. The monthly inspection 
is identical in coverage and manner to the shift inspection required by 
Sec.  1926.1412(d), with one addition discussed below. Thus, the 
monthly inspection is a visual inspection of the items listed in the 
shift inspection for apparent deficiencies, conducted by a competent 
person. However, unlike a shift inspection, the employer must document 
the inspection and retain the documentation for a minimum of three 
months.
    In addition, under the annual/comprehensive inspection in Sec.  
1926.1412(f)(4), the employer is required to identify developing 
deficiencies that, while not yet safety hazards, need to be monitored. 
In such cases the employer, under Sec. Sec.  1926.1412(f)(4) and 
(f)(6), is required to monitor them in the monthly inspections.
    One commenter suggested adding text to the final rule to clarify 
how the monitoring information would be transferred from annual 
inspector to monthly inspector, if different. (ID-0226.) The Agency is 
not modifying the text of the rule as requested, but notes that under 
paragraph (f)(7)(i) of this section the inspector must document all 
``items checked and the results of the inspection.'' Therefore, if the 
inspector determines that further monitoring is required, that 
information would be a ``result of the inspection'' included in the 
annual report. The inspector would then be responsible for checking the 
annual report prior to monthly inspections (see Sec.  1926.1412(f)(6).)
    An industrial contractor commented that OSHA should require 
employers to keep monthly inspection documentation for a minimum of 
three months or the duration of the project, whichever is longer. (ID-
0120.) This commenter did not, however, describe how expanding the 
retention requirement would produce any significant benefit, and OSHA 
determines there would be no benefit. The documentation requirement 
enables the individuals who use the equipment and conduct shift and 
monthly inspections to assess the results of earlier monthly 
inspections. Once more than three months have passed since a monthly 
inspection, the information in the documentation for that inspection 
will not reflect the current condition of the equipment.
    The SBREFA Panel recommended that OSHA solicit public comment on 
whether the provision for monthly inspections should, like that for 
annual inspections, specify who must keep the documentation associated 
with monthly inspections. (The provision for annual inspections states 
that the documentation must be ``maintained by the employer who 
conducts the inspection.'') OSHA requested public comment on the issue 
raised by the Panel's recommendation. Several commenters believed that 
OSHA should require the employer who conducts the monthly inspection to 
maintain the documentation. (ID-0205; -0213; -0214; -0226.)
    OSHA agrees that the employer who conducts the monthly inspection 
should maintain the documentation. This revision clarifies the intent 
of C-DAC and is consistent with other provisions in this section.
    A utility company commented that if the operating employer is not 
the inspecting employer, the operating employer should be provided with 
a copy of the inspection if requested. (ID-0226.) This comment suggests 
that some employers who operate rented equipment are concerned that the 
required documentation may not be available to them from other parties 
unless explicitly required in the regulatory text of this final rule. 
In some cases, one employer owns and operates the equipment used to 
perform construction activities. It is reasonable to require these 
employers to maintain the equipment inspection records. However, during 
the analysis of public comments and testimony, OSHA recognized that 
there would be situations where an employer rents or uses equipment 
owned by another party or where multiple employers use the same piece 
of equipment. The standard allows any employer to conduct the monthly 
inspection. The employer who conducts the inspection must document the 
items checked and the results of the inspection and must retain it for 
a minimum of three months. If employers whose employees use the 
equipment rely on another employer to conduct, document, and maintain 
the record of the monthly inspection, it is the responsibility of each 
employer engaged in construction activities to assure compliance with 
the standard.
    OSHA determines that it is in the interest of all employers who 
conduct monthly inspections, whether they use or own equipment, to 
share the inspection results with each employer who uses the equipment. 
However, employers engaged in construction activities are responsible 
for assuring compliance with the standard. Therefore, if an employer 
engaged in construction activities is unable to assure that another 
employer has conducted the monthly inspection, then the employer 
engaged in construction activities must conduct a monthly inspection 
prior to using the equipment. The monthly inspection is similar to a 
shift inspection (with the addition of the monitoring of deficiencies 
that a qualified person deemed not to be a safety hazard in the annual 
inspection), but, unlike a shift inspection, the monthly inspection 
must be documented and maintained. Requiring an employer who uses the 
equipment to conduct a monthly inspection when that employer is unable 
to determine whether another employer conducted a monthly inspection is 
an insignificant burden compared to the safety benefit of ensuring this 
inspection is completed.
    The SBREFA Panel also recommended that OSHA restate the corrective 
action provisions from the shift inspection (Sec.  1926.1412(d)(2) and 
(3)) in paragraph (e) of this section. Under Sec.  1926.1412(e)(1), the 
monthly inspection must be conducted in accordance with Sec.  
1926.1412(d) on shift inspections, meaning that the corrective action 
provisions in Sec.  1926.1412(d)(2) and (3) must also be followed in 
the monthly inspections. OSHA requested comment on whether the language 
in Sec.  1926.1412(d)(2) and (3) should be repeated under Sec.  
1926.1412(e). Two trade associations believed that clarity would be 
improved if paragraph (e) of this subpart repeated the corrective 
actions provisions from the shift inspection paragraph. (ID-0205; -
0213.) OSHA disagrees because Sec.  1926.1412(e)(1) explicitly requires 
this inspection to be done in accordance with Sec.  1926.1412(d). 
Paragraph (d) immediately precedes paragraph (e), and OSHA concludes 
that repeating the provisions will create, rather than alleviate, 
confusion by requiring employers to read two lists that contain 
identical information.

[[Page 47972]]

Paragraph (f) Annual/Comprehensive
    Paragraph (f) of this section requires an annual (i.e., once every 
twelve months), general inspection of the equipment, the third of the 
three regularly scheduled general inspections that are required by this 
standard. It promotes safety by ensuring that a thorough, comprehensive 
inspection of the equipment is performed to detect and address 
deficiencies that might not be detected in the shift and monthly 
inspections.
    Under paragraph (f)(1), a qualified person must inspect the 
equipment. The Committee specified a qualified person because the items 
required in the shift inspection must be examined more thoroughly than 
during the shift or monthly inspections. The Committee, determined, and 
OSHA agrees, that the higher level of expertise of a qualified person 
would help to ensure that the inspector was able to identify 
deficiencies necessitating a greater degree of scrutiny than what would 
be required in the shift inspection; for example, a deficiency that is 
not apparent in a visual inspection but is detectable through taking 
apart equipment components. The Committee's decision to require a 
qualified person is consistent with COE-EM 385-1-1 (3 Nov 03) and ASME 
B30.5-2004, both of which call for a qualified person to perform those 
standards' ``periodic'' inspections.
    OSHA notes that Sec.  1926.1412(f) does not specify the level of 
scrutiny for the annual/comprehensive inspection. In drafting the 
proposed rule, OHSA determined that C-DAC intended for this inspection 
to be more thorough than the visual inspection for apparent 
deficiencies required of the shift and monthly inspections. OSHA 
therefore solicited comments from the public as to whether language 
specifying a higher level of scrutiny (for example, ``thorough, 
including disassembly when necessary'') should be added.
    A railroad equipment supplier commented that this section does not 
additionally burden employers if it requires them to open covers to 
inspect for safety defects that could cause an incident or death. (ID-
0124.) Therefore, they were in support of adding stronger language to 
paragraph (f) of this section to emphasize some disassembly is 
necessary to complete a thorough inspection of the equipment. In 
contrast, two trade associations believed that no additional language 
was need in the regulatory text to specify that a higher level of 
scrutiny is needed during an annual inspection. (ID-0205.1; -0213.)
    OSHA determines that some disassembly of the equipment will be 
needed for the qualified person to complete the inspection. Therefore, 
OSHA has revised Sec.  1926.1412(f)(2) accordingly.
    The proposed rule did not require the individual who conducts the 
annual inspection to review any documentation related to the crane 
prior to or during the inspection. A labor representative suggested two 
types of documentation they believe the qualified person should review 
when conducting an annual inspection. (ID-0182.1.) First, the commenter 
wanted OSHA to include a requirement in paragraph (f) of this section 
that the inspector contact the manufacturer for any relevant 
information the manufacturer may have about the equipment. The 
commenter explains that the manufacturer may have information about 
recently discovered defects or deficiencies in the equipment or have 
recommended modification, which inspectors should take into account 
when performing the annual inspection.
    Second, the commenter recommended that OSHA require the inspector 
to review all available information regarding the history of the piece 
of equipment. This information would include annual or periodic 
inspection reports, which would describe previously discovered defects 
or previously made modifications, to which the inspector should pay 
particular attention while conducting a comprehensive inspection. OSHA 
declines to impose the requirements suggested by the commenter because 
the Agency does not agree they would lead to better inspections. The 
annual inspection requirements are designed to ensure that the 
inspector thoroughly scrutinizes and evaluates the current condition of 
critical components of the equipment. Reviewing the maintenance history 
of the equipment will not further the value of this inspection, for 
defects previously discovered should have been repaired and defects not 
present in the past may now exist. For example, if a part such as a 
ball bearing is replaced with a new part, there is no reason to expect 
that the bearing will fail. To the contrary, the brand new part is less 
likely to fail than another ball bearing that has been subjected to 
heavy use for years. OSHA determines that the inspection will be more 
valuable if the inspector concentrates on thoroughly inspecting the 
items listed in the rule to determine whether they currently present 
any safety defects. Similarly, OSHA is not convinced that contacting 
the manufacturer will yield valuable information that will advance the 
annual inspection. OSHA determines that important safety information 
about their products is provided voluntarily by manufacturers to their 
customers and that a requirement to contact them each year is not 
likely to yield any further information of value.
    Paragraphs (f)(2)(i) through (xxi) specify the parts of the 
equipment and the conditions the inspector must look for during the 
annual inspection. The Committee developed this list based on the 
members' experience and current industry practice as reflected in 
current consensus standards for annual/periodic inspections. The 
Committee concluded that each item plays an important role in the safe 
operation of equipment. Only a few of these items require discussion.
    Proposed paragraph (f)(2)(xiv) listed ``[o]utrigger pads/floats'' 
for excessive wear or cracks.'' The purpose of the inspection of 
outrigger pads/floats is to make certain that these pads (which are 
attached to the outrigger and used to distribute the weight of the load 
to the ground) will not fail and leave the outrigger without proper 
support. In the final rule, OSHA is referring to ``outrigger or 
stabilizer pads/floats'' because some types of equipment, such as 
articulating cranes, are designed to use stabilizers instead of 
outriggers to add stability at their bases. A full discussion of the 
comments that prompted this regulatory text change is provided in the 
explanation of the rule for Sec.  1926.1404(q).
    Proposed paragraph (f)(2)(xv) listed ``slider pads for excessive 
wear or cracks.'' The word ``cracks'' had not been included in the C-
DAC Consensus Document for this item, and two trade associations (ID-
0205.1; -0213.1) commented that ``cracks'' should be removed from the 
provision to be consistent with the intent of C-DAC. After examining 
how the word came to be included in the proposed rule, OSHA concludes 
that the word ``cracks'' was added inadvertently to this provision and, 
lacking an evidentiary basis to include it, is removing the words ``or 
cracks'' from paragraph (f)(2)(xv) in the final rule.
    Section 1926.1412(f)(2)(xviii) has been modified from the proposed 
rule. Upon review of this requirement, the Agency found that it was 
necessary to clarify this requirement to allow the use of a seat that 
is equivalent to the original operator's seat. This provision requires 
the employer to replace the original seat with one that provides 
function and safety that is equivalent to the original seat. The text 
of the final rule has been modified accordingly.
    In Sec.  1926.1412(f)(2)(xix) the term ``unserviceable'' is 
replacing the term

[[Page 47973]]

``unusable'' to clarify that the operator's seat must be in good 
working condition to allow the operator to safely work at the controls 
of the equipment. The text of the final rule has been modified 
accordingly.
    Paragraph (f)(3) requires functional testing as part of the annual/
comprehensive inspection. No comments were received on this provision.
    Paragraphs (f)(4) through (6) delineate the follow-up procedures 
that apply when a deficiency is identified during the annual/
comprehensive inspection. The purpose of these provisions is to ensure 
that a deficiency that is not yet a safety hazard but may develop into 
one is monitored on a monthly basis, and that a deficiency that is a 
safety hazard is corrected before the equipment is returned to service.
    Paragraph (f)(4) provides that immediately following the 
identification of a deficiency, the qualified person must determine 
``whether the deficiency constitutes a safety hazard, or though not yet 
a safety hazard, needs to be monitored in the monthly inspections.'' No 
comments were received and paragraph (f)(4) is promulgated as proposed.
    Paragraph (f)(5) requires that equipment with a deficiency 
identified as a safety hazard by the qualified person be removed from 
service until the deficiency is corrected. Paragraph (f)(6) requires 
the employer to check the deficiencies in the monthly inspections that 
the qualified person had identified as needing monitoring.
    In the proposed rule, OSHA discussed an apparent conflict between 
Sec.  1926.1412(f)(4) and Sec.  1926.1416. Paragraph (f)(2)(v) lists 
operational aids among the items that must be included in the annual 
inspection.\73\ Section 1926.1416 permits equipment with operational 
aids that are not functioning properly to continue to be used for 
limited periods of time as long as specified alternative measures are 
used while the operational aids are being repaired. By contrast, under 
Sec.  1926.1412(f)(4), if any deficiency is identified in the annual 
inspection, the qualified person must make an immediate determination 
as to whether the deficiency constitutes a safety hazard. If it does, 
under Sec.  1926.1412(f)(4), the equipment must be removed from service 
immediately. OSHA requested public comment on whether Sec.  
1926.1412(f)(4) should explicitly provide that the corrective action in 
Sec.  1926.1416 applies if an operational aid is found to be 
malfunctioning during an annual inspection. Two trade associations 
agreed that Sec.  1926.1412(f) should state that the corrective action 
required for malfunctioning operational aids is that specified in Sec.  
1926.1416. (ID-0205.1; -0213.1.) OSHA also notes that Sec.  
1926.1435(e) specifies the temporary alternative measures that must be 
implemented when operational aids on tower cranes malfunction, and 
Sec.  1926.1412(f)(5) applies to tower cranes as well as equipment 
covered by Sec.  1926.1416. Paragraph (f)(5) of the final rule is 
modified accordingly.
---------------------------------------------------------------------------

    \73\ Paragraph (f)(2)(v), as proposed and in the final rule, 
distinguishes between deficiencies that result in ``significant 
inaccuracies'' in the operation of any of the safety devices or 
operational aides, and those that do not. The phrase ``significant 
inaccuracies'' reflects the fact that such devices normally operate 
within a tolerance range. Corrective actions are not required if the 
inaccuracy is so small as to be irrelevant regarding the safe 
operation of the equipment. In contrast, significant inaccuracies in 
these devices could mislead the operator and contribute to actions 
that could result in the equipment being inadvertently used in an 
unsafe manner.
---------------------------------------------------------------------------

    Moreover, OSHA is adding text to paragraph (f)(1) of this section 
to emphasize that paragraphs (d)(2) and (d)(3) of this section do not 
apply to annual inspections.
    Paragraph (f)(7), Documentation of annual/comprehensive inspection, 
requires the employer that conducts the inspection to complete and 
maintain, for a minimum of twelve months, documentation that contains 
``[t]he items checked and the results of the inspection,'' and ``[t]he 
name and signature of the person who conducted the inspection and the 
date of the inspection.'' Section 1926.1413(c)(4), which pertains to 
the annual/comprehensive wire rope inspection, contains a similar 
documentation requirement. In the proposed rule, the 12-month retention 
requirement was located in paragraph (f)(7)(iii). OSHA has incorporated 
that requirement into the introductory sentence to clarify that it is 
the employer who conducts the inspection who must retain the documents 
for 12 months. OSHA has also clarified that the date of the inspection, 
not the date on which the document was signed, must be entered on the 
document.
    During the SBREFA process, several Small Entity Representatives 
objected to the requirement for documentation of monthly and annual 
inspections, stating that such documentation would be unduly burdensome 
and would not, in their opinions, add to worker safety. The Panel 
recommended that OSHA solicit public comment on the extent of 
inspection documentation the rule should require. OSHA requested 
comment on this issue.
    A local government supported annual/comprehensive inspection 
documentation. (ID-0156.) It also commented that daily logs should be 
maintained and submitted to the crane owner to capture when maintenance 
has been performed on the equipment, and maintained by the equipment 
owner for the life of the crane. This commenter did not, however, 
explain how such a retention requirement would produce safety benefits, 
and OSHA declines to adopt it.
    The Committee determined that the documentation of the annual 
inspection, signed by the person who conducted the inspection and 
retained for 12 months, would have several effects. First, it would 
increase the likelihood that more employers would implement systems for 
conducting and responding to inspections. Second, the failure to do so 
would be more readily apparent if a record was not made, and the 
signature of the person who conducted the inspection would be an 
inducement to that person to ensure that the inspection was done 
correctly.
    The Agency notes that the three month retention period reflects the 
Committee's decision to have a retention period that is consistent with 
Department of Transportation truck inspection documentation 
requirements.
    The documentation of these inspections serves as references that 
inspectors can use to monitor the condition of items critical to the 
safe operation of the equipment. It has been a longstanding industry 
practice to maintain annual inspection documentation as a reference 
that the inspection was completed, to identify who performed the 
inspections, and to document the results of that inspection.
Paragraph (g) Severe Service
    Paragraph (g) of this section requires the employer to inspect the 
equipment when the severity of use/conditions--``such as loading that 
may have exceeded rated capacity, shock loading that may have exceeded 
rated capacity, [or] prolonged exposure to a corrosive atmosphere''--
creates a ``reasonable probability of damage or excessive wear.'' In 
such instances, the employer is required to stop using the equipment 
and have a qualified person ``inspect the equipment for structural 
damage;'' determine whether, in light of the use/conditions of the 
severe service, any items listed in the annual/comprehensive inspection 
need to be inspected and if so, inspect them; and if a deficiency is 
found, follow the correction/monitoring procedures set forth in Sec.  
1926.1412(f)(4)-(f)(6).
    Upon review of this paragraph, the Agency determines that

[[Page 47974]]

Sec.  1926.1412(g)(1) needs clarification; therefore, OSHA added a 
phrase to the provision requiring that a determination be made to 
ensure the equipment remains safe for continued use. This revision 
emphasizes that this inspection must determine the capability of the 
equipment to operate continuously under severe conditions. No comments 
were received on this paragraph, and it is promulgated as proposed, 
with the exception of the clarification to Sec.  1926.1412(g)(1).
Paragraph (h) Equipment Not in Regular Use
    Paragraph (h) of this section requires that equipment that sits 
idle for three months or more be inspected by a qualified person in 
accordance with the monthly inspection provisions of Sec.  1926.1412(e) 
before being used. This would ensure that deficiencies that may arise 
as a result of the equipment standing idle are checked before its 
subsequent use. The Committee determined that this inspection would 
need to be done by a qualified person, rather than a competent person, 
because some of the deficiencies that may arise from sitting idle 
require the qualified person's higher level of ability to detect and 
assess. (See further discussion at 73 FR 59775, Oct. 9, 2008.) No 
comments were received on this paragraph. It is promulgated as 
proposed.
Paragraph (i) [Reserved]
Paragraph (j)
    Proposed paragraph (j) of this section required that any part of a 
manufacturer's inspection procedures relating to safe operation that is 
more comprehensive or has a more frequent schedule than that required 
by this section must be followed. These inspection procedures include 
any information provided by the manufacturer. Examples are provided in 
the provision of the types of items that would be considered to relate 
to safe operation (``a safety device or operator aid, critical part of 
a control system, power plant, braking system, load-sustaining 
structural components, load hook, or in-use operating mechanism''). The 
proposed paragraph goes on to state: ``Additional documentation 
requirements by the manufacturer are not required.''
    Several commenters asked that OSHA delete the line in the 
regulatory text of Sec.  1926.1412(j) that reads ``Additional 
manufacturer documentation requirements need not be followed.'' (ID-
0165; -0232; -0235.) OSHA acknowledges that the intent of this sentence 
is unclear and is not including it in the final rule.
    A safety association and a trade association commented that the 
thorough and equipment-specific frequency of inspections required by 
the manufacturer are well suited for the equipment used in their 
trades. (ID-0184; -0206.) The safety association asserted that 
compliance with equipment manufacturers' inspection recommendations 
assure a greater degree of safety than compliance with a list of shift, 
monthly, and annual inspections, which may be deficient with regard to 
thoroughness and frequency. The two commenters asked that OSHA revise 
Sec.  1926.1412 to allow employer-documented compliance with the 
inspection recommendations of the equipment manufacturer as an 
alternative to meeting the requirements of Sec.  1926.1412.
    OSHA agrees with the commenters that manufacturer's equipment-
specific inspection requirements can help promote safety. For this 
reason, Sec.  1926.1412(j) provides that any additional inspection 
requirements recommended by the manufacturer must be followed by 
employers. However, OSHA does not agree with the commenters regarding 
their assessment that the minimum inspection requirements and schedules 
specified in Sec.  1926.1412 are more burdensome for employers who use 
articulating lifting equipment in particular. There is no evidence in 
the record that inspections recommended by manufacturers are as 
thorough as those provided in this section. To the extent that they 
are, there is no additional burden to employers in requiring them to 
follow this section than to follow the manufacturer's recommendations.
Paragraph (k)
    OSHA determines that the competent person or persons who conduct 
shift and monthly inspections, and the qualified person who conducts 
annual inspections, must have access to all written documents produced 
under this section, during the time for which the employer is required 
to retain those documents, so that they are made aware of any 
components of the equipment that may require special attention during 
their inspections. Accordingly, OSHA is adding a new paragraph (k) at 
the end of Sec.  1926.1412.
Section 1926.1413 Wire Rope--Inspection
    Cranes and derricks use wire rope to lift and support their loads 
and parts of the equipment. If the rope is worn or damaged, it can 
break, causing the equipment to fail and/or the load to fall, which can 
kill or injure workers. Approximately 3% of crane fatalities in 
construction work result from wire ropes snapping. J.E. Beavers et al, 
Crane-Related Fatalities in the Construction Industry, 132 Journal of 
Construction Engineering and Management 901, 903 (Sept. 2006). (ID-
0011.) Accordingly, C-DAC concluded it would improve crane/derrick 
safety to establish updated requirements for wire rope inspections.
    The definition C-DAC developed for proposed Sec.  1926.1401 defined 
``wire rope'' as ``rope made of wire.'' In the preamble of the proposed 
rule, OSHA noted that this definition could be read to exclude rope 
made with a fiber core, which, as discussed below under Sec.  
1926.1414, may be used for purposes other than boom hoist reeving. OSHA 
requested public comment on whether a more appropriate definition would 
be the following one used by the Specialized Carriers & Rigging 
Association:

    A flexible rope constructed by laying steel wires into various 
patterns of multi-wired strands around a core system to produce a 
helically wound rope.

(73 FR 59739, Oct. 9, 2008.) Three commenters supported this revised 
definition, and none were opposed. (ID-0187.1; -0205.1; -0213.1.) 
Accordingly, OSHA is revising the definition in Sec.  1926.1401 to that 
quoted above.
    One of the commenters supporting the revised definition also stated 
that OSHA should not exclude wire rope with a synthetic or fiber core 
and should include definitions of these terms. (ID-0187.1.) However, as 
OSHA explained in the proposed rule, the revised definition is designed 
to encompass cores other than wire, and OSHA determines it is not 
necessary to include separate definitions for each type of such rope to 
make clear that they fall within the definition of ``wire rope.''
    The proposed rule provided for wire rope inspections at the same 
frequency--shift, monthly, and annually--that would apply for other 
crane components under Sec.  1926.1412. It also proposed that, like 
inspections of other components, the shift and monthly inspections be 
conducted by a ``competent person,'' and the annual inspection by a 
``qualified person.'' As discussed below, OSHA is retaining this 
equivalence of frequency and qualifications in the final rule.
Paragraph (a) Shift Inspection
    Paragraph (a)(1) of this section of the proposed rule required a 
shift

[[Page 47975]]

inspection by a competent person. One commenter recommended that this 
provision require the shift inspection to be conducted ``each shift the 
equipment is used'' rather than ``each shift,'' to clarify that the 
equipment does not have to be inspected when it will not be used on a 
shift. (ID-0226.0.) This suggested change is consistent with the intent 
of the proposed rule, and OSHA is adding similar language to Sec.  
1926.1413(a)(1) to clarify that intent.
    Another commenter stated that it was unnecessary to require a wire 
rope inspection each shift. (ID-0203.1.) This commenter believed that 
per-shift wire rope inspections were an unnecessary burden for 
employers with good maintenance programs who have not experienced wire 
rope failures. The commenter recommended that OSHA adopt the protocol 
in sec. 5-2.4 of ASME B30.5-2004, which allows the periodic inspection 
frequency to be determined by a qualified person based on factors that 
affect rope life.
    OSHA rejects this commenter's suggestion which could, at a 
qualified person's discretion, result in less frequent wire rope 
inspections than were required under former subpart N. Section 5-2.4.1 
of ANSI B30.5-1968, which was incorporated by reference in subpart N, 
provided for wire rope inspections ``once each working day.'' The 
current version of B30.5, in sec. 5-2.4.2(a) of ASME B30.5-2004, 
similarly provides for daily wire rope inspections. The commenter's 
reference to the provision in ASME B 30.5-2004 that allows the 
inspection frequency to be determined by a qualified person refers to 
the type of comprehensive inspection that is similar to the annual 
inspection required by Sec.  1926.1413(c), not to the shift inspections 
required under Sec.  1926.1413(a).
    As discussed below, the purpose of this inspection is to ensure 
that deficiencies are identified and that, depending on the competent 
person's evaluation of those deficiencies, appropriate action is taken. 
C-DAC wanted to make clear, however, that the inspection was not to be 
so comprehensive and time-consuming that it would be unrealistic to 
conduct it for each shift. To clarify that the inspection was one that 
was reasonable for a shift inspection, the provision states that 
neither ``untwisting (opening of wire rope)'' nor ``booming down'' is 
required during this inspection. OSHA believes that requiring a 
realistic level of inspection each shift will encourage compliance and 
ultimately serve to reduce accidents. No comments were received on this 
aspect of the proposed rule.
    Proposed Sec.  1926.1413(a)(1) referred to wire ropes (running and 
standing) that are ``reasonably likely'' to be in use during the shift. 
OSHA is also removing the word ``reasonably'' to avoid ambiguity. 
Accordingly, Sec.  1926.1413(a)(1) is promulgated as proposed except 
for the minor changes noted above.
Paragraph (a)(2) Apparent Deficiencies
    Paragraph (a)(1) of this section requires the competent person to 
conduct a ``visual inspection * * * for apparent deficiencies, 
including those listed in paragraph (a)(2).'' Proposed paragraph (a)(2) 
established three categories (I, II, and III) of apparent wire rope 
deficiencies. The likelihood that a deficiency is hazardous increases 
as the number of the category increases from I to III. The basis for 
categorizing apparent deficiencies in this way was discussed in detail 
in the proposed rule (73 FR 59776-59777, Oct. 9, 2008). As discussed 
further below, the category determines the options or ``next steps'' 
available to or required of the employer under paragraph (a)(4), 
Removal from service.
    The Agency is providing minor clarifications for the two apparent 
deficiencies that relate to damage from electricity. As proposed, 
paragraph (a)(2)(i)(C) read: ``Electric arc (from a source other than 
power lines) or heat damage.'' C-DAC intended that both ``electric 
arc'' and ``heat'' would modify ``damage.'' To make this more clear, 
OSHA is adding the word ``damage'' after ``electric arc.'' Proposed 
paragraph (a)(2)(iii)(B) read: ``Electrical contact with a power 
line.'' OSHA is adding the word ``prior'' at the beginning of the 
paragraph to clarify that the inspector must note a deficiency whenever 
he or she is aware, through observation or from any other information, 
that the wire rope has previously made electrical contact with a power 
line.
    OSHA notes that a wire rope can be damaged in two ways from 
electrical contact. First, if the source of electrical power contacts 
the wire rope, the electricity can arc to the wire rope and cause a 
localized burn. The extent of the damage will depend on the amount of 
electrical energy involved. A low energy arc will typically cause 
little damage; a high energy arc may cause significant damage. When the 
arc results from a source other than a power line, the extent of the 
damage will vary, and the inspector must determine whether the rope is 
damaged to the extent that repair or replacement is necessary.
    If a power line arcs to a wire rope, there will usually be 
sufficient localized burn damage that the rope must be removed from 
service. However, a wire rope may make electrical contact with a power 
line and leave no visible damage. For example, if the load contacts a 
power line and is not insulated from the wire rope, a large current can 
flow through the rope. The current may be large enough to damage the 
internal structure of the rope and weaken it without leaving any 
visible evidence on the rope itself that this has happened. There is no 
realistic way to assess the internal damage that such electrical 
contact has caused to the wire rope. Therefore, C-DAC determined that 
any wire rope that came into electrical contact with a power line must 
be removed from service.
    Only one comment was submitted regarding proposed paragraph (a)(2). 
The commenter suggested adding two additional conditions to the list of 
Category II deficiencies. (ID-0121.1.) The first is where one outer 
wire is broken at the point of contact with the core of the rope and 
protrudes or loops out from the rope structure. The second is where one 
outer wire is broken at the strand to strand contact point and is 
raised up from the body of the rope or looped out of the rope 
structure.
    OSHA disagrees with the commenter because this commenter did not 
offer any rationale to justify these additional provisions. Therefore, 
OSHA is deferring to the expertise of the Committee. Section 
1926.1413(a)(2) is promulgated as proposed except for the 
clarifications noted above.
    A ``running wire rope'' is a wire rope that moves over sheaves or 
drums. This definition is included in Sec.  1926.1401 of this final 
rule to make clear the nature of the wire rope that is subject to this 
inspection provision. These criteria are the same as those contained in 
sec. 5-2.4.3 of ASME B30.5-2004, and those for running wire ropes and 
pendant or standing wire ropes are also contained in sec. 5-2.4.2 of 
ANSI B30.5-1968, which is incorporated by reference in subpart N. One 
issue that was left unanswered during the Committee discussions is 
whether these broken wire criteria are equally applicable when using 
plastic sheaves. The Agency requested public comment on this issue. 
However, no comments were received. OSHA notes that the proposed broken 
wire criteria did not depend on the type of sheave involved and would 
therefore include plastic as well as metal sheaves. Since the paragraph 
is being promulgated as proposed, the criteria apply regardless of the 
material of which the sheave is made.

[[Page 47976]]

Paragraph (a)(3) Critical Review Items
    Under paragraph (a)(3) of this section, the competent person must 
give particular attention to certain ``Critical Review Items'' during 
the shift inspection (as well as, as discussed below, in the monthly 
and annual inspections). Proposed paragraph (a)(3)(iii) listed, among 
the critical review items, ``wire rope at flange points, [and] 
crossover points.'' These terms were defined in proposed Sec.  
1926.1401, Definitions.
    One commenter suggested that each wrap of the rope is a crossover 
point such that the crossover points will line up across the face of 
the drum. (ID-0121.) The Agency disagrees with this view. As defined in 
the standard, a crossover point occurs ``where one layer of rope climbs 
up and crosses over the previous layer * * *.'' While the rope climbs 
up at the drum's flange, it does not climb up as it then spools across 
the previous (lower) layer towards the other flange, i.e., as it wraps 
across the face of the drum.
    In the proposed rule, OSHA noted that the items listed in 
Sec. Sec.  1926.1413(a)(3)(iv) and (a)(3)(v) (``Wire rope adjacent to 
end connections'' and ``Wire rope at and on equalizer sheaves'') are 
functionally equivalent to items requiring special scrutiny during the 
annual inspections required in proposed Sec. Sec.  
1926.1413(c)(2)(ii)(C) and (F) (``Wire rope in contact with saddles, 
equalizer sheaves or other sheaves where rope travel is limited'' and 
``Wire rope at or near terminal ends''). The Agency stated that it 
planned to revise the language in proposed Sec. Sec.  
1926.1413(a)(3)(iv) and (a)(3)(v) to match the language in Sec. Sec.  
1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F). This would enable OSHA to 
delete Sec. Sec.  1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F) because 
Sec.  1926.1413(c)(2)(ii)(A) incorporates by reference the critical 
review items listed in Sec. Sec.  1926.1413(a)(3)(iv) and (a)(3)(v), 
thereby making the items listed in Sec. Sec.  1926.1413(c)(2)(ii)(C) 
and (c)(2)(ii)(F) redundant. OSHA did not receive any adverse comment 
on modifying Sec. Sec.  1926.1413(a)(3)(iv) and (a)(3)(v) in this 
manner and modified Sec.  1926.1413(a)(3) accordingly.
Paragraph (a)(4) Removal From Service
    Paragraph (a)(4) of this section of the proposed rule set out 
remedial steps to be taken once the competent person performing the 
inspection identifies an apparent deficiency. Those steps depended upon 
whether, under Sec.  1926.1413(a)(2), the deficiency falls under 
Category I, II, or III. Under this approach, immediate removal from 
service would be required for certain deficiencies, while continued use 
under prescribed circumstances would be allowed for others before the 
rope must be removed from service. When removal from service is 
required, the provisions of Sec.  1926.1417 (Operation) apply, and the 
inspector must either tag out the entire equipment or the hoist with 
the damaged wire rope. This approach was adopted by C-DAC because, in 
the Committee's collective experience, different types of deficiencies 
warrant different responses, with some deficiencies being so serious 
that continued use of the rope must be prohibited while other 
deficiencies may, if adequately evaluated and monitored, allow 
continued use of the rope for a limited time.
    Paragraph (a)(4)(i) applies to Category I apparent deficiencies. 
Paragraph (a)(4)(i)(B) allows the rope to be severed under some 
circumstances and the undamaged part to be used. Two commenters 
suggested that language be added to require the user to verify that the 
drum will still have at least two wraps of rope around it when the 
block is lowered to its lowest position. (ID-0122; -0178.1.) The 
concern of these commenters is that shortening the rope too much might 
not leave enough rope to allow a sufficient margin of safety (two 
wraps) to remain on the drum and prevent the rope from becoming 
disconnected from the drum.
    Another provision of the final rule, Sec.  1926.1417(t), addresses 
this potential safety hazard by requiring that neither the load nor the 
boom be lowered below the point where less than two full wraps of rope 
remain on their respective drums. Normally, newly installed ropes are 
long enough to ensure compliance with Sec.  1926.1417(t) when the load 
or boom are in their lowest positions, and these commenters are 
concerned that shortening the rope could result in the rope becoming 
disconnected if the remaining part of the rope is not long enough to 
always ensure that two wraps remain on the drum.
    OSHA agrees with this comment and is adding language to paragraph 
(a)(4)(i)(B) (and also to paragraphs (a)(4)(iii)(B) and (c)(3)(i)(B) of 
this section, which contain a similar provision) to specify that if a 
wire rope is shortened under this paragraph, the employer is required 
to ensure that the drum will still have two wraps of wire rope when the 
load and/or boom is in its lowest position.
    OSHA also notes that paragraph (a)(4)(i)(B) twice refers to power 
line contact in the phrases ``other than power line contact'' and 
``repair of wire rope that contacted an energized power line is also 
prohibited.'' OSHA is concerned that these phrases could be misleading 
in a paragraph devoted to remedial steps for a Category I deficiency, 
as power line contact can never be a Category I deficiency. It is a 
Category III deficiency that requires immediate replacement of the 
rope. To avoid any implication that power line contact could be a 
Category I deficiency and that a competent person could determine that 
the rope does not constitute a safety hazard under paragraph (a)(4)(i), 
OSHA is deleting the words in proposed paragraph (a)(4)(i)(B) referring 
to power line contact.
    Paragraph (a)(4)(ii) applies to Category II apparent deficiencies. 
In paragraph (a)(4)(ii)(A), OSHA is removing the references to safety 
hazards to make it clear that utilization of this option (compliance 
with manufacturer requirements) mandates removal of the rope from 
service whenever the manufacturer's criteria for removal from service 
are met, without the employer making an independent determination as to 
whether the rope is a safety hazard.
    Paragraphs (a)(4)(ii)(B) and (C) allow the employer the option of 
either removing the wire rope from service or to implement the measures 
as described in paragraph (a)(4)(i)(B) above. In addition, OSHA is 
adding a cross-reference to Sec.  1926.1417 (Operation), which includes 
a number of separate requirements that are triggered if the equipment 
is taken out of service.
    The proposed rule would have allowed Category II wire-rope 
deficiencies \74\ to remain in service up to 30 days when using 
specified alternative measures. Under former subpart N, these 
deficiencies would have resulted in removing the wire rope immediately 
from service. However, OSHA relied on C-DAC's expertise and proposed 
the provision as recommended by the Committee.
---------------------------------------------------------------------------

    \74\ These measures were proposed at Sec. Sec.  
1926.1413(a)(4)(ii)(B) and 1926.1413(a)(4)(iii).
---------------------------------------------------------------------------

    The Agency received comments regarding the alternative measures 
proposed for Category II wire-rope deficiencies from three commenters. 
All of the commenters objected to allowing continued use of wire rope 
with Category II deficiencies. Two of the commenters stated that the 
proposed option to continue using wire rope with the proposed 
alternative measures relaxed both national consensus standards and the 
instructions of wire rope manufacturers. (ID-0122.0; -0178.1.) They 
believed allowing the employer to use the damaged wire rope in service 
up to 30 days was a

[[Page 47977]]

dangerous precedent because it based employee protection on conditions 
that could be difficult for a qualified person to assess accurately.
    The third commenter (a crane manufacturer), which had a 
representative on C-DAC, also objected to the continued use of wire 
rope with Category II deficiencies. (ID-0292.1.) This commenter noted 
that such deficiencies indicate that the wire rope does not meet the 
``acceptable life'' criteria accepted by the wire-rope industry. 
Further, the commenter noted that, if the wire rope continued to be 
used with the Category II deficiencies, ``failure could occur without 
further indication.''
    OSHA finds these comments persuasive with respect to the protection 
of employee safety. The integrity of the wire rope is critical to the 
safety of any lift performed by equipment covered by this subpart. For 
example, a break in the rope can result in a dropped load which 
endangers employees on the worksite. Based on these comments and the 
requirements of former subpart N, OSHA is changing the requirements in 
the final rule for wire rope with Category II deficiencies. The Agency 
notes that this revision is consistent with the requirements of former 
subpart N. Accordingly, the alternative measures outlined in the 
proposed rule at Sec.  1926.1413(a)(4)(iii) have been deleted and 
subsequent paragraphs renumbered.
    Paragraph (a)(4)(iii) \75\ applies to Category III apparent 
deficiencies. Two commenters suggested that Category III is unnecessary 
because paragraph (a)(4)(iv)(B) is the same as for Category I. (ID-
0122; -0178.1.) As noted above, the corresponding proposed provision 
for Category I, paragraph (a)(4)(i)(B), is being changed to remove the 
references to power line contact. Moreover, Category III differs from 
Category I because the competent person may decide that rope with a 
Category I deficiency does not constitute a safety hazard and allow the 
rope to continue to be used. However, rope with a Category III 
deficiency must either be replaced or, if the deficiency is localized 
and did not result from power line contact, be severed and the 
undamaged part to be used.
---------------------------------------------------------------------------

    \75\ This was Sec.  1926.1413(a)(4)(iv) in the proposed rule (73 
FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------

    As discussed above in relation to paragraph (a)(4)(i)(B), OSHA is 
changing paragraph (a)(4)(iii)(B) \76\ to state that, if the rope is 
severed and the undamaged portion used, the rope in use must be long 
enough to ensure that two full wraps remain on the drum at all times.
---------------------------------------------------------------------------

    \76\ This was Sec.  1926.1413(a)(4)(iv)(B) in the proposed rule 
(73 FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------

    Proposed paragraph (a)(4)(iv) \77\ specified that where a wire rope 
must be removed from service under this section, the equipment (as a 
whole) or the hoist with that wire rope must be tagged-out as provided 
in proposed Sec.  1926.1417(f)(1) until the wire rope is replaced or 
repaired. No comments were received on this provision, and it is being 
promulgated as proposed.
---------------------------------------------------------------------------

    \77\ This was Sec.  1926.1413(a)(4)(v) in the proposed rule (73 
FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------

    A commenter suggested adding that the competent person who conducts 
the shift inspection must receive such information in writing. (ID-
0132.1.) OSHA concludes that the competent person or persons who 
conduct shift and monthly inspections, and the qualified person who 
conducts annual inspections, must have access to all written documents 
produced under this section so that they are made aware of any 
components of the equipment that may require special attention during 
their inspections.
    Accordingly, OSHA is adding a new paragraph (e) at the end of Sec.  
1926.1413 that specifies that all documents produced under this section 
must be available to all persons who conduct inspections under this 
section.
Paragraph (b) Monthly Inspection
    Proposed paragraph (b) required a monthly inspection of wire rope 
that would be, in both the level of scrutiny and the expertise required 
of the inspector, a documented shift inspection.
    A commenter pointed out that paragraph (c)(3)(ii) requires that 
certain deficiencies identified during the annual inspection must be 
monitored during the monthly inspection and suggested that this 
requirement be specifically stated in paragraph (b). (ID-0226.) OSHA 
agrees and is adding paragraph (b)(2), which states that the inspection 
must include any deficiencies identified in the annual inspection as 
needing to be monitored.
Paragraph (c) Annual/Comprehensive
    Proposed Sec.  1926.1413(c) required an annual inspection (at least 
every 12 months) for wire rope, conducted by a qualified person. The 
annual inspection would be considerably more thorough and comprehensive 
than the shift and monthly inspections required by paragraphs (a) and 
(b) of this section. In addition, it would be conducted by a 
``qualified person,'' who would have greater expertise than the 
``competent person'' who must conduct the shift and monthly 
inspections. The timing and inspector qualifications for the annual 
wire rope inspection coincide with those for the general equipment 
annual/comprehensive inspection. C-DAC believed that the use of 
corresponding timeframes and personnel will allow inspections to be 
conducted efficiently and thereby promote effectiveness and compliance.
    Under proposed paragraph (c)(1), all apparent deficiencies and 
critical review items required to be checked in a shift inspection 
would have to be checked in the annual/comprehensive inspection (see 
paragraphs (a)(2) and (a)(3)). No comments were received on this 
provision, and it is being promulgated as proposed.
    Proposed paragraph (c)(2) provided for a more thorough inspection 
than that required under paragraph (c)(1). Under proposed paragraph 
(c)(2), a complete and thorough inspection, covering the surface of the 
entire length of the wire ropes, would be required. One commenter, 
which had nominated a member of C-DAC, stated that the entire length of 
the rope needed to be inspected more frequently than annually and 
suggested that this requirement should be included in the monthly 
inspection provision. (ID-0 292.1.) This commenter did not provide any 
evidence to support this assertion or explain why it was deviating from 
the position its nominee took in favor of the provision in the C-DAC 
negotiations. This comment is accorded diminished weight in light of 
this inconsistency of position. OSHA defers to the expertise of the 
full Committee and is retaining the requirement that the entire length 
of the rope be inspected during the annual inspection; it is not adding 
such a requirement to the monthly inspection provision.
    As discussed in relation to Sec.  1926.1413(a)(3), OSHA has, in the 
final rule, modified proposed Sec. Sec.  1926.1413(a)(3)(iv) and 
(a)(3)(v) to read the same as proposed Sec. Sec.  
1926.1413(c)(2)(ii)(C) and (F) (``Wire rope in contact with saddles, 
equalizer sheaves or other sheaves where rope travel is limited'' and 
``Wire rope at or near terminal ends''). Section 1926.1413(c)(2)(ii)(A) 
now incorporates by reference the critical review items listed in 
Sec. Sec.  1926.1413(a)(3)(iv) and (a)(3)(v), thereby making the items 
listed in Sec. Sec.  1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F) 
redundant.
    Two commenters supported keeping paragraphs (c)(2)(ii)(C) and (F), 
even though they are also included in paragraph (a)(3) of this section, 
saying that annual inspections are more comprehensive and, in their 
view,

[[Page 47978]]

should be treated separately. (ID-0205.1; -0213.1.) However, the 
modification made by OSHA does not change the proposed requirements for 
annual inspections; it only avoids redundant language. Accordingly, 
OSHA is deleting proposed Sec. Sec.  1926.1413(c)(2)(ii)(C) and (F) 
from the final rule and is renumbering proposed paragraphs (D) and (E) 
to (C) and (D).
    Proposed paragraph (c)(2)(iii) established an exception to the 
timing of the annual/comprehensive inspection where that inspection is 
infeasible due to ``existing set-up and configuration of the equipment 
(such as where an assist crane is needed) or due to site conditions 
(such as a dense urban setting).'' The provision sets a timetable for 
annual/comprehensive inspections in such cases that requires the 
inspection to be performed ``as soon as it becomes feasible, but no 
longer than an additional 6 months for running ropes and, for standing 
ropes, at the time of disassembly.'' The provision reflects C-DAC's 
concern that, particularly in densely developed urban settings, the 
inability to boom down would prevent the employer from completing a 
comprehensive wire rope inspection.
    Two commenters objected to the length of the six-month period and 
suggested it be reduced to one month. (ID-0122.0; -0178.1.) Neither 
commenter provided any evidence of explanation to support its 
recommendation, so OSHA is deferring to C-DAC's collective judgment and 
is retaining the six-month period in the proposed rule.
    Proposed paragraph (c)(3) listed the next steps to be taken once 
the qualified person performing the annual/comprehensive inspection 
discovers a deficiency. The qualified person must immediately determine 
whether the deficiency constitutes a safety hazard. If it does, under 
proposed paragraph (c)(3)(i), the rope would either have to be replaced 
or, if the deficiency is localized, the damaged part may be severed and 
the undamaged portion may continue to be used. As with paragraph 
(a)(4)(i)(B), joining lengths of wire rope by splicing would be 
prohibited.
    As discussed under paragraph (b)(3), a commenter recommended that 
the requirement of paragraph (c)(3)(ii) should be explicitly referenced 
in the monthly inspection reports, and OSHA has made an addition to 
paragraph (b)(3) to accomplish this. (ID-0226.) Also, as discussed 
under paragraph (a)(4)(i)(B), OSHA is adding a requirement to paragraph 
(c)(3)(i)(B) that at least two full wraps of wire rope must remain on 
the drum when the load and/or boom is in its lowest position.
    Paragraph (c)(4) requires the annual/comprehensive inspection to be 
documented according to Sec.  1926.1412(f)(7), which is the 
documentation provision for the annual general inspection. As with 
other parallel requirements in this section, C-DAC intended to ensure 
consistency with other recordkeeping requirements and thus facilitate 
compliance. Section 1926.1412(f)(7), which is incorporated by 
reference, requires the employer that is conducting the inspection to 
document and retain for 12 months, ``the items checked and the results 
of that inspection'' and ``the name and signature of the person who 
conducted the inspection and the date.'' No comments were received on 
paragraph (c)(4), and it is promulgated as proposed.
Paragraph (d)
    Proposed Sec.  1926.1413(d) provided that employers may not use 
rope lubricants that are of the type that hinder inspection.
    This provision would prohibit, for example, rope lubricants that 
are opaque or so dark that they mask the wire rope inside them. A 
commenter suggested adding to this provision the following sentence: 
``The rope surface and strand valleys must be cleaned of dirt, 
lubricant or other material that will hinder inspection.'' (ID-0121.1.) 
OSHA determines that this addition is unnecessary. Section 1926.1413 
requires various inspections, and the requirement to conduct an 
inspection inherently means that where foreign material that would 
prevent the inspection is present, it must be removed. The prohibition 
against rope lubricants that are of the type that hinder inspection is 
needed because they are difficult to remove and pose an unnecessary 
obstacle to compliance. Section 1926.1413(d) is promulgated in the 
final rule as proposed.
Paragraph (e)
    A commenter suggested adding that the competent person who conducts 
the shift inspection must receive such information in writing. (ID-
0132.1.) Similarly, OSHA determines that the competent person or 
persons who conduct shift and monthly inspections, and the qualified 
person who conducts annual inspections, must have access to all written 
documents produced under Sec.  1926.1413. In response to this comment, 
OSHA is adding paragraph (e) to ensure that persons who conduct 
inspections have access to documentation required by Sec.  1926.1413 
during the period for which those documents must be retained. This 
documentation serves as a reference for conditions that must be 
monitored in subsequent inspections. OSHA concludes that this 
documentation will ensure that only safe equipment is put into service.
Section 1926.1414 Wire Rope--Selection and Installation Criteria
    This section sets forth requirements for selecting and installing 
wire rope. C-DAC determined, and OSHA agrees, that the proper selection 
and installation of wire rope is integral to the safe operation of 
equipment that uses such rope. Improper selection or installation could 
cause the wire rope to fail, resulting in any number of hazards from 
uncontrolled movement of the equipment or the load. As discussed in the 
proposed rule, Sec.  1926.1414, in addition to addressing safety 
concerns related to wire rope selection and installation, provides 
greater flexibility in the selection process than previous requirements 
under subpart N (73 FR 59781, Oct. 9, 2008). This flexibility reflects 
and takes advantage of new developments in wire rope technology.
Paragraph (a)
    Proposed paragraph (a) of this section stated that ``selection of 
replacement wire rope shall be in accordance with the requirements of 
this section and the recommendations of the wire rope manufacturer, the 
equipment manufacturer, or a qualified person.'' In the proposed rule, 
OSHA noted that proposed paragraph (a)'s mention of only ``replacement 
rope'' could mislead some readers to conclude that all of Sec.  
1926.1414 applies only to replacement rope, whereas C-DAC clearly 
intended that Sec.  1926.1414 would apply to both original equipment 
rope and replacement rope. OSHA proposed to reword Sec.  1926.1414(a) 
to read as follows: ``Original equipment wire rope and replacement wire 
rope shall be selected and installed in accordance with the 
requirements of this section. Selection of replacement wire rope shall 
be in accordance with the recommendations of the wire rope 
manufacturer, the equipment manufacturer, or a qualified person.''
    OSHA requested public comment on such a revision. OSHA received no 
comment on proposed Sec.  1926.1414(a) or on its proposed rewording. 
Accordingly, OSHA modified Sec.  1926.1414(a) of the final rule to 
reflect the proposed rewording.

[[Page 47979]]

Paragraph (b)
    The proposed rule, in Sec.  1926.1414(c), included design factors 
for rotation resistant rope but did not include design factors for 
standard (that is, non-rotation resistant) rope. In the proposal, OSHA 
stated its determination that, in light of the importance of design 
factors for wire rope, the omission of design factors for standard rope 
was inadvertent (73 FR 59781, Oct. 9, 2008). OSHA proposed to include 
the design factors for standard rope in sec. 5-1.7.1 of ASME B30.5-
2004. OSHA requested public comment on the issue.
    Comments were received from two parties, both of whom nominated C-
DAC members. (ID-0205.1; -0213.1.) They stated that the omission was 
intentional, believing that C-DAC did not include design factor 
criteria for standard wire rope because technology is continually 
evolving and including design criteria in the rule may hamper future 
crane operations. The commenters stated that the proposed rule had 
provisions requiring end users to conform with requirements or criteria 
established by the wire rope manufacturer, equipment manufacturer, or a 
qualified person.
    OSHA notes that C-DAC determined it was important for this rule to 
allow flexibility to accommodate future technological changes. The 
commenters on this issue reiterated that determination, and OSHA shares 
that concern. Setting unduly restrictive specifications based on 
current technology could unnecessarily impinge on the use of future 
designs. The Agency also concludes, however, that some form of minimum 
criteria is necessary so that those selecting wire rope have a minimum 
benchmark available as a reference point.
    To meet both of these objectives, the Agency has decided, in the 
final rule, to add a new paragraph (b) to Sec.  1926.1414 to provide 
employers with two options with regards to wire rope design criteria. 
The first option would be to comply with an industry consensus standard 
(sec. 5-1.7.1 of ASME B30.5-2004) on design factors for standard wire 
rope. See Sec.  1926.1414(b)(1). This is a well-established benchmark 
for standard wire rope design factors, and the Agency therefore 
determined that it is appropriate to include it as an option. Paragraph 
(c) of sec. 5-1.7.1 is excluded because that deals with rotation 
resistant rope, which is addressed in Sec.  1926.1414(e).
    The second option provides a performance benchmark that is based on 
the rope's compatibility with the rated capacity of the equipment and 
on the need to be able to rely on the inspections in Sec.  1926.1413 as 
an effective means of ensuring the continued safety of the rope. See 
Sec.  1926.1414(b)(2). Specifically, the design must be sufficient to 
ensure that, when the equipment is used in accordance with its rated 
capacity, the employer will be able to prevent a sudden failure of the 
rope by meeting the inspection requirements in Sec.  1926.1413.
    This concept reflects the underlying premise of Sec.  1926.1413 
that regular inspection of the rope can prevent catastrophic failure 
because the rope's degradation will take place over time and will be 
accompanied by indications of wear. Therefore, if the rope is 
appropriate for the equipment, the degradation that occurs with use 
will be sufficiently gradual so that its development can be identified 
in the required inspections and the rope can be removed from service 
before safety is compromised.
Paragraph (c)
    The benchmarks in the two options in paragraph (b) of this section 
do not address an additional design issue, which is the suitability of 
the wire rope with respect to the proper functioning of the equipment. 
For example, selecting a rope with a diameter that is too large for a 
particular machine can result in the rope jumping a sheave. Such a 
condition could, among other adverse consequences, affect the 
operator's ability to control the load. Therefore, OSHA has added an 
additional provision, in new Sec.  1926.1414(c), that requires the rope 
to be compatible with the safe functioning of the equipment.
Paragraph (d) Boom Hoist Reeving
    With the addition of the two new paragraphs, (b) and (c), OSHA is 
redesignating proposed paragraphs (b) through (f) of this section as 
paragraphs (d) through (h) in the final rule.
    Proposed paragraph (b) would have prohibited the use of fiber core 
ropes for boom hoist reeving, except for use on derricks. In the 
Committee's view, the composition of fiber core ropes makes them prone 
to degradation that is not completely detectable by normal inspection 
techniques. Nothing in the record contradicts that conclusion.
    One commenter stated that there was no practical reason to allow 
the use of fiber core ropes for boom hoist reeving on derricks but not 
in other boom hoist applications. (ID-0121.1.) However, as explained in 
the proposed rule, the distinction between derricks and cranes is 
warranted because the sheaves on derricks are smaller than those on 
cranes and therefore require ropes that can accommodate reverse bending 
better than ropes used on cranes. Fiber core ropes are more pliable 
than ropes with a metal core and are therefore suited to applications 
requiring greater reverse bending, such as use on derricks. Moreover, 
the distinction between derricks and cranes is consistent with current 
national consensus standards. The 2004 version of ASME B30.5, in sec. 
5.1.7.2(b), prohibits the use of fiber core wire ropes for boom hoist 
reeving for mobile and locomotive cranes. By contrast, the standard in 
the ASME B30 series that applies to derricks, ASME B30.6-2003, does not 
prohibit the use of fiber core wire rope for boom hoist reeving. 
Permitting the use of fiber core ropes for boom hoist reeving on 
cranes, as the commenter suggests, would reduce protection over that 
currently considered prudent in the industry, and OSHA is therefore 
promulgating paragraph (b)(1) as proposed, renumbering it as paragraph 
(d)(1).
    Proposed paragraph (b)(2) prohibited the use of rotation resistant 
rope for boom hoist reeving except where the requirements of paragraph 
(c) (renumbered paragraph (e) in the final rule), are met. No comments 
were received on this paragraph (b)(2), and it is being promulgated as 
paragraph (d)(2) with the reference to paragraph (c) in the proposed 
rule changed to paragraph (e)
Paragraph (e) Rotation Resistant Ropes
Paragraph (e)(1)
    Proposed paragraph (c)(1) of this section classified rotation 
resistant ropes into three ``Types'' (``Type I'', ``Type II'', and 
``Type III''). Proposed paragraph (c)(2) specified use limitations and 
requirements for each type of wire rope. This approach differed from 
former subpart N, ANSI B30.5-1968 and ASME B30.5-2004, which did not 
distinguish between types of rotation resistant rope. By distinguishing 
between different types of rope, the Committee sought to ensure that 
ropes with different internal structures were subject to appropriate 
requirements and limitations that would enable them to be used safely. 
Types I, II, and III, which have different capabilities, were described 
in proposed paragraph (c)(1).
    ASTM A 1023/A 1023M-02 has a similar classification system, 
although it divides rotation resistant ropes into ``categories'' rather 
than ``types.'' One commenter noted that there is no meaningful 
difference between the classification in the proposed rule and that in 
ASTM A 1023. (ID-0060.1.) This

[[Page 47980]]

commenter urged OSHA to incorporate by reference the ASTM definitions 
rather than to state the definitions in the final rule. This would, the 
commenter suggested, avoid confusion among manufacturers and users who 
rely on the ASTM's classification system.
    Although the provisions in the final rule are substantively similar 
to those in the ASTM standard, the Agency uses the term ``category'' in 
the wire rope provisions of subpart CC that relate to the 
classification of apparent deficiencies (see, e.g., Sec.  
1926.1413(a)(2)). Therefore, to avoid confusion with those provision, 
OSHA uses the term ``type'' in classifying rotation resistant rope in 
Sec.  1926.1414. OSHA concludes that the use of ``category'' in the 
ASTM standard would cause considerable confusion if OSHA were to 
incorporate the ASTM definitions directly. Accordingly, OSHA is 
promulgating proposed paragraph (c)(1) as paragraph (e)(1) of the final 
rule.
Paragraph (e)(2)
    Paragraphs (e)(2) of this section sets forth use requirements of 
the three types of rotation resistant rope in terms of operating design 
factors (and in some instances activity). The purpose of these 
provisions is to ensure that the selection of the type of rotation 
resistant rope is suitable, in terms of safety, to its use.
    These requirements are identical to those in proposed paragraph 
(c)(2). The preamble to the proposed rule explained in detail the basis 
for setting these design factors for rotation resistant rope (see 73 FR 
59782-59783, Oct. 9, 2008). One commenter, stated that rotation 
resistant ropes should have a design factor of less than 5 only for 
single engineered lifts, but provided no rationale for this position. 
No other comments addressed the proposed design factors, and OSHA is 
deferring to the expertise of C-DAC and incorporating the design 
factors in paragraph (e)(2) of the final rule.
    As discussed in the preamble to the proposed rule, paragraphs 
(e)(2)(i)-(iv) use the phrase ``operating design factor.'' 
``Operating'' is included to show that the factors specified in these 
provisions are to reflect how the rope is installed on the specific 
piece of equipment in which it is used. In other words, the operating 
design factor is calculated based on numerous considerations associated 
with both the rope's design and how it is installed on the equipment.
    The prohibition on the use of rotation resistant rope for duty 
cycle and repetitive lifts does not apply to Type I rope because the 
Committee determined that such rope is significantly more resistant to 
rotation or torque compared with Types II and III. This reduces Type 
I's potential for internal wear during use and moves degradation from 
the inner wires to the outer wires, where damage is more easily 
detected during wire rope inspections. Accordingly, the Committee 
concluded that Type I rope can safely be used for duty cycle and 
repetitive lifts at an operating design factor below 5 (but no less 
than 3.5), as specified in proposed paragraph (c)(2)(ii). No comments 
addressed the distinction between the types of wire rope in paragraph 
(e)(2)(i) of this section.
    In the proposed rule, OSHA noted that C-DAC did not include 
definitions for ``duty cycle'' or ``repetitive lifts.'' The Agency 
asked for comment on whether definitions of these terms should be 
included in Sec.  1926.1401 and proposed definitions that it determined 
were consistent with C-DAC's understanding and widely understood in the 
industry. OSHA proposed to define ``duty cycle'' as ``a continuous 
operation in which approximately the same type and weight of load is 
handled.'' It gave dredging with a clamshell as an example of duty 
cycle work. OSHA proposed to define ``repetitive lifts'' as ``a 
continuous operation with loads that may vary in size and weight.'' For 
an example, it noted that steel erection work typically involves 
repetitive lifts of various size and configurations of structural steel 
members.
    Three commenters agreed that ``duty cycle'' and ``repetitive 
lifts'' should be defined, and no commenters suggested otherwise. (ID-
0205.1; -0213.1; -0226.) The commenters on the subject did not object 
to OSHA's proposed definition of ``repetitive lifts,'' but two 
recommended that OSHA's proposed definition of ``duty cycle'' be 
replaced with the following:

    A type of crane service in which bulk material is transferred 
from one point to another by rapidly lifting, swinging, booming, and 
placing the material. Typical types of duty cycle service are 
dragline, clamshell, grapple, and magnet. This type of service is 
differentiated from standard crane ``lift service'' in that cycle 
times are very short and continuous, often less than 1 minute per 
load, and loads are lifted and placed in general areas rather than 
precise positions to permit such rapid cycles.

(ID-0205.1; -0213.1.)
    OSHA determines that in most respects the commenters' suggested 
definition is clearer and better reflects the intent of the Agency. 
Therefore, OSHA is adopting their definition with only minor 
modification (the reference to ``lifting, swinging, booming and 
placing'' is not necessary, since those actions simply describe typical 
crane movements). OSHA is therefore adopting a slightly modified 
version of the definition suggested by the commenters. This definition 
is being included in Sec.  1926.1401, as is the definition for 
``repetitive lifts'' proposed by OSHA and quoted above.
Paragraph (e)(3)
    This proposed paragraph specified additional requirements that must 
be met when Types II and III rotation resistant wire rope are used with 
an operating design factor of between 3.5 and 5 (for non-duty cycle, 
non-repetitive lifts). The Committee concluded that these additional 
requirements are needed to ensure that use of such ropes would be safe.
    Due to renumbering, proposed paragraph (c)(3) corresponds to final 
paragraph (e)(3). One commenter believed that the reference to ``these 
provisions'' in proposed paragraph (c)(3)(iii) was unclear and should 
be clarified to state whether it refers to the entire subpart CC or to 
specific provisions. (ID-0214.1.) As used here, ``these provisions'' 
refers to lifts under final paragraph (e)(3). To avoid any ambiguity, 
``these provisions'' is being changed to ``Sec.  1926.1414(e)(3).''
    The same commenter who stated in regard to final paragraph (e)(2) 
that rotation resistant rope should have a design factor of less than 5 
only for single engineered lifts recommended that paragraph (e)(3) also 
be changed to reflect its recommendation. (ID-0292.1.) OSHA is 
rejecting that suggestion for the same reason given in relation to 
paragraph (e)(2). No other objections to proposed paragraph (c)(3) 
(final paragraph (e)(3)) were received. Accordingly, with the single 
exception just mentioned in regard to final paragraph (e)(3)(iii), 
proposed paragraph (c)(3) is being promulgated as final Sec.  
1926.1414(e)(3).
Paragraph (e)(4) Additional Requirements for Rotation Resistant Rope 
for Boom Hoist Reeving
    Paragraph (e)(4)(i) of this section prohibits rotation resistant 
rope from being used for boom hoist reeving except where the 
requirements of paragraph (e)(4)(ii) of this section are met. C-DAC 
members determined that the general prohibition was necessary because, 
in their experience, rotation resistant rope used for boom hoist 
reeving tends to twist and thereby suffer internal damage when it 
passes over sheaves that are close together. However, C-DAC concluded 
that safety would not be compromised when

[[Page 47981]]

rotation resistant rope is used for boom hoist reeving as long as the 
conditions in paragraph (e)(4)(ii) of this section are met.
    The Committee also determined that the exception would serve a 
practical purpose, especially when using attachments such as luffing 
jibs. The auxiliary hoist is typically used as a boom hoist for such 
attachments, and is normally rigged with rotation resistant rope. The 
exception enables the employer to avoid the need to change the rope 
when using such attachments when safety could be assured by meeting the 
specified conditions for its use.
    The conditions under which rotation resistant rope may be used for 
boom hoist reeving were contained in proposed paragraph (c)(4). No 
substantive objections to that proposed paragraph were received. Two 
commenters stated that the phrase ``rated capacity'' in proposed 
paragraph (c)(4)(ii)(F) should be replaced with ``rated load 
capacity.'' (ID-0205.1; -0213.1.) As noted in the proposed rule, the C-
DAC proposal attributed the same meaning to both ``rated capacity'' and 
``rated load capacity,'' and OSHA is consistently using the term 
``rated capacity'' wherever C-DAC used either term to avoid any 
confusion (see 73 FR 59738, Oct. 9, 2008). Accordingly, proposed 
paragraph (c)(4) is being promulgated as final paragraph (e)(4) without 
substantive change.
Paragraph (f)
    Proposed paragraph (d) of this section specified that wire rope 
clips used with wedge sockets may only be attached to the unloaded dead 
end of the rope, except that devices specifically designed for dead 
ending rope in a wedge socket are also permitted.
    The Committee concluded that this provision was necessary to ensure 
attachment strength, reliability and prevention of cable damage. No 
comments concerning this provision were submitted, and OSHA is 
promulgating it as Sec.  1926.1414(f).
Paragraph (g)
    Proposed paragraph (e) of this section stated that socketing must 
be done according to the specifications of the manufacturer of the wire 
rope or fitting. No comments regarding this provision were received, 
and OSHA is promulgating it as Sec.  1926.1414(g).
Paragraph (h)
    Proposed paragraph (f) of this section specified that seizings must 
be placed on each side of the point to be cut before the wire rope is 
cut. It also specified that the length and number of seizings must be 
in accordance with the instructions of the wire rope manufacturer.
    Seizings are needed to hold the wire in the strands and the strands 
in place during handling while cutting, thereby keeping the rope beyond 
the area of the cut intact. In the Committee's experience, the 
instructions and procedures for seizing differ among various wire rope 
manufacturers. The Committee decided to require employers to follow the 
manufacturer's instructions because it concluded that wire rope 
manufacturers have the knowledge and expertise to best determine the 
length and number of seizings that are needed to maintain the integrity 
of their wire ropes during cutting. No comments regarding this 
provision were received, and OSHA is promulgating it as Sec.  
1926.1414(h).
Section 1926.1415 Safety Devices
    This section sets forth the requirements for equipping cranes and 
derricks with certain safety devices and prohibits the use of the 
equipment if those devices are not working properly.
    The safety devices addressed by this section are devices that C-DAC 
determined are essential for the safe operation of cranes and derricks 
and therefore, required to be present and in proper working order 
during all equipment operations with no alternative measures permitted. 
Those devices considered less critical to equipment safety are 
designated as operational aids and are governed by Sec.  1926.1416. 
That section allows equipment to continue operating if the operational 
aid fails or malfunctions but requires certain temporary alternative 
protective measures in such cases. Those devices designated as safety 
devices in this section, however, are so essential and integral to safe 
equipment operation that C-DAC determined that there is no acceptable 
alternative to having them in proper working order.
Paragraph (a) Safety Devices
    Paragraph (a) of this section lists the safety devices that are 
required on all equipment covered by this subpart and specifications 
and conditions applicable to those devices (including the exemption of 
certain equipment from the requirements of the listed devices).
    Crane Level Indicator: Paragraph (a)(1) requires that a crane level 
indicator be on all equipment covered under this subpart. C-DAC 
determined that level equipment is a key factor in ensuring equipment 
safety. Using a crane level indicator is necessary because it has the 
requisite accuracy for leveling the equipment. C-DAC members stressed 
the need to use a crane level indicator because, if the equipment is 
not properly leveled, it will not have all the capacities indicated in 
the load charts. Reliance on the charts in such situations could cause 
the equipment to overturn or otherwise fail.
    Section 1926.1415(a)(1)(i) specifies that a crane level indicator 
must either be built into the equipment or available on it. One 
commenter requested clarification of whether the rule allows for the 
use of a carpenter's level to satisfy the requirements of proposed 
Sec.  1926.1415(a)(1)(i). (ID-0292.1.)
    A carpenter's level of sufficient length (such as a four-foot 
level), available to the operator, that gives an accurate reading, 
meets the requirements of this paragraph as proposed; such a level is 
typically used in the industry for this purpose. Therefore, it is not 
necessary to revise the text of the rule and OSHA is promulgating 
paragraph (a)(1)(i) as proposed.
    Section 1926.1415(a)(1)(ii) addresses the hazard posed by false 
readings from non-operational crane level indicators remaining on the 
equipment. The Agency is requiring built-in (i.e., integral) crane 
level indicators that are not working properly to be tagged-out or 
removed. Similarly, removable crane level indicators must be removed 
from the equipment if they are not working properly. Both requirements 
are intended to avoid confusion and the operator's inadvertent reliance 
on a device that is not working correctly. OSHA received no comment on 
this provision. Therefore, OSHA promulgated it as proposed, with the 
additional specification that a removable crane level indicator must be 
removed prior to operation if it is not working properly.
    Paragraph (a)(1)(iii) exempts portal cranes,\78\ derricks, floating 
cranes/derricks and land cranes/derricks on barges, pontoons, vessels, 
or other means of flotation from the requirements of Sec.  
1926.1415(a)(1). C-DAC members indicated that these types of equipment 
are leveled and then fixed in place when installed, precluding the need 
for a crane level indicator.\79\ OSHA

[[Page 47982]]

received no comment on this provision. Therefore, OSHA is promulgating 
paragraph (a)(1)(iii) as proposed.
---------------------------------------------------------------------------

    \78\ Section 1926.1401 defines ``portal crane'' as a ``type of 
crane consisting of a rotating upperstructure, hoist machinery, and 
boom mounted on top of a structural gantry which may be fixed in one 
location or have travel capability. The gantry legs or columns 
usually have portal openings in between to allow passage of traffic 
beneath the gantry.''
    \79\ Note that, Sec.  1926.1437(e) requires barge, pontoon, 
vessel or other means of flotation list and trim device for floating 
cranes/derricks and land cranes/derricks.
---------------------------------------------------------------------------

    Boom Stops: Paragraph (a)(2) requires boom stops on all equipment 
except for derricks and hydraulic booms (see the discussion of this 
provision in 73 FR 59785, Oct. 9, 2008). ``Boom stop'' is defined in 
Sec.  1926.1401 as a device that restricts the boom from moving above a 
certain maximum angle and toppling over backwards. OSHA received no 
comment on this provision or definition. Therefore, OSHA is 
promulgating paragraph (a)(2) as proposed.
    Jib Stops: Section 1926.1415(a)(3) requires jib stops on all 
equipment where a jib is attached, except for derricks (see the 
discussion of this provision in 73 FR 59785, Oct. 9, 2008). The 
standard defines ``Jib stop (also referred to as a jib backstop)'' in 
Sec.  1926.1401 as the ``same type of device as a boom stop but used 
for a fixed or luffing jib.'' OSHA received no comment on this 
provision or definition. Therefore, OSHA is promulgating paragraph 
(a)(3) as proposed.
    Foot Pedal Brake Locks: Proposed paragraph (a)(4) required that 
equipment with foot pedal brakes have locks, except for portal cranes 
and floating cranes. Such locks prevent the unintentional disengagement 
of a foot pedal brake, which could lead to unintended equipment 
movement and consequent injuries and fatalities. Due to the physical 
effort needed to keep the pedal engaged, this is particularly important 
where the brake is applied for long periods.
    The rationale for exempting portal cranes and floating cranes from 
this requirement discussed by C-DAC was that there are instances in 
which, due to the pitching of a floating crane and the pitching of the 
vessel or object in the water with which a portal crane works, the 
operator may have to immediately release the brake. The concern is 
that, if the foot pedal brake lock has been activated, the operator may 
not be able to release the brake quickly enough to prevent the 
equipment from being overloaded or to prevent unintended movement of 
the load.
    As explained in the proposed rule, upon review of the exemption in 
the provision, the Agency realized that C-DAC assumed that the locking 
device would always be of the type that is located on the brake pedal. 
That type of device can be difficult to disengage, thereby delaying the 
operator's ability to release the brake. However, there are other types 
of brake locking mechanisms that do not present this problem (for 
example, a brake lock that is hand-actuated). This raised the issue of 
whether the exemption is needed. Consequently, OSHA asked for public 
comment on whether to change proposed Sec.  1926.1415(a)(4) by deleting 
the exemption and requiring a hoist brake locking mechanism for all 
cranes.
    OSHA received no comment on this issue. Therefore, OSHA has not 
included the exemption in the final rule. The final paragraph (a)(4) is 
published as proposed except that OSHA has removed the phrase ``except 
for portal cranes and floating cranes.''
    Integral Holding Device/Check Valve: Paragraph (a)(5) requires that 
hydraulic outrigger jacks have an integral holding device/check valve. 
Such a device is necessary to prevent the outrigger jack from 
collapsing in the event of a hydraulic failure. (See the discussion of 
this provision in 73 FR 59786, Oct. 9, 2008.) OSHA is promulgating this 
provision as proposed.
    Two commenters, both of which had nominated C-DAC members, 
suggested moving this requirement to Sec.  1926.1433 (Design, 
construction and testing) due to their belief that an integral holding 
device/check valve is a design feature. (ID-0205.1; -0213.1.) Neither 
of these organizations' nominees dissented on this issue. Both 
organizations indicated in their comments that they supported the 
recommendations of C-DAC and were not providing any negative comments 
on provisions that mirrored the C-DAC consensus document. Since this 
provision is unchanged from the C-DAC consensus document, the Agency 
assumes that the commenters believe that they are suggesting a non-
substantive formatting change.
    The commenters are mistaken in that regard. By locating this 
provision in the Safety Devices section of the standard, the employer 
is required to inspect the integral holding device/check valve (see, 
e.g., Sec.  1926.1412(d)(1)(xiv)) and, if it is not functioning 
properly, to not use the crane until it is repaired (see Sec.  
1926.1415(b)). If this provision were moved to the Design, construction 
and testing section, it would no longer be considered a safety device. 
If it was not functioning, it would be left to the competent person 
conducting the shift and monthly inspections (and the qualified person 
conducting the annual inspection) to determine if the deficiency 
constituted a safety hazard (see, e.g., Sec.  1926.1412(d)(2)). C-DAC 
determined, and OSHA agrees, that an integral holding device/check 
valve is essential for the safe operation of hydraulic outrigger jacks 
and therefore needs to be designated as a safety device.
    Rail Clamps and Rail Stops: Paragraph (a)(6) specifies that 
equipment on rails have rail clamps and rail stops, except for portal 
cranes. (See the discussion of this provision in 73 FR 59786, Oct. 9, 
2008.) OSHA received no comment on this provision. Therefore, it is 
promulgated as proposed.
    Horn: In the proposed rule, a horn was not listed as a safety 
device. One commenter requested that the standard require a horn. (ID-
0156.1.) ASME B30.5-2004 requires that an ``audible signal device'' be 
provided, within reach of the operator. OSHA agrees that a horn is an 
important safety feature; it is typically a standard feature on cranes 
and is used to warn workers of imminent dangers. Therefore, OSHA has 
included a horn in the list of safety devices in Sec.  1926.1415(a)(7) 
of the final rule.
    The horn need not be permanently installed on the equipment, but it 
must be in a location where the operator can access and use it 
immediately to warn workers of imminent danger. An operator may use a 
removable device, such as a hand-held air horn that is stored near the 
operator in a manner that would not interfere with the operation of the 
equipment, if it satisfies those requirements.
    OSHA is also requiring in Sec.  1926.1415(a)(7)(ii) that built-in 
(i.e., integral) horns be removed or tagged out when they are not 
working properly. Similarly, a removable horn must be removed from the 
equipment when it is not working properly. As noted in the previous 
paragraph, the operator would be permitted to resume operation if an 
operational horn, such as a hand-held air horn, is added to the cab in 
the proper location. It is therefore critical that the operator, and 
operators in subsequent shifts, not be confused about which horn is 
operational. A non-operational horn must be tagged out or removed, 
prior to the resumption of operation, to avoid the operator's 
inadvertent reliance on the nonoperational horn. The horn is often 
required when an unexpected hazard presents itself, and the operator 
must therefore locate and use it quickly.
Paragraph (b) Proper Operation Required
    Paragraph (b) prohibits the operation of the equipment if any of 
the safety devices listed in this section are not in proper working 
order. Under OSHA's existing Sec.  1926.20(b)(3), employers must tag 
out or remove any equipment that is not in compliance with any 
applicable requirement in part 1926. In Sec.  1926.1417(f), OSHA makes 
it clear that when equipment is ``taken out of

[[Page 47983]]

service,'' the employer must place a tag in the cab to provide clear 
notice to all employees that the equipment is out of service. To avoid 
any potential ambiguity about whether equipment is ``taken out of 
service'' when its operation is prohibited because of an inoperational 
safety device, OSHA is inserting new text in Sec.  1926.1415(b) and a 
cross reference to Sec.  1926.1417 (Operation). Specifically, final 
paragraph (b)(2) requires that equipment be ``taken out of service'' 
when one of the safety devices in Sec.  1926.1415 is not operating 
properly. The general tagout requirement in Sec.  1926.1417(f)(1) will 
apply whenever any of the safety devices are not operating properly.
    The Agency notes that the specific tagout/removal requirements for 
crane level indicators (Sec.  1926.1415(a)(1)(ii)) and horns (Sec.  
1926.1415(a)(7)(ii)) are intended to supplement this general 
requirement. Unlike the safety devices addressed in Sec. Sec.  
1926.1415(a)(2) through (a)(6), which are not as likely to be left on 
the equipment once they are non-operational, Sec. Sec.  
1926.1415(a)(1)(ii)) and 1926.1415(a)(7)(ii)) address the additional 
hazard that non-operational equipment might remain in the cab, and be 
accidently relied on by the operator, once an operational version of 
the same device has been placed in the cab.
Section 1926.1416 Operational Aids
    This section sets forth the requirements for equipping cranes and 
derricks with certain operational aids. ``Operational aids'' are 
defined in Sec.  1926.1401 as ``devices that assist the operator in the 
safe operation of the crane by providing information or automatically 
taking control of a crane function. These include, but are not limited 
to, the devices listed in Sec.  1926.1416 (`listed operational 
aids').''
    As discussed above regarding Sec.  1926.1415, OSHA determines that 
the devices addressed in Sec.  1926.1416 enhance safety. However, they 
are less essential to the safe operation of equipment than the safety 
devices addressed by Sec.  1926.1415 because sufficient temporary 
alternative measures are available. Crane operators historically used 
these temporary alternative measures as safety precautions prior to the 
widespread availability and use of these operational aids.
Paragraph (a)
    Proposed paragraph (a) of this section provided that the 
operational aids listed in this section are required on all equipment 
covered by subpart CC, unless otherwise specified.
    Other sections of this rule provide exceptions for various types of 
equipment. Under Sec.  1926.1435(e)(1), this section does not apply to 
tower cranes. Instead, the operational aids required for tower cranes 
are specified in Sec.  1926.1435. Under Sec.  1926.1436(f)(1), 
Sec. Sec.  1926.1416(d)(1), (e)(1), and (e)(4) do not apply to 
derricks.
    This section also does not apply to existing equipment manufactured 
before certain dates. Those dates are keyed either to the time an 
operational aid was first required by a national consensus standard or 
to the effective date of the standard. One year after the effective 
date of this final rule, the proposed rule would have required all 
operational aids on all equipment, with a single exception: proposed 
paragraph (e)(4) did not require load weighing or similar devices on 
derricks.
    A trade association asked that articulating cranes be exempt from 
certain requirements of this section: the requirement for a boom angle 
or radius indicator in paragraph (e)(1) of this section; the 
requirement for a jib angle indicator in paragraph (e)(2) of this 
section; the requirement for a boom length indicator in paragraph 
(e)(3) of this section; and the requirement for an outrigger position 
sensor/monitor in paragraph (e)(5)(i) of this section. (ID-0206.1.) As 
to the first three, the commenter stated that these would not be 
practical on articulating cranes because of the boom configuration on 
such cranes. The commenter said that a boom angle indicator or jib 
angle indicator could not be used because articulating cranes can have 
up to three boom sections at different angles. Unlike cranes with 
straight booms, their capacity is determined by the combination of boom 
angles rather than a single angle. Similarly, the commenter stated, 
boom length indicators are not practical on articulating cranes because 
their lifting capacity is based on the position of the boom sections 
rather than the boom length. Finally, the commenter asserted that 
articulating cranes should be exempt from the requirement for outrigger 
position sensor monitors because such cranes use stabilizers rather 
than outriggers.
    OSHA agrees with the commenter that boom angle indicators, jib 
angle indicators, and boom length indicators are not appropriate for 
articulating cranes for the reasons given by the commenter. 
Accordingly, OSHA is adding Sec.  1926.416(a)(1), which excludes 
articulating cranes from the requirements in Sec. Sec.  
1926.1416(e)(1), (e)(2), and (e)(3).
    OSHA is not exempting articulating cranes from the requirement of 
Sec.  1926.1416(e)(5)(i). As discussed under Sec.  1926.1404, for 
certain types of cranes, stabilizers serve the same function as 
outriggers and, where appropriate, provisions of the proposed rule that 
applied to outriggers are being changed in the final rule to also apply 
to stabilizers. One such provision is paragraph (e)(5)(i) of this 
section, which, as discussed below, has been modified from the proposed 
rule to require outrigger/stabilizer position sensor monitors rather 
than outrigger position sensor monitors on equipment manufactured more 
than one year after the effective date of the standard. As so modified, 
the provision appropriately applies to articulating cranes.
    Another commenter stated that digger derricks do not typically have 
anti-two blocking devices (paragraph (d)(3)), radius indicators 
(paragraph (e)(1)), load weighing devices (paragraph (e)(4)), outrigger 
position indicators (paragraph (e)(6)(i)), and hoist drum rotation 
indicators (paragraph (e)(5)(ii).\80\ (ID-0155.1.) This commenter does 
not state that such devices would be impractical on digger derricks but 
only that they are not currently equipped with the devices. OSHA notes 
that the ANSI standard applicable to digger derricks, ANSI/ASSE A10.31-
2006, does not require the devices listed by the commenter. As noted 
above, this final rule is exempting certain older or existing equipment 
from the need to be equipped with certain operational aids when the 
consensus standard for such equipment has not required those devices. 
Consistent with this policy, OSHA is specifying that only those digger 
derricks manufactured more than one year after the effective date of 
this standard must be equipped with anti-two blocking devices, boom 
angle or radius indicators, and load weighing devices. Under Sec.  
1926.1416(e)(5), outrigger position indicators and hoist drum rotation 
indicators are not required on any equipment until one year after the 
effective date of the standard, so it is not necessary to single out 
digger derricks for special treatment for these devices. Accordingly, 
OSHA is adding Sec.  1926.1416(a)(2) to the final rule, which provides 
that the requirements in Sec. Sec.  1926.1416(d)(3), (e)(1), and (e)(4) 
only apply to those digger derricks manufactured more than one year 
after the effective date of this standard.
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    \80\ The term ``digger derrick'' is defined in Sec.  1926.1401. 
As discussed in Sec.  1926.1400, digger derricks are not covered by 
the standard when used for work related to utility poles but are 
subject to this final rule when used covered for general lifting 
activities unrelated to utility poles.

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[[Page 47984]]

Paragraph (b)
    Proposed paragraph (b) of this section stated that operations shall 
not begin unless the listed operational aids are in proper working 
order, except where the employer meets specified temporary alternative 
measures. If the crane or derrick manufacturer specified more 
protective alternative measures, the employer would have to follow 
those measures.
    Upon reviewing the proposed paragraph, OSHA believes it does not 
state its requirement as clearly as possible. As subsequent provisions 
of this section make clear, employers may only use temporary 
alternative measures while listed operational aids are being repaired, 
and then only for limited times. OSHA is rewording paragraph (b) in the 
final rule to make these requirements clearer.
    Two hearing participants requested that, in general, OSHA remove 
any provision in the proposed rule that would require strict adherence 
to manufacturer's procedures. (ID-0341; -0342.) Compliance with 
manufacturer procedures is addressed in the discussion of Sec.  
1926.1417. In addition, OSHA determines that the rule addresses the 
hearing participants' concerns. Employers can fully comply with the 
standard by maintaining the listed operational aids in proper working 
order. For brief periods while such aids are being repaired, employers 
can generally comply by following the temporary alternatives listed in 
the rule. Only if manufacturers recommend safer alternatives, which 
OSHA concludes will rarely occur, will employers need to look to those 
recommendations rather than the precautions specified in the rule.
Paragraph (c)
    Paragraph (c) of this section states that if a listed operational 
aid stops working properly during operations, the operator must safely 
stop operations until the temporary alternative measures are 
implemented or the device is again working properly. Further, if a 
replacement part is no longer available, a substitute device that 
performs the same type of function may be used, and the use of such a 
device is not considered a modification under Sec.  1926.1434, 
Equipment modifications. Section 1926.1434 applies to modifications or 
additions that affect the capacity or safe operation of the equipment 
except where the requirements of paragraphs (a)(1), (a)(2), or (a)(3) 
of Sec.  1926.1434 are met. OSHA determines that it is unnecessary to 
apply Sec.  1926.1434 to the use of a substitute operational aid 
because, as long as the substitute device works properly, its use will 
not affect the capacity or safe operation of the equipment. No comments 
were received on this paragraph, and it is promulgated as proposed.
Paragraph (d) Category I Operational Aids and Alternative Measures
    The standard categorizes operational aids by the amount of time 
permitted for the use of temporary alternative measures in place of the 
listed operational aids. Employers must ensure the repair of Category I 
operational aids, addressed by paragraph (d), no later than 7 days 
after the deficiency occurs. Category II operational aids, addressed 
below by paragraph (e), have a 30-day time limit for repair. Except 
where noted, C-DAC recommended each of these aids for the reasons set 
forth below. The Committee further determined that each of the 
temporary alternative measurers would be safe to use until the 
deficient operational aid was restored to proper service within the 
time required under the section. OSHA agrees. (For purposes of 
clarification, the Agency has added a reference to Sec.  1926.1416(d) 
noting that the requirements of Sec.  1926.1417(j) are applicable. See 
further discussion at Sec.  1926.1417(j).)
    Both Category I and II have an exception to the repair time limits. 
For Category I, if the employer documents that it has ordered the 
necessary parts within 7 days of the occurrence of the deficiency, the 
repair must be completed within 7 days of receipt of the part. For 
Category II, if the employer documents that it has ordered the 
necessary parts within 7 days of the date on which the deficiency was 
discovered, and does not receive the part in time to complete the 
repair in 30 days, the repair must be completed within 7 days of 
receipt of the part. OSHA determines that these time limits are both 
feasible and reflective of the amount of time that it is appropriate to 
rely on the temporary alternative measures in each category.
    During the SBREFA Panel process, one Small Entity Representative 
stated that an extended time limit might be required to determine the 
appropriate part number for older equipment. Therefore, it might not be 
possible to order a replacement within 7 days of the occurrence of the 
deficiency. OSHA sought public comment on the extent to which this is a 
problem. OSHA further sought comment on how to accommodate employers 
when the unavailability of a part number hinders them from ordering a 
replacement part. OSHA did not receive comments on these issues.
    The SBREFA Panel also questioned whether the number of ``days'' for 
ordering parts and completing repairs for operational aids refers to 
calendar days or business days. Absent a different definition in the 
standard, OSHA interpreted the word ``days'' to mean ``working days'' 
which, as discussed above in relation to proposed Sec.  1926.1407(e), 
would mean Mondays through Fridays, excluding Federal holidays. OSHA 
sought public comment on whether a different definition of ``days'' 
should apply under this section.
    One commenter stated that the use of the term ``days'' is unclear. 
(ID-0143.1.) Two commenters stated it was C-DAC's intention that the 
term ``days'' mean calendar days as opposed to business days. The 
commenters stated that the circumstances in Sec.  1926.1407(e), where 
the rule uses business days, are unique because power companies are not 
open/available on weekends.
    OSHA concludes that the 7 and 30 day time frames should refer to 
calendar days. The periods correspond to one calendar week and one 
typical calendar month, and it is, therefore, easy to determine when 
the period ends if they mean calendar days. Moreover, referring to 
``calendar'' days will lead to faster repairs and help promote safety. 
Therefore, OSHA has clarified by adding the word ``calendar'' before 
each use of the word ``days'' in this section; the remainder of 
paragraph (c) is identical to the proposed rule.
    Paragraph (d) lists the required Category I operational aids and 
the acceptable temporary alternative measures for these aids.
    Boom Hoist Limiting Device: Paragraph (d)(1) requires that all 
equipment manufactured after December 16, 1969, have a boom hoist 
limiting device. As defined in Sec.  1926.1401, a boom hoist limiting 
device ``disengages boom hoist power when the boom reaches a 
predetermined operating angle'' and also ``sets brakes or closes valves 
to prevent the boom from lowering after power is disengaged.'' Section 
1926.1401 also defines the term ``boom hoist limiting device'' to 
include ``boom hoist disengaging device, boom hoist shutoff, boom hoist 
disconnect, boom hoist hydraulic relief, boom hoist kick-outs, 
automatic boom stop device, or derricking limiter.'' A boom hoist 
limiting device automatically prevents the boom hoist from pulling the 
boom past the minimum allowable radius (maximum boom angle). If the 
boom hoist pulls the boom past that point, a failure is likely (for 
example, the boom

[[Page 47985]]

could buckle from being forced against the boom stop).
    The December 16, 1969, date reflects the effective date of ASME 
B30.5-1968. This was the first national consensus standard to require a 
boom hoist limiting device, and C-DAC regarded that date as a 
reasonable indicator of when the industry began to widely manufacture 
or equip cranes and derricks with such devices. OSHA agrees. Although 
the ASME standard only applies to crawler, locomotive, and truck 
cranes, OSHA is extending this provision to all equipment based on 
prevailing industry practice.
    The standard includes three temporary alternative measures in 
paragraphs (d)(1)(A)-(C), of which the employer must use at least one 
if the boom hoist limiting device malfunctions: (A) Use of a boom angle 
indicator; (B) clearly marking the boom hoist cable at a point that 
will give the operator sufficient time to stop the hoist to keep the 
boom within the minimum allowable radius; and, (C) if a spotter is 
used, clearly marking the boom hoist cable at a point that will give 
the spotter sufficient time to signal the operator and have the 
operator stop the hoist to keep the boom within the minimum allowable 
radius. C-DAC recommended these measures because historically they were 
used by employers prior to the development of the boom hoist limiting 
device.
    In the proposed rule, Sec.  1926.1416(d)(1)(ii) specified that 
employers must, on a permanent basis, use at least one of these 
measures for equipment manufactured on or before December 16, 1969 that 
``was not originally equipped'' with a boom hoist limiting device. OSHA 
notes that equipment not originally equipped with a boom hoist limiting 
device might have one added later, and that such a piece of equipment 
should be treated the same as equipment originally equipped with such a 
device. Accordingly, OSHA has modified Sec.  1926.1416(d)(1)(ii) by 
replacing ``was not originally equipped'' with ``is not equipped'' and 
removing ``on a permanent basis.'' If and when the equipment is 
modified to include the limiting device, it would fall under Sec.  
1926.1416(d)(1)(i). Until that point, it would remain under Sec.  
1926.1416(d)(1)(ii), and at least one of the measures in paragraphs 
(d)(1)(A)-(C) would be required at all times.
    Luffing Jib Limiting Device: Paragraph (d)(2) requires that 
equipment with a luffing jib have a luffing jib limiting device. As 
defined in Sec.  1926.1401, a luffing jib limiting device ``is similar 
to a boom hoist limiting device, except that it limits the movement of 
the luffing jib.'' These devices function similarly and are 
distinguished only as to the type of crane extension they are designed 
to limit automatically, the jib or the boom. The temporary alternative 
measures for a luffing jib limiting device are the same as those for a 
boom hoist limiting device in paragraphs (d)(1)(i)(A)-(C). For clarity, 
the Agency added the words, ``rather than the boom hoist'' to paragraph 
(d)(2)(i).
    Anti Two-Blocking Device: Paragraph (d)(3) sets forth the 
requirements for anti two-blocking devices. Section 1926.1401 defines 
``two-blocking'' as ``a condition in which a component that is 
uppermost on the hoist line such as the load block, hook block, 
overhaul ball, or similar component, comes in contact with the boom 
tip, fixed upper block or similar component. This binds the system and 
continued application of power can cause failure of the hoist rope or 
other component.'' As the definition indicates, two-blocking can cause 
the crane to drop the load, the headache ball, or another component, 
creating a hazard to employees below. When hoisting personnel, an anti 
two-blocking device had been required by former Sec.  
1926.550(g)(3)(ii)(C) since October 3, 1988, but was not otherwise 
required under subpart N. OSHA concludes that requiring the use of anti 
two-blocking devices will reduce the number of crane-related injuries 
and fatalities.
    There are two forms of anti two-block devices: an automatic 
prevention device or a warning device. The automatic prevention device 
automatically stops two-blocking from occurring. The warning device 
warns the operator when two-blocking is about to occur. OSHA determines 
that an automatic prevention device provides better protection than a 
warning device for employees, since it automatically stops two-
blocking. As discussed below, the standard ultimately requires 
automatic prevention devices on all equipment manufactured after 
February 28, 1992, under a phase-in schedule. The standard takes into 
account of the date the national consensus standard, ASME B30.5, began 
to require such devices for telescopic boom cranes, and that B30.5 
continues to allow lattice boom cranes to be equipped with either 
automatic prevention devices or warning devices.
    ASME B30.5, effective February 28, 1992, states that telescopic 
boom cranes must have automatic prevention devices. For lattice boom 
cranes, ASME B30.5 states that they must have two-block protection but 
allows greater flexibility, allowing them to be equipped with either 
automatic prevention devices or warning devices. The additional 
protection for telescopic boom cranes in the ASME standard reflects the 
fact that such cranes are more likely to two-block because telescoping 
the boom out (an action that does not occur with lattice boom cranes) 
moves the boom's block closer to the load end of the hoist cable, which 
can cause two-blocking.
    Because February 28, 1992 is the date that ASME B30.5 first stated 
that telescopic boom cranes must have anti two-block devices and is 
when the industry first began widely manufacturing or equipping such 
cranes with such devices, proposed paragraph (d)(3)(i) requires 
automatic prevention devices on all telescopic boom cranes manufactured 
after February 28, 1992. However, because ASME B30.5 allows lattice 
boom cranes to have either an automatic prevention device or a warning 
device since February 28, 1992, paragraph (d)(3)(ii)(A) gives employers 
the option of using either device on lattice boom cranes manufactured 
between February 28, 1992, and one year after the effective date of 
this standard.
    OSHA concludes that an automatic prevention device provides better 
protection than a warning device because it directly addresses the 
hazard, rather than alerting an operator and requiring an additional 
step by the operator to address the hazard. Therefore, lattice boom 
cranes manufactured more than one year after the effective date of this 
standard must be equipped with an automatic prevention device.
    Paragraph (d)(3)(ii)(C) excludes lattice boom equipment used during 
certain activities from the anti two-block requirements of (d)(3)(A) 
and (B). The provision exempts lattice boom equipment when used for 
dragline, clamshell (grapple), magnet, drop ball, container 
handling,\81\ concrete bucket, marine operations that do not involve 
hoisting personnel, and pile driving work. C-DAC indicated that most of 
these operations involve heavy repetitive motion, and anti-two-block 
devices used during these activities consistently malfunction (that is, 
the device ``trips'' even though two-blocking has not occurred) and are 
frequently damaged.
---------------------------------------------------------------------------

    \81\ In most situations hoisting containers are regulated under 
29 CFR part 1918; this standard applies to hoisting containers only 
where that activity is construction work. For example, hoisting a 
container of construction material from a ship onto a concrete pier 
that is part of a bridge construction project is a construction 
activity covered by this standard.
---------------------------------------------------------------------------

    However, note that Sec.  1926.1437(f)(1) requires anti two-block 
devices on floating cranes/derricks and land

[[Page 47986]]

cranes/derricks on barges when hoisting personnel or hoisting over an 
occupied cofferdam or shaft. The Agency determines that cranes need 
anti two-block devices to prevent employees from being dropped and to 
prevent loads from striking employees in the confined work environment 
of a cofferdam or shaft. These safety considerations outweigh any 
concern for damage to a device or unnecessary ``tripping'' during 
marine operations.
    The temporary alternative measures available when an anti two-block 
device on a lattice-boom crane or derrick malfunctions are to clearly 
mark the cable so that it can easily be seen by the operator at a point 
that will give the operator sufficient time to stop the hoist to 
prevent two-blocking, or to use a spotter to warn the operator to stop 
the hoist.
    For telescopic boom cranes, the temporary alternative measures 
required are to clearly mark the cable so that it can easily be seen by 
the operator at a point that will give the operator sufficient time to 
stop the hoist to prevent two-blocking and to use a spotter when 
extending the boom. OSHA determines that the alternative measures for 
telescopic boom cranes must require the use of a spotter when extending 
the boom because two-blocking can occur even when the cable hoist is 
not being operated. As noted above, telescoping the boom out moves the 
boom's block closer to the load end of the hoist cable, which can cause 
two-blocking. A mark on the hoist cable in such instances will not warn 
the operator that two-blocking is about to occur. Therefore, when 
extending the boom, a spotter is required.
    The proposed rule did not address the issue of anti two-block 
protection for articulating cranes. Many such cranes are equipped with 
forks at the end of the boom and do not have the potential for two-
blocking. However, those equipped with a load hoist present the same 
potential for two-blocking as other cranes with load hoists. A trade 
association pointed out that the ASME standard for articulating cranes, 
ASME B30.22-1998, first required two-block protection effective 
December 31, 1999. (ID-0206.1.) OSHA infers that articulating cranes 
with boom hoists manufactured after December 31, 1999, were routinely 
equipped with automatic two-block protection after that date. 
Therefore, to treat such cranes in a manner similar to lattice boom 
cranes and telescopic boom cranes, OSHA is adding Sec.  
1926.1416(d)(3)(iii) to the final rule.
Paragraph (e) Category II Operational Aids and Alternative Measures.
    Paragraph (e) of this section lists the required Category II 
operational aids and the acceptable temporary alternative measures for 
these aids. If any of these aids is not working properly, it must be 
repaired no later than 30 days after the deficiency occurs. As noted 
above, if the employer documents that it has ordered the necessary 
parts within 7 calendar days from the occurrence of the deficiency, and 
does not receive the part in time to complete the repair in 30 calendar 
days, the repair must be completed within 7 calendar days of receipt of 
the part. (For purposes of clarification, the Agency has added a 
reference to Sec.  1926.1416(e) noting that the requirements of Sec.  
1926.1417(j) are applicable. See further discussion at Sec.  
1926.1417(j).)
    Boom Angle or Radius Indicator: Paragraph (e)(1) requires a boom 
angle or radius indicator that is readable from the operator's station 
on all equipment. Section 1926.1401 defines ``boom angle indicator'' as 
``a device which measures the angle of the boom relative to the 
horizontal.'' This definition is identical to that in the SC&RF 
Handbook. It is necessary to know the boom angle to determine the 
crane's capacity from its load chart. The temporary alternative measure 
is to measure the radii or boom angle with a measuring device.
    Jib Angle Indicator: Paragraph (e)(2) requires a jib angle 
indicator on all equipment with a luffing jib. The temporary 
alternative measure is to measure the radii or jib angle with a 
measuring device.
    Boom Length Indicator: Paragraph (e)(3) requires a boom length 
indicator on all equipment equipped with a telescopic boom. Section 
1926.1401 defines a ``boom length indicator,'' as a device that, 
``indicates the length of the permanent part of the boom (such as ruled 
markings on the boom) or, as in some computerized systems, the length 
of the boom with extensions/attachments.'' OSHA did not receive any 
comments on the definition and is promulgating it as proposed. The 
operator must know the length of the boom because it affects the 
crane's capacity, as shown on the load chart. At least one of the 
following must be used as a temporary alternative measures: mark the 
boom with measured marks to calculate boom length; calculate boom 
length from boom angle and radius measurements; or measure the boom 
with a measuring device.
    Load Weighing and Similar Devices: Proposed paragraph (e)(4) 
required load weighing and similar devices on all equipment with a 
rated capacity over 6,000 pounds and manufactured after March 29, 2003 
(except derricks; a comparable provision for derricks is in Sec.  
1926.1436(f)(3), discussed below). The framework of this proposed 
paragraph was similar to the approach taken in sec. 5-1.9.9.2 of ASME 
B30.5-2004, respecting these aids. The proposed standard permitted 
employers to choose to outfit its equipment with either a load weighing 
device, load moment (or rated capacity) indicator, or a load moment or 
rated capacity limiter. The latter two terms are defined in Sec.  
1926.1401. All three devices are intended to help the operator avoid 
exceeding the equipment's rated capacity and thereby prevent the crane 
from tipping over.
    This proposed provision was limited to equipment (other than 
derricks) manufactured after March 29, 2003. That was the date when 
ASME B30.5 first called for all mobile cranes with a rated capacity 
over 6,000 pounds to be equipped with load weighing devices. The 
proposed provision was thus keyed to the date when the industry first 
began widely manufacturing or equipping mobile cranes with load 
weighing or load moment devices.
    A trade association pointed out that ASME B30.5 does not apply to 
articulating cranes and that the applicable consensus standard, ASME 
B30.22, does not require the devices specified in paragraph (e)(4). 
(ID-0206.1.) The commenter stated, however, that these are likely to be 
required by the 2010 update of ASME B30.22.
    As discussed in Sec.  1926.1400, evidence in the record shows that 
many articulating cranes are currently equipped with automatic overload 
prevention devices which, like the devices specified in this section, 
are designed to avoid the possibility of tipover. Therefore, the 
tipover hazard addressed by paragraph (e)(4) can be addressed for 
newly-manufactured articulating cranes by requiring such cranes to be 
equipped with either automatic overload prevention devices or one of 
the devices specified in paragraph (e)(4). To achieve this objective, 
OSHA is therefore revising proposed paragraph (e)(4). The requirement 
in proposed paragraph (e)(4) is revised to exclude articulating cranes 
and is renumbered paragraph (e)(4)(i) in the final rule. New paragraph 
(e)(4)(i) includes temporary alternative measures based on calculations 
from sources recognized by the industry. The proposed rule had provided 
for calculations based on a ``reliable'' source or calculation method, 
or ``by other equally reliable means.'' To avoid the

[[Page 47987]]

potentially subjective interpretations of ``reliable,'' OSHA is instead 
requiring that the measurements be from a source typically relied on in 
the industry.
    A new paragraph (e)(4)(ii), applicable to articulating cranes, is 
added. This new paragraph requires articulating cranes manufactured 
more than one year after the effective date of the standard to be 
equipped with either an automatic overload prevention device, a load 
weighing device, a load moment (or rated capacity) indictor, or a load 
moment (or rated capacity) limiter. Paragraph (e)(4)(ii) will protect 
workers against articulating cranes tipping over while giving employers 
a choice of means to achieve this objective. The temporary alternative 
measure required under paragraph (e)(4)(ii) is the same as that 
required under paragraph (e)(4)(i).
    A commenter informed OSHA that New York City requires a load 
weighing or similar device on cranes manufactured after December 30, 
1993, and requested that the final rule allow local governments to 
impose stricter requirements. (ID-0156.1.) Whether local governments 
can impose stricter requirements than provided under this final rule is 
discussed under federalism in section V.D of this preamble.
    Proposed paragraph (e)(5) required two future operational aids--an 
outrigger position sensor/monitor and a hoist drum rotation indicator--
on all equipment manufactured more than one year after the effective 
date of this standard.\82\ As discussed in Sec.  1926.1404, certain 
types of equipment are equipped with stabilizers rather than 
outriggers, and OSHA is modifying the language of proposed 
``outrigger'' provisions to clarify that such provisions also apply to 
equipment with stabilizers. Therefore, paragraph (e)(5)(i) is being 
reworded in the final rule to apply to equipment with stabilizers as 
well as outriggers. Paragraph (e)(5)(ii), which requires hoist drum 
rotation indicators, is promulgated as proposed.
---------------------------------------------------------------------------

    \82\ The proposed rule would have required these aids on 
equipment manufactured after January 1, 2008. Here, as elsewhere, 
OSHA believes that devices not commonly installed on equipment 
should be not be required until more than one year after the 
effective date of the final rule.
---------------------------------------------------------------------------

    One commenter stated that deadman controls should be required on 
all cranes. (ID-0156.1.) Section 1926.1435(d)(2)(viii) requires that 
tower cranes have deadman controls, but C-DAC did not determined these 
should be required on other types of cranes. This commenter has not 
stated why it believes such controls are needed for safe operation of 
other types of cranes. Accordingly, OSHA defers to C-DAC's judgment 
that deadman controls should not be required on cranes other than tower 
cranes.
Section 1926.1417 Operation
    Section 1926.1417 addresses hazards associated with general 
operation of equipment covered by this standard. Previously, 29 CFR 
part 1926, subpart N primarily addressed safe operation by 
incorporating national consensus standards and manufacturer 
recommendations. For example, former Sec.  1926.550(b)(2) required 
crawler, truck, and locomotive cranes to comply with the operation 
requirements of ANSI B30.5-1968. The provisions in this section are 
designed to update such requirements, make them more comprehensive, and 
state them in a way that is clear and enforceable.
Paragraph (a)
    Paragraph (a) of this section requires employers to comply with the 
manufacturer procedures applicable to the operational functions of all 
equipment covered by this standard, including the use of equipment with 
attachments. ``Procedures'' is defined in Sec.  1926.1401 to include, 
but not be limited to, ``instructions, diagrams, recommendations, 
warnings, specifications, protocols, and limitations.''
    Two commenters opposed this provision. The first, a representative 
from the building industry, stated that it was ``problematic'' to 
``literally require employers to become familiar with and obey to the 
letter anything written by a manufacturer related to a crane, no matter 
how unwise, unnecessary, or infeasible.'' (ID-0232.1.) The commenter 
also explained that crane manufacturers fear tort liability, which 
causes them to over-warn in their manuals, and suggested that employers 
needed to be able to use common sense to separate over-warning from 
serious recommendations. The commenter argued further that this 
provision constituted a delegation of authority inconsistent with the 
U.S. Constitution and the Occupational Safety and Health Act, and was 
unsupported by the rulemaking record. A building industry trade 
association agreed with the building industry representative's points 
and advocated amending this provision to require operation of equipment 
in a manner ``consistent with manufacturers' recommendations.'' (ID-
0214.1.) It also believed that the costs of complying with this 
provision would be excessive.
    OSHA disagrees with the suggestion that this provision is 
problematic because of the possibility that some equipment manufacturer 
may conceivably develop procedures which are ``unwise, unnecessary, or 
infeasible.'' Neither commenter provided any specific examples or data 
in support of this assertion, and it is unreasonable to think that 
crane manufacturers would develop such procedures. Like all product 
manufacturers, crane manufacturers want satisfied customers and repeat 
business, and OSHA has no basis to conclude, as the commenters suggest, 
that they will alienate their customers by recommending unnecessary 
procedures that will reduce the usefulness and productivity of their 
products. Moreover, there are sound reasons to determine that following 
manufacturer procedures will result in both the safe and productive use 
of cranes. The manufacturer of a large and complex piece of machinery 
such as a crane is thoroughly familiar with the machine's design, 
components, and capabilities and is well-positioned to develop the 
procedures that enable the crane to be used effectively and safely. The 
commenters provided no basis for OSHA to conclude that allowing crane 
users to pick and choose which manufacturer recommendations to follow 
will promote safety, and OSHA does not believe this is the case. 
Moreover, C-DAC's members had vast experience in crane manufacturing 
and use and were well-positioned to determine whether compliance with 
manufacturer's recommendations will promote crane safety. They 
concluded that it would. In the absence of additional evidence, OSHA 
defers to C-DAC's experience.
    OSHA also finds no merit in the building industry representative's 
assertion that compliance with manufacturer recommendations should not 
be required because manufacturers ``over-warn'' out of liability 
concerns. The best way for manufacturers to avoid liability for 
accidents involving their products is to recommend the precautions that 
are needed to prevent such accidents, so their concern for tort 
liability is fully consistent with the objective of this standard.
    Regarding the delegation of authority issue, OSHA notes that 
provisions similar to this one, including provisions in the prior 
cranes standard in former Sec.  1926.550, have withstood judicial 
scrutiny on every occasion on which they have been challenged.\83\ See, 
e.g.,

[[Page 47988]]

Associated Builders & Contractors v. Miami-Dade County, 594 F.3d 1321; 
Associated Builders & Contractors, Inc. v. Brock, 862 F.2d 63, 68-69 
(3d Cir. 1988); Towne Constr. Co. v. Occupational Safety & Health 
Review Comm'n, 847 F.2d 1187, 1189 (6th Cir. 1988) (finding the 
physical impossibility of requiring OSHA independently to set safety 
standards for every industry job classification and industrial 
substance in the country justifies reliance on the fruits of private 
efforts as governmental standards).
---------------------------------------------------------------------------

    \83\ Among the many OSHA standards requiring compliance with 
manufacturer information are: Sec.  1910.134, UI; Sec.  1910.184, 
Slings; Sec.  1910.265, Sawmills; Sec.  1915.113, Shackles and 
hooks; Sec.  1910.217, Mechanical power presses; Sec.  1926.451, 
Scaffolds: General requirements; Sec.  1926.302, Power-operated hand 
tools; and Sec.  1917.43, Powered industrial trucks.
---------------------------------------------------------------------------

    The requirement in Sec.  1926.1417(a) to comply with manufacturers' 
operating procedures is essentially the same as that imposed by former 
Sec.  1926.550(a)(1) of the prior rule. As the commenter from the 
building industry notes, former Sec.  1926.550(a)(1) was upheld against 
a challenge that requiring compliance with manufacturer's 
specifications and operating limitations is an illegal delegation of 
authority to private persons. (ID-0232.1, citing Towne Construction, 12 
BNA OSHC 2185 (OSHRC 1986) aff'd 847 F.2d 1187 (6th Cir. 1988).) The 
Review Commission and the Sixth Circuit found that the prior rule's 
delegation to manufacturers was circumscribed by other regulatory 
requirements governing the design and construction of cranes. (See, 
e.g., 12 BNA OSHC at 2186 noting design specifications in 29 CFR 
1910.180(c)(1) applied to cranes covered by former Sec.  1926.550.) The 
final rule contains design, construction and testing requirements that 
are more comprehensive than those applicable under the prior rule. 
These limitations on manufacturers' discretion are sufficient to defeat 
a facial delegation challenge. 12 BNA OSHC at 2186, 847 F.2d at 1189. 
See also Associated Builders and Contractors, 2010 WL 276669 *3 (OSHA's 
adoption of consensus specifications for safe operation of cranes 
``conforms with an intelligible principle'' and is therefore valid). To 
require OSHA to independently determine and codify every safety 
procedure for every configuration of every make and model of crane or 
other equipment covered by this standard, as well as every attachment 
or device that could be used with that equipment, would be unrealistic, 
inefficient, and contrary to all jurisprudence on this issue. In light 
of C-DAC's recommendations to include manufacturer procedures in 
subpart CC, and based on the record as a whole, OSHA concludes that 
requiring compliance with manufacturer procedures is an efficient and 
appropriate means of ensuring safe maintenance, assembly and 
disassembly, configuration, and operation of equipment covered by this 
subpart. Therefore, OSHA is incorporating manufacturers' procedures and 
recommendations into Sec.  1926.1417, and several other provisions of 
this standard, where the Agency determines that it is the most 
effective and appropriate way to accomplish the OSH Act goals.
    Two commenters objected to OSHA's inclusion of manufacturer 
``recommendations'' in the definition for equipment criteria. (ID-
0205.1; -0213.1.) The commenters, however, provide no justification for 
distinguishing manufacturer recommendations from other manufacturer 
procedures. C-DAC determined that manufacturer recommendations were an 
appropriate means of ensuring the safe use of equipment, and OSHA 
agrees. Manufacturer recommendations, like procedures, specifications, 
prohibitions, etc., instruct the user how to use the equipment safely 
and in a manner most consistent with the equipment's design.
    Moreover, there is nothing novel in OSHA's reliance on manufacturer 
recommendations. A number of OSHA standards already require compliance 
with manufacturer recommendations. See, e.g., Sec.  1910.134, 
Respirator protection; Sec.  1910.184, Slings. As noted above, the 
former crane standard (in former Sec.  1926.550(a)) replaced by this 
final rule included a broad prohibition based solely on manufacturer 
recommendations: ``Attachments used with cranes shall not exceed the 
capacity, rating, or scope recommended by the manufacturer.'' Yet no 
court has invalidated an OSHA standard requiring compliance with 
manufacturer recommendations, even though several containing such 
language have been challenged. The commenters offer no new compelling 
legal arguments for why OSHA should delete provisions requiring 
compliance with manufacturer recommendations, and do not identify a 
meaningful distinction between a manufacturer's recommendation, 
procedure, instruction, or specification. Accordingly, OSHA is 
requiring compliance with manufacturer recommendations as proposed.
    Finally, with respect to the suggestion to permit alternate 
procedures provided they are ``consistent with'' manufacturers' 
procedures, the Agency concludes that amending this provision in that 
manner would be unacceptable because it would lead to uncertainty over 
what procedures are ``consistent with'' the manufacturers' recommended 
procedures. Therefore, this provision is promulgated as proposed.
Paragraph (b) Unavailable Operation Procedures
    Under paragraph (b)(1) of this section, in the event that the 
manufacturer procedures for operation are unavailable, the employer 
will be required to develop procedures necessary for the safe operation 
of the equipment and its attachments. The employer will also be 
required to ensure compliance with such procedures. ``Unavailable 
procedures'' is defined in Sec.  1926.1401 as procedures that are no 
longer available from the manufacturer, or have never been available 
from the manufacturer. For instance, procedures that are in the 
employer's possession but are not on the job site, would not be 
considered unavailable under Sec. Sec.  1926.1417(b) and 
1926.1441(c)(2), where the same term is used.
    An example of a situation where procedures might be unavailable is 
old equipment where the manufacturer is no longer in business. Even 
where the original manufacturer became part of another company that is 
still in business, in some cases the successor company no longer has 
the original manufacturers' procedures for that equipment. In such 
instances the employer will be required to develop and follow 
substitute procedures.
    Paragraphs (b)(2) and (b)(3) of this section specify qualifications 
criteria for those who develop two aspects of the substitute 
procedures. Under Sec.  1926.1417(b)(2), procedures for the operational 
controls will have to be developed by a qualified person. As defined in 
Sec.  1926.1401 of this standard, ``operational controls'' are levers, 
switches, pedals and other devices for controlling equipment operation. 
A qualified person has the requisite level of expertise to develop such 
procedures in light of both the complexity of the factors that must be 
considered and the nature of the operational controls.
    Under paragraph (b)(3), operational procedures related to equipment 
capacity would have to be developed and signed by a registered 
professional engineer familiar with the equipment. The type and 
complexity of engineering analysis that is needed to develop safe 
procedures related to capacity necessitates that this work be done by a 
registered professional engineer (RPE). In addition, because capacity 
is so critical to safe operation, a signature by the RPE is needed to 
ensure that this work is done with the requisite care. No comments were 
submitted on this

[[Page 47989]]

provision; therefore, it is promulgated as proposed.
Paragraph (c) Accessibility of Procedures
    Paragraph (c)(1) of this section requires employers to provide the 
operator with ready access in the cab to the procedures applicable to 
the operation of the equipment, including the following: Rated 
capacities (load charts), recommended operating speeds, special hazard 
warnings, and the instructions and operator's manual.
    For the purposes of this standard, ``special hazard warnings'' are 
warnings of site-specific hazards (for example, proximity of power 
lines). This term is defined in Sec.  1926.1401 to differentiate these 
site-specific warnings from all other general hazard warnings which are 
common to typical construction worksites.
    Previously, former Sec.  1926.550(a)(2) of subpart N required rated 
capacities, recommended operating speeds, and special hazard warnings 
to be posted on the equipment, and instructions and warnings to be 
visible at the operator's station. Unlike Sec.  1926.1417(c)(1) of this 
standard, it did not require the operator's manual to be accessible to 
the operator.
    OSHA concludes that the information in these materials, including 
the operator's manual, is essential for safe crane operation. C-DAC 
determined that this information is needed to help the operator avoid 
performing operations beyond a crane's capacity and recommended 
operating speed, and by increasing operator awareness of special 
hazards related to a specific piece of equipment. In addition, C-DAC 
determined that this information needs to be available to the equipment 
operator in the cab so that the operator can obtain the information as 
the need arises. If the information were not available in the cab, 
operations would have to be delayed for the operator to leave the cab 
and obtain the information elsewhere (or for someone else to obtain 
them and bring them to the operator). The prospect of such a delay 
would serve as a disincentive to obtaining the information and increase 
the chance that operations would proceed without it.
    A building industry trade association stated its belief that the 
cost of obtaining and maintaining manufacturers procedures applicable 
to operation of the equipment would be excessive, and stated that 
OSHA's contention that such costs would be ``modest'' was not supported 
by the rulemaking record. (ID-0214.1.) This commenter did not provide 
any substantiation for this claim. Based on the absence of this 
support, and on the absence of other comments raising a cost objection 
related to this requirement, OSHA concludes that the cost of obtaining 
and maintaining manufacturers' procedures for equipment operations is 
not generally viewed as significant, especially when weighed against 
the potential economic and human costs of a crane accident. Moreover, 
as noted below, the trend toward providing operating manuals and 
procedures via digital media and over the Internet is substantially 
lowering costs for acquiring and maintaining such information. 
Therefore, OSHA defers to C-DAC's experience and is promulgating this 
provision as proposed.
    It has become increasingly common for equipment to be supplied by 
manufacturers with load capacities in electronic form. Because of the 
potential for an electronic or other failure to occur that would make 
that information inaccessible, Sec.  1926.1417(c)(2) addresses a 
situation in which electronic or other failure makes such information 
unavailable. Under this paragraph, where load capacities are available 
in the cab only in electronic form and a failure makes the load 
capacities inaccessible, this paragraph requires that the operator 
immediately cease operations or follow safe shut-down procedures until 
the load capacities become available again (in electronic or other 
form). No comments were submitted on this provision; therefore it is 
promulgated as proposed.
Paragraph (d)
    This paragraph requires that operators refrain from engaging in any 
practice that would divert their attention while operating the crane. 
This includes the use of cell phones except when cell phones are used 
for signal communications. Operating a crane is a complex task that 
requires an operator's full attention to be performed safely. This 
paragraph addresses the risk that an accident can occur if the 
operator's full attention is not directed toward that task.
    During the hearing, a witness from a lumber trade association 
described the practice in which the operator controls an articulating 
boom crane with a forklift attachment via remote controls and then 
assists with the off-loading of the materials. (ID-0341.) He expressed 
concern that the operator's participation in the off-loading of the 
crane would violate Sec.  1926.1417(d)'s prohibition on ``any practice 
that diverts his/her attention while actually engaged in operating the 
crane.'' (ID-0341.) As a result, his company would need to use an 
additional person for the delivery, raising costs. (ID-0341.)
    Section 1926.1417(d) would not necessarily prohibit the activity 
that the witness described. If the operator uses the remote controls to 
position the articulating crane and lock it into position before off 
loading the materials, and does not simultaneously operate the controls 
and offload the materials, the operator would not be ``actually engaged 
in operating the crane'' at the same time as he is off-loading the 
crane. The operator would also not be considered to ``leave the 
equipment unattended'' so long as the operator has immediate access to 
the remote controls. See discussion of Sec.  1926.1417(e) below. No 
other comments were submitted on this provision; therefore it is 
promulgated as proposed.
Paragraph (e) Leaving Equipment Unattended
    Paragraph (e)(1) of this section specifies when the operator must 
be at the controls for safety-related reasons. These include making 
necessary adjustments to keep the load in a safe position, moving the 
load where necessary for reasons of safety (such as for the safety of 
employees working with or near the load), and responding to emergencies 
that may arise during lifting operations. Previously, under 29 CFR part 
1926, subpart N, the operator of a crawler, locomotive, or truck crane 
was prohibited from leaving the controls while a load is suspended.
    In the experience of C-DAC members, this requirement was routinely 
breached when the load is ``held suspended,'' that is, without need for 
adjustment of the load's or the equipment's position for an extended 
period. In such circumstances, the operator does not need to manipulate 
the controls for the period of time that the load is suspended and it 
was a common practice for the operator to leave the controls. To 
address this problem, C-DAC proposed that OSHA establish criteria that 
allow the operator to leave the controls when it is safe to do so 
rather than to simply continue the existing rule unchanged. (Note that 
the suspension of working gear, such as slings, spreader bars, ladders, 
and welding machines, is addressed separately in Sec.  
1926.1417(e)(2).)
    Several commenters from the materials delivery industry noted that 
various types of equipment in that industry can be operated by remote 
control and expressed concern that Sec.  1926.1417(e)(1) would prohibit 
the use of those remote controls and thereby require additional 
personnel to perform the same task. (ID-0184.1; -0206.1.) To

[[Page 47990]]

be clear, the new standard does not prohibit the use of remote 
controls. During the hearing on this rulemaking, a witness from a 
lumber trade association testified that the use of portable radio 
remote controls is common, and provided examples of operators with 
their remotes strapped around their waists or their shoulders. (ID-
0341; -0345.13.) He explained that the ``operator is physically located 
at the same location as the remote control and is therefore able to 
perform controlled operations as quickly as an operator who is seated 
at the top seat controls'' and ``can also be positioned to ensure that 
there's no obstructed view.'' (ID-0341.) Such use would not be 
prohibited. Where an operator takes the remote controls out of the cab, 
keeps the controls within reach in the same manner as if in the cab, 
and is able to use the remote controls to control the equipment as 
effectively as if in the cab, the operator has not left the controls 
within the meaning of Sec.  1926.1417(e). Therefore, the operator is 
not subject to the conditions of Sec. Sec.  1926.1417(e)(1)(i) through 
(iv).
    Section 1926.1417(e) requires that the operator not leave the 
controls while the load is suspended except when four conditions, 
outlined in Sec. Sec.  1926.1417(e)(1)(i) through (e)(1)(iv), are met. 
OSHA has revised the introductory text to make it clear that each one 
of the conditions in Sec. Sec.  1926.1417(e)(1)(i) through (e)(1)(iv) 
must be met for the operator to leave the controls.
    Paragraph (e)(1)(i) requires the operator to remain adjacent to the 
equipment and not engage in any other duties. This paragraph will not 
only prevent unauthorized use of the crane by persons who are not 
competent crane operators but also allow the operator to quickly access 
the controls in case the equipment or load inadvertently moves.
    Paragraph (e)(1)(ii) requires the load to be held suspended for a 
period of time exceeding normal lifting operations. As explained above, 
these are instances when the load is ``held suspended,'' that is, 
without need for adjustment of the load's or the equipment's position--
for an extended period. These are circumstances in which the operator 
will not need to manipulate the controls. Such circumstances must be 
for a period of time in excess of the periods that occur during normal 
lifting operations.
    For example, during the construction of a structure, a large 
subassembly is being attached to another part of the structure. After 
the subassembly has been initially connected, it is held suspended 
(that is, without need for adjustment of position) for support for 
several hours while the final connections are made. This period exceeds 
normal lifting operations. In this example, the criterion of Sec.  
1926.1417(e)(1)(ii) would be met.
    Another, contrasting example is the following: A steel structure is 
being erected. When installing the steel beams, the operator holds the 
beam suspended (typically for several minutes) while it is initially 
connected. Holding the beam suspended in such instances is a normal 
part of the steel erection process. In this example the criterion in 
Sec.  1926.1417(e)(1)(ii) would not be met and the operator cannot 
leave the controls.
    Paragraph (e)(1)(iii) requires the competent person to determine 
that it is safe for the operator to leave the controls and implement 
measures necessary to restrain the boom hoist and telescoping, load, 
swing, and outrigger functions. This provision addresses the hazard of 
inadvertent movement while the controls are unattended.
    Paragraph (e)(1)(iv) requires barricades or caution lines, and 
notices to be erected to prevent all employees from entering the fall 
zone. Furthermore, under this paragraph no employees would be permitted 
in the fall zone, including those listed in Sec. Sec.  1926.1425(b)(1) 
through (3), (d), or (e). This is necessary because the added margin of 
safety that results from the operator being at the controls would not 
be present in these circumstances.
    A labor representative recommended retention of the previous 
prohibition of leaving any unattended loads suspended because it 
believed that the four conditions for the exemption were unclear and 
unenforceable. (ID-0199.1.) Specifically, the commenter stated that (1) 
The term ``adjacent to the equipment'' needed to be further explained 
or quantified; (2) further guidance was needed to explain the meaning 
of the phrase ``a period of time exceeding normal operations;'' (3) the 
Agency needs to clarify that the equipment operator can be the 
``competent person'' referred to in this section; and (4) the proposed 
requirement to erect barriers or caution lines to prevent employees 
from entering fall zones are infeasible in many construction zones.
    Regarding the commenter's first two points, in light of the extreme 
variability of equipment types, loads lifted, and construction site 
conditions, OSHA determines it is not possible to use more precise 
language without making the rule underinclusive and/or overinclusive. 
Specifying a precise distance in lieu of saying ``adjacent to the 
equipment,'' and a precise time in lieu of ``a period of time exceeding 
normal operations,'' as the commenter suggests, would not be practical 
in light of the numerous variables that affect these distances and 
times on construction sites. OSHA also rejects the commenter's 
suggestion that the previous prohibition be retained if it is not 
possible to use more precise language. OSHA concludes that this is an 
area where employers can be afforded flexibility without detracting 
from safety, and that the limited conditions under which it is 
permissible to leave a suspended load unattended will accomplish this 
objective.
    Regarding the third point, the answer is ``yes,'' an equipment 
operator can be a ``competent person'' for purposes of this section if 
he or she meets the requirements of the Sec.  1926.1401 definition of 
that term. Finally, where conditions in a construction site exist that 
prevent erection of barriers or caution lines as prescribed by this 
section, Sec.  1926.1417(e) prohibits employers from using this 
exception to the general prohibition of leaving suspended loads 
unattended.
    Proposed paragraph (e)(2) stated that the provisions in paragraph 
(e) do not apply to working gear, which includes slings, spreader bars, 
ladders, and welding machines, where the load is not suspended over an 
entrance or exit.
    The Agency noted in the proposal that the reference to paragraph 
(e) was a drafting error and that the appropriate reference was to 
paragraph (e)(1). In addition, the provision as proposed contained two 
incidences of the word ``not'' which could lead to confusion. 
Therefore, the Agency noted in the proposal that it was considering 
changing the language to state that the provisions in Sec.  
1926.1417(e)(1) do not apply to working gear where the working gear is 
suspended over an area other than an entrance or exit.
    In the proposed rule, OSHA noted that it was common practice for 
employers to leave lightweight items suspended overnight to prevent 
theft and stated that this provision was only intended to apply to 
working gear whose weight was negligible relative to the capacity of 
the equipment. Four commenters believed that the proposed wording of 
Sec.  1926.1417(e)(2) was overly broad to accomplish this purpose 
because it did not limit the weight of the suspended working gear 
relative to the capacity of the equipment and could therefore allow a 
load that placed a significant strain on the equipment to be suspended 
overnight. (ID-0122.1; -0172.1; -0178.1; -0199.1.) OSHA agrees with 
these commenters that this

[[Page 47991]]

provision should be clarified and, in the final rule, has made explicit 
what was stated in the preamble to the proposed rule: that the 
provision only applies where the weight of the working gear is 
negligible relative to the lifting capacity of the equipment.
Paragraph (f) Tag-Out
Paragraph (f)(1) Tagging Out of Service Equipment/Functions
    Where the employer has taken the equipment out of service, this 
paragraph requires that the employer place a tag in the cab stating 
that the equipment is out of service and is not to be used. Where the 
equipment remains in service but the employer has taken a function out 
of service, this paragraph requires that the employer place a tag in a 
conspicuous position stating that that function is out of service and 
is not to be used. This paragraph is designed to prevent hazards 
associated with workers inadvertently attempting to use out-of-service 
equipment or a function that is out of service.
Paragraph (f)(2) Response to ``Do Not Operate''/Tag-Out Signs
    If there is a warning sign on the equipment or starting control, 
paragraph (f)(2)(i) of this section prohibits the operator from 
activating the switch or starting the equipment until the sign is 
removed by someone authorized to remove it or until the operator can 
verify that (A) no one is servicing, working on, or otherwise in a 
dangerous position on the machine, and (B) the equipment has been 
repaired and is working properly. Similarly, under Sec.  
1926.1417(f)(2)(ii), when there is a warning sign on any other switch 
or control, the operator will be prohibited from activating that switch 
or control until the sign has been removed by an individual authorized 
to remove it, or until the operator meets the two requirements of Sec.  
1926.1417(f)(2)(i), described above.
    These provisions will prevent two types of hazards. First, since 
the machine is out of service, there is a risk that an employee 
servicing, working on, or otherwise in a dangerous position on it is 
not expecting it to be activated and would be injured if it were 
activated. Second, if an employee does not know that the equipment is 
malfunctioning or has a function that is not working properly, an 
employee could inadvertently try to operate it with the result that the 
equipment will not work as intended, causing unintended movement or a 
collapse.
    Subpart N of the former rule addressed this issue through sec. 5-
3.1.3g of ANSI B30.5-1968, which states: ``If there is a warning sign 
on the switch or engine starting controls, the operator shall not close 
the switch or start the engine until the warning sign has been removed 
by the person placing it there.'' Instead of requiring that the sign be 
removed by the person who placed it, Sec.  1926.1417(f)(2) permits it 
to be removed by an authorized person and, as an alternative, permits 
the operator to start the equipment after verifying that no worker is 
in a dangerous area and that the equipment has been repaired and is 
working properly. OSHA concludes that either alternative would achieve 
the safety purpose of the tag-out because it would ensure that a 
knowledgeable and responsible person, either the operator or another 
authorized person, verifies that repairs are complete and all workers 
are in a safe position before the equipment can be started.
    As discussed above, the operator will be permitted to start 
equipment that is tagged out, or activate a tagged-out switch, only if 
the procedures specified in Sec.  1926.1417(f)(2)(i) are met. In 
reviewing this provision during the proposal stage, the Agency noted 
that these procedures were not as comprehensive as those in the general 
industry standard for the control of hazardous energy (lockout/tagout), 
which are listed in Sec. Sec.  1910.147(e)(3)(i) through (iii).\84\ The 
Agency requested public comment on whether procedures similar to those 
in Sec. Sec.  1910.147(e)(3)(i) through (iii) \85\ would be feasible 
and appropriate for cranes/derricks used in construction.
---------------------------------------------------------------------------

    \84\ Section 1910.147 is not applicable to construction (see 
Sec.  1910.147(a)(ii)(A)).
    \85\ These general industry provisions state:
    (i) Verification by the employer that the authorized employee 
who applied the device is not at the factory;
    (ii) Making all reasonable efforts to contact the authorized 
employee to inform him/her that his/her lockout or tagout device has 
been removed; and
    (iii) Ensuring that the authorized employee has this knowledge 
before he/she resumes work at that facility.
    Section 1910.147(e)(3)(i) through (iii).
---------------------------------------------------------------------------

    Two commenters opposed broadening the requirements along the lines 
of the requirements in Sec. Sec.  1910.147(e)(3)(i) through (iii), 
stating that the general industry standards were not appropriate for 
cranes and derricks used in construction. (ID-0205.1; -0213.1.) A third 
commenter believed that the Sec.  1910.147(e)(3) procedures were 
feasible and appropriate. (ID-0144.1.) A fourth commenter recommended 
that the tag-out requirements be upgraded to a lock-out requirement to 
provide greater worker protection. (ID-0199.1.) A fifth commenter 
agreed that a lock-out requirement would provide superior protection to 
the proposed tag-out proposal, but that locking out was not feasible on 
some equipment, especially older equipment. (ID-0187.1.) That commenter 
recommended that the requirement be upgraded to a lock-out requirement 
where feasible, but remain a tag out procedure where lock out was not 
feasible. Upon consideration of all these comments, OSHA concludes that 
the record does not clearly indicate that adding a lock-out requirement 
as suggested by the last two commenters is needed to ensure safety and, 
as the one commenter noted, would not be feasible on all equipment. 
Instead, the Agency concludes that the tag-out requirement in the 
proposed rule contains clear and concise restrictions on the conditions 
under which equipment can be brought back into service and will ensure 
that equipment is not started when employees are in a danger zone. 
Therefore, this section is promulgated as proposed.
Paragraph (g)
    This paragraph requires the operator to verify, before starting the 
engine, that all controls are in the proper starting position and that 
all personnel are in the clear. Requiring operators to check that all 
controls are in their proper starting positions will prevent unintended 
movement of the equipment when the engine is initially started. 
Similarly, requiring operators to ensure that all personnel are in the 
clear will prevent personnel from being injured in the event that some 
aspect of the equipment moves upon start-up. No comments were submitted 
on this paragraph; therefore it is promulgated as proposed.
Paragraph (h) Storm Warning
    When a local storm warning has been issued, this paragraph requires 
the competent person to determine whether it is necessary to implement 
manufacturer recommendations for securing the equipment. This provision 
was designed to prevent hazards that could arise from severe weather 
including inadvertent movement and crane collapse. High-speed winds in 
particular can affect both the crane and the load, reducing the rated 
capacity of the crane and affecting boom strength. No comments were 
submitted on this paragraph; therefore it is promulgated as proposed.
Paragraph (i) [Reserved.]
Paragraph (j)
    Under paragraph (j)(1) of this section, when the operator 
determines that an adjustment/repair is necessary, the

[[Page 47992]]

operator is required to promptly inform, in writing, the individual 
designated by the employer to receive such information, as well as the 
next operator in cases where there are successive shifts. OSHA revised 
the organization of the proposed provision for clarity. This 
reorganization involved removing the introductory sentence that 
operators be familiar with the equipment and its proper operation 
because this sentence merely described an enabling condition necessary 
for operators to identify any necessary repairs and adjustments.
    This paragraph addresses the need to identify problems that may 
develop with the equipment during operations. Early recognition of such 
problems by the operator will help prevent accidents that could result 
from continued operation of equipment that needs adjustment and/or 
repair. In the Committee's experience, operators who are familiar with 
the equipment and its proper operation can recognize such equipment 
anomalies and problems. By requiring that information about needed 
adjustments and/or repairs be provided to the individual designated by 
the employer to receive it, this paragraph will facilitate the 
correction of those problems.
    The rule does not specify any particular job title for the person 
to whom the operator would be required to provide this information 
because different employers may assign the responsibility of receiving 
such information to different job classifications.
    Providing this information to the next operator in cases where 
there are successive shifts (that is, shifts that have no break between 
them) will ensure that the next operator is aware of this information 
and will be able to take appropriate action.
    One commenter recommended that the information be transmitted in 
written form. (ID-0132.1.) OSHA agrees with this comment primarily 
because written information would be more easily passed on between 
shifts. OSHA has, therefore, revised Sec.  1926.1417(j) to specify that 
the notification of necessary adjustments or repairs must be in 
writing.
    Additionally, OSHA added Sec.  1926.1417(j)(2) to require employers 
to notify, at the beginning of each shift, all affected employees of 
any necessary adjustments or repairs. This requirement will allow all 
employees affected by the operation of the equipment to be notified of 
any outstanding repairs or adjustments, and provides them with 
information about alternative measures implemented by the employer. 
Affected employees are any employees exposed to equipment-related 
hazards; such employees include, but are not limited to, any employee 
in the fall zone of the load, signal persons, riggers, operators, load 
handlers, and lift directors. OSHA concludes that this provision is 
necessary to allow employees to adjust their work practices following 
implementation of the alternative measures.
    The Agency finds this modification to be consistent with the 
requirements throughout this subpart with respect to sharing 
information about equipment-related hazards. This added provision 
merely requires employers to take the information acquired under Sec.  
1926.1417(j)(1) and distribute it to affected employees. Employers may 
distribute this information by any effective means available.
Paragraph (k)
    This paragraph prohibits safety devices and operational aids from 
being used as a substitute for the exercise of professional judgment by 
the operator. Such devices and aids do not displace the need for 
operators to apply their professional judgment because the devices and 
aids can malfunction and lead to the types of safety hazards they are 
designed to prevent. No comments were submitted on this paragraph; 
therefore it is promulgated as proposed.
Paragraph (l) [Reserved.]
Paragraph (m)
    If the competent person determines that there is a slack rope 
condition requiring re-spooling of the rope, this paragraph requires 
that before starting the lift, it must be verified that the rope is 
seated on the drum and in the sheaves as the slack is removed. This 
will prevent a loose coil of rope from becoming cross-coiled on the 
drum, a portion of the rope coming off the drum altogether, or the rope 
being pulled alongside (instead of seating in) a sheave. Each of these 
conditions can lead to sudden failure of the rope. No comments were 
submitted on this paragraph; therefore it is promulgated as proposed.
Paragraph (n)
    This paragraph requires the competent person to adjust the 
equipment and/or operations to address the hazards posed by wind, ice 
and snow on equipment capacity and stability. In the proposed rule, the 
person would have been required to ``consider the effect'' of those 
elements, but OSHA is clarifying in the final rule that the competent 
person must actually take steps such as re-calculating a lower load 
capacity, stabilizing the equipment, or even postponing a lift. Wind 
can reduce capacity by imposing loads on the equipment, which can also 
reduce stability. Ice and snow can also reduce capacity and stability 
when it accumulates on the equipment. There are numerous variables 
involved in determining the effects of wind, ice and snow in any 
particular circumstance, (for example, the extent to which the crane is 
operating below its rated capacity, the sail effect presented by the 
load, the rate at which ice or snow is accumulating, and whether the 
snow is wet or light). No comments were submitted on this paragraph; 
therefore it is promulgated as proposed with the one change noted 
above.
Paragraph (o) Compliance With Rated Capacity
    Section 1926.1417(o)(1) requires employers to ensure that equipment 
is not operated beyond its rated capacity. Overloading a crane or 
derrick can cause it to collapse, with potentially catastrophic 
consequences. This basic safeguard has long been recognized in the 
industry as crucial and is designed to prevent such accidents. (See 
additional discussion at 73 FR 59792, Oct. 9, 2008).
    Section 1926.1417(o)(2) requires employers to ensure that operators 
are not required to operate the equipment in a manner that would exceed 
its rated capacity, in violation of Sec.  1926.1417(o)(1) above. This 
provision reinforces the general prohibition of Sec.  1926.1417(o)(1) 
by making it a separate violation for an employer to expressly require 
an operator to exceed the equipment's rated capacity. It is designed to 
avoid a situation where an employer pressures an operator to conduct a 
lift that exceeds the equipment's rated capacity to avoid the time and 
expense associated with bringing in larger capacity equipment.\86\
---------------------------------------------------------------------------

    \86\ In some instances the overcapacity problem can be avoided 
by repositioning the crane (for example, by moving the crane so that 
the lift can be performed at a higher boom angle). However, even in 
those instances some time (and associated expense) is involved.
---------------------------------------------------------------------------

    In the experience of C-DAC members, employers sometimes will 
attempt to lift loads that exceed a crane's rated capacity in the 
belief that the rated capacity is sufficiently conservative to perform 
the lift. In some such cases, the employer assumes that a safety factor 
is built into the capacity rating and that the crane actually has a 
higher capacity than its rating. In the C-DAC discussions of this 
issue, members explained that while equipment capacity ratings are 
developed with

[[Page 47993]]

consideration of a safety factor, that safety factor is not intended by 
the manufacturer to be treated as excess capacity. There are numerous, 
complex considerations used by manufacturers in setting the capacity 
rating. Employers cannot safely assume that, in any particular 
situation, they will not need the benefits conferred by the safety 
factor.
    There continue to be a significant number of injuries and 
fatalities resulting from equipment overturning. Although it has long 
been a requirement not to exceed the equipment's rated capacity, a 
significant number of overturning incidents are caused by exceeding 
rated capacity. A study of fatal accidents involving cranes in the U.S. 
construction industry for 1984-1994, based on investigations of 
reported accidents conducted by OSHA and states with OSHA-approved 
safety and health programs, showed that 22 deaths resulted from 
overloaded cranes. A. Suruda, M. Egger, & D. Liu, ``Crane-Related 
Deaths in the U.S. Construction Industry, 1984-94,'' p. 12, Table 9, 
The Center to Protect Workers' Rights (Oct. 1997). (ID-0013.) By 
stressing the need both to comply with the rated capacity and to 
separately preclude employers from requiring operators to exceed the 
rated capacity, paragraphs (o)(1) and (o)(2) should prevent this type 
of accident. No comments were received on these paragraphs, and they 
are promulgated as proposed.
    Another cause of injuries and fatalities from overturning equipment 
is the use of unreliable information on load weight. OSHA concludes 
that one of the ways these incidents can be reduced is to require that 
load weight be verified by a reliable means.
    Under Sec.  1926.1417(o)(3), Load weight, the operator is required 
to verify that the load is within the rated capacity of the equipment 
by using the procedures in either Sec.  1926.1417(o)(3)(i) or (ii). 
Under Sec.  1926.1417(o)(3)(i), the weight of the load must be 
determined in one of three ways: from a source recognized by the 
industry, by a calculation method recognized by the industry, or by 
other equally reliable means. An example of verifying the load weight 
from a source recognized by the industry would be where the load is 
mechanical equipment and the weight is obtained from its manufacturer. 
The proposed rule had provided for the weight of the load to be based 
on a ``reliable source.'' To avoid the potentially subjective 
interpretations of ``reliable,'' OSHA is instead requiring in the final 
rule that the measurements be from a source typically relied on in the 
industry.
    An example of a calculation method recognized by the industry would 
be the following: The load is a steel I-beam. After measuring the 
thickness of the steel and the I-beam's other dimensions, the operator 
uses an industry table that shows weight per linear foot for a beam of 
these dimensions. The operator then calculates the beam's weight using 
that information. In the proposed rule calculations would be based on a 
``reliable source.'' To avoid the potentially subjective 
interpretations of ``reliable,'' OSHA is instead requiring in the final 
rule that the calculations be based on a source typically relied on in 
the industry.
    If the weight of the load is determined under Sec.  
1926.1417(o)(3)(i), the information about how the load weight was 
determined must be provided to the operator, prior to the lift, upon 
the operator's request. This provision is included to help ensure that 
the operator has the information necessary to verify that the load is 
within the rated capacity of the equipment.
    One commenter suggested that this section be amended to 
specifically include as a reliable source the personal experience of 
the operator with loads of similar size and materials. (ID-0232.1.) 
OSHA rejects that suggestion because it is not convinced by any 
evidence in the record that all operators, regardless of whether the 
operator is experienced or has been on the job for a few weeks, are 
capable of producing an accurate, reliable estimate of the load 
weights. For example, an operator may have recently lifted precast 
concrete sections that, based on date provided by the manufacturer, 
weighed 5 tons each. The operator may be called upon to lift other 
precast concrete sections of unknown weight that are actually 10% 
heavier than those lifted earlier. It is unlikely that the heavier 
sections would be significantly different in appearance than those that 
weigh 10% less, and the operator may mistakenly underestimate the 
weight of the sections if permitted to estimate load weight based on 
his or her personal experience with loads of similar size.
    Paragraph (o)(3)(ii) establishes an alternative procedure that does 
not require the employer to determine the actual weight of the load 
under certain circumstances. Under paragraph (o)(3)(ii), the operator 
would have to begin hoisting the load to determine if it exceeds 75 
percent of the maximum rated capacity at the longest radius that will 
be used during the lift operation, using a load weighing device, load 
moment indicator, rated capacity indicator, or rated capacity limiter. 
If the load does not exceed 75 percent of the maximum rated capacity, 
the lift can be conducted without determining the weight of the load. 
This verification procedure \87\ incorporates a sufficient margin of 
error and would be adequate to ensure that the crane's rated capacity 
will not be exceeded. If, however, the load does exceed 75 percent of 
the maximum rated capacity, then the operator may not proceed with the 
lift until he/she verifies the weight of the load in accordance with 
Sec.  1926.1417(o)(3)(i). No comments were received on this paragraph, 
and it is promulgated without change from the proposed rule.
---------------------------------------------------------------------------

    \87\ The operator would still be required to use his or her 
professional judgment in determining whether the load exceeds the 
capacity of the equipment. As discussed above, proposed Sec.  
1926.1417 (k) would prohibit sole reliance by the operator on an 
operational aid, such as a load weight device, for ensuring that the 
equipment's capacity will not be exceeded. The procedure in proposed 
Sec.  1926.1417(o)(3)(ii) is a verification procedure--it would 
verify that the operator's estimate is at least correct in terms of 
not exceeding 75% of the equipment's rated capacity (at the longest 
radius that will be used). If, for example, the load weight device 
yields a figure that is significantly below what the operator 
estimates to be the true weight, the operator would need to reliably 
determine the weight of the load before proceeding with the lift.
---------------------------------------------------------------------------

Paragraph (p)
    This paragraph requires that the boom or other parts of the 
equipment not contact any obstruction. No comments were submitted on 
this paragraph, and it is promulgated as proposed.
Paragraph (q)
    This paragraph requires that the equipment not be used to drag or 
pull loads sideways. This is to prevent the sideloading that occurs 
when a load is dragged or pulled sideways. Sideloading can buckle the 
boom, damage the swing mechanism, or overturn the crane (such as when 
the boom is at a high angle). No comments were submitted on this 
paragraph, and it is promulgated as proposed.
Paragraph (r)
    Paragraph (r) of this section applies to wheel-mounted equipment 
and requires that no loads be lifted over the front area, except as 
permitted by the manufacturer. Wheel-mounted equipment typically is not 
designed to lift loads over the front area. Equipment that is not so 
designed will likely tip over or otherwise fail when lifting loads over 
the front area. If the equipment is specifically designed for loads to 
be lifted over the front area (such as where equipped with a front 
outrigger for support and stabilization for this purpose), the operator 
must follow the

[[Page 47994]]

manufacturer's procedures for doing so. No comments were submitted on 
this paragraph; it is therefore promulgated as proposed.
Paragraph (s)
    Each time an operator handles a load that is 90% or more of the 
maximum line pull, Sec.  1926.1417(s) requires the operator to test the 
brakes by lifting the load a few inches and applying the brakes. In 
duty cycle and repetitive lifts where each lift is 90% or more of the 
maximum line pull, this requirement applies to the first but not to 
successive lifts, because the operator would have already determined 
from the initial test that the brakes are sufficient. The brake test 
required by this paragraph is designed to ensure that the brakes are 
sufficient to handle loads close to their design capacity before 
lifting the load high off the ground. No comments were submitted on 
this paragraph, and it is promulgated as proposed.
Paragraph (t)
    This paragraph requires that neither the load nor the boom be 
lowered below the point where less than two full wraps of rope remain 
on their respective drums. This provision is designed to ensure that 
the rope is not unspooled to the point where the rope would become 
disconnected from the drum. No comments were submitted on this 
provision, and it is promulgated as proposed.
Paragraph (u) Traveling With a Load
    Paragraph (u)(1) of this section prohibits traveling with a load if 
the practice is prohibited by the manufacturer. If the manufacturer 
does not prohibit this practice, the equipment may travel with a load, 
but only if the requirements of paragraph (u)(2) are met. Paragraph 
(u)(2) of this section sets forth three procedures that employers would 
have to follow when traveling with a load: a competent person must 
supervise the operation; the determinations of the competent person 
must be implemented; and for equipment with tires, the tire pressure 
specified by the manufacturer must be maintained.
    During discussions of this issue, C-DAC members noted the dynamic 
effects of traveling with a load impose additional and/or increased 
forces on crane components. Unless the crane has been designed to 
handle these types of forces and force levels, they can cause component 
failure, collapse, instability or overturning. The Committee concluded 
that the manufacturer has the expertise to ascertain its equipment's 
capabilities. Therefore, the Committee recommended that where the 
manufacturer has prohibited traveling with the load, the operator must 
comply with such a determination to ensure safety. (For additional 
explanation, see 73 FR 59794, Oct. 9, 2008.) No comments were submitted 
on these provisions and they are promulgated as proposed.
Paragraph (v)
    This paragraph requires that rotational speed of the equipment be 
such that the load does not swing out beyond the radius at which it can 
be controlled. Like paragraph (q) of this section, discussed above, 
this provision is designed to prevent the hazard of sideloading, which 
occurs when the load swings to either side of the boom tip, rather than 
its appropriate position directly beneath the boom tip. When the load 
is not directly under the boom tip, sideloading occurs and decreases 
capacity. This hazard can lead to tip-over or boom failure. No comments 
were submitted on this paragraph, and it is promulgated as proposed.
Paragraph (w)
    This paragraph requires that a tag or restraint line be used if 
necessary to prevent the load from rotating if that would be hazardous. 
No comments were submitted on this paragraph, and it is promulgated as 
proposed.
Paragraph (x)
    This paragraph requires that the brakes be adjusted in accordance 
with manufacturer procedures to prevent unintended movement. This 
requirement applies to all brakes on equipment covered by this 
standard, including brakes used to control the lowering of the load and 
those used to stop the equipment while it is traveling. C-DAC noted 
that improper adjustment can cause a delay in the onset of braking 
after the operator attempts to activate the brake and can also diminish 
the brake's capacity. Brakes are critical to the safe operation of the 
equipment and must be properly adjusted to serve their safety function. 
(See additional explanation at 73 FR 59795, Oct. 9, 2008.) No comments 
were submitted on this paragraph; it is promulgated as proposed.
Paragraph (y)
    This paragraph requires that the operator obey a stop or emergency 
stop signal, regardless of who gives the signal. Any person on a 
worksite may observe a hazardous condition that is not visible to or 
recognized by the crane operator and that can only be avoided if the 
equipment stops immediately, so it is imperative that the operator 
respond immediately to any such signal by anyone. No comments were 
submitted on this paragraph; it is promulgated as proposed.
Paragraph (z) Swinging Locomotive Cranes
    Pursuant to this paragraph, a locomotive crane must not be swung 
into a position where railway cars on an adjacent track could strike 
it, until it is determined that cars are not being moved on the 
adjacent track and that proper flag protection has been established. 
The Agency is including this paragraph to prevent contact between the 
locomotive cranes and railway cars, and notes comparable requirements 
in Sec.  1910.180(i)(6) and sec. 5-3.4.4 of ANSI B30.5-1968. No 
comments were submitted on this paragraph, and it is promulgated with 
only one modification. The proposed rule incorporated an additional 
determination of whether it would be ``reasonably foreseeable'' that 
other railway cars on an adjacent track could strike the locomotive 
crane. OSHA concludes that when a locomotive crane swings into a 
position where it is physically possible for a railway car on an 
adjacent track to strike it, a hazard is present and the additional 
language would serve only to generate confusion about the appropriate 
response to that hazard. The concepts of reasonableness and 
forseeability are typically raised during legal processes and would be 
factored into those processes in accordance with law.
Paragraph (aa) Counterweight/Ballast
    Section 1926.1417(aa)(1) contains counterweight/ballast 
requirements that apply to equipment other than tower cranes and are 
intended to prevent unintended movement, tipover, and collapse. As 
noted in Sec.  1926.1417(aa)(2), requirements regarding counterweight/
ballast for tower cranes are found in Sec.  1926.1435(b)(8).
    Section 1926.1417(aa)(1)(i) requires that equipment not be operated 
without the counterweight or ballast in place as specified by the 
manufacturer.
    Section 1926.1417(aa)(1)(ii) prohibits the employer from exceeding 
the maximum counterweight or ballast specified by the manufacturer for 
the equipment. Exceeding that maximum could result in component 
failure, which could cause unintended movement, tipover or collapse. No 
comments were submitted on this provision, and it is promulgated as 
proposed.

[[Page 47995]]

Section 1926.1418 Authority To Stop Operation
    This section provides that whenever there is a concern as to 
safety, the operator has the authority to stop and refuse to handle 
loads until a qualified person has determined that safety has been 
assured. Section 1926.1401 defines ``qualified person'' as a person 
who, by possession of a recognized degree, certificate, or professional 
standing, or who by extensive knowledge, training and experience, 
successfully demonstrated the ability to solve/resolve problems 
relating to the subject matter, the work, or the project.
    Section 1926.1418 continues the long-standing requirements under 
subpart N and current consensus standards. (See former Sec.  
1926.550(b)(2), incorporating by reference ANSI B30.5-1968, sec. 5-
3.1.3(d).\88\) As discussed in the proposed rule preamble, a capable 
equipment operator is highly knowledgeable in matters affecting 
equipment safety and is well qualified to determine whether an 
operation presents a safety concern (see 73 FR 59795-59796, Oct. 9, 
2008). Under the provision, operations would be prohibited from 
resuming ``until a qualified person had determined that safety has been 
assured,'' meaning that operations could resume only after the 
qualified person either: (1) assesses the factors that led the operator 
to stop and refuse to handle the load and determines that there is not, 
in fact, a safety hazard, or (2) after corrective action has been 
taken, determines that there is no longer a safety hazard.
---------------------------------------------------------------------------

    \88\ Current consensus standards specify that an operator with a 
safety concern must raise that concern with a supervisor before 
proceeding with a lift. See sec. 5-3.1.3(d) of ASME B30.5-2004, 
``Mobile and Locomotive Cranes,'' sec. 2-3.1.7 of ASME B30.2-2001, 
``Overhead and Gantry Cranes,'' sec. 3-3.1.3(d) of ASME B30.3-1996, 
``Construction Tower Cranes,'' sec. 6-3.2.3 of ASME B30.6-2003, 
``Derricks,'' and other standards in the ASME B30 series.
---------------------------------------------------------------------------

    One commenter argued that OSHA lacks the authority to promulgate 
Sec.  1926.1418.\89\ (ID-0232.1.) First, the commenter contended that 
the provision exceeds the Agency's standards-setting authority under 
sec. 3(8) of the OSH Act. Second, it expresses concern that Sec.  
1926.1418 circumvents the limitations on OSHA's ability to grant 
employees (i.e., crane operators) stop-work authority. In support of 
its position, the commenter cited the U.S. Supreme Court opinions in 
Industrial Union Dep't, AFL-CIO v. American Petroleum Institute \90\ 
and Whirlpool Corp. v. Marshall \91\.
---------------------------------------------------------------------------

    \89\ The commenter nominated a C-DAC member who did not dissent 
on this section of the standard. The commenter has not explained why 
it has changed its position from the one taken by their C-DAC member 
during negotiations. In light of the unexplained inconsistency of 
its position, the Agency accords diminished weight to the 
commenter's comment and is hesitant to rely on it to undermine the 
product of the negotiation.
    \90\ 448 U.S. 607 (1980).
    \91\ 445 U.S. 1 (1980).
---------------------------------------------------------------------------

    OSHA disagrees with the commenter's contention that OSHA lacks the 
authority to promulgate Sec.  1926.1418. Under sec. 3(8) of the OSH Act 
and applicable case law,\92\ the Agency has broad authority to 
promulgate standards that are reasonably necessary or appropriate to 
provide safe or healthful places of employment. In Whirlpool Corp., the 
U.S. Supreme Court stated that the Act ``does not wait for an employee 
to die or become injured.'' \93\ Section 1926.1418 is an essential 
mechanism for preventing fatalities and injuries. It enables the person 
who has the expertise to recognize a safety concern and is best 
positioned to act quickly to do so where such a concern arises.\94\
---------------------------------------------------------------------------

    \92\ E.g., Indus. Union Dep't, AFL-CIO, 448 U.S. at 611-12.
    \93\ 445 U.S. at 12.
    \94\ As stated above, current consensus standards manifest the 
industry's recognition of the necessity for a crane operator to have 
such authority. In concert with Sec.  1926.1400(f), Sec.  1926.1418 
requires the employer to authorize its crane operator to halt 
operations upon a safety concern until a qualified person determines 
that safety has been assured.
---------------------------------------------------------------------------

    OSHA also disagrees with the commenter's contention that Sec.  
1926.1418 impermissibly grants stop-work authority, as well as a 
different commenter who asserted that the wording of the provision is 
too vague and could lead to an abuse of the operator's authority. Both 
commenters suggested that OSHA limit the operator's authority to 
specific reasons involving a potential violation of a requirement in 
subpart CC. (ID-0218.1; 0232.1.)
    The provision does not authorize an operator to stop operations for 
reasons unrelated to a good faith belief that there may be a safety 
problem. In this respect the provision is similar to other provisions 
in the standard (and elsewhere in 29 CFR part 1926) in which an 
employer is required to have a person in a specialized role perform 
specific tasks involving the application of expertise (e.g., competent 
and qualified persons performing inspections under Sec.  1926.1412). In 
each case compliance with the standard is predicated on the good faith 
application of that expertise.\95\
---------------------------------------------------------------------------

    \95\ Two organizations that nominated C-DAC members reminded the 
Agency in their comments that OSHA had committed during the C-DAC 
negotiations to include a discussion in the preamble regarding this 
principle of good faith. (ID-0205.1; -213.1.) The Agency believes 
that the foregoing paragraph satisfies that agreement.
---------------------------------------------------------------------------

    C-DAC thoroughly discussed the wording of this provision, mindful 
of the need for both clarity and sufficient flexibility to enable the 
operator to address myriad circumstances. The Committee's wording 
strikes an appropriate balance. The word ``concern'' refers to a good 
faith belief that safety may be in jeopardy. The word ``assured'' means 
that the qualified person has assessed whatever triggered the crane 
operator's belief that there was a concern as to safety and either: (1) 
Determines that there is not, in fact, a safety hazard, or (2) after 
corrective action is taken, determines that there is no longer a safety 
hazard.
    OSHA disagrees with the commenter's suggestion to link the 
authority to a violation of subpart CC. While C-DAC and the Agency have 
made every effort to address the hazards associated with crane and 
derrick operation, there may be circumstances that present hazards that 
have not been anticipated here.
    In addition, a particular situation may not be immediately 
recognized as falling within one of subpart CC's provisions. An 
operator's uncertainty in that regard could lead him/her to hesitate to 
exercise the authority even where it needs to be applied. Also, the 
determination by a qualified person to proceed with operations needs to 
be based on whether safety is assured, not on the resolution of a 
debate about whether the operator's concern fits within a provision of 
this standard.
    Another commenter expressed the following concerns: ``qualified 
person'' should be better defined; the qualified person would feel 
undue pressure from the controlling entity or crane employer to find 
that safety had been assured, and that the qualified person's scope of 
responsibility once operations resume is unclear. (ID-0218.1.)
    As explained in the preamble to the proposed rule, the definition 
of ``qualified person'' in Sec.  1926.1401 corresponds to the 
definition of ``qualified'' in Sec.  1926.32(m) and reflects the fact 
that the duties assigned to ``qualified persons'' here are similar to 
those assigned under other construction standards. The Committee 
intentionally used the same definition to make it clear that employers 
could rely on their current understanding of ``qualified person.'' OSHA 
sees no reason to deviate from that definition where the commenter did 
not explain how it viewed the definition as vague or provide 
alternative language.

[[Page 47996]]

    With respect to the issue of undue pressure on the qualified 
person, C-DAC shared the commenter's concern; the Committee identified 
pressure placed by some employers on operators to proceed with unsafe 
lifts as a significant problem in the industry. This led C-DAC, for 
example, to include the specific prohibition in Sec.  1926.1417(o)(2) 
against requiring an operator to operate the equipment in excess of its 
rated capacity (see the discussion of Sec.  1926.1417(o)(2) in 73 FR 
59792-59793, Oct. 9, 2008). The commenter did not suggest, and OSHA is 
not aware of, any additional measures that could be included in the 
standard to help prevent the application of that type of pressure.
    As to the commenter's final point, after a crane operator stops and 
refuses to proceed with operations due to a concern as to safety, the 
qualified person would then assess the situation and determine whether 
or when safety has been assured. At that point, the qualified person's 
responsibilities under Sec.  1926.1418 would be completed unless and 
until the crane operator identifies another concern as to safety. The 
Agency, therefore, is promulgating this provision as proposed.
Sections 1926.1419 Through 1926.1422 Signals
    Sections 1926.1419 through 1926.1422 address the circumstances 
under which a signal person must be provided, the type of signals to be 
used, criteria for how signals are transmitted, and other criteria 
associated with the use of signals.
    OSHA has decided to replace the term ``lift supervisor'' with the 
term ``lift director'' in Sec. Sec.  1926.1419(c)(2), 1926.1421(a), and 
1926.1421(c). This decision was made to be consistent with the similar 
change from ``A/D supervisor'' to ``A/D director'' in Sec.  
1926.1404(a). For an explanation of the change, see the discussion of 
Sec.  1926.1404(a).
Section 1926.1419 Signals--General Requirements
    This section sets requirements regarding signals when using 
equipment covered by this standard. C-DAC determined that addressing 
these issues is one of the means by which the number of injuries and 
fatalities caused by ``struck-by'' incidents, in which the equipment or 
load strikes an employee, can be reduced.
Paragraph (a)
    Paragraphs (a)(1) through (a)(3) of this section address the 
circumstances that require the use of a signal person: (1) When the 
point of operation, meaning the load travel path or the area near or at 
load placement, is not in full view of the operator (Sec.  
1926.1419(a)(1)); (2) when the equipment is traveling and the 
operator's view in the direction of travel is obstructed (Sec.  
1926.1419(a)(2)); and (3) when, due to site specific safety concerns, 
either the operator or the person handling the load determines it is 
necessary (Sec.  1926.1419(a)(3)). The first two of these circumstances 
involve an obvious hazard--limited operator visibility. With respect to 
the third circumstance, C-DAC determined that other situations arise 
that, from a safety standpoint, necessitate the use of a signal person 
(see examples in the preamble to the proposed rule at 73 FR 59796, Oct. 
9, 2008).
    One commenter, representing the interests of the material delivery 
industry, suggested that Sec.  1926.1419(a) be changed to specify that, 
if a signal person is needed at the site due to the obstructed view of 
the operator when delivering building materials, then the construction 
site customer (not the material delivery employer) would be responsible 
for providing the signal person. (ID-0184.1.) OSHA concludes that the 
question of whether the material delivery employer or the construction 
site customer should bear the cost of providing the signal person when 
required is an economic issue that is most appropriately left to the 
parties to resolve.
    During the public hearing, a labor representative stated that his 
organization believes that a signal person is always necessary when 
working with cranes. (ID-0343.) Two commenters representing the 
materials delivery industry disagreed (ID-0184.1; -0218.1.)
    OSHA has decided to defer to the expertise of the Committee, which 
found that a signal person should only be required in the three 
circumstances listed in Sec.  1926.1419(a). Moreover, OSHA notes the 
requirement in Sec.  1926.1419(a)(3), which provides that a signal 
person must be provided if the crane operator or person handling the 
load determines a signal person is necessary due to site specific 
safety concerns. This provision, in particular, ensures that a signal 
person will be required when necessary.
    One commenter asked for clarification on the meaning of ``full view 
of the operator'' in Sec.  1926.1419(a)(1). (ID-292.1.) In particular, 
the commenter asked whether mirror or camera systems would meet this 
requirement. Another commenter suggested adding language allowing the 
use of boom mounted video cameras for blind lifts. (ID-0120.0.)
    A live video system that provides a full view to the crane 
operator--i.e., provides a sufficiently broad, clear and detailed view 
to enable the operator to see all that is needed to operate the 
equipment safely--would meet the ``full view of the operator'' 
requirement. Mirrors, on the other hand, typically distort images or 
distances and thus would not normally be sufficient to provide a ``full 
view.''
    The sufficiency of any system will depend on the particular needs 
posed by each situation. For this reason, OSHA has decided to rely on 
C-DAC's clear and succinct phrase, ``full view of the operator,'' 
rather than to attempt to further define that concept or to list 
acceptable devices in the regulatory text.
Paragraph (b) Types of Signals
    As explained in the proposed rule preamble, under paragraph (b) of 
this section, signals to crane operators would have to be by hand, 
voice, audible, or ``new'' signals (see 73 FR 59796-59797, Oct. 9, 
2008). As used in this standard, these terms refer to the type of 
signal, not the means by which the signal is transmitted. For example, 
signaling by voice refers to oral communication, not whether the oral 
communication is done with or without amplification or with or without 
electronic transmission. The manner of transmission of the signal is 
addressed separately. No comments were received on this paragraph; it 
is promulgated as proposed.
    The criteria for the use of these signal types are set out in 
Sec. Sec.  1926.1419(c)-(m) (additional voice signal requirements are 
in Sec.  1926.1421, Signals--voice signals--additional requirements). 
The Committee's intent was to reduce the potential for 
miscommunication, which can lead to injuries and fatalities, 
particularly from ``struck-by'' and ``crushed-by'' incidents. In 
setting parameters for the use of the various types of existing signal 
methods, and for signal methods that may be developed in the future, 
the Committee sought to promote a degree of standardization while still 
allowing appropriate flexibility. In addition, the provisions are 
designed to ensure that the selection of signal type and means of 
sending the signals are appropriate under the circumstances and 
reliable.
Paragraph (c) Hand Signals
    Paragraph (c) of this section addresses the use of hand signals. 
The industry has long recognized the need for consistent, universal 
hand signals to

[[Page 47997]]

minimize the potential for miscommunication between signal persons and 
operators. ANSI B30.5-1968, ``Crawler, Locomotive and Truck Cranes,'' 
contains illustrations of hand signals that are the same as the current 
2004 edition of ASME B30.5 and that are consistent with hand signals 
for other types of cranes in ASME B30 standards. The same hand signals 
have been expressed in similar charts published by a variety of other 
groups. (See, e.g., Construction Safety Association of Ontario, MIOSHA, 
MSHA.)
    Because of the industry's long familiarity with these standard hand 
signals, C-DAC determined that, when using hand signals, the 
standardized version of the signals should continue to be required. 
These signals, which are located in Appendix A, are referred to as the 
``Standard Method,'' and this term is defined in Sec.  1926.1401 as 
``the protocol in Appendix A for hand signals.'' However, the Committee 
recognized that there are instances when use of the Standard Method is 
either infeasible or where there is no Standard Method signal 
applicable to the work being done.
    In such instances, under this paragraph, non-standard signals may 
be used. To avoid confusion when non-standard signals are used, 
proposed Sec.  1926.1419(c)(2) requires that the signal person, crane 
operator, and lift director (where there is one) meet prior to the 
operation to agree upon the signals that will be used.
    At the public hearing, one witness commented that the use of non-
standard hand signals should not be allowed because it would 
unnecessarily confuse contractors and utility workers, and because 
standard signals are already used in the industry. (ID-345.17.) OSHA 
defers to the expertise of the Committee, which found that a non-
standard signal may be needed on occasion (see 73 FR 59797, Oct. 9, 
2008, in which the Agency described examples of such situations). 
Additionally, it should be noted that Sec.  1926.1419(c) requires the 
use of Standard Method hand signals and permits an exception only where 
the Standard Method signals are infeasible or where there is no 
Standard Method signal for the particular attachment.
    One commenter pointed out that there are currently no hand signals 
specific to articulating cranes and asked which signals OSHA intended 
to be used with articulating cranes. (ID-0206.1.) The record contains 
no information on the extent to which hand signals for articulating 
cranes may differ from those used for other cranes. If the use of 
Standard Method hand signals is either infeasible for articulating 
cranes, or if the use or operation of an attachment is not covered by 
the Standard Method, then the exception in Sec.  1926.1419(c)(1) and 
the requirements for non-standard hand signals in Sec.  1926.1419(c)(2) 
would apply.
    OSHA is only making two changes, neither of which is substantive, 
from Sec.  1926.1419(c) as proposed. The first is a grammatical 
correction, and the second merely removes the superfluous direction 
that ``[t]he following requirements apply to the use of non-standard 
hand signals,'' which is already clear from the text of Sec.  
1926.1419(c)(2).
Paragraph (d) New Signals
    Paragraph (d) of this section allows signals other than hand, 
voice, or audible signals to be used if certain criteria are met. As 
explained in the discussion of Sec.  1926.1419(b) in the preamble to 
the proposed rule, C-DAC included Sec.  1926.1419(d) to allow for the 
development of new signals in the future (see 73 FR 59796-59797, Oct. 
9, 2008). To ensure that any new signals developed by a particular 
employer are as effective as hand, voice, or audible signals, 
Sec. Sec.  1926.1419(d)(1) and (d)(2) require the employer to 
demonstrate that the new signals are as effective as existing signals 
for communicating. Alternatively, an employer may use signals that 
comply with a national consensus standard.\96\ OSHA decided to change 
the language of paragraph (d)(2) to clarify that an employer's signals 
must comply with the national consensus standard signals. C-DAC 
determined it was appropriate to allow reliance on signals in a 
national consensus standard because their inclusion in such a standard 
shows a high degree of standardization and widespread acceptance by 
persons who are affected by the signals, thereby ensuring that the 
signals can be used safely to control equipment operations and 
preventing the ``on the fly'' development of signals cited as dangerous 
by the commenter. (ID-0110.1.)
---------------------------------------------------------------------------

    \96\ The C-DAC draft refers to an ``industry consensus 
standard.'' OSHA has changed this to ``national consensus standard'' 
to conform to the terminology used in the OSH Act. See definition in 
section 3(9) of the Act.
---------------------------------------------------------------------------

Paragraph (e) Suitability
    Under paragraph (e) of this section, the type of signal (hand, 
voice, audible, or new) and the transmission method used must be 
suitable for the site conditions. For example, hand signals would not 
be suitable if site conditions do not allow for the signal person to be 
within the operator's line of sight. Radio signals would not be 
suitable if electronic interference on the site prohibits the signals 
from being readily understood.
    One commenter requested that the determination of which type and 
means of signaling is appropriate for the site conditions be made by 
the crane operator or other qualified person. (ID-0172.1.)
    The Agency concludes that this is a straight-forward determination 
that does not require the specialized expertise of a qualified person. 
Also, the crane operator will typically be involved in this 
determination, since there are several requirements relating to 
effective communication that, as a practical matter, will typically 
involve input from the operator (see, for example, Sec. Sec.  
1926.1419(f), 1926.1420(a), and 1926.1421(c)).
Paragraph (f)
    Paragraph (f) of this section requires the ability to transmit 
signals between the operator and signal person to be maintained. If 
that ability is interrupted, the operator is required to safely stop 
operations until signal transmission is reestablished and a proper 
signal is given and understood. No comments were received on this 
provision; it is included in the final rule without change.
Paragraph (g)
    As explained in the preamble to the proposed rule, paragraph (g) of 
this section requires the operator to stop operations if the operator 
becomes aware of a safety problem and needs to communicate with the 
signal person (see 73 FR 59797, Oct. 9, 2008). Operations may only be 
resumed after the operator and signal person agree that the problem has 
been resolved.
    No comments were received on this provision; it is included in the 
final rule without change.
Paragraphs (h) and (j)
    Paragraph (h) of this section requires that only one person at a 
time signal the operator. As explained in the preamble to the proposed 
rule, C-DAC determined this provision was needed to prevent confusion 
with respect to which signals the operator is supposed to follow (see 
73 FR 59797, Oct. 9, 2008). An exception is provided in Sec.  
1926.1419(j) to address situations when somebody becomes aware of a 
safety problem and gives an emergency stop signal. Under Sec.  
1926.1417(y), the operator is required to obey such a signal. No 
comments were received on either of these provisions; they are

[[Page 47998]]

included in the final rule without substantive change. OSHA has 
modified paragraph (h) to clarify that it is a requirement.
Paragraph (i) [Reserved.]
Paragraph (k)
    As explained in the preamble to the proposed rule, paragraph (k) of 
this section requires that all directions given to the operator by the 
signal person be given from the operator's direction perspective, 
meaning that the signal person must provide the signals as if he or she 
was sitting in the operator's seat and facing the same direction as the 
operator (see 73 FR 59797, Oct. 9, 2008). In the Committee's 
experience, the operator will tend to react to a directional signal, 
such as ``forward,'' by acting on the signal from the operator's 
perspective. This provision ensures that the signal that is given will 
be consistent with that natural tendency. No comments were received on 
this provision; it is included in the final rule without change.
Paragraph (l) [Reserved.]
Paragraph (m) Communication With Multiple Cranes/Derricks
    Paragraph (m) of this section addresses a situation where one or 
more signal person(s) is in communication with more than one crane or 
derrick (for example, during multiple crane lifts). It requires each 
signal person to use an effective means of identifying which crane or 
derrick the signal is for. Sections 1926.1419(m)(i) and (ii) set out 
alternate means of complying with this requirement. Under Sec.  
1926.1419(m)(i), for each signal the signal person must, prior to 
giving the function/direction, identify the crane/derrick for which the 
signal is intended. Alternatively, under Sec.  1926.1419(m)(ii), the 
employer could implement a method of identifying the crane/derrick for 
which the signal is intended that is as effective as the system in 
Sec.  1926.1419(m)(i). For example, under Sec.  1926.1419(m)(ii), the 
signal person could simultaneously identify the crane and provide the 
signal. Because of the potential for confusion, it is essential that an 
alternative system under Sec.  1926.1419(m)(ii) be equally effective as 
Sec.  1926.1419(m)(i) in clearly conveying, on a consistent basis, the 
crane/derrick to which each signal is directed. No comments were 
received on this provision; it is included in the final rule without 
substantive change. The wording of the paragraph has been modified with 
several minor grammatical changes.
Section 1926.1420 Signals--Radio, Telephone, or Other Electronic 
Transmission of Signals
    C-DAC concluded that certain criteria are needed to ensure the 
reliability and clarity of electronically transmitted signals; these 
criteria are listed in Sec. Sec.  1926.1420(a) through (c). Paragraph 
(a) of this section requires the testing of the transmission devices 
prior to the start of operations to make certain that the signals are 
clear and that the devices are reliable. This helps ensure that the 
operator receives, and can understand, the signals that are given, and 
will prevent accidents caused by miscommunication.
    One commenter, remarking that a second or two of delay may still 
pose a significant safety hazard, suggested that Sec.  1926.1420(b) be 
amended to read, ``Signal transmission must be through a dedicated 
channel without noticeable delay * * *.'' (ID-0172.1.)
    OSHA agrees that a noticeable delay in transmission of an 
electronic signal could pose a significant hazard and has decided to 
address this concern by adding the requirement that signal transmission 
be ``effective.'' To be effective, a transmitted signal must produce or 
be capable of producing the intended result. In other words, a signal 
must be transmitted and understood by the crane operator in such a way 
and within such a time as would allow the operator to respond to the 
signal and operate the crane in a safe manner.
    Paragraph (b) of this section requires that signals be transmitted 
through a dedicated channel. As defined in Sec.  1926.1401, a 
``dedicated channel'' is ``a line of communication assigned by the 
employer who controls the communication system to only one signal 
person and crane/derrick or to a coordinated group of cranes/derricks/
signal person(s).'' Use of a dedicated channel ensures that the 
operator and signal person are not interrupted by users performing 
other tasks or confused or distracted by instructions not intended for 
them.
    An exception to Sec.  1926.1419(b) allows more than one signal 
person and more than one crane/derrick operator to share a dedicated 
channel in multiple crane/derrick situations for coordinating 
operations. The Committee determined, and OSHA agrees, that this 
exception is needed because, in those situations, it may be 
advantageous to share a single dedicated channel. For example, in some 
situations several cranes may be operating in an area in which their 
booms, loads or load lines could come in contact with each other. In 
such cases it is crucial that the movements of each crane be properly 
coordinated. By sharing a single channel, each operator can hear what 
each crane is being asked to do, which can facilitate that 
coordination.
    Several commenters representing the railroad industry raised 
concerns about the dedicated channel requirement as it relates to the 
use of cranes on or adjacent to railroad tracks. (ID-0170.1; -0176.1; -
0291.1.) These commenters pointed out that the actions of crane 
operators often have to be coordinated with other moving equipment 
(e.g. trains) and that the use of a dedicated channel in these 
circumstances would actually be more dangerous.
    The commenters' points in this regard are persuasive; OSHA has 
accordingly added Sec.  1926.1420(b)(2). This allows an exception to 
the use of a dedicated channel when a crane is being operated on or 
near railroad tracks and the crane operator must coordinate with the 
movement of other equipment on or near the railroad tracks.
    Paragraph (c) of this section requires that the operator's 
reception be by a hands-free system. In other words, the operator must 
not have to depress a button, manipulate a switch, or take any action 
for the incoming signal to be received. C-DAC determined that this 
provision is needed because the operator must have both hands free to 
manipulate the equipment's controls. No comments were received on this 
provision; it is included in the final rule without change.
Section 1926.1421 Signals--Voice Signals--Additional Requirements
    C-DAC considered whether the rule should include a standardized set 
of voice signals. Unlike hand signals, which have become standardized 
to a large extent within the industry, in the Committee members' 
experience there is significant variation in the phrases used to convey 
the same instructions. Consequently, C-DAC was concerned that words or 
phrases that it might have chosen to be ``standard'' voice signals 
could be unfamiliar to many employees in the industry or contrary to 
common usage in some parts of the country. In light of this, the 
Committee determined that it would be better to use a different 
approach to address the problem of miscommunication when using voice 
signals. This approach, which establishes criteria for whatever voice 
signals are used, is set out in Sec. Sec.  1926.1421(a)-(c).
    Under paragraph (a) of this section, prior to beginning operations, 
the personnel involved with signals--the crane operator, signal person 
and lift director (if there is one)--are required to

[[Page 47999]]

meet and agree on the voice signals that will be used. Because of the 
lack of standardization and the variety of languages that are in use in 
the construction industry, the Committee concluded that it is essential 
that the persons who give and/or receive voice signals agree in advance 
on the signals that will be used to avoid miscommunication. OSHA 
agrees. Once the parties have met and agreed on the voice signals, 
another meeting is not required to discuss them unless another worker 
is added or substituted, there is some confusion about the signals, or 
a signal needs to be changed.
    Section 1926.1421(b) requires that each voice signal contain the 
following three elements, given in the following order: function (such 
as hoist, boom, etc.), direction; distance and/or speed; function, stop 
command. For example: hoist up; 10 feet; hoist stop. As discussed 
above, the Committee considered it impractical to attempt to 
standardize the voice signals themselves (that is, to require the use 
of particular words to represent particular functions, directions or 
other instructions). However, the Committee concluded that the chance 
of miscommunication could nonetheless be reduced if certain parameters 
were established for the type of information and order of information 
that would be given. OSHA agrees.
    Section 1926.1421(c) requires the crane operator, signal person, 
and lift director (if there is one) to be able to effectively 
communicate in the language used. Voice signals will not serve their 
intended purpose if they cannot be understood, or can be 
misinterpreted. The inability of these workers to understand each other 
could lead to accidents that occur when, for example, the crane 
operator moves a load in a different direction than the signal person 
intends.
    One commenter suggested that uniform verbal signals were necessary 
to limit the likelihood of miscommunications resulting from language 
barriers. (ID-0379.1.) Three commenters suggested that OSHA establish 
uniform verbal signals enhanced by diagrams and pictures. (ID-0110.1; -
0115.1; -0178.1.) Two of these commenters suggested that OSHA require 
these verbal signal charts to be conspicuously posted in the vicinity 
of the hoisting operations. (ID-0110.1; -0115.1.)
    As discussed above, C-DAC considered whether the rule should 
include a standardized set of voice signals and decided that it would 
not be practical to do so. It did, however, address the potential for 
miscommunication by developing the requirements in Sec.  1926.1421(a) 
(requiring a meeting between the operator, signal person and lift 
director to determine which verbal signals will be used). Having 
received no evidence to the contrary, OSHA has decided to defer to the 
expertise of the Committee, and is promulgating this requirement 
without substantive change. The word ``shall'' is replaced with 
``must'' in paragraphs (b) and (c) to remove any doubt that the 
sentences are imperative commands, rather than descriptive.
Section 1926.1422 Signals--Hand Signal Chart
    Section 1926.1422 requires that hand signal charts be posted on the 
equipment or readily available at the site. OSHA is requiring the 
charts to be posted to serve as a reference for operators and signal 
persons of the mandatory hand signals and thereby help avoid 
miscommunication.
    Three commenters suggested that Sec.  1926.1422 be rewritten to 
require that the hand signal charts be ``conspicuously posted in the 
vicinity of'' the hoisting operations, rather than merely making them 
``readily available at the site'' as proposed. (ID-0110.1; -0115.1; -
0178.1.)
    Upon further reflection, the Agency acknowledges that the original 
language (that the hand signal chart could be ``readily available at 
the site'') did not afford the same amount of protection afforded by 
``conspicuously posted in the vicinity of the hoisting operations.'' 
For example, a hand signal chart stored in a shop trailer on the other 
side of the site or obscured from sight by other objects might be 
``readily available at the site,'' but it would do little to ensure 
that the chart would be accessed by employees where it is needed. It is 
the Agency's intent that employees be able to access the chart quickly. 
OSHA therefore decided to modify the language of Sec.  1926.1422 to 
require that signal charts be conspicuously posted in the vicinity of 
hoisting operations, or on the equipment.
Section 1926.1423 Fall Protection
    This section contains provisions designed to protect workers on 
equipment covered by this subpart from fall hazards. (See Sec.  
1926.1431, Hoisting Personnel, for fall protection provisions that 
apply when equipment is used to hoist personnel).
    Falls have traditionally been the leading cause of deaths among 
construction workers. BLS data for 2004 and 2005, the latest years for 
which complete figures are available, shows 445 fatalities from falls 
in 2004 (ID-0023) and 394 in 2005 (ID-0024). In 2004, 20 fatalities 
resulted from falls from nonmoving vehicles and in 2005, such falls 
caused 18 deaths. A recent study of crane-related fatalities in the 
U.S. construction industry found that 2% resulted from falls. J.E. 
Beavers, J.R. Moore, R. Rinehart, and W.R. Schriver, ``Crane-Related 
Fatalities in the Construction Industry,'' 132 Journal of Construction 
Engineering and Management 901 (Sept. 2006). (ID-0012.) Falls from 
cranes, particularly when the operator is entering or leaving the 
crane, also cause numerous non-fatal injuries to construction workers. 
(OSHA-S030-2006-0663-0422.)
    As discussed in the preamble to the proposed rule, the Committee 
determined that safety would be enhanced by addressing the problem of 
fall hazards associated with cranes and derricks comprehensively and 
that putting all such requirements in subpart CC would make it easier 
for employers to readily determine the applicable fall protection 
requirements (see 73 FR 59799, Oct. 9, 2008). Accordingly, under the 
final rule, subpart M does not apply to equipment covered by subpart CC 
except where Sec.  1926.1423 incorporates requirements of subpart M by 
reference.
    In this regard, the Agency has amended subpart M at Sec.  
1926.500(a)(2)(ii) to make clear that subpart CC specifies the 
circumstances in which fall protection must be provided to workers on 
equipment covered by subpart CC. The Agency has also amended Sec.  
1926.500(a)(3) to state that the criteria for fall protection systems 
required under subpart CC are as set forth in Sec.  1926.1423 of 
subpart CC. In addition, Sec.  1926.500(a)(4) has been amended to 
specify that the training requirements in Sec.  1926.503 do not apply 
to the use of equipment covered by subpart CC. These amendments to 
Sec.  1926.500 are discussed in the explanation of amendments to 
subpart M.
Definition of ``Fall Protection Equipment''
    ``Fall protection equipment'' is defined in Sec.  1926.1401, and is 
limited to guardrail systems, safety net systems, personal fall arrest 
systems, positioning device systems, and fall restraint systems. One 
commenter stated that this definition should be changed to that found 
in ANSI/ASSE Z359.0--2007, Definitions and Nomenclature used for Fall 
Protection and Fall Arrest, which defines ``fall protection'' more 
broadly to include any equipment, device, or system that either 
prevents a fall or mitigates the effect of a fall. (ID-0178.1.) 
However, as OSHA explained in the proposed rule, the proposed 
definition

[[Page 48000]]

was chosen to use the same terminology found in other OSHA standards to 
ensure that employers would be familiar with the terminology (see 73 FR 
59799, Oct. 9, 2008). Moreover, OSHA notes that sec. 1.3.1 of ANSI/ASSE 
Z359.0--2007 provides that the scope of that standard does not include 
the construction industry. Accordingly, OSHA is retaining the proposed 
definition in the final rule.
Definition of ``Positioning Device System''
    A trade association objected to the lack of definitions for ``fall 
arrest'' or ``positioning systems.'' (ID-0178.1.) OSHA notes that 
proposed Sec.  1926.1401 did contain a definition for ``personal fall 
arrest system,'' and that definition is included in the final rule. 
OSHA agrees that a definition of ``positioning device system'' is 
needed and is adding a definition to Sec.  1926.1401 in the final rule 
that is the same as the definition found in subpart M.
Paragraph (a) Application
    Section 1926.1423(a) specifies which provisions in this section 
apply to all equipment, including tower cranes (Sec. Sec.  
1926.1423(c)(1), (c)(2), (d), (g), (j) and (k)); which provisions apply 
to all equipment except tower cranes (Sec. Sec.  1926.1423(b), (c) (3), 
(e) and (f)); and which provisions apply only to tower cranes 
(Sec. Sec.  1926.1423(c)(4) and (h)).
Paragraph (b) Boom Walkways
    For the reasons explained in the preamble to the proposed rule, 
Sec.  1926.1423(b) addresses the hazard of falls from lattice booms by 
establishing when walkways must be incorporated into lattice booms, and 
the criteria for such walkways (see 73 FR 59799-59800, Oct. 9, 2008). 
No comments were received on this paragraph; it is included in the 
final rule without change.
Paragraph (c) Steps, Handholds, Ladders, Grabrails, Guardrails and 
Railings
    Section 1926.1423(c) in the final rule specifies criteria for the 
use and maintenance of steps, handholds, ladders, grabrails, guardrails 
and railings. The Agency notes that proposed paragraph (c) 
inadvertently omitted ``ladders'' from the list of devices in the 
paragraph's heading. Accordingly, OSHA has revised final paragraph (c) 
to include the word ladders.
    Section 1926.502(b) generally provides criteria for guardrail 
systems, with some exceptions (see discussion of amendments to Sec.  
1926.500). C-DAC concluded, however, that specific criteria for steps, 
handholds, ladders, grabrails, guardrails and railings were necessary 
to address the design characteristics of equipment covered by subpart 
CC and the particular fall hazards associated with the use of such 
equipment.
    OSHA agrees, and is therefore adding Sec.  1926.1423(c)(1), which 
states that Sec.  1926.502(b) (guardrail systems) must not apply to 
equipment covered by subpart CC, to the final rule. It makes clear that 
the guardrail criteria requirements in Sec.  1926.502(b) for those 
items do not apply to equipment covered by subpart CC. Instead, 
Sec. Sec.  1926.1423(c)(2), (3), and (4), discussed below, provide the 
applicable criteria for such equipment. Because of the addition of 
paragraph (c)(1), which was not in the proposed rule, paragraphs 
(c)(2), (3), and (4) have been renumbered from the proposal, where they 
were paragraphs (c)(1), (2), and (3).
    Paragraph (c)(2) of this section requires that the employer 
maintain in good condition originally-equipped steps, handholds, 
ladders and guardrails/railings/grabrails.\97\ The failure to properly 
maintain such devices could pose dangers to the workers who use them. 
For example, a grabrail would not be maintained in good condition if it 
has become weakened from rust. A weakened guardrail could fail when an 
employee uses it, which could cause the employee to fall. Likewise, a 
railing would not be maintained in good condition if all or part of the 
railing is missing. A manufacturer that integrated a railing into its 
boom design may have relied on the presence of the railing and provided 
a walking surface that would otherwise be too narrow to be safe.
---------------------------------------------------------------------------

    \97\ OSHA has changed the location of the words ``in good 
condition'' in Sec.  1926.1423(b) to make it clear that it applies 
to maintenance of all of the listed items.
---------------------------------------------------------------------------

    Paragraphs (c)(3) and (c)(4) of this section require that equipment 
manufactured more than one year after the effective date of this 
standard be equipped to provide safe access and egress on equipment 
covered by this subpart by the provision of devices such as steps, 
handholds, ladders, and guardrails/railings/grabrails. Tower cranes 
must be equipped to provide safe access and egress between the ground 
and the cab, machinery platforms, and tower (mast) (see below 
discussion of paragraph (c)(4)). All other equipment covered by this 
subpart must be equipped to provide safe access and egress between the 
ground and the operator work station(s), including the forward and rear 
operator positions. As discussed below, Sec. Sec.  1926.1423(c)(3)(i) 
and 1926.1423(c)(4)(i) require the steps, handholds, ladders and 
guardrails/railings/grabrails used to comply with this section to meet 
updated design criteria.
    Prior to this final rule, former Sec.  1926.550(a)(13)(i) in 
subpart N required that guardrails, handholds, and steps be provided on 
cranes for easy access to the car and cab and specified that these 
devices conform to ANSI B30.5. The 1968 version of ANSI B30.5, which 
was in effect at the time subpart N was issued, specifies that the 
construction of these devices must conform to the 1946 U.S. Safety 
Appliance Standard. C-DAC recognized that many pieces of equipment now 
in use would have been manufactured with handholds and steps but was 
concerned that the handholds and steps may have been designed to meet 
outdated criteria.
    The Committee determined, and OSHA agrees, that it would be unduly 
burdensome to require all equipment to be retrofitted with new steps, 
handholds, and railings simply because the existing design may vary 
from what is required under the final rule. Accordingly, Sec.  
1926.1423(c)(3) only applies to equipment manufactured more than one 
year after the effective date of this standard. This gives equipment 
manufacturers adequate time to incorporate the requirements of Sec.  
1926.1423(c)(3)(i) into their new products.\98\
---------------------------------------------------------------------------

    \98\ OSHA had added the word ``devices'' in the last sentence of 
paragraph (c)(3) for grammatical clarity.
---------------------------------------------------------------------------

    Paragraph (c)(3)(i) requires that steps, handholds, ladders and 
guardrails/railings/grabrails meet the criteria of SAE J185 (May 2003) 
or ISO 11660-2:1994(E). As explained above in the discussion of 
amendments to subpart X, OSHA amended subpart X to clarify that subpart 
X does not apply to integral components of equipment covered by subpart 
CC. The specifications in SAE J185 (May 2003) are referenced in other 
industry consensus standards, such as ASME B30.5-2004, ``Mobile and 
Locomotive Cranes'' and ASME B30.3-2004, ``Construction Tower Cranes,'' 
and crane manufacturers are familiar with those requirements. Section 
1926.1423(c)(3)(i) alternatively allows compliance with ISO 11660-2 
because those provisions are sufficiently protective and employers also 
use equipment built by foreign manufacturers who have been following 
that standard.

[[Page 48001]]

    OSHA notes that proposed Sec.  1926.1423(c)(2)(i) \99\ 
inadvertently omitted handholds from the listed devices that must meet 
the criteria of SAE J185 (May 2003) or ISO 11660-2:1994(E). 
Accordingly, OSHA has added handholds to the final rule in Sec.  
1926.1423(c)(3)(i). Additionally, OSHA has replaced the word 
``requirements'' in proposed Sec.  1926.1423(c)(2)(i) with ``criteria'' 
in the final Sec.  1926.1423(c)(3)(i). The Agency determines this 
change clarifies that the listed devices must comply with the design 
criteria contained in the referenced standards and that, for the 
purposes of Sec.  1926.1423(c)(3)(i), other provisions in the 
referenced standards do not apply. To illustrate, both SAE J185 (May 
2003) and ISO 11660-2:1994(E) contain provisions relating to the scope 
of those standards. However, Sec.  1926.1400 sets forth the scope of 
equipment covered by subpart CC (see discussion above of Sec.  
1926.1400, Scope). Consequently, Sec.  1926.1423(c)(3)(i) requires that 
steps, handholds, ladders, and guardrails/railings/grabrails on 
equipment covered by subpart CC (other than tower cranes) meet the 
criteria for such devices in SAE J185 (May 2003) or ISO 11660-
2:1994(E), irrespective of the scope provisions in those consensus 
standards.
---------------------------------------------------------------------------

    \99\ Proposed Sec.  1926.1423(c)(2)(i) corresponds with Sec.  
1926.1423(c)(3)(i) in the final rule.
---------------------------------------------------------------------------

    Paragraph (c)(3)(ii) of this section requires that walking/stepping 
surfaces, except for crawler treads, have slip-resistant features/
properties (such as diamond plate metal, strategically placed grip 
tape, expanded metal, or slip-resistant paint). Former Sec.  
1926.550(a)(13)(iii) of subpart N required platforms and walkways to 
have anti-skid surfaces. C-DAC recommended that OSHA retain this 
requirement as a complement to the use of guardrails, handholds, 
grabrails, ladders and other engineered safety features that are 
required by new Sec.  1926.1423. OSHA concludes that compliance with 
this provision will minimize the number of slips and falls for 
employees who must travel point to point to access the operator 
workstations on equipment covered by this section.
    Paragraph (c)(4) of this section applies to fall protection on 
tower cranes. For the same reasons explained above with respect to 
Sec.  1926.1423(c)(3), Sec.  1926.1423(c)(4) likewise only applies to 
tower cranes manufactured more than one year after the effective date 
of this standard. Such equipment must be equipped so as to provide safe 
access and egress between the ground and the cab, machinery platforms, 
and tower (mast), by the provision of devices such as steps, handholds, 
ladders, and guardrails/railings/grabrails. In the preamble to the 
proposed rule, OSHA stated the Agency's intent to include a requirement 
to provide safe access and egress on tower cranes, similar to the 
requirement in final paragraph (c)(3) to provide safe access and egress 
on other equipment covered by subpart CC, and requested public comment 
on the issue (73 FR 59800, Oct. 9, 2008).
    Three commenters responded, all stating that the final rule should 
include the requirement to provide safe access and egress on tower 
cranes. (ID-0182.1; -0205.1; -0213.1.) Accordingly, OSHA has added 
paragraph (c)(4) to the final rule.
    Paragraph (c)(4)(i) of this section requires steps, handholds, 
ladders, and guardrails/railings/grabrails on these tower cranes to 
meet the criteria of ISO 11660-1:2008(E) and ISO 11660-3:2008(E), or 
SAE J185 (May 2003), except where infeasible. For the same reasoning 
discussed above with respect to Sec.  1926.1423(c)(3)(i), paragraph 
(c)(4)(i) allows employers to use equipment designed to the 
specifications of SAE J185 (May 2003) or, alternatively, ISO 11660-
1:2008(E) and ISO 11660-3:2008(E).
    The Agency notes that ISO 11660-1:2008(E) provides criteria 
applicable to cranes in general while ISO 11660-3:2008(E) provides 
criteria particular to tower cranes. The Agency reads the particular 
criteria in ISO 11660-3:2008(E) as supplementing the general criteria 
in ISO 11660-1:2008(E).\100\ Therefore, paragraph (c)(4)(i) would only 
be satisfied under this alternative if the steps, handholds, ladders 
and guardrails/railings/grabrails on the tower crane meet the criteria 
in both ISO 11660-1:2008(E) and ISO 11660-3:2008(E).
---------------------------------------------------------------------------

    \100\ The Agency notes that the approach for the 2008 editions 
of ISO 11660-1 and ISO 11660-3 appears to differ from that of the 
ISO 11660-2:1994(E). The Agency interprets ISO 11660-2:1994(E) as 
addressing steps, handholds, ladders and guardrails/railings/
grabrails independent of ISO 11660-1:2008(E).
---------------------------------------------------------------------------

    Paragraph (c)(4)(ii) of this section requires walking/stepping 
surfaces on tower cranes to have slip-resistant features/properties, 
such as diamond plate metal, strategically placed grip tape, expanded 
metal, or slip-resistant paint. Similar to paragraph (c)(3)(ii) (see 
above discussion of paragraph (c)(3)(ii)), paragraph (c)(4)(ii) carries 
forward the anti-skid protections from former Sec.  
1926.550(a)(13)(iii).
Paragraph (d) Personal Fall Arrest and Fall Restraint Systems
    Paragraph (d) of this section addresses personal fall arrest 
systems and fall restraint systems used to satisfy the requirements 
under subpart CC to provide fall protection.
    Paragraph (d) was not in the proposed rule but has been added to 
the final rule to make clear that certain appropriate requirements of 
subpart M apply to subpart CC. Paragraph (d) requires the use of 
personal fall arrest system components in personal fall arrest and fall 
restraint systems required by subpart CC. These systems must conform to 
all of the criteria in Sec.  1926.502 of subpart M, except Sec.  
1926.502(d)(15). Section 1926.502(d)(15) provides general criteria for 
anchorages for personal fall arrest systems, but OSHA is choosing to 
apply the anchorage criteria in Sec.  1926.1423(g)(3) rather than the 
criteria in Sec.  1925.502(d)(15). This approach is consistent with the 
approach to requirements for personal fall arrest and fall restraint 
systems provided in Sec.  1926.760(d)(2) of subpart R, except for the 
exclusion of Sec.  1926.502(d)(15).
Paragraph (e) Fall Protection Requirements for Non-Assembly/Disassembly 
Work
    Paragraph (e) of this section addresses fall protection 
requirements for employees engaged in work other than assembly/
disassembly work (``non-A/D'' work). For such work, in certain 
circumstances, employers are required to provide and ensure the use of 
fall protection equipment for employees who are on a walking/working 
surface with an unprotected side or edge more than 6 feet above a lower 
level.
    C-DAC discussed different trigger heights for fall protection 
requirements for particular types of cranes and derricks. Ultimately, 
C-DAC concluded that the requirements for fall protection should remain 
consistent with 29 CFR part 1926 subpart M, which generally requires 
fall protection at heights at and above 6 feet, as much as possible. 
(As discussed below, for assembly/disassembly (A/D) work, the Committee 
recommended fall protection beginning at 15 feet.) C-DAC also 
determined that operators do not need to be tied off while moving to 
and from their cabs, and paragraph (e)(1) of this section, discussed 
below, therefore requires fall protection equipment only when employees 
are moving point-to-point on booms or while at a work station (with 
certain exceptions). The Committee determined that the steps, 
handholds, and railings required under

[[Page 48002]]

Sec.  1926.1423(c) protect operators moving to and from their 
workstations and eliminate the need for additional fall protection 
equipment.
Paragraph (e)(1) Non-Assembly/Disassembly: Moving Point to Point
    Paragraph (e)(1)(i) of this section requires employers to provide 
and ensure the use of fall protection equipment at 6 feet and above 
when an employee is moving point to point on non-lattice booms (whether 
horizontal or not horizontal). Moving point to point is defined in 
Sec.  1926.1401 and refers to when an employee is going to or coming 
from a work station.
    C-DAC determined that non-lattice booms generally present more 
hazards to workers who must walk them to reach other work areas, 
devices, and equipment attached to it than lattice booms. Non-lattice 
booms are typically of the extensible type. As a result, as members 
noted, the walking/working surfaces on these types of booms are often 
oily (from the hydraulic mechanisms). Also, since the boom sections 
extend and retract, it is typically infeasible to provide boom walkways 
and other safety features. Because they tend to be slippery from oil, 
the Committee concluded that they are especially hazardous to move 
across even when horizontal. Therefore, where an employee is required 
to move point to point on a non-lattice boom, the Agency decided to 
remain consistent with the requirements in 29 CFR part 1926 subpart M 
to require fall protection at heights at or above 6 feet and the final 
rule requires fall protection when the fall distance is greater than 6 
feet.
    Paragraph (e)(1)(ii) applies the same fall protection requirements 
to point to point movement on lattice booms that are not in a 
horizontal position. The Committee found that in non-A/D work, an 
employee may, for example, need to move point-to-point on a lattice 
boom to inspect a part that is suspected to need repair, or to make a 
repair (such as replacing a broken or missing cotter pin). In many of 
these situations, the boom will not be horizontal, since space 
limitations often make it difficult to lower the boom to do this work.
    The Committee determined that it is both necessary and feasible for 
fall protection to be used in such instances. Typically, the fall 
protection that would be used would consist of a double-lanyard or 
similar personal fall arrest system. Since the boom in these instances 
would be elevated, there would usually be a point on the boom above the 
level of the employee's feet to which the lanyard could be attached.
    In contrast, it is uncommon for an employee to need to move point-
to-point on a horizontal lattice boom for non-A/D work. If work does 
need to be done, such as making an inspection or repair as discussed 
above, the employee would usually get access to their work station with 
a ladder. In those instances when the employee must traverse the boom 
itself, the Committee concluded that it would be inappropriate to 
require fall protection for the reasons discussed below.
    The key difficulty in providing fall protection in such instances 
stems from the lack of a tie-off point above the level of the 
employee's feet. The Committee discussed that most lattice booms when 
horizontal would be less than 15 feet above the next lower level. At 
heights below 15 feet, a personal fall arrest system tied off at the 
level of the employee's feet, with a lanyard long enough to afford the 
employee the range of movement necessary for this work, might not 
prevent the employee from falling to the next lower level.
    In construction work the problem of providing personal fall 
protection in this height range, when there is no higher tie-off point, 
is usually solved in one of three ways (apart from the use of ladders, 
scaffolds, aerial lifts, and similar devices). One way is to use a 
restraint system, which is anchored at a point that prevents the 
employee from moving past an edge. The Committee discussed that this 
type of system could not be used while on a boom because the boom is 
too narrow. Another method is to set up a personal fall arrest system 
that would arrest the employee's fall before hitting the next lower 
level by using stanchions to support an elevated, horizontal life-line. 
However, such stanchions must be securely fastened and whatever they 
are fastened to must be able to withstand considerable forces in an 
arrested fall. On a crane's lattice boom, the stanchions would have to 
be attached either to the chords or the lacings.
    The chords and lacings are engineered to be as light as possible, 
and an engineering analysis would be needed in each case to determine 
if the attachment point was sufficiently strong to withstand those 
forces. Also, the Agency determines that manufacturers would be 
unlikely to approve clamp-on type systems because of the likelihood of 
the clamping forces damaging these critical structural components. 
Similarly, the Agency determines that manufacturers would not approve 
the repeated weld/removal/re-weld cycles that would be involved in 
attaching and removing stanchions because this could adversely affect 
the boom's structural components.
    The third method commonly used in construction work is a temporary 
guardrail system, but that also would require attaching stanchions to 
the boom, which would be infeasible for these same reasons.
    The Committee concluded that, in light of such factors, it would 
not be appropriate to require fall protection when an employee moves 
point-to-point on horizontal lattice booms. However, in the preamble to 
the proposed rule, the Agency noted that, although it may rarely be 
necessary for an employee moving point-to-point on a horizontal lattice 
boom to be 15 feet or more above the next lower level, there is the 
possibility of such an occurrence, such as where a horizontal boom 
spans a large gap in the ground surface. At such heights a personal 
fall arrest system tied off at the level of the employee's feet would 
allow sufficient room for the arrest system to operate without allowing 
the employee to strike the next lower level. Therefore, the Agency 
requested public comment on whether proposed Sec.  1926.1423(d)(1)(ii) 
\101\ should be expanded to require fall protection when an employee, 
engaged in non-A/D work, is moving point-to-point on a boom that is 
horizontal and the fall distance is 15 feet or more.
---------------------------------------------------------------------------

    \101\ Proposed Sec.  1926.1423(d)(1)(ii) corresponds with final 
Sec.  1926.1423(e)(1)(ii).
---------------------------------------------------------------------------

    OSHA received three comments on this issue. (ID-0182.1; -0205.1; -
0213.1.) These commenters stated that the final rule should require 
fall protection when an employee, engaged in non-A/D work, is moving 
point-to-point on a boom that is horizontal and the fall distance is 15 
feet or more. Accordingly, the Agency has added paragraph (e)(1)(iii) 
to the final rule to require fall protection under these circumstances. 
No comments were received on proposed paragraphs (d)(1)(i) and (ii), 
and they are included in the final rule without change as paragraphs 
(e)(1)(i) and (ii).
Paragraph (e)(2) Non-Assembly/Disassembly: While at a Work Station
    Paragraph (e)(2) of this section requires employers to provide and 
ensure the use of fall protection while an employee is at a work 
station on any part of the equipment (including the boom, of any type), 
except when the employee is at or near draw-works (when the equipment 
is running), in the cab, or on the deck (see the discussion of this in 
the preamble of the proposed rule, where this paragraph was denominated 
as Sec.  1926.1423(d)(2); 73

[[Page 48003]]

FR 59802, Oct. 9, 2008). No comments were received on this paragraph; 
it is included in the final rule without change other than its 
redesignation.
Paragraph (f) Assembly/Disassembly
    Paragraph (f) of this section requires the employer to provide and 
ensure the use of fall protection equipment during assembly and 
disassembly (A/D) work for employees who are on a walking/working 
surface with an unprotected side or edge more than 15 feet above a 
lower level, except when the employee is at or near draw-works (when 
the equipment is running), in the cab, or on the deck (see the 
discussion of this in the preamble of the proposed rule, where this 
paragraph was denominated as Sec.  1926.1423(e); 73 FR 59802, Oct. 9, 
2008). No comments were received on this paragraph; it is included in 
the final rule without change other than its redesignation.
Paragraph (g) Anchorage Criteria
    Paragraph (g) of this section requires the use of, and specifies 
criteria for, anchorage points in personal fall arrest systems, 
positioning device systems, and fall restraint systems.\102\ Paragraph 
(g)(1) provides that Sec. Sec.  1926.502(d)(15) and 1926.502(e)(2) of 
subpart M apply to equipment covered by subpart CC only to the extent 
delineated in paragraph (g)(2). Sections 1926.502(d)(15) and 
1926.502(e)(2) provide, respectively, anchorage criteria for personal 
fall arrest systems and positioning device systems. As discussed below 
with respect to paragraph (g)(2), C-DAC determined that the particular 
circumstances associated with the use of personal fall arrest systems 
and positioning device systems on equipment covered by subpart CC 
necessitate specific criteria for the anchorages of such systems. 
Therefore, OSHA added paragraph (g)(1) to this section of the final 
rule to make clear that the general anchorage criteria in Sec.  
1926.502 apply to equipment covered by subpart CC only as delineated in 
paragraph (g)(2), discussed below (see also discussion above of Sec.  
1926.500).
---------------------------------------------------------------------------

    \102\ ``Personal fall arrest system'' and ``Positioning device 
system'' are defined in Sec.  1926.1401. These definitions parallel 
those in Sec.  1926.500(b) of subpart M. ``Fall restraint system'' 
is also defined in Sec.  1926.1401. This definition parallels the 
one in Sec.  1926.751 of subpart R. As with other definitions 
applicable to this section, C-DAC endeavored, to the extent possible 
and appropriate, to use terminology that is familiar to the 
industry.
---------------------------------------------------------------------------

    Paragraph (g)(2) of this section, Anchorages for personal fall 
arrest and positioning device systems, contains requirements for 
anchorage points used in personal fall arrest and positioning device 
systems (this was denominated paragraph (f) in the proposed rule). 
Sections 1926.1423(g)(2)(i) and 1926.1423(g)(2)(ii) permit personal 
fall arrest systems and positioning systems to be anchored to any 
apparently substantial part of the equipment unless a competent person, 
from a visual inspection, without an engineering analysis, would 
conclude that the applicable criteria in Sec.  1926.502 of subpart M of 
this part would not be met. An apparently substantial part of the 
equipment is a part that would appear substantial to a reasonable 
competent person. The subpart M criteria include, for personal fall 
arrest systems, 5,000 pounds per employee or twice the potential impact 
load of an employee's fall (in addition to other requirements) (Sec.  
1926.502(d)(15)); for a positioning device, 3,000 pounds or twice the 
potential impact load of an employee's fall, whichever is greater (in 
addition to other requirements) (Sec.  1926.502(e)(2)).
    Most of the equipment covered by the standard is designed to lift 
and support weights much heavier than these. Apparently substantial 
parts of the equipment are, therefore, typically capable of meeting the 
subpart M capacities. Consequently, C-DAC determined that the criteria 
in Sec. Sec.  1926.1423(g)(2)(i) and 1926.1423(g)(2)(ii) are 
appropriate and would avoid burdening employers with what it considered 
to be the unnecessary expense of obtaining engineering analyses for 
each part that would serve as an anchor. (See the discussion of these 
provisions in the preamble of the proposed rule under proposed rule 
paragraph (f) of this section, 73 FR 59802, Oct. 9, 2008.)
    One commenter suggested revising the provision to require a 
competent person to supervise the selection, use, and inspection of 
fall arrest and positioning anchorages. (ID-0178.1.) This commenter 
suggested that this revision was needed to avoid compatibility issues 
and to emphasize the competent person's planning role. OSHA declines to 
adopt the commenter's suggestion. As explained above, this provision is 
included because the suitability of substantial parts of the equipment 
for anchoring fall arrest and positioning device systems will often be 
readily apparent, and the employer will only need to seek a competent 
person's judgment if there is some question as to the anchorage's 
suitability. The revision suggested by the commenter would contravene 
this intent.
    Paragraph (g)(2)(iii) requires that attachable anchor devices 
(portable anchor devices that are attached to the equipment) meet the 
applicable anchorage criteria in Sec.  1926.502(d)(15) for personal 
fall arrest systems and Sec.  1926.502(e)(2) for positioning device 
systems. These criteria are the same as those discussed with respect to 
paragraph (g)(2) for personal fall arrest and positioning device 
systems.
    Paragraph (g)(3), Anchorages for fall restraint systems, requires 
fall restraint systems to be anchored to any part of the equipment that 
is capable of withstanding twice the maximum load that a worker may 
impose on it during reasonably anticipated conditions of use. Since 
fall restraint systems do not arrest a worker's fall (instead they 
prevent a fall from occurring), the anchorage does not need to be able 
to support the significantly greater force generated during an arrested 
fall. OSHA relies on C-DAC's determination that having the anchorage 
support twice the maximum anticipated load provides an adequate margin 
of safety when a fall restraint system is used.
    The Agency made several changes to text originally proposed as 
paragraph (f) of this section, and now designated as final paragraph 
(g) for the purposes of clarity and consistency. OSHA devoted final 
paragraphs (g)(2)(i) and (g)(2)(ii) to personal fall arrest systems and 
positioning device systems, respectively, and added references to 
Sec. Sec.  1926.502(d)(15) and 1926.502(e)(2) to specify which of the 
criteria in Sec.  1926.502 of subpart M are applicable to anchorages 
used to comply with this section. OSHA concludes these changes improve 
the clarity of the final rule. In addition, final paragraph (g) uses 
the terms ``personal fall arrest'' instead of ``fall arrest'' and 
``fall restraint systems'' instead of ``restraint systems'' to use the 
defined terms from Sec.  1926.1401 and maintain consistency with other 
construction standards.
Paragraph (h) Tower Cranes
    Paragraph (h) of this section specifies fall protection 
requirements specific to tower cranes. Note that the final rule uses 
the terminology ``erecting, climbing, and dismantling'' with regard to 
tower cranes rather than ``assembly'' and ``disassembly;'' or the term 
``erecting/dismantling'' used in the proposed rule, because this 
terminology reflects the industry's use of these terms.
Paragraph (h)(1) Work Other Than Erecting, Climbing, and Dismantling
    Paragraph (h)(1) of this section addresses fall protection 
requirements for work other than erecting, climbing, and dismantling. 
The employer is required to provide and ensure the use

[[Page 48004]]

of fall protection equipment for employees who are on a walking/working 
surface with an unprotected side or edge more than 6 feet above a lower 
level. The exceptions to this requirement would be when the employee is 
at or near draw-works (when the equipment is running), in the cab, or 
on the deck. (See the discussion of this provision in the preamble of 
the proposed rule at 73 FR 59803, Oct. 9, 2008, where it was designated 
as paragraph (g)(1)). No comments were received on this paragraph; it 
is included in the final rule without change other than its revised 
heading and redesignation from paragraph (g)(1) in the proposed rule to 
(h)(1) in the final rule.
Paragraph (h)(2) Erecting, Climbing, and Dismantling
    Proposed Sec.  1926.1423(g)(2) (redesignated Sec.  1926.1423(h)(2) 
in the final rule) specified that, for erecting/dismantling work, 
employers must provide, and ensure the use of, fall protection 
equipment for employees who are on a walking/working surface with an 
unprotected side or edge more than 15 feet above a lower level. (See 
the discussion of that provision in 73 FR 59803, Oct. 9, 2008.) OSHA 
noted in the proposed rule that C-DAC did not include the exceptions 
that were included in proposed Sec.  1926.1423(g)(1) for when the 
employee is at or near draw-works (when the equipment is running), in 
the cab, or on the deck. The Agency stated that it was unaware of any 
reason why those exceptions would not be equally applicable for Sec.  
1926.1423(g)(2), and asked for public comment on this issue (see 73 FR 
59803, Oct. 9, 2008).
    OSHA received responses from three commenters, all of whom stated 
that this exception should be added to the final rule. (ID-0187.1; -
0205.1; -0213.1.) Accordingly, OSHA has included the exception in Sec.  
1926.1423(h)(2) of the final rule.
Paragraph (i) [Reserved.]
Paragraph (j) Anchoring to the Load Line
    Paragraph (j) of this section permits an employer, under prescribed 
conditions, to anchor a fall arrest system to the hook or other part of 
a load line of a crane or derrick. Previously, Sec.  1926.502(d)(23) of 
subpart M prohibited personal fall arrest systems to be attached to 
``hoists except as specified in other subparts of this part.'' Former 
Sec.  1926.550 in subpart N did not contain any provisions specifically 
addressing this issue. Therefore, since the hook or other part of a 
load line is connected to a hoist in the crane or for the derrick, 
attaching a personal fall arrest system in this manner had been 
prohibited by subpart M.
    Prior to this rulemaking, OSHA received inquiries asking whether a 
crane's hook or load line may be used as an anchorage point for fall 
protection. Using a crane for such purpose would be particularly useful 
in many situations, especially where establishing a suitable anchor 
point would be otherwise very difficult. OSHA asked C-DAC to consider 
whether there is any reason to prohibit using a crane or derrick for 
such purpose. C-DAC determined that the hook or load line of a crane 
could be used safely as an anchor point under the conditions set forth 
in paragraph (j).\103\
---------------------------------------------------------------------------

    \103\ OSHA modified the language from the proposed rule so that 
final paragraph (j) of this section refers to a ``personal fall 
arrest system'' rather than a ``fall arrest system.'' This 
modification was made for the purpose of clarity to use the terms 
defined in Sec.  1926.1401, Definitions, and to maintain consistency 
in the construction standards.
---------------------------------------------------------------------------

    Paragraph (j)(1) allows the hook or load line to be used as an 
anchorage point when a qualified person has determined that the set-up 
and rated capacity of the crane/derrick (including the hook, load line 
and rigging) meets or exceeds the requirements in Sec.  
1926.502(d)(15). C-DAC concluded that, as long as the crane or derrick 
has sufficient capacity to meet those criteria, there is no reason to 
prohibit its use for this purpose.
    C-DAC did conclude, however, that the expertise of a qualified 
person is required to determine whether specific criteria are met when 
anchoring to the hook or load line. The criteria in Sec.  
1926.502(d)(15) were developed to ensure that fall protection 
anchorages provide adequate employee protection. Anchorages used for 
personal fall arrest systems must be capable of supporting at least 
5,000 pounds or designed, installed, and used as part of a complete 
personal fall arrest system which maintains a safety factor of at least 
two. A number of factors related to the crane's capacity in the 
particular configuration and set-up involved would need to be 
considered, including, in some cases, the angle of the fall arrest 
lanyard to the boom if a fall were to occur. In addition, the qualified 
person would need to determine whether the set-up is such that it would 
not cause an equipment failure, such as a broken cable or chain, for 
the load line to serve as an anchorage for a personal fall arrest 
system. These determinations necessarily would include consideration of 
the characteristics of the particular equipment involved and the 
limitations of its operation. OSHA agrees that a qualified person must 
determine whether the criteria are met, and has included that 
requirement in paragraph (j)(1).
    Paragraph (j)(2) requires that the equipment operator be at the 
work site and informed that the equipment is being used to anchor a 
personal fall arrest system. This would ensure that the operator is 
available to make any necessary adjustments, such as moving the boom or 
load lines. Further, in the event of an emergency that results in a 
tied-off employee being suspended from the hook or load line, the 
operator would be available to bring the worker to the ground safely.
    OSHA received three comments on the provisions relating to 
anchoring to the load line, and one member of the public submitted 
written testimony on the provisions prior to the hearing on the 
proposed rule. Two of the commenters responded positively to the 
provisions (ID-0155.1; -0203.1) and one commenter stated the provisions 
were a necessary improvement that would allow employers to provide fall 
protection in the narrow circumstances where there are no viable 
options other than the crane hook (ID-0203.1).
    The third commenter was opposed to the provisions and stated that 
anchoring to the load line should be prohibited. (ID-0178.1.) This 
commenter stated that cranes are only engineered to lift straight up 
and straight down and that retracting a hook at any other angle may jam 
or break the cable or chain, which would result in a dropped load. OSHA 
concludes paragraph (j) addresses this concern for the reasons 
discussed below.
    Written testimony submitted prior to the hearing expressed the 
concern that, under Sec.  1926.1417(e), which allows a suspended load 
to be left unattended by the equipment operator under certain 
conditions, an employee's personal fall arrest system could be anchored 
to a load line at the same time a load is unattended. (ID-0333.2.) This 
party suggested that the rule make clear that fall protection should 
never be anchored to the load line when the load is unattended.
    OSHA disagrees. In fact, the intent of Sec.  1926.1423(j) is to 
allow an employee's personal fall arrest system to be anchored to the 
load line only when there is no load suspended from the line. This is 
implicit in the requirement of paragraph (j)(1) that the qualified 
person determine that the set-up and rated capacity (including the 
hook, load line, and rigging) meets or exceeds the requirements of 
Sec.  1926.502(d)(15). If it

[[Page 48005]]

were permissible for there to be a suspended load, the parenthetical 
would include the word ``load,'' for the weight of any load would 
certainly affect the ability of the hook or load line to serve as a 
fall protection anchorage. To make the rule's intent clear, OSHA is 
adding paragraph (j)(3), which states that no load may be suspended 
from the load line, as an additional condition that must be met when 
anchoring a personal fall arrest system to the hook or load line.
Paragraph (k) Training
    In the preamble to the proposed rule, the Agency requested comments 
on its proposed training requirements. One commenter pointed out that a 
requirement for fall protection training had not been included in the 
proposed rule and is needed. (ID-0178.1.) While training is already 
required under Sec.  1926.21(b)(2),\104\ OSHA has determined that 
including a more specific training requirement regarding fall 
protection in subpart CC will highlight the requirement and facilitate 
compliance.
---------------------------------------------------------------------------

    \104\ That provision states: ``The employer shall instruct each 
employee in the recognition and avoidance of unsafe conditions and 
the regulations applicable to his work environment to control or 
eliminate any hazards or other exposure to illness or injury.''
---------------------------------------------------------------------------

    Therefore, in the final rule, paragraph (k) has been added to this 
section. It requires employers to ensure that each employee who may be 
exposed to a fall hazard while on, or hoisted by, equipment covered by 
this subpart is trained on the requirements in subpart CC that address 
fall protection and the applicable requirements of Sec. Sec.  1926.500 
and 1926.502 in subpart M. This provision supplements other applicable 
training provisions in Sec.  1926.1430 (see discussion below of Sec.  
1926.1430, Training). As noted above, OSHA has made a conforming 
amendment to Sec.  1926.500(a)(4) to make clear that the fall 
protection training requirements in Sec.  1926.503 of subpart M do not 
apply to fall protection systems used to comply with subpart CC. As a 
result, the training requirements applicable to Sec.  1926.1423 are 
found exclusively in Sec.  1926.1423(k).
General Comment
    OSHA received a comment from a safety association generally 
objecting to the adequacy of the fall protection required under this 
section. (ID-0178.1.) The commenter stated that OSHA should reference 
certain ANSI/ASSE standards addressing fall protection in construction 
work, including: ANSI/ASSE A10.32--2004, Fall Protection Systems for 
Construction and Demolition Operations; ANSI/ASSE A10.18--2007, Safety 
Requirements for Temporary Roof and Floor Holes, Wall Openings, 
Stairways, and Other Unprotected Edges; and ANSI/ASSE A10.28--1998 (R 
2004), Safety Requirements for Work Platforms Suspended from Cranes or 
Derricks. However, the commenter has not pointed to which particular 
provisions of these consensus standards it believes are appropriately 
included in this rule or that it believes would better effectuate the 
purpose of this section than those developed by C-DAC.
    As discussed above, C-DAC determined that fall protection from 
cranes and derricks presented unique problems and that this section 
should address those problems while only incorporating limited 
provisions of OSHA's general fall protection standard in subpart M. 
Upon reviewing the record, including the comments submitted by the 
commenter and others on the specific provisions contained in the 
proposal, OSHA continues to conclude this approach is appropriate. 
Absent additional information as to why OSHA should adopt or reference 
provisions in the standard the commenter has cited, OSHA is unable to 
assess whether any such provisions would better address fall protection 
issues than the provisions of this final rule.
Section 1926.1424 Work Area Control
    Section 1926.1424(a) addresses the hazard of employees being 
struck, pinched or crushed within the swing radius of the equipment's 
rotating superstructure. Paragraph (a)(1) states that the precautions 
in paragraph (a)(2) must be taken when there are accessible areas in 
which the equipment's rotating superstructure (whether permanently or 
temporarily mounted) poses a reasonably foreseeable risk of either: (i) 
striking and injuring an employee; or (ii) pinching/crushing an 
employee against another part of the equipment or another object. 
Paragraph (a)(1) is adopted as proposed.
    Included in Sec.  1926.1401, Definitions of this rule is the 
definition for ``upperworks'', which C-DAC identified as a synonym for 
the term ``superstructure'', used in the regulatory text of paragraph 
(a)(1) of this section, as well as the term ``upperstructure''.
    However, two commenters noted that the proposed definition for 
``upperworks'' did not take into consideration the fact that many 
rough-terrain cranes have the engine mounted in the carrier, or lower 
carriage of the crane, instead of the superstructure. (ID-0292.1; -
0131.1.) In response, OSHA modified the definition of ``upperworks'' to 
acknowledge that the presence of an engine is not always a defining 
characteristic of that portion of the crane.
    Under paragraph (a)(2), the employer is required to institute two 
measures to prevent employees from entering these hazard areas. 
Specifically, under paragraph (a)(2)(i), the employer must train 
employees assigned to work on or near the equipment in how to recognize 
these areas.
    Paragraph (a)(2)(ii) requires the employer to erect and maintain 
control lines, warning lines, railings, or similar barriers to mark the 
boundaries of the hazard areas, but contains an exception when such a 
precaution is infeasible. If it is neither feasible to erect such 
barriers on the ground nor on the equipment, the employer is required 
to mark the danger zone with a combination of warning signs and high 
visibility markings on the equipment that identify the hazard areas. In 
addition, the employer must train employees to understand what those 
markings signify.
    OSHA received comments advocating an exemption for cranes used in 
the railroad industry, especially cranes moving along a track. (ID-
0170.1; -0176.1; -0342.) One commenter suggested that the requirement 
for barriers was impractical for cranes moving along a track, as the 
barriers would have to be continually reset.
    These objections to the requirement for barriers are not 
persuasive. First, the requirement for barriers is not a new 
requirement. Former Sec.  1926.550(a)(9) required barricades to prevent 
employees from being struck or crushed by the crane, including the 
swing radius of the rear of the rotating superstructure. The railroad 
employers did not provide any evidence that they were unable to comply 
with the previous requirement.
    Second, the rule already anticipates that for certain equipment a 
traditional type of barrier might not be practical and instead permits 
the use of a barrier that attaches directly to, and will move with, the 
equipment.
    Finally, paragraph (a)(2)(ii) of this section permits the employer 
to identify these hazard areas with warning signs and high visibility 
markings on the equipment when it is not feasible to erect a barrier on 
the ground or the equipment.
    Therefore, paragraph (a)(2) is being promulgated as proposed.
    To prevent struck-by and crushed-by injuries and fatalities, 
paragraph (a)(3) is designed to help protect employees who must 
sometimes enter the hazard area to

[[Page 48006]]

perform work, by ensuring that there is adequate communication and 
coordination between the operator and the employee in the danger area.
    Under paragraph (a)(3)(i), before an employee goes in that area the 
employee (or someone instructed by the employee) has to ensure that the 
operator is informed that the employee is going to that location. This 
is an essential first step in preventing the operator from moving the 
superstructure and causing injury to that employee. This provision is 
adopted without change from the proposal.
    Paragraph (a)(3)(ii)(A) of this section of the proposed rule stated 
that the operator was prohibited from rotating the superstructure 
unless and until he/she gave a warning that the employee in the hazard 
area understood as a signal that the superstructure was about to be 
rotated. This was intended to give the employee time to get to a safe 
area. Alternatively, under proposed paragraph (a)(3)(ii)(B), the 
operator could rotate the superstructure if he/she was informed, in 
accordance with a prearranged system of communication, that the 
employee who was in the hazard area had moved to a safe position.
    Several commenters suggested that the compliance option in proposed 
paragraph (a)(3)(ii)(A) was insufficient to guarantee the safety of the 
employee in the hazard area. (See, e.g., ID-0122.0.) A similar issue 
was discussed in connection with Sec.  1926.1404(e) of the final rule. 
Section 1926.1404(e) addresses employees in the swing radius area or 
crush/caught-in-between zone during the assembly/disassembly process. 
(See discussion of Sec.  1926.1404(e) for additional information.)
    For the reasons discussed with regard to the issue raised under 
Sec.  1926.1404(e), OSHA has removed proposed paragraph (a)(3)(ii)(A) 
from this section, revised proposed paragraph (a)(3)(ii)(B), and 
renumbered it paragraph (a)(3)(ii).
    Paragraph (a)(3)(ii) requires the operator to get information that 
the employee has cleared the hazard area before rotating the 
superstructure. The method of communication must be one that is pre-
arranged. Examples of such a system are provided in the discussion of 
Sec.  1926.1404(e) above.
    For a full discussion of C-DAC's rationale for the provisions in 
paragraph (a), see the preamble to the proposed rule (73 FR 59803-
59804, Oct. 9, 2008).
    Proposed paragraph (b) of this section addressed situations where 
multiple pieces of equipment are located in such proximity that their 
working radii overlap. Such situations pose the danger of employees 
being pinched/crushed between the equipment and being injured as a 
result of unintended movement or collapse when pieces of equipment 
collide. To prevent such accidents, the proposal required the 
controlling entity to coordinate the operations of these pieces of 
equipment. In the event that there was no controlling entity, the 
proposal required the employers operating the equipment to institute a 
coordination system.
    A commenter asked that Sec.  1926.1424(b) be deleted, or 
alternatively, that an exemption be created for employers in the home 
building industry. (ID-0232.1.) However, this commenter did not provide 
evidence that equipment coordination is any less necessary on a 
residential job site than it is on other construction job sites. 
Another representative of the building industry also objected to 
imposing obligations on a ``controlling entity,'' but did not dispute 
the necessity of equipment coordination on construction job sites. (ID-
0214.1.) C-DAC concluded that the controlling entity, to the extent 
there is one, is in the best position to take responsibility for the 
coordination required by paragraph (b). OSHA has not been persuaded 
otherwise.
    Both commenters nominated members which served on the negotiated 
rulemaking committee. Neither of their respective nominees dissented on 
these provisions during the negotiated rulemaking meetings and neither 
organization has explained why its position is different from that of 
its nominated member. In light of this inconsistency, OSHA has given 
diminished weight to these comments.
    The C-DAC language for proposed paragraph (b) did not address a 
situation in which only one employer is responsible for the operation 
of multiple pieces of equipment. OSHA requested comment about revising 
the C-DAC language to make clear that such an employer would be 
required to institute a coordination system. No comments were received 
on this issue. OSHA has therefore revised paragraph (b) to address 
situations where one employer is operating multiple pieces of 
equipment, without a controlling entity at the jobsite.
Section 1926.1425 Keeping Clear of the Load
    This section addresses the hazards posed to employees from being 
struck or crushed by the load. (See the preamble to the proposed rule 
for a full discussion of C-DAC's rationale for the provisions in this 
section (73 FR at 59805-59806, Oct. 9, 2008).)
Paragraph (a)
    Paragraph (a) of this section requires the employer to use 
available hoisting routes that minimize employee exposure to hoisted 
loads to the extent consistent with public safety. No comments were 
received on this provision; it is promulgated as proposed.
Paragraph (b)
    Paragraph (b) of this section specifies that employees cannot be in 
the fall zone when the equipment operator is not moving a suspended 
load, with limited exceptions as described in paragraphs (b)(1)-(3).
    Fall zone is defined in Sec.  1926.1401 as ``the area (including 
but not limited to the area directly beneath the load) in which it is 
reasonably foreseeable that partially or completely suspended materials 
could fall in the event of an accident.'' The fall zone thus includes 
both the area directly under the load as well as other areas into which 
it is reasonably foreseeable that suspended materials could fall. For 
example, if wind is causing the load to swing, the employer would need 
to consider the extent to which the load is swinging or may swing in 
determining the extent of the fall zone. Another example is where a 
bundle of materials is suspended, and some loose materials at the top 
of the bundle may slide off sideways. In such a case those materials 
would foreseeably fall outside the area directly beneath the load.
    Paragraph (b)(1) permits employees engaged in hooking, unhooking or 
guiding a load to be within the fall zone while engaged in these 
activities. No comments were received on this paragraph; it is 
promulgated as proposed.
    Paragraph (b)(2) permits employees engaged in the initial 
attachment of the load to a component or structure to be within the 
fall zone. One example of this activity is: A subassembly of steel 
members is hoisted for attachment to a structure. When initially 
attaching the lower portion of that subassembly, an employee is within 
the fall zone of the load. In this example, the employee engaged in the 
initial attachment of the subassembly to the structure would be 
permitted to be within the fall zone; that work cannot be done 
otherwise. No comments were received on this paragraph; it is 
promulgated as proposed.
    Paragraph (b)(3) allows workers to be present in the fall zone when 
operating a concrete hopper or concrete bucket. The employee operating 
the hopper or bucket is necessarily in the fall zone

[[Page 48007]]

since the hopper or bucket is suspended while the employee operates the 
releasing mechanism.
    One commenter suggested adding a requirement that there be a 
competent supervisor for these operations and a requirement for 
employee training for activities covered by paragraph (b)(3). (ID-
0120.1.) However, that commenter did not provide an explanation of how 
this would increase safety for the employee or any support for such 
additional requirements. Nor did the commenter identify any reason why 
the activities covered by paragraph (b)(3) would require different or 
additional supervision or training requirements than the activities 
covered by paragraphs (b)(1) or (b)(2). C-DAC did not recommend any 
additional supervision or training requirements for paragraph (b)(3), 
and OSHA is not persuaded that there is a safety justification for 
deviating from C-DAC's determination. Therefore, this paragraph is 
promulgated as proposed.
    A representative of the building industry suggested in its comment 
that an exception should be added for dedicated spotters and fall 
monitors. (ID-0232.1.) This marks a change from the position of that 
organization's nominated representative during the negotiated 
rulemaking. (See discussion of this organization's comments under 
paragraph (c) of this section.) C-DAC did not conclude that an 
exception for spotters and fall monitors was warranted, and the NAHB 
did not present evidence to persuade OSHA otherwise. OSHA defers to the 
expertise of the Committee and this paragraph is promulgated as 
proposed.
Paragraph (c)
    Paragraph (c) of this section deals with the work activities 
addressed in Sec. Sec.  1926.1425(b)(1) and (b)(2). These requirements 
were necessary to ensure employee safety, given the additional risks 
posed while employees are performing those tasks in the fall zone.
    Paragraph (c)(1) requires that the load be rigged to prevent 
unintentional displacement, so that workers in the fall zone are less 
likely to be struck by shifting materials. No comments were received on 
this paragraph; it is promulgated as proposed.
    Paragraph (c)(2) requires the use of hooks with self-closing 
latches or their equivalent, to prevent accidental failure of the 
hooks. However, the use of ``J'' type hooks is permitted for setting 
wooden trusses. This exception is designed to enable the truss to be 
unhooked without the need for an employee to go out on the truss. This 
avoids the additional exposure to fall hazards that would otherwise 
occur from going out on the truss to release a latched hook.
    OSHA received a comment from the building industry requesting that 
the exception permitting the use of J-hooks when lifting trusses be 
extended to lifting wall panels as well; it asserts that the same 
additional exposure to fall hazards would be present. (ID-0232.1.)
    This commenter nominated a member who served on the negotiated 
rulemaking committee. The member did not dissent during the negotiated 
rulemaking to this provision. The commenter has not explained why it 
has changed its position on this issue or why its current position 
differs from that of its nominated member. In light of this 
inconsistency, OSHA has given diminished weight to its comment.\105\
---------------------------------------------------------------------------

    \105\ A further basis for according diminished weight to this 
comment is that this commenter had a direct channel for presenting 
its interests to the committee--its nominee member--and a 
presumptive ability to direct its member's negotiating position. 
When such an organization submits negative comments to the proposed 
rule opposing both its own member's negotiating position and the 
committee's consensus, it undermines the negotiating process in a 
similar manner as when a member contravenes the ground rules. The 
integrity of the negotiating process is central to effectuating the 
purpose of the Negotiated Rulemaking Act of 1990.
    The Agency also notes that, in future negotiated rulemakings, 
one of the factors that it plans to consider in assessing 
nominations submitted by organizations is whether the nominee can 
demonstrate that he/she has documented authority to bind the 
organization to agreements and the position the nominee takes in 
such negotiated rulemaking.
---------------------------------------------------------------------------

    In addition, OSHA notes that there are two important distinctions 
between setting roof trusses and setting wall panels. First, there is 
no need for a worker to be exposed to a fall hazard to detach a hook 
with a self-closing latch from a wall panel. Once the wall panel has 
been set, a worker can readily reach the hook from a ladder on the 
interior side of the panel. Second, wall panels typically often weigh 
more than wooden roof trusses; they pose both struck-by and crushed-by 
risks to workers if the hook becomes prematurely detached from the 
load. Such unintended detachment is more likely to occur with a J-hook 
because it lacks a hook gate.
    One commenter suggested that the exception for J-hooks should 
include requirements for training and rigging. (ID-0218.1.) This 
commenter acknowledged that the use of J-hooks is prevalent in the 
industry, and indicated that the specialized training and rigging 
requirements it was proposing were intended to protect the component 
being lifted. The commenter did not suggest that its proposed 
requirements would enhance employee safety. Therefore, this paragraph 
is promulgated as proposed.
    Paragraph (c)(3) requires the use of a qualified rigger \106\ in 
the rigging of materials in the situations addressed by paragraph (c). 
Proper rigging reduces the risk for workers who must perform work in 
the fall zone. No comments were received on this provision; it is 
promulgated as proposed.
---------------------------------------------------------------------------

    \106\ Section 1926.1401 defines a ``qualified rigger'' as a 
rigger who meets the criteria for a qualified person.
---------------------------------------------------------------------------

Paragraph (d) Receiving a Load
    Paragraph (d) prohibits all employees except those needed to 
receive a load from being in the fall zone when it is being landed. No 
comments were received on this provision; it is promulgated as 
proposed.
Paragraph (e)
    Paragraph (e) concerns tilt-up and tilt-down operations. In these 
operations, one end of a component, such as a precast panel, is either 
raised, tilting the component up, usually from a horizontal position 
(often on the ground) to a vertical position; or lowered, tilting the 
component down, usually from a vertical position to a horizontal 
position on the ground or other surface. Note that the requirements in 
this paragraph do not apply when receiving a load.
    As with any other suspended load, it is dangerous to be directly 
beneath the load because of the possibility of a failure or error that 
would cause the load to fall or be accidentally lowered onto an 
employee. To minimize the risk of such accidents, paragraph (e)(1) of 
this section provides that no employee must be directly under the load 
during a tilt-up or tilt-down operation. Section 1926.1401 defines 
``directly under the load'' to mean ``a part or all of an employee is 
directly beneath the load.'' No comments concerning this provision were 
received; therefore, it is promulgated as proposed.
    While paragraph (e)(1) prohibits employees directly under the load, 
paragraph (e)(2) of this section provides an allowance for employees to 
be in the fall zone (but not directly under the load), when those 
employees are ``essential to the operation'' during a tilt up or tilt 
down operation.
    In the preamble to the proposed rule, the Agency provided a list of 
activities it determined to typically be infeasible to do outside the 
fall zone and therefore an employee would be in the fall zone for these 
activities. The Agency requested public comment on whether there were 
additional activities that

[[Page 48008]]

would be infeasible to do from outside the fall zone, and whether it 
would be appropriate to add a definition of ``essential to the 
operation'' to the standard.
    One commenter responded, asserting that the phrase ``essential to 
the operation'' does not need to be defined. (ID-0205.1.)
    No commenters disagreed with the three scenarios listed in the 
preamble to the proposed rule describing instances where an employee is 
``essential to the operation'' and must be within the fall zone. 
However, one commenter suggested adding to the list the activities of 
making initial connections and securing bracing. (ID-0205.1.)
    OSHA believes that those two additional tasks--making initial 
connections and securing bracing--fall within part of the third 
scenario listed in the proposed rule preamble (i.e., to ``* * * 
initially attach [the load] to another component or structure'').
    For clarity, OSHA has decided to modify paragraph (e)(2) by adding 
the operations listed in the proposed rule and including the 
recommendation of the commenter.
    One comment suggested that there might be some conflict between the 
NOTE in this section, Sec.  1926.1426, and Sec.  1926.1433(b)(4). The 
discussion of that comment may be found in the portion of the preamble 
addressing Sec.  1926.1426 of the final rule.
Section 1926.1426 Free Fall and Controlled Load Lowering
    This section addresses the hazards that can arise from free fall of 
the boom (live boom) during lifts. Live booms are those in which the 
rate of lowering can be controlled only by a brake; a failure of the 
brake will result in a free fall (i.e., unrestricted lowering) of the 
boom. In contrast, for equipment that has a boom that is not ``live,'' 
there is a mechanism or device other than the brake which slows the 
boom's lowering speed.
    The uncontrolled lowering of a boom could result in an accident 
which could injure or kill workers in proximity to the load or hoisting 
equipment. This section prohibits use of live booms in most 
circumstances. An exception is provided in limited conditions that do 
not pose hazards for employees with respect to the use of older 
equipment manufactured before October 31, 1984. See discussion in Sec.  
1926.1426(a)(2)(i) below.
    Additionally, this section specifies the circumstances under which 
free fall of the load line is prohibited at Sec.  1926.1426(d).
Paragraph (a) Boom Free Fall Prohibitions
    Under paragraph (a)(1) of this section, the use of equipment in 
which the boom is designed to free fall is prohibited under six 
specified conditions.
    Paragraph (a)(1)(i) prohibits the use of a live boom when an 
employee is in the fall zone of the boom or load (see the explanation 
of ``fall zone'' in the discussion above of Sec.  1926.1425(b)). 
Section 1926.1425, Keeping clear of the load, of this standard 
recognizes that there are some situations in which certain employees 
need to be positioned in the fall zone to perform their assigned 
duties. However, when equipment with a live boom is in use, the 
likelihood that an employee would sustain a serious injury or be killed 
by a free fall is very high when an employee is in the fall zone of the 
boom or load.
    Paragraph (a)(1)(ii) prohibits use of a live boom when an employee 
is being hoisted by equipment. If a hoisted employee was dropped in an 
uncontrolled fall, the likelihood of a serious injury would be high.
    No comments were received for paragraphs (a)(1)(i) or (ii); they 
are promulgated as proposed.
    Paragraph (a)(1)(iii) as set forth in the proposed rule, would have 
prohibited the use of a live boom where the load or boom is directly 
over a power line, or over any part of the area extending the Table A 
of proposed Sec.  1926.1408 clearance distance to each side of the 
power line. The diagram below illustrates a situation in which a load 
on a live boom is over the area extending the Table A clearance 
distance to each side of the power line:
[GRAPHIC] [TIFF OMITTED] TR09AU10.000

    As discussed above in relation to Sec. Sec.  1926.1407 through 
1926.1411, equipment making electrical contact with power lines is one 
of the primary causes of equipment-related deaths on construction sites 
and, to prevent such contact, those sections would require equipment to 
maintain minimum distances from power lines.
    In the proposed rule, OSHA determines that there are circumstances 
where neither the boom nor the load are directly over the power line or 
Table A clearance distance, but where the power line or the Table A 
clearance distance is within the fall path of the boom or load. This 
circumstance is depicted in the following illustrations:

[[Page 48009]]

[GRAPHIC] [TIFF OMITTED] TR09AU10.001

[GRAPHIC] [TIFF OMITTED] TR09AU10.002

    In Illustration A, neither the boom nor the load is above the power 
line or any part of the Table A zone. However, if the boom were to 
fall, the boom would cross into the Table A zone. In Illustration B, 
neither the boom nor load is above the power line or any part of the 
Table A zone. However, if the boom were to fall, the load would cross 
into the Table A zone.
    OSHA requested comment in the proposed rule as to whether Sec.  
1926.1426(a)(1)(iii) should be modified to also prohibit the equipment 
from being positioned such that the fall path of the boom or load would 
breach the Table A of Sec.  1926.1408 clearance distance. This 
requirement was proposed to prevent the boom, hoist line, or load from 
contacting an energized power line and carrying the electric current 
back through the equipment. One commenter, in two comments, agreed with 
the proposed change. (ID-0052.0; -0092.1.) No commenters disagreed.
    Therefore, OSHA has modified Sec.  1926.1426(a)(1)(iii) to prohibit 
free fall (live boom) where the power line or the Table A clearance 
distance is within the fall path of the boom or the load.
    Paragraph (a)(1)(iv) prohibits use of a live boom where the load is 
over a shaft. Employees in a shaft receiving a load are at high risk of 
death or injury from a free falling boom as the shaft severely limits 
the ability to avoid the falling boom. Because this hazard only exists 
when there is an employee in the shaft, OSHA has specified in Sec.  
1926.1426(a)(1)(iv) of the final rule that the live boom prohibition 
only applies when at least one employee is in the shaft. This language 
is different from the language of Sec.  1926.1426(a)(1)(v), regarding 
cofferdams, because a shaft is typically a smaller work space than a 
cofferdam, thus, a shaft under a load is necessarily in the fall zone 
of the boom or the load.
    Paragraph (a)(1)(v) prohibits free fall of a boom when the load is 
over a cofferdam, except where there are no employees in the fall zone 
of the boom or load. Much like employees who must receive a suspended 
load in a shaft, employees have limited ability to escape a free 
falling boom or load in a cofferdam. However, cofferdams are typically 
much larger work spaces than shafts, the fall zone of a falling boom or 
load may only affect one part of the cofferdam. Therefore, this 
provision only applies when employees are in the fall zone of the boom 
or load.
    OSHA noted an ambiguity in proposed Sec.  1926.1426(a)(1)(v). The 
exception referred only to ``the fall zone''; OSHA determines that--to 
make this provision consistent with Sec.  1926.1426(a)(1)(i) 
(prohibiting the use of live booms when an employee is in the fall zone 
of the boom or the load)--the words ``of the boom or load'' should be 
added to the language proposed for Sec.  1926.1426(a)(1)(v).
    Paragraph (a)(1)(vi) prohibits use of a live boom for lifting 
operations in a refinery or tank farm. A free falling boom could strike 
pipes or a tank in a refinery or tank farm. Such accidental impact 
could cause a release of toxic materials or conflagration. No comments

[[Page 48010]]

were received for this provision; it is promulgated as proposed.
    Paragraph (a)(2) of this section is the exclusive list of 
conditions under which the use of cranes with live booms is permitted. 
C-DAC found that cranes with live booms can be used safely under some 
circumstances and did not determine that the cost of replacing or 
retrofitting all such equipment is justified as long as the use of live 
boom equipment is limited to these conditions. However, none of the 
conditions outlined in Sec.  1926.1426(a)(1) may be present.
    Paragraph (a)(2)(i) allows the use of equipment with a live boom if 
that equipment was manufactured prior to October 31, 1984, and none of 
the circumstances listed in Sec.  1926.1426(a)(1) are present. ANSI 
B30.5 first prohibited live booms in the 1972 version and reiterated 
the prohibition in the 1982 edition, which was published on October 31, 
1983, and became effective on October 31, 1984.
    OSHA concludes that manufacturers would have begun to phase out 
live-boom equipment when ANSI first prohibited its use in 1972 and that 
few, if any, live boom equipment would have been manufactured after 
October 31, 1984. Moreover, during this period, hydraulic hoisting 
equipment, the design of which typically precluded boom free fall even 
in its early designs, became more prevalent.
    In light of these factors, the Agency concludes that most equipment 
manufactured after October 31, 1984, would not have live booms. Section 
1926.1426(a)(2) thus allows the older live boom equipment to be phased 
out safely by restricting its use to situations in which none of the 
circumstances listed in Sec.  1926.1426(a)(1) are present. However, 
OSHA added a new provision to this paragraph that considers live-boom 
equipment manufactured on or after October 31, 1984, and meeting the 
requirements of paragraph (b) of this section, not to be subject to the 
limitations of paragraph (a) of this section. OSHA considers such 
equipment, when so modified, to be as safe as any equipment modified 
under the requirements of paragraph (b).
    Paragraph (a)(2)(ii) allows use of a live boom if the equipment is 
a floating crane/derrick or is a land crane/derrick on a vessel/
flotation device and none of the circumstances listed in Sec.  
1926.1426(a)(1) are present. The Committee found, and OSHA agrees, that 
equipment used on the water commonly has a live boom because the 
dynamics of load transfer while on water (from side to side), as well 
as unexpected wave action can cause rapid changes in list and trim, 
which sometimes necessitates that the operator have a free fall boom 
system to compensate for these effects. Non-live systems are not fast 
enough for this purpose. At the public hearing, a witness from the 
maritime industry said that the ``unique tasks [associated with 
operating cranes on the water] have often required and will continue to 
require a modification of existing cranes and derricks so that they can 
safely accomplish these specialized applications.'' (ID-0345.41.)
    As a result, the Agency concludes that there is no need to modify 
this provision; it is promulgated as proposed.
    One commenter suggested there is a conflict between the Sec.  
1926.1426(a) allowance for the limited use of free falling booms and 
Sec.  1926.1433(b)(4) incorporation of the ASME standard prohibition on 
the use of free falling booms. (ID-0053.1.)
    Section 5-1.3.1 of ASME B30.5-2004 has a paragraph (b), which 
contains its own text, as well as two subsidiary paragraphs, enumerated 
(1) and (2), each of which also contains text. The ASME prohibition 
against live booms is in the text of paragraph (b) of ASME B30.5-2004 
sec. 5-1.3.1. Free fall is not mentioned in subsidiary paragraphs 
(b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1.
    Section 1926.1433 incorporates the concepts in only subsidiary 
paragraphs (b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1; it does 
not incorporate the portions of paragraph (b) of ASME B30.5-2004 sec. 
5-1.3.1 that would conflict with Sec.  1926.1433. There is, therefore, 
no conflict between Sec. Sec.  1926.1426(a) and 1926.1433(b)(4).
    Paragraph Sec.  1926.1426(a)(2) is promulgated as proposed.
Paragraph (b) Preventing Boom Free Fall
    Paragraph (b) of this section establishes criteria for the boom 
hoist on equipment with a boom designed to free fall. Paragraphs (b)(1) 
through (b)(4) specify the mechanisms or devices that a boom hoist can 
utilize as a secondary means to prevent boom free fall when the primary 
system fails. C-DAC determined that each of these were effective means 
of preventing boom free fall, and OSHA agrees. The addition of a listed 
secondary mechanism or device to prevent the fall of the boom changes 
the characteristics of equipment designed with a live boom, decreasing 
the risk of injury to employees. Therefore, if equipment has a boom 
hoist with a secondary mechanism or device listed in paragraphs (b)(1) 
through (4), it is not considered a live boom for purposes of the 
limitations of (a) of this section. No comments were received on these 
provisions; they are promulgated as proposed.
Paragraph (c) Preventing Uncontrolled Retraction
    Paragraph (c) of this section requires hydraulic telescoping booms 
(which are also referred to as hydraulic extensible booms) to have an 
integrally mounted holding device to prevent the boom from retracting 
in the event of hydraulic failure.
    The C-DAC draft of this provision stated that the purpose of this 
device was ``to prevent boom movement in the event of hydraulic 
failure.'' OSHA determines that this language was unintentionally broad 
in that it refers to any ``boom movement.'' In the proposed rule, OSHA 
modified the language to state that the purpose of the integrally 
mounted holding device is ``to prevent the boom from retracting'' in 
the event of hydraulic failure and requested public comment on this 
change.
    Two commenters agreed with the modification and no commenters 
disagreed. (ID-0205.1; -0213.1.) The text of Sec.  1926.1426(c) is 
therefore promulgated as proposed.
Paragraph (d) Load Line Free Fall
    Paragraph (d) of this section lists the circumstances under which 
free fall of the load line hoist is prohibited, and controlled load 
lowering must be used. ``Free fall (of the load line)'' is defined in 
Sec.  1926.1401 to mean ``where only the brake is used to regulate the 
descent of the load line (the drive mechanism is not used to drive the 
load down faster or retard its lowering).'' ``Free fall'' is contrasted 
with ``controlled load lowering,'' which Sec.  1926.1401 defines as 
``lowering a load by means of a mechanical hoist drum device that 
allows a hoisted load to be lowered with maximum control using the gear 
train or hydraulic components of the hoist mechanism. Controlled load 
lowering requires the use of the hoist drive motor, rather than the 
load hoist brake, to lower the load.''
    As with free fall of the boom, free fall of the load line hoist 
presents a struck-by hazard to employees. One difference is that free 
fall of the load line endangers a smaller area than boom free fall. 
When a boom free falls, its tip (and any attached load) moves both 
downward and outward. Because the load will be moving in at least two 
directions simultaneously, the area that will be affected by the fall 
is larger than the affected area from a load line free fall.

[[Page 48011]]

    In contrast, if a load line free falls, the load will tend to fall 
in a relatively straight path downward (as long as the boom is not 
being moved and the load is not significantly affected by winds). Thus 
the area affected will typically be smaller. As a result the 
prohibitions for load line free fall are less than those affiliated 
with boom free fall. No comments were received on paragraphs (d)(1) or 
(d)(2); they are promulgated as proposed.
    Proposed paragraph (d)(3) stated that the use of load line hoist 
free fall is prohibited when the load is directly over a power line, or 
over any part of the area extending the Table A clearance distance to 
each side of the power line. OSHA requested comment on whether proposed 
Sec.  1926.1426(d)(3) should be modified to also prohibit the equipment 
from being positioned where the fall path of the load would breach the 
Table A clearance distance. One commenter, in two comments agreed with 
the change and no commenters disagreed. (ID-0052.0; -0092.1.)
    Since this modification is consistent with the purpose of the 
provision, OSHA has included this revised language in the final rule; 
Sec.  1926.1426(d)(3) to prohibit load line free fall where the power 
line or the Table A clearance distance is within the fall path of the 
load.
    Proposed paragraph (d)(4) stated that load line free fall is 
prohibited when the load is over a shaft or cofferdam. OSHA noted that, 
unlike the prohibition against live booms in Sec.  1926.1426(a)(1)(v), 
proposed paragraph (d)(4) contained no exception regarding cofferdams 
in which there are no employees in the fall zone. OSHA requested 
comment on whether proposed Sec.  1926.1426(d)(4) should include the 
same exception included in Sec.  1926.1426(a)(1)(v). Two commenters 
agreed with the modification and no commenters disagreed. (ID-0205; -
0213.) Because the fall zone of a free falling load line is typically a 
smaller area than the fall zone of a free falling boom, the Agency is 
unaware of any reason to include the exception in Sec.  
1926.1426(a)(1)(v) for live booms but omit it for load free fall. 
Therefore, in the final rule, OSHA has modified the language in 
proposed Sec.  1926.1426(d) by separately addressing shafts and 
cofferdams, and adding an exception for the latter.
Section 1926.1427 Operator Qualification and Certification Introduction
    Section 1926.1427 addresses the safety problems that result if 
equipment operators lack the knowledge and skills necessary to perform 
their duties safely. In C-DAC's collective experience, operator error 
plays a role in a significant percentage of fatal and other serious 
crane accidents because operators are not familiar with the precautions 
needed to protect against hazards such as power line contact, crane 
overloading and collapse, and loss of control of the load. C-DAC 
concluded that a verified testing process is essential for ensuring 
that crane operators have the requisite knowledge and skills and that 
requiring crane operators to successfully complete such a process would 
be an effective and efficient way to reduce crane-related accidents.
    In the proposed rule, OSHA noted that C-DAC's finding in this 
regard was supported by a study conducted over a 34-year period (1969-
2002) by the Construction Safety Association of Ontario that showed a 
substantial decrease in crane and rigging fatalities in Ontario 
beginning in 1979, when mandatory training and certification 
requirements for Ontario crane operators went into effect. (ID-0009.) 
In the ten-year period from 1969 through 1978, before Ontario's 
requirements went into effect, 85 Ontario construction workers suffered 
crane and rigging fatalities, amounting to 8.5 per year, or 19.8% of 
all construction fatalities in Ontario. In the 24-year period from 1979 
through 2002, there were 51 crane and rigging fatalities, or slightly 
more than two per year. For this period, crane and rigging fatalities 
equaled 9.6% of all Ontario construction fatalities. In the 12-year 
period from 1991 through 2002, the total number of crane and rigging 
fatalities was 9, or fewer than one per year. During this period, crane 
and rigging fatalities amounted to 4.1% of total construction 
fatalities. This study supports C-DAC's conclusion that third-party 
certification is an effective means of promoting safe crane 
operations.\107\
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    \107\ The Ontario system requires prospective or current crane 
operators (referred to in Ontario as ``hoisting engineers'') to 
either successfully complete an apprenticeship program or 
demonstrate sufficient previous experience before seeking 
certification as a hoisting engineer. The apprenticeship program 
includes in-school training in a number of topics determined by the 
Ministry of Education, a practical examination administered at 
Ministry-designated sites, and a written examination administered by 
the Ministry. Upon passing this examination and proving completion 
of the requisite work hours, an apprentice receives a certificate of 
qualification as one of three types of hoisting engineer from the 
Ministry. (ID-0010.)
    Hoisting engineers already qualified elsewhere must also obtain 
a certification from the Ministry to operate cranes in the province. 
These candidates must sit for the written examination and complete 
the practical skills assessment required for qualification of 
apprentices, but may demonstrate sufficient previous experience 
instead of completing the number of work/training hours required by 
the apprenticeship program, to receive a certificate of 
qualification from the Ministry in one of the three hoisting 
engineer categories. (ID-0011.)
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    The rulemaking record contains additional support for C-DAC's 
conclusion. A study of crane accidents in California both before and 
after that State adopted a mandatory certification requirement shows a 
significant drop in crane-related fatalities and injuries after the 
certification requirement went into effect on May 31, 2005. (ID-
0205.1.) For the three years prior to that date, California experienced 
ten fatal accidents, while in the next three years, only two fatal 
accidents occurred. The number of injury cases declined from 30 to 13 
over the same two periods. The California data supports that from 
Ontario and demonstrates that significant safety benefits can be 
expected from a requirement for third-party certification.
    The rulemaking record also contains substantial evidence regarding 
the need for continued application of State and local laws. As several 
commenters explained, State and local licensing requirements are backed 
by the police power of that government. For example, New York law 
states that the operation of a crane without a valid license in New 
York City is a misdemeanor punishable by fines and imprisonment. (NYC 
Administrative Code Sec. Sec.  28-405.1; 28-203.1.) Moreover, states 
have the power to revoke previously issued licenses under appropriate 
circumstances. (ID-0171.1.) In contrast, OSHA's enforcement of 
certification or other qualification requirements would be limited in 
most cases to a citation to an employer. Based on the record as a 
whole, the Agency concludes that cooperative Federal-State enforcement 
will increase the effectiveness of the new standard. See also 
discussion of federalism in section V.D of this preamble.
    The certification requirements in the final rule are therefore 
designed to work in conjunction with State and local laws, and to 
afford employers several options for ensuring operator abilities in 
areas where there are no State or local operator licensing 
requirements. For operation of equipment within jurisdictions where a 
State or locality licenses crane operators, and the government entity's 
licensing program meets certain criteria, OSHA is requiring operators 
(with the exception of operators that are employees of and operating 
equipment for the U.S. military) to be licensed by that government 
entity. For operation in other areas, employers will have three

[[Page 48012]]

options for certification or qualification of their operators. Each of 
these options will be explained and discussed in detail below. They 
are:
    1. Be certified by passing an examination administered by an 
accredited testing organization.
    2. Be qualified through the employer's in-house, but independently 
audited, testing program.
    3. Be qualified by the United States military.
    While OSHA is requiring compliance with State and local licensing 
laws immediately upon the effective date of this standard in 
recognition of the existing force and effect of those laws, OSHA is not 
requiring certification or qualification under the three options listed 
above until four years from the effective date of this standard. 
Moreover, there are limited exceptions to all of the licensing and 
certification requirements, as specified in Sec.  1926.1427(a). Even 
after the four-year phase-in period of the general certification 
requirements, OSHA will continue to allow non-certified operators to 
operate the equipment as operators-in-training in accordance with Sec.  
1926.1427(f), discussed below.
    Of the three options available in the absence of State or local 
licensing laws, Option (3) of this section is available only to the 
United States military for qualification of its employees. Further, as 
discussed below, a number of commenters stated that Option (2) of this 
section was not viable for many employers. However, Option (1) of this 
section is available to all employers and will be the one that is most 
widely used. Therefore, most of the public comments and evidence 
presented at the hearing addressed Option (1).
    At the hearing, a witness for an accredited testing organization 
testified that the certification process embodied in Option (1) 
originated in the 1990s when private industry groups began an effort to 
improve crane safety. The witness explained that the industry 
representatives involved with the organization are drawn from such 
groups as contractors, crane rental firms, labor unions, owners, steel 
erectors, manufacturers, construction firms, training consultants, and 
insurance companies. (ID-0343.) The witness also explained that exam 
management committees meet throughout the year to ensure the continuing 
fairness and integrity of the testing process. Finally, the witness 
explained that certification promotes safety by ensuring that the 
training an individual has received has succeeded in giving that 
individual the knowledge and skills to operate a crane safely. (ID-
0343.)
    Many commenters and witnesses at the public hearing expressed 
support for the proposed rule's approach of requiring third party 
verification of an operator's qualifications and for the range of 
options presented. A national safety organization expressed support for 
the provision to ensure qualification and certification of operators. 
(ID-0178.1.) A trade association stated that third party oversight was 
critical to create an effective and legitimate testing process and to 
ensure that the training portion did not have undue influence on the 
testing process. (ID-0205.1.)
    Similarly, another commenter supported the proposed Q/C 
requirements, emphasizing the importance of independent certification 
of an operator's skill and knowledge by an accredited nationally 
recognized third-party entity or organization. (ID-0169.1.) Similar 
views were expressed by other commenters. (ID-0158.1; -0160.1; -0173.1; 
-0192.1; -0196.0; -0211.1; -0212.1; -0220.1; -0225.1; -0228.1; -
0241.1.)
    A number of witnesses at the public hearing also supported the 
proposed requirement for third-party verification. A representative 
from a crane rental company said that, although they incur additional 
cost to prove certification, they consider that cost an investment in 
the safety of their employees. (ID-0344.) A major crane user observed 
both certified and non-certified operators and found that the certified 
operators operated far more safely because of the more comprehensive 
training required to become certified. (ID-0344.)
    An insurance company representative and former crane operator 
stated that his company believes that employers who certify their 
operators have fewer accidents and that, as a result, his firm offers 
companies it insures a ten percent discount if they have their 
operators certified. (ID-0343.) The representative believed that the 
cost of certification was modest when compared to the cost of 
accidents. (ID-0343.) A representative from a crane rental company 
testified that preparing for the certification process allowed his 
company to improve their operators' knowledge and ability to operate 
cranes safely. (ID-0343.) A representative from a steel erection 
company agreed that certification is important to both insurance 
companies and employers because certification gives employers peace of 
mind and reduces insurance costs. (ID-0344.)
    Some commenters and witnesses opposed the proposed rule's 
requirement for qualification or certification of operators. A trade 
association commented that the requirements would not improve safety 
more than having trained, qualified operators because many of the 
operators in recent accidents were certified. (ID-0151.1.) The 
commenter also questioned whether sufficient analysis had been done to 
show that the proposed requirements would improve the safety of crane 
operations. This commenter believed that the current requirement (Sec.  
1926.20(b)(4)) for equipment operators to be qualified by training or 
experience was sufficient. A witness from a similar trade association 
expressed a similar view, stating that training, not certification, is 
the answer to safe crane operations. (ID-0343.)
    A representative of the building industry thought the requirements 
were too restrictive and stated that OSHA failed to show that the 
limited requirements would substantially reduces the risk of accidents 
while other alternatives would not. (ID-0232.1.) The commenter asked 
that its members have the option to self-evaluate their operators after 
they have gone through a specified training program in lieu of the 
third-party certification that would be required under proposed Option 
(1) of this section for cranes of less than 35 ton capacity with a boom 
length no greater than 120 feet. A witness who appeared on behalf of 
the commenter criticized the proposal for imposing the same 
requirements on employers engaged in residential construction as those 
in commercial construction and said training and certification 
requirements should be crane and industry specific. (ID-0341.)
    Another trade association similarly recommended that its members be 
given the ability to self-certify their operators. (ID-0218.1.) A small 
business representative asked OSHA to assess whether it is feasible to 
allow small employers to ``self-certify'' that an operator is trained 
and competent to operate the equipment and perform the tasks being 
conducted.\108\ (ID-0147.1.) A trade association suggested that OSHA 
consider the feasibility of allowing small employers to ``self-
certify'' that their operators are trained and competent to operate the 
equipment and perform their assigned tasks. (ID-0187.1.) Another trade 
association believed that mandatory self-certification was a feasible 
option for operators of what it characterized as ``light-duty'' cranes 
used by its members. (ID-0189.1.)
---------------------------------------------------------------------------

    \108\ The commenter, however, also acknowledged that there are 
small businesses that are in favor of third-party certification. 
(ID-0147.1.)
---------------------------------------------------------------------------

    An energy association argued that firms engaged in wind turbine

[[Page 48013]]

construction should be permitted to self-certify their crane 
operators.- (ID-0329.1.) The commenter stated that construction of wind 
turbines requires the use of the largest and most complex cranes 
available, and that some of its members had found that some operators 
certified by NCCCO were not truly qualified to operate those cranes. It 
therefore believed that firms in its industry should be able to self-
qualify their crane operators, but objected to the need for employers 
in its industry who use Option (2) of this section to be required to 
use the services of an auditor. The commenter said it did not believe 
that there would be properly trained and qualified people available to 
audit the wind industry. Instead of requiring auditors, the commenter 
suggested that OSHA add to the find rule additional, detailed criteria 
that an employer-sponsored program must contain to be acceptable.
    OSHA rejects the suggestions of the commenters who argued that 
employers should have the option of determining that their operators 
are qualified without any form of third-party verification. Based on 
the rulemaking record, OSHA is persuaded that the third-party 
requirements in the proposed rule are an essential element in improving 
crane safety. The members of C-DAC, who had vast collective experience 
in all aspects of crane operations, reached a consensus (with two 
members dissenting) \109\ that third-party verification was needed to 
reduce the number of crane accidents and fatalities in the construction 
industry. Their consensus was supported by a number of commenters, 
including some employers who have already had their operators certified 
through a third-party process and have found certification to be a 
useful and cost-effective means of promoting safety.\110\ The reliance 
of the insurance industry on third-party verification as such an 
indicator of reduced risk that it warrants reduced premiums, is further 
evidence of its value. Moreover, the fact that safety-conscious members 
of private industry voluntarily helped to develop a third-party 
certification process before there was a government mandate to do so is 
further evidence that certification promotes safety.
---------------------------------------------------------------------------

    \109\ As explained in the Introduction, under C-DAC ground 
rules, a ``consensus'' was reached on an issue if there were no more 
than two non-Federal dissenters.
    \110\ It is also supported by the data from Ontario and 
California showing that third-party certification can significantly 
reduce crane-related fatalities and injuries, discussed below.
---------------------------------------------------------------------------

    As discussed earlier, a number of commenters urged OSHA to require 
training rather than certification. But training alone is insufficient 
without a means of verifying that each operator understands the 
training well enough to operate safely and is sufficiently skilled to 
implement what he/she has been taught. As Graham Brent, Executive 
Director of NCCCO put it at the hearing, ``[c]ertification * * * is an 
employer's, as well as the general public's, best assurance that the 
required training has not only been effective, but that learning has 
taken place during the training process.'' (ID-0343.) OSHA's current 
training standard has not prevented the high number of crane-related 
fatalities and serious injuries that have been occurring as a result of 
improper operation.
    OSHA acknowledges that many employers have effective training 
programs and highly competent crane operators. However, the rulemaking 
record shows that a training requirement alone is insufficient to 
ensure that crane operators have the requisite level of competence. 
This was the opinion of the members of C-DAC and is shared by many of 
the members of the public who commented on the proposed rule and who 
testified at the public hearing.
    A representative of the building industry objects to OSHA's 
reliance on the study by the Construction Safety Association of 
Ontario, saying that it does not meet statutory and regulatory 
information quality standards, including the Department of Labor's 
Information Quality Guidelines.\111\ (ID-0232.1.) First, OSHA notes 
that the Ontario study is only part of the record evidence on which the 
Agency relies in promulgating this standard. In the preamble to the 
proposed rule, OSHA stated that the Ontario study ``buttressed'' C-
DAC's experience and conclusions regarding the need for independent 
testing of operator ability (see 73 FR 59810, Oct. 9, 2008). Second, 
OSHA's reliance on that study does comply with the Department's 
guidelines. Appendix II of the guidelines addresses the information 
quality principles on which OSHA relies in setting health and safety 
standards. For safety standards, such as this rule, OSHA must use ``the 
best available statistical data from surveys of fatalities, injuries, 
and illnesses, and the best available peer-reviewed science and 
supporting studies that describe the nature of the safety risks being 
addressed.'' OSHA determines that the Ontario study, though not peer-
reviewed, is the ``best available statistical data'' showing the 
efficacy of third-party operator certification. The California study is 
similarly supportive of the C-DAC conclusions.
---------------------------------------------------------------------------

    \111\ ``Guidelines for Ensuring and Maximizing the Quality, 
Objectivity, Utility, and Integrity of Information Disseminated by 
the Department of Labor,'' (Oct. 1, 2002), available on the 
Department of Labor's Web site.
---------------------------------------------------------------------------

    In other respects as well, OSHA has complied with the Department of 
Labor's Information Quality Guidelines. The guidelines state that 
``[t]he goal of a safety risk analysis is to describe the numbers, 
rates, and causal nature of injuries related to the safety risks being 
addressed.'' To meet this goal, OSHA historically has ``relied on 
injury and illness statistics from BLS, combined with incident or 
accident reports from enforcement activities, incident or accident 
reports submitted to the record from the private or public sectors, 
testimony of experts who have experience dealing with the safety risks 
being addressed, and information and data supplied by organizations 
that develop consensus safety standards.''
    In developing the proposed rule, and in issuing this final rule, 
OSHA has relied on these types of evidence, including studies based on 
BLS statistics and OSHA enforcement reports, as well as incident 
reports from specific enforcement cases. (See 73 FR 59719-59723, Oct. 
9, 2008.) On the specific question of the need for third-party 
verification of a crane operator's qualifications, OSHA has relied 
primarily on the opinions of experts with vast experience in crane 
operations and the hazards presented by crane use, including the 
members of C-DAC and construction industry employers who appeared at 
the public hearing. OSHA is persuaded that third-party verification 
will significantly reduce the number of crane-related injuries and is 
confident that the information on which it relies to set this standard 
is reliable, the best available, and meets the Department's guidelines.
    A trade association also questioned OSHA's reliance on the Ontario 
study, suggesting that Ontario's ability to issue citations to 
employees is the likely cause of Ontario's decrease in fatal crane 
accidents. (ID-0151.1.) OSHA notes, however, that the Construction 
Safety Association of Ontario attributed the decrease to increased 
operator skill, not employee citations. (ID-0009.) OSHA determines that 
the Construction Safety Association of Ontario was well-positioned to 
evaluate why Ontario was able to achieve a dramatic reduction in crane-
related fatalities and accepts its opinion on the question. Moreover, 
the employee citations permitted under Section 66 of Ontario's 
Occupational Health and Safety Act did not take effect until 1990. 
These employee citations

[[Page 48014]]

appear to function primarily as a deterrent to non-compliance with 
Ontario's construction safety standards, as opposed to the operator 
certification requirements that are intended to verify knowledge and 
skills necessary for safe operation. In that regard, the civil fine 
provisions are similar to the licensing requirements (separate from 
certification) that Ontario had required prior to 1979. There is no 
indication in the record that the fines provided a greater level of 
deterrence than the government's pre-existing authority to sanction an 
individual operator through the revocation of an operator's license.
    The representative of the building industry claimed that the rate 
of accidents resulting from crane use in the residential construction 
industry is too low to justify requiring homebuilders to comply with 
the qualification/certification requirement in the proposed rule. The 
commenter conducted a study, using fatality data from the Bureau of 
Labor Statistics, which, according to the commenter, showed that 13 out 
of 1385, or slightly less than 1%, of fatalities in the residential 
construction industry from 2003-2006 were crane-related. (ID-0232.1.) 
Because this percentage is substantially less than the more than 8% of 
all construction fatalities that were found to be crane-related in the 
Beavers study, the commenter suggests the risk of serious injury from 
the smaller truck mounted telescopic boom cranes used in residential 
construction is substantially less than the risk of injury from large 
lattice boom and tower cranes used in commercial/industrial 
construction. The commenter stated that a copy of its study was 
attached to its comment and is available on its Web site. (ID-0232.1.) 
In fact, a copy was not attached to its comment. OSHA has located a 
document on the commenter's Web site entitled ``Residential 
Construction Fatalities, 2003-2006'' that describes the causes of 
fatalities in residential construction, but has found nothing in that 
document to support the commenter's claim that only 13 of those 
fatalities were crane-related.
    Nevertheless, even if the commenter could support its claim of 13 
crane-related fatalities, its conclusion that cranes present little 
risk of serious injury in residential construction does not follow. 
First, OSHA determines that 13 crane-related fatalities in homebuilding 
in a four year period is significant and well worth trying to reduce. 
Moreover, the commenter's comparison of percentages is not persuasive. 
The fact that a smaller percentage of fatalities are crane-related in 
residential construction than in commercial/industrial construction may 
simply reflect lower crane usage in residential construction. A witness 
who appeared on behalf of the commenter at the public hearing, 
testified that cranes are typically used on a residential construction 
project between two and six hours to lift objects like roof and floor 
trusses. (ID-0341.) The witness noted that for commercial construction, 
a crane might be on the job from six months to two years. (ID-0341.) In 
light of the brief percentage of time cranes are used in residential 
construction compared to the percentage of time they are used in 
commercial construction, it would be expected that the percentage of 
accidents they cause will similarly be lower even if, while they are on 
the job, they present the same or even a higher degree of risk.\112\
---------------------------------------------------------------------------

    \112\ Mr. Behlman testified that overhead power lines are ``very 
seldom'' found on residential sites. (ID-0341.) However, the 
document on NAHB's Web site showing the causes of residential 
construction fatalities from 2003 to 2006 attributes 76 fatalities 
to ``contact with overhead power lines.''
---------------------------------------------------------------------------

    OSHA also rejects the commenter's suggestion that homebuilders 
should be permitted to self-certify their crane operators. The 
commenter states that the vast majority of the building association's 
single-family home builders are very small, with 61% building ten homes 
or fewer. The witness stated at the hearing that the home building 
industry has many small operations and a few very large players. (ID-
0341.) In OSHA's experience, most small construction firms would not 
have the expertise to develop or administer the types of tests 
necessary to reliably assess operator ability (see the discussion of 
the criteria applied by nationally recognized accrediting entities to 
accredit certification organizations).
    OSHA also does not conclude that such companies typically possess 
the expertise to establish and implement the sophisticated type of 
training program that the commenter suggests should be required for 
employer self-certification. (ID-0232.1.) The same problem exists 
throughout the construction industry, which includes numerous small 
firms. Furthermore, as found by C-DAC, independent testing is essential 
to ensure that operators have in fact attained the knowledge and 
ability the training is supposed to impart.
    A number of commenters suggested that the proposed requirements 
should be modified in various ways. Some suggested exempting certain 
equipment from the qualification/certification requirement or requiring 
a form of qualification/certification that the employer could implement 
without resort to third-party verification. Others suggested expanding 
the range of options available to the employer, in particular allowing 
accredited educational institutions to certify operators. These 
comments will be discussed below in the sections of the standard that 
address the issues raised by the commenters.
Paragraph (a)
    In the final rule, paragraph (a) of this section specifies that the 
employer must ensure that the operator of any equipment covered under 
Sec.  1926.1400, with certain listed exceptions, is either qualified or 
certified to operate the equipment in accordance with the provisions of 
this section or is operating the equipment during a training period. 
Paragraph (a)(1) requires compliance with State and local operator 
licensing laws. For areas where State or local licensing is not 
required, paragraph (a)(2) requires employers to use one of the three 
options listed above to certify or qualify their operators. Paragraph 
(a)(3) provides exceptions from all of Sec.  1926.1427's certification 
and qualification requirements for operators of certain equipment, 
regardless of whether State or local governments have licensing 
requirements for operators of that equipment.\113\
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    \113\ These State and local licensing requirements would remain 
in effect. See discussion of preemption of State and local law under 
federalism in section V.D of this preamble. OSHA is simply choosing 
not to require compliance with any such licensing requirements for 
that equipment.
---------------------------------------------------------------------------

Paragraph (a)(1) Compliance With State and Local Licensing Requirements
    The proposed rule included a fourth option to satisfy the operator 
certification/qualification requirements of Sec.  1926.1427: 
qualification through a government entity with a licensing program 
meeting certain criteria. Several states submitted comments on the 
proposed rule urging the Agency to preserve State and local operator 
licensing laws. Some of these concerns are addressed in the discussion 
of preemption under federalism in section V.D of this preamble. Two of 
those commenters, each with its own statewide crane operator licensing 
requirements, specifically requested that OSHA mandate compliance with 
State requirements for crane operations within the jurisdiction of 
those states (with the exception of operators who are employees of the 
U.S. military). (ID-0171.1; -0237.) Three State governments argued 
persuasively that if government licensing was presented merely as an 
option, rather than required, many employers would simply by-pass these

[[Page 48015]]

licensing requirements in favor of less stringent, portable private 
certification options. (ID-0171.1.) One State government also noted 
that some states have proven, reliable licensing procedures already in 
place. Where State and local licensing departments or offices are 
already well established and staffed, and are already preventing deaths 
or serious injuries through the use of effective licensing procedure, 
there is little support in the record for disturbing them.
    In light of the commenter's compelling arguments and the policy 
considerations noted above, the Agency is convinced that the 
governmental licensing requirements should be mandatory, rather than 
optional. In response, the Agency is revising paragraphs (a) and (e) of 
Sec.  1926.1427 to mandate compliance with State and local operator 
licensing laws that meet a ``Federal floor'' established in paragraphs 
(e)(2) and (j) of this section.\114\
---------------------------------------------------------------------------

    \114\ This ``Federal floor'' refers to the minimum requirements 
for license tests in Sec.  1926.1427(e)(2), and the minimum 
knowledge and skills that must be tested as set forth in Sec.  
1926.1427(j)(1) and (j)(2). Employers would not be required by OSHA 
to comply with State or local government entity licensing 
requirements that do not meet this ``Federal floor,'' but States and 
local governments could still seek to enforce their own laws.
---------------------------------------------------------------------------

    This mandatory compliance is set forth in the introductory text of 
Sec.  1926.1427(a)(1) and paragraph (a)(1)(i). OSHA has added Sec.  
1926.1427(a)(1)(ii) to clarify that employees of the U.S. military who 
have been certified or qualified to operate equipment pursuant to Sec.  
1926.1427(d) would not also be required to obtain an operator's license 
from a State or local government for construction work on behalf of the 
military employer. By requiring compliance with State and local laws, 
the Agency is also complying with Executive Order 13132, which urges 
agencies to preserve the full force and effect to State and local laws. 
(See 64 FR 43225, Aug. 10, 1999.)
    This decision is a logical outgrowth of the proposal. The proposal 
identified a significant safety risk from improper operation of 
equipment and proposed certification requirements as a means of 
addressing that risk. Governmental licensing of crane operators has 
existed alongside OSHA's prior crane rules at former Sec.  1926.550 for 
many years, and C-DAC made them a significant component of the proposal 
without any indication that the new standard would exempt employers 
from compliance with those laws. The government licensing provision was 
the subject of a number of comments, and was discussed during the 
hearing in the context of comments requesting OSHA to make the 
government licensing mandatory.
    The preamble to the proposed rule noted C-DAC's opinion that some 
States have ``effective, reliable, licensing procedures'' (73 FR 59814, 
Oct. 9, 2008). The preamble to the proposed rule also specifically 
cited the Department of Transportation's requirement that commercial 
drivers also carry State drivers licenses issued in accordance with 
Federal standards (73 FR 59810). The DOT licensing was provided as an 
example of how State licensing, when required as part of a general 
Federal compliance scheme, has been ``used in the past to prevent fatal 
and other serious accidents that result when operators lack the 
knowledge and skills needed to operate safely.'' Id. The only other 
example of successful third-party certification provided as a basis for 
the certification requirement was another government licensing 
requirement: Ontario's licensing requirements for crane operators. Id. 
The combination of OSHA's exclusive reliance on these examples and the 
government licensing provision in proposed Sec.  1926.1427(e) provided 
clear notice that the government licensing provision might develop 
along the lines of the examples. While several commenters submitted 
comments supporting mandatory compliance with government licenses, 
thereby indicating that at least these parties viewed the mandatory 
compliance as a possible outcome of the rulemaking, none of the 
commenters objected to the government licensing provision or questioned 
the validity of their tests. The Agency's choice to make compliance 
with paragraph (e) mandatory, rather than optional, flows logically 
from the proposal, the comments, and the discussion at hearing. See 
National Mining Ass'n v. Mine Safety and Health Admin., 512 F.3d 696, 
699 (DC Cir. 2008) (noting that the logical outgrowth test takes into 
account the comments, statements and proposals made during the notice-
and-comment period).
    The Agency's decision to mandate compliance with State and local 
laws is not new. OSHA already relies on State licensing requirements in 
its respirator standard when it provided for ``a licensed health care 
professional'' to perform a medical evaluation of an employee's ability 
to use a respiratory (see Sec.  1910.134(e)). This portion of the 
standard was challenged and upheld in American Iron Steel and Steel 
Institute v. OSHA, 182 F.3d 1261, 1278 (11th Cir. 1999). OSHA's choice 
to mandate compliance with State or local law is also consistent with 
the approach of other agencies. (See, e.g., Department of 
Transportation regulations requiring State licensing of commercial 
drivers, discussed in the preamble to the proposed rule at 73 FR 59810, 
Oct. 9, 2008.)
Paragraph (a)(2) Options for Certification or Qualification Where 
License Not Required by a Government Entity
    As noted above, where a State or local license is not required, 
employers have three choices for certification of operators. Those 
choices are set out in paragraphs (b) through (d) of this section and 
discussed in detail below. It is important to note that these options 
will not satisfy the requirements of Sec.  1926.1427 for operation of 
equipment within a State or local government's jurisdiction when that 
government entity has it's own licensing requirements that satisfy the 
criteria in paragraphs (e) and (j) of this section.
Paragraph (a)(3) Exceptions
    The exceptions in the proposed rule were for types of equipment 
that are specifically excluded from the qualification/certification 
requirement under sections of this standard that pertain to that 
equipment, including derricks (see Sec.  1926.1436), sideboom cranes 
(see Sec.  1926.1440), and equipment with a rated hoisting/lifting 
capacity of 2,000 pounds or less (see Sec.  1926.1441).
    A labor representative pointed out that the exception in Sec.  
1926.1441 applies to equipment with a ``maximum manufacturer-rated'' 
hoisting/lifting capacity of 2,000 pounds or less, and it asked that 
this same language be used in Sec.  1926.1427(a) to avoid suggesting 
that the exception might apply to larger equipment when it is 
configured to have a rated capacity of 2,000 pounds or less. (ID-0341.) 
OSHA agrees that the suggested change better reflects the intent of the 
provision and has modified the language of Sec.  1926.1427(a) in the 
final rule by replacing the word ``rated'' with ``maximum rated.'' OSHA 
notes that this change does not change the substantive requirements of 
the rule in any manner.
    A number of commenters asked that additional types of equipment or 
activities be exempted from Sec.  1926.1427's qualification/
certification requirement.
    A utility company recommended that cranes of 10,000 pound capacity 
or less be excluded on the basis that most uses of these cranes are 
highly repetitive and predictable. (ID-0144.1.) A trade association 
suggested exempting cranes rated at less than 10 or 15 tons from the

[[Page 48016]]

requirement. (ID-0191.1.) It said that these types of cranes are often 
used to deliver products to a jobsite or to place small rooftop HVAC 
units on low rise buildings, and that they are used for simple lifts of 
relatively light loads. This commenter also requested that OSHA add a 
less restrictive certification level for cranes rated less than 30 
tons, which it said are less complicated to assemble and set up and are 
used during ``low risk'' lifts.
    Another trade association suggested that the threshold for 
requiring qualification/certification should exclude the 5,000 to 
10,000 pound capacity cranes that its members typically use. (ID-
0189.1.) It said that this equipment is relatively simple to operate, 
that the signs its members install rarely exceed 2,000 pounds, and that 
the equipment is used intermittently on the job and only for brief 
periods of time.
    A third trade association believes that the size and scope of the 
lifts its members make do not justify the qualification/certification 
requirements in the proposed rule and suggested alternative 
requirements for its members when they operate cranes of less than 35 
ton capacity with a boom length no greater than 120 feet. (ID-0218.1.) 
They ask that their members have the option to self-evaluate their 
operators after they have gone through a specified training program 
instead of the third-party certification that would be required under 
proposed Option (1). A representative of the building industry made a 
similar recommendation for cranes of less than 35 ton capacity with a 
boom length no greater than 120 feet. (ID-0232.1.) A small business 
representative suggested that OSHA consider exempting some small cranes 
(based on vehicle weight or boom length) or routine lifts. (ID-0147.1.)
    A witness for a labor representative testified in opposition to 
excluding equipment rated over 2,000 pounds by the manufacturer. He 
stated that some low-capacity cranes have long booms and are used to 
lift loads to great heights, particularly when there is not sufficient 
space for a larger crane. (ID-0341.) According to the witness, safety 
concerns presented by low capacity cranes with a long boom are as 
serious as the concerns presented by high capacity cranes. (ID-0341.) 
He added that the danger of power line contact was present regardless 
of the capacity of the crane.
    A representative from a crane rental company also testified against 
exempting low-capacity cranes from the qualification/certification 
requirement. His company had a fleet of cranes ranging from 4 to 600 
ton capacity, and in his experience the majority of accidents that his 
customers experienced when they rented cranes but provided their own 
operators occurred with cranes rated 35 tons or less. (ID-0344.) He was 
aware of accidents on residential construction sites that resulted from 
operating on unsuitable ground, not setting the outriggers properly, 
and lifting too heavy a load for the crane's configuration, 
deficiencies that he attributed to operators who did not appreciate the 
hazards involved. (ID-0344.)
    OSHA has carefully considered the comments asking for additional 
types of equipment to be exempted from the qualification/certification 
requirements of Sec.  1926.1427. For the following reasons, OSHA 
declines to add such exemptions to the final rule.
    The members of C-DAC, who had vast collective experience in all 
aspects of crane operations, reached a consensus that third-party 
verification was needed to reduce the number of crane accidents and 
fatalities in the construction industry. They further determined that 
such a requirement should apply to virtually all hoisting equipment, 
with only the limited exceptions listed in the proposed rule. In 
proposing to exempt equipment with a rated capacity of 2,000 pounds or 
less, the Committee considered whether to establish a higher threshold 
for the requirement but concluded that the operators of higher-capacity 
cranes, including those in the 5,000-35,000 pound range that the 
commenters ask to be exempted, needed to be well-qualified to reduce 
the number of accidents involving such cranes. Ultimately, C-DAC 
included the 2,000 pound cutoff to parallel ANSI B30.5 in this regard 
(see 73 FR 59841, Oct. 9, 2008).
    The rulemaking record shows that many of the same hazards presented 
by larger cranes are present for cranes in this capacity range, 
including operating in proximity to power lines, the potential for 
collapse if the crane is overloaded, and the need for adequate ground 
conditions to ensure the crane's stability during operation. As a labor 
representative testified, these smaller cranes may be used in tight 
spaces where larger cranes cannot be used. An operator's loss of 
control of the load in a tight space would present a serious safety 
hazard, and the potential for operating in tight spaces highlights the 
need for operators of even relatively low-capacity cranes to be highly 
skilled.
    OSHA also rejects the suggestions by some commenters that 
exemptions should be created for cranes that are typically used for 
repetitive, predictable, intermittent, or light use.
    The principal difficulty with this suggestion is that the 
underlying causes of crane-related fatalities and injuries are not 
necessarily diminished in such situations. For example, the presence of 
power lines presents an electrocution hazard in all situations, 
irrespective of how the equipment is used. Proper ground conditions, 
which can change during crane use, are also as necessary for those 
types of uses as others, and all cranes can be overloaded if operated 
improperly. The knowledge and skill needed for attaining operator 
qualification/certification under this section is a prerequisite for 
being able to successfully address these and other hazards.
    Furthermore, while an employer may initially plan to use a crane in 
a repetitive or otherwise predictable manner, or to handle light loads, 
unforeseen circumstances can arise that can alter those plans. Wind, 
which can arise unexpectedly during a lift, can dramatically decrease 
the capacity of a crane and increase the difficulty in properly 
handling the load; a previously ``repetitive'' lift can change 
unexpectedly when rain causes the ground supporting the crane to become 
muddy and less able to support the crane; a rigging problem may arise 
during one of the ``repetitive'' lifts, which could cause unexpected 
load control problems during the lift; and hoisting a ``light'' load at 
a low boom angle can pose similar overturning hazards to hoisting a 
heavy load at a high boom angle. Nor are there fewer crane-related 
hazards when a worker operates a crane only intermittently. For 
example, that operator on one of those occasions may have to run the 
crane near power lines, in the blind, with uneven winds, or at a low 
boom angle; in such cases (as in many others) he/she needs to be as 
fully capable as an operator who runs the crane regularly.
Paragraph (a)(4)
    The Agency is adding this paragraph to the final rule to clarify 
that operator certification or qualification as required under this 
section must be provided at no cost to employees who are already 
employed by the employer on November 8, 2010. This clarification is 
consistent with the Agency's revision of the training requirements 
throughout subpart CC to expressly state that employers must provide 
all training at no cost to employees. The clarification is consistent 
with the Agency's treatment of costs for operator qualification and 
certification in the

[[Page 48017]]

preliminary economic analysis provided in the preamble of the proposed 
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification 
training treated as cost to employer).)
    Based on the testimony of several witnesses at the hearing, OSHA 
concludes that imposing the operator qualification and certification 
costs on the employer will not be overly burdensome to the employer. At 
the hearing, a representative from a crane rental company said that, 
although his company incurs additional cost to provide certification, 
his company considers that cost an investment in the safety of their 
employees. (ID-0344.) An insurance company representative and former 
crane operator stated that the cost of certification was modest when 
compared to the cost of accidents. (ID-0343.) This witness also stated 
that his company believes that employers who certify their operators 
have fewer accidents and that, as a result, his firm offers companies 
it insures a ten percent discount if they have their operators 
certified. (ID-0343.) A representative from a steel erection company 
agreed that certification is important to both insurance companies and 
employers because certification gives employers peace of mind and 
reduces insurance costs. (ID-0344.)
    In light of the need for clarification and witness support at the 
hearing, OSHA is adding new paragraph (a)(4) to this section of the 
final rule.
Paragraph (b) Option (1): Certification by an Accredited Crane Operator 
Testing Organization
    As noted above, the proposed rule provided four options for a crane 
operator to be qualified or certified. Option (1) of this section, in 
which the employee becomes certified to operate equipment of a certain 
type and capacity by passing an examination administered by an 
accredited testing organization, is the most broadly available option, 
and OSHA expects it to be the one that most employers use outside of 
jurisdictions with State or local licensing requirements.
    Under Option (1), a crane operator becomes certified by a testing 
organization that has itself been accredited by a ``nationally 
recognized accrediting agency.'' Section 1926.1401 defines ``nationally 
recognized accrediting agency'' as ``an organization that, due to its 
independence and expertise, is widely recognized as competent to 
accredit testing organizations.'' The use of a nationally recognized 
accrediting agency to provide an independent, authoritative assurance 
of a testing organization's competence is a well-established practice. 
For example, for a number of years, the National Commission for 
Certifying Agencies (NCCA), the accreditation body of the National 
Organization for Competency Assurance (NOCA), has accredited testing 
organizations in a wide variety of fields, including those that provide 
crane operator certification. (ID-0021.) Also, in 2003, the American 
National Standards Institute began accrediting personnel certification 
entities. (ID-0022.)
    Under Sec.  1926.1427(b)(1)(i), for a testing organization to 
become accredited, the accrediting agency must determine that the 
testing organization's written testing materials, practical 
examinations, test administration, grading, facilities/equipment and 
personnel meet industry recognized criteria. The accrediting agency 
must determine that the written testing materials and practical 
examinations are well designed and sufficiently comprehensive that an 
individual who achieves a passing grade has demonstrated the skills and 
knowledge needed to operate the equipment safely. The accrediting 
agency must also determine that the testing organization's 
administration and grading ensure the integrity of the test so that the 
individual's grade truly represents the knowledge and skill level of 
that individual.
    A safety association believed that the criteria for accrediting 
agencies in proposed Sec.  1926.1427(b)(1)(i) were not sufficiently 
rigorous and suggested replacing that paragraph with a paragraph that 
required the nationally recognized accrediting agency to use 
certification criteria equal to or greater than that of the National 
Commission of Certifying Agencies (NCCA), the Council of Engineering 
and Scientific Specialty Boards (CESB), or ANSI/ISO/IEC 17024, General 
Requirements for Bodies Operating Certification Systems of Persons. 
(ID-0178.1.) This commenter expressed concern that, without this more 
specific level of rigor, entities with little experience in 
professional certification will be able to establish accrediting bodies 
for certifications that do not adequately demonstrate professional 
crane operator competence.
    An operator certification organization stated that NCCA and ANSI 
are nationally recognized accrediting agencies and that others should 
only be designated as such by OSHA after a comprehensive review of its 
accrediting protocols. (ID-0382.1.) It suggested changing the 
definition of ``nationally recognized accrediting agency'' in Sec.  
1926.1401 to specify that the only accrediting agencies are ANSI, NCCA, 
and any other organization designated by OSHA as competent to accredit 
testing organizations.
    These commenters are concerned that an organization that applies 
insufficiently stringent accrediting criteria might claim to be a 
``nationally recognized accrediting agency'' and accredit testing 
organizations that are less competent than those accredited by NCCA and 
ANSI.
    OSHA determines that the commenters are correct in suggesting that 
some additional specificity is needed in the definition to ensure that 
only entities using sufficiently stringent accrediting criteria are 
included. In the preamble to the proposed rule, OSHA identified two 
organizations that it determined were examples of a ``nationally 
recognized accrediting agency''--the National Commission for Certifying 
Agencies (NCCA) and the American National Standards Institute (ANSI) 
(see 73 FR 59811, Oct. 9, 2008). No commenters have suggested that 
these are inappropriate examples of this term. Therefore, to provide 
greater specificity, OSHA has modified the language used in the 
proposed rule's definition to include references to NCCA and ANSI as 
examples of organizations that meet the final rule definition in Sec.  
1926.1401.
    Section 1926.1427(b)(1)(ii)(A) specifies that the written and 
practical tests administered by the testing organization must, at a 
minimum, assess the knowledge and skills listed in Sec. Sec.  
1926.1427(j)(1) and (2). Those subjects are discussed below under Sec.  
1926.1427(j).
    Paragraph (b)(1)(ii)(B) provides that the testing organization must 
provide different levels of certification based on equipment capacity 
and type. This requirement is designed to ensure that a certified 
operator has the knowledge and skill needed to safely operate equipment 
of the type and capacity the employee will actually be operating while 
avoiding the need for employees to know how to operate more complex 
equipment.
    In the proposed rule, OSHA gave examples of what this provision 
means in practice. It stated, as one example, an employee who only 
operates a hydraulic truck crane would not need to also have the 
additional knowledge and skills necessary to operate a lattice boom 
crawler crane. As another, it said that an employee who operates only a 
22 ton capacity hydraulic truck crane would not need to also have the 
additional knowledge and skills necessary to operate a 300 ton 
hydraulic truck crane. The Agency further stated that

[[Page 48018]]

certification on a more complex type of equipment would typically 
qualify an operator to operate lower-capacity equipment of the same 
type, e.g., certification on a 300 ton hydraulic crane would qualify an 
operator to operate a 22 ton hydraulic crane.
    None of the commenters opposed allowing operators certified to 
operate at a given capacity from also operating lower-capacity 
equipment of the same type. Two commenters recommended that ``type,'' 
for purposes of paragraph (b)(1)(ii)(B), be defined for mobile cranes 
as they are defined in ASME B30.5. (ID-0205.1; -0213.1.) These 
commenters also stated that ``qualifications (and certification) should 
be driven by the knowledge and skill required to operate a piece of 
equipment. When a body of knowledge or a particular skill set for a 
particular `type' of crane changes, then so should the appropriate 
category of certification/qualification.''
    The Agency concludes that a descriptive definition of ``type'' that 
addresses the point raised by these commenters would better accomplish 
the purpose of the term than tying it to specific examples of existing 
technology. Therefore, OSHA has added a definition of the word ``type'' 
to Sec.  1926.1401 of the final rule.
    Examples of many of the various types of cranes currently in use 
are described in the ANSI B30 series (see, for example, ASME B30.5-2004 
for mobile cranes and ASME B30.3-2004 for construction tower cranes). 
For example, in this context, truck-mounted telescoping boom cranes, 
truck-mounted non-telescoping boom cranes, and crawler cranes are three 
different ``types,'' since the specific bodies of knowledge and skills 
needed for the safe operation of each category is different (although 
they are not completely distinct--the knowledge and skill sets overlap 
to some degree).
    Commenters and witnesses from the railroad industry believed that 
certification based on ``equipment capacity and type'' did not address 
unique conditions in their industry because current certification 
examinations did not cover the types of cranes they use or the 
circumstances under which they use them. A railroad company stated that 
certification tests used by the two accredited testing organizations 
require knowledge of skills that do not apply in the railroad industry. 
(ID-0176.1.) A railroad association stated that railroads use cranes in 
fundamentally different ways than construction companies and that 
neither [currently] accredited testing organization has tests that 
address the use of cranes on railroads. (ID-0170.1.) A representative 
from another railroad company testified that some of the types of 
cranes his railroad uses are fundamentally different from the typical 
cranes used in the construction industry. Among the cranes that he said 
are unique to the railroad industry are locomotive cranes and rubber-
tired cranes that can either run on the ground or travel on rails. (ID-
0342.) The representative stated that certification tests on typical 
construction cranes were not suited to the types of cranes used in his 
industry and asked that the rule offer the latitude for the industry to 
train operators in a way that makes sense for railroads. (ID-0342.)
    The comments and testimony by the railroad industry representatives 
suggest the need for some flexibility in the certification requirement 
to deal with specialized types of cranes or newly developed equipment 
for which certification examinations might not be available. Another 
aspect of this problem was raised by an energy association, which said 
that the cranes used in erecting wind turbines are the largest and most 
complex available, and that certification for such equipment is not 
currently available. (ID-0329.1.)
    C-DAC addressed one example of a type of equipment--dedicated pile 
drivers--for which certification examinations were not available. 
Section 1926.1439(e) of the proposed rule accommodated this problem by 
providing that dedicated pile driver operators can be certified either 
for operation of dedicated pile drivers or for equipment that is most 
similar to dedicated pile drivers. OSHA concludes a similar approach is 
appropriate for any equipment for which a certification is not 
available. Accordingly, OSHA is adding Sec.  1926.1427(b)(2) to the 
final rule, which allows an operator to be certified to operate a crane 
if he or she is certified to operate a higher-capacity version of that 
type of crane or, if no accredited certification entities offer 
certification for that particular crane, if he or she is certified to 
operate the type of crane most similar to the equipment in question.
    In light of this change, OSHA is deleting Sec.  1926.1439(e) from 
the final rule as it is no longer necessary. Paragraph (b)(2) will also 
facilitate employers' compliance with the requirements of Sec.  
1926.1427 by making it clear that the operator's certificate must 
indicate the particular type and capacity of crane for which the 
operator was certified.
    As discussed in the proposed rule, during the SBREFA process, 
several small entity representatives suggested that basing 
certification on the type of crane might result in some capable 
operators being denied certification. They described situations in 
which an operator is knowledgeable and skillful with respect to one 
particular model of crane but might be unable to obtain certification 
based on equipment capacity and type. In response to this concern, OSHA 
sought public comment on whether there should be a mechanism for an 
operator to become certified on a particular model of crane.
    Some commenters supported such a mechanism. (ID-0145.1; -0151.1; -
0194.1; -0214.1.) Several commenters who opposed the suggestion stated 
that such certification would likely not be available from testing 
organizations, that employers who use Option (2) would find it costly 
and impractical to develop tests for each model of crane, and that 
testing based on crane model was not appropriate because the skill set 
and knowledge required for safe operation are not model-dependent. (ID-
0175.2; -0205.1; -0213.1.) Witnesses at the hearing also opposed model-
specific certification. (ID-0341; -0343.)
    OSHA has concluded that expansion of the options to include 
certification on a specific model of crane is not necessary. The body 
of knowledge and skills required to be qualified/certified on a 
particular model of crane is not less than that needed to be qualified/
certified for that model's type and capacity.
    It may well be that an operator seeking certification is confident 
about operating the particular model of crane he/she has been operating 
but is concerned about being tested on another model of the same type 
of crane. To the extent this is a concern, OSHA notes that at least one 
accredited testing organization allows the practical test to be 
administered at the employer's worksite using the employer's own 
equipment. (ID-0343.) With this type of practical test available, 
operators who feel confident that they can become certified on a 
particular model can be tested on that model, and such certification 
will allow them to operate any model of the same type (as long as they 
also pass the written test). Therefore, certification on a specific 
model would be more restrictive than is necessary, and OSHA sees no 
benefit from providing for such a certification. OSHA has therefore 
retained the requirement that certification is based on the ``type'' of 
crane.
    The SBREFA Panel also received comments from some SERs suggesting 
that the standard should accommodate crane operators who were fully 
capable of operating particular equipment in a

[[Page 48019]]

limited set of circumstances but who would be unable to pass 
certification tests that required knowledge and abilities beyond those 
circumstances. The Panel recommended that OSHA consider and solicit 
public comment on expanding the levels of operator qualification/
certification to allow such operators to be certified for a specific, 
limited type of circumstance defined by a set of parameters that, taken 
together, would describe an operation characterized by simplicity and 
relatively low risk. In response to the Panel's recommendation, OSHA 
requested public comment on whether such parameters could be identified 
in a way that would result in a clear, easily understood provision that 
could be effectively enforced.
    A number of commenters were in favor of a provision that would 
allow certification in a limited set of circumstances. A labor 
organization supported certification limited to the use of rail-bound 
equipment used to install continuously welded rail and stick rail. (ID-
0145.1.) This commenter said that such operations involved dragging, 
manipulating, and positioning rather than hoisting. Other commenters 
also supported such a limited certification provision but did not 
provide specific information about how to define those operations or 
what aspects of the operations made them less risky than other crane 
operations. (ID-0151.1; -0176.1; -0191.1; -0214.1.) Other commenters 
opposed this type of ``restricted'' certification. (ID-0175.2; -0205.1; 
-0213.1.) They said that the degree of risk in a given situation was 
difficult to assess and could change due to unforeseen circumstances 
arising on the job.
    OSHA agrees with the commenters who opposed allowing a limited form 
of certification based on perceived risk levels. As explained earlier 
in the discussion of this section, the Agency found the argument that 
certification should not be required to operate cranes that are 
typically used for repetitive, predictable, intermittent, or light use 
to be unpersuasive. OSHA did so because such uses are likely to involve 
many if not all of the same hazards present in other situations.
    Similar concerns apply to the concept of ``low risk'' operations. 
First, even if such operations could be effectively identified, the 
possibility of unforeseen events occurring during such a lift requires 
that the operator have sufficient ability to handle such complications.
    Second, as noted above, apart from the suggestion regarding certain 
railroad operations, no commenter offered a means of setting the 
parameters for defining this concept. OSHA has therefore rejected the 
concept of a limited, ``low risk'' qualification/certification.
    A labor organization recommended that OSHA require that applicants 
for certification testing provide documentation that they have at least 
1,000 hours of crane related on-the-job experience or training. (ID-
0341.) Such experience was necessary, in this commenter's view, because 
neither the written nor practical exams tested an operator's ability to 
handle unusual worksite conditions, such as adverse weather or working 
on crowded jobsites, and did not test an operator's judgment.
    As explained above, OSHA has included the qualification/
certification requirement to serve as a mechanism to help ensure that 
operators have attained the level of knowledge and skill necessary to 
safely operate the equipment. The record amply demonstrates the 
sufficiency of the accreditation process that must be passed for a 
testing organization to become accredited. That process is designed to 
ensure that accredited testing organizations use a sufficiently 
reliable process for certifying operators. The record also shows that 
such a mechanism is an effective one for determining operator 
competence (the record includes the support of the commenter and its C-
DAC nominee for that mechanism).\115\
---------------------------------------------------------------------------

    \115\ OSHA also notes that the this commenter is, in this 
regard, taking a position that is inconsistent with the one taken by 
its C-DAC nominee, who had agreed to the C-DAC version of Sec.  
1926.1427, which had no experience/training prerequisite. Nor has 
this commenter explained why it has changed its position from that 
of its C-DAC nominee. Due to this inconsistency in position, OSHA 
accords reduced weight to this commenter's suggested change.
---------------------------------------------------------------------------

    There is insufficient information in the record to include an 
additional requirement for 1,000 hours of ``crane related experience or 
training.'' The commenter does not specify what should be included in 
``crane related experience,'' or why 1,000 hours would be the 
appropriate amount of such experience for this purpose. The commenter 
also does not specify if meeting the 1,000 hour prerequisite by 
``training'' should mean hands-on (criteria for such training is 
delineated in Sec.  1926.1427(f)) or classroom type training. OSHA 
notes that the other commenters supporting this section have not 
recommended adding an experience or training prerequisite. The Agency 
has therefore declined to accept this suggested change.\116\
---------------------------------------------------------------------------

    \116\ OSHA also notes that the commenter is, in this regard, 
taking a position that is inconsistent with the one taken by its C-
DAC nominee, who had agreed to the C-DAC version of Sec.  1926.1427, 
which had no experience/training prerequisite. Nor has the commenter 
explained why it has changed its position from that of its C-DAC 
nominee. Due to this inconsistency in position, OSHA accords reduced 
weight to the commenter's suggested change.
---------------------------------------------------------------------------

    Section 1926.1427(b)(1)(iii) requires that the testing organization 
have procedures for operators to re-apply and be re-tested in the event 
an applicant fails a test. This would help ensure that if the employee 
initially failed to pass the test, the employee would be able to retake 
the test and still have the opportunity to obtain the certification. 
Section 1926.1427(b)(1)(iii) also requires that the testing 
organization have procedures for operators to re-apply and be re-tested 
in the event an operator is decertified.
    Section 1926.1427(b)(1)(iv) specifies that the testing organization 
must have procedures for re-certifying operators designed to ensure 
that the operator continues to meet the requirements of Sec.  
1926.1427(j). Under Sec.  1926.1427(b)(4), a certification is valid for 
five years, after which the operator must again pass a certification 
examination. Section 1926.1427(b)(1)(iv) is included so that 
recertification procedures appropriate for those who have already been 
certified will be available.
    Under Sec.  1926.1427(b)(1)(v), the testing organization's 
accreditation must be renewed by the accrediting organization at least 
every three years to ensure continuing quality of testing materials and 
administration.
    No comments were received on Sec. Sec.  1926.1427(b)(1)(iii)-(v); 
those provisions are promulgated as proposed.
    Under Sec.  1926.1427(b)(3) (previously designated Sec.  
1926.1427(b)(2) in the proposed rule), a certification is ``portable,'' 
which means that a certificate issued under Option (1) would meet the 
requirements of Sec.  1926.1427(a)(2) (when State or local jurisdiction 
does not require operator licensing) until the certificate expires. In 
the final rule, OSHA is specifying that meaning directly in Sec.  
1926.1427(b)(3) rather than in a separate definition in Sec.  
1926.1427(m), as proposed. C-DAC determined that certification under 
this option should be portable because the testing organization is 
fully independent of all employers who may employ a crane operator and 
there is no reason to limit the certification to a particular employer. 
OSHA agrees.
    Section 1926.1427(b)(4) (previously designated Sec.  
1926.1427(b)(3) in the proposed rule) provides that a certification 
under this paragraph is valid for exactly five years. The exact five 
year period is intended to strike the

[[Page 48020]]

appropriate balance between ensuring that certified operators are re-
evaluated regularly, while reducing the burden of recertification on 
operators.
    No comments were received on the text that is now in paragraphs 
(b)(3) and (b)(4). As noted, the definition of ``portable'' has been 
moved from proposed (m)(1) to final (b)(3).
Paragraph (c) Option (2): Qualification by an Audited Employer Program
    Paragraph (c) of this section sets out Option (2), in which the 
employer determines, through its own audited testing program, that its 
employee is qualified to operate the equipment. This option is designed 
to enable employers to meet the Sec.  1926.1427 requirements through 
their own in-house testing programs. As discussed above, however, C-DAC 
determined that independent, third-party involvement was needed to 
ensure the reliability and integrity of any testing program. Therefore, 
to ensure that testing under Option (2) of this section is accurate and 
reliable, Sec.  1926.1427(c)(1) requires that the tests must be 
developed by either an accredited crane operator testing organization 
(as described under Option (1)), or approved by an auditor who is 
certified by an accredited crane operator testing organization. In 
addition, the administration of the tests must be audited.
    If the employer chooses to use tests approved by an auditor, the 
auditor must, under Sec.  1926.1427(c)(1)(ii)(A), be certified as a 
test evaluator by an accredited testing organization. To ensure that 
the auditor's evaluation is independent and impartial, Sec.  
1926.1427(c)(1)(ii)(B) prohibits the auditor from being employed by the 
employer seeking evaluation of its qualification program. Also, Sec.  
1926.1427(c)(1)(ii)(C) requires the auditor to determine that the 
program meets nationally recognized test development criteria and 
adequately assesses the criteria in Sec.  1926.1427(j).
    The requirements for test administration that apply under Option 
(2) of this section are set forth in Sec.  1926.1427(c)(2). These 
requirements apply to both tests that have been developed by an 
accredited crane operator testing organization or to those that have 
been approved by an auditor. Section 1926.1427(c)(2)(i) requires that 
the auditor find that the procedures for administering the test meet 
nationally recognized test administration standards. This provision is 
designed to ensure that the test results accurately reflect the 
operator's performance on the test.
    Under Sec.  1926.1427(c)(2)(ii), the auditor must be certified to 
evaluate the administration of the written and practical tests by an 
accredited crane operator testing organization. Section 
1926.1427(c)(2)(iii) prohibits the auditor from being employed by the 
employer seeking the auditor's approval of its test administration 
procedures.
    Proposed Sec.  1926.1427(c)(2)(iv) required that the audit be 
conducted in accordance with nationally recognized auditing standards. 
OSHA noted that the proposed rule, as drafted by C-DAC, required only 
that the administration of the tests, and not the audit of the tests 
themselves under paragraph (c)(1)(ii), would have to be conducted in 
accordance with nationally recognized auditing standards. OSHA 
determines that this was a drafting error and that the Committee 
intended that the entire audit be conducted in accordance with 
nationally recognized auditing standards. Therefore, the Agency 
solicited public comment on whether a new Sec.  1926.1427(c)(1)(ii)(D), 
reading as follows, should be added to Sec.  1926.1427(c)(1)(ii):

    (D) The audit shall be conducted in accordance with nationally 
recognized auditing standards.

Several commenters stated that the regulatory text should remain 
unchanged because, the commenters believed, the nationally recognized 
accrediting agencies that accredit testing organizations do not review 
the examinations for content but only for examination design, 
administration, and maintenance. (ID-0175.1; -0205.1; -0211.1; -
0213.1.)
    The Agency concludes that the commenters have misunderstood OSHA's 
intent in this regard. Under Option (1) of this section, Sec.  
1926.1427(b)(1), the accrediting agency must evaluate the ``written 
testing materials'' as well as the ``practical examinations, test 
administration, grading, facilities/equipment and personnel'' to make 
sure they all meet ``industry recognized criteria.'' The accrediting 
agency therefore must evaluate the tests as well as their 
administration to confirm that they meet industry recognized criteria.
    Just as the accrediting agency under Option (1) of this section 
assesses written testing materials and the practical test for 
compliance with industry recognized criteria, under Option (2) of this 
section, as drafted by C-DAC and as written in the proposed rule, the 
auditor must determine ``that the written and practical tests meet 
nationally recognized test development criteria and are valid and 
reliable in assessing the operator applicants * * *.'' (see Sec.  
1926.1427(c)(1)(ii)(C)). No comments were received objecting to those 
requirements.
    OSHA determines that C-DAC's intent in designing Option (2) was, in 
essence, to have the auditor serve a role similar to that of the 
accreditor in Option (1). The accreditor in Option (1) assesses the 
tests as well as their administration to determine if they meet 
``industry recognized criteria.'' As drafted by C-DAC, the auditor does 
the same thing, both with respect to assessing the tests and their 
administration.
    The problem identified by OSHA in the proposed rule relates to 
auditing procedure, not testing criteria. For example, the records that 
the auditor would generate and maintain, the procedures he/she would 
use for obtaining documents that need to be examined to conduct the 
audit, the thoroughness of the audit, and similar procedural matters 
regarding the conduct of the audit need to accord with nationally 
recognized auditing standards. Section 1926.1427(c)(1)(ii)(C) shows 
that C-DAC concluded that it was important that the audit meet 
nationally recognized auditing standards to help ensure the integrity 
of the audit of the administration of the tests. OSHA determines that 
it is equally important that the audit of the tests themselves meet 
those same procedural criteria. Therefore, the Agency has added new 
Sec.  1926.1427(c)(1)(ii)(D).
    Paragraph (c)(3) requires that the program be audited within three 
months of its inception and every three years thereafter. The Agency 
has added ``at least'' to the final rule to clarify that the auditor 
has the flexibility to perform audits more regularly if it so chooses.
    Paragraph (c)(4) of this section requires the employer's program to 
have testing procedures for re-qualification designed to ensure that 
the operator continues to meet the technical knowledge and skills 
requirement in Sec.  1926.1427(j). The re-qualification procedures must 
be audited in accordance with Sec. Sec.  1926.1427(c)(1) and (c)(2).
    In the event an auditor discovers a deficiency in an employer's 
operator qualification program, the employer must meet the requirements 
set forth in paragraph (c)(5) of this section. Under paragraph 
(c)(5)(i), no additional operators may be qualified until the auditor 
determines that the deficiency has been corrected. Under paragraph 
(c)(5)(ii), the program must be re-audited within 180 days of the 
confirmation that the deficiency was corrected. Paragraph (c)(5)(iii) 
requires

[[Page 48021]]

the auditor to file a report of any such deficiency with the 
appropriate OSHA Regional Office within 15 days of discovery. In 
addition, paragraph (c)(5)(iv) requires that records of the audits must 
be maintained by the auditor for three years and must be made available 
by the auditor at the request of the Secretary of Labor or a designated 
representative. The auditor's maintenance of the records, and the 
reporting requirement, are intended to preserve the independent 
verification function of the auditor.
    Paragraph (c)(6)(i) specifies that a qualification under Option (2) 
is not portable. As defined in Sec.  1926.1427(m)(2), ``not portable'' 
means that only the employer issuing the qualification may rely upon 
it. OSHA has added that statement of meaning directly in paragraph 
(c)(6)(i) in the final rule and has removed paragraph (m). C-DAC 
determined that portability should be limited to certification under 
Option (1) because the degree of consistency in adhering to the 
requirements of this section is likely to be highest among accredited 
crane operator testing organizations because they are fully independent 
and their business interest depends on their continued accreditation. 
Under paragraph (c)(6)(ii), a qualification under Option (2) is valid 
for exactly five years.
    A trade association stated that qualification under Option (2) of 
this section (as well as Options (3) and (4)) should, like 
certification under Option (1), also be portable. (ID-0214.1.) The 
commenter stated that there was no rational reason to adopt a rule 
where portability is restricted to Option (1) certifications. However, 
OSHA concludes that C-DAC's decision to accord full portability only to 
a certification under Option (1) is sound. A certification issued under 
Option (1) is based on tests that are completely independent of any 
particular employer. Moreover, the commenter's nominee to C-DAC did not 
dissent on this issue and the commenter has not explained the reason 
for changing its position. OSHA gives reduced weight to comments by a 
nominating organization that are inconsistent with the position its 
nominee took on C-DAC.
    A utility company suggested that electric utilities be able to use 
Option (2) without an independent auditor by allowing for an internal 
audit of the employee training program based on annual employee 
inspections, as allowed in Sec.  1910.269(a)(2). (ID-0342.) Granting 
this request would permit electric utilities to self-certify their 
operators. OSHA has rejected this option above and does so here for the 
same reasons given earlier.
    Some commenters stated that Option (2) was impractical because 
there are currently no individuals who are accredited to carry out the 
duties of the auditor under the option (ID-0151.1; -0329.1.) OSHA 
notes, however, that employers have four years from the effective date 
of this standard to comply with Sec.  1926.1427, and the agency 
anticipates that, if the demand exists for the services of accredited 
auditors, they will become available during that time frame.
    An operator certification company recommended eliminating Option 
(2) because, in the commenter's view, it lacks sufficient safeguards to 
ensure the integrity of the qualification process. (ID-0330.1.) The 
commenter views this Option as a form of self-certification that is 
generally inconsistent with the rule's principle of third-party 
verification. It suggests that this Option presents an inherent 
conflict of interest based on the incentive that employers have to pass 
their employee-operators and that the conflict is not cured by an 
auditor's oversight of the program. OSHA disagrees. Under this option, 
the auditor must be independent of the employer and certified by an 
accredited testing organization. In OSHA's view, these requirements 
provide adequate assurance that a testing program approved by the 
auditor is of high quality and reliability.
Paragraph (d) Option (3): Qualification by the U.S. Military
    Proposed Sec.  1926.1427(d) provided that an operator who is an 
employee of the United States military would be deemed qualified if he/
she had a current qualification issued by the U. S. military. The 
criteria for qualification under Option (3) would be left to the 
military to determine, including the length of time such a 
qualification would be valid. Qualification under this option would not 
be portable unless it meets the requirements of Option (1) of this 
section.
    Unlike Options (1) and (2), Option (3) is available, in accordance 
with the requirements of paragraph (d), whether or not the equipment is 
operated within the jurisdiction of a State or local government that 
has its own operating licensing requirement. The Agency notes that in 
its comments requesting mandatory compliance with State licensing 
requirements, New York State noted that it did not intend to supplant 
Option (3). (ID-0171.1.) There is nothing in the record to indicate 
that employees of the U.S. military who are authorized by the U.S. 
military to operate equipment covered by this subpart are currently 
required to comply with State or local licensing requirements.
    In the proposed rule, OSHA noted that OSHA standards did not apply 
to uniformed military personnel and to civilian employees of the 
military who are engaged in uniquely military equipment, systems, and 
operations. Accordingly, Option (3) would apply only to civilian 
employees of the Defense Department and Armed Forces who are engaged in 
work that is not uniquely military. It does not apply to employees of 
private contractors who are working under contract to the military. In 
the proposed rule, OSHA noted that the C-DAC document did not clearly 
exclude such employees even though that was C-DAC's intent.
    To make this point clear, OSHA is adding the following 
clarification to Sec.  1926.1427(d)(1): An ``employee of the U.S. 
military'' is a Federal employee of the Department of Defense or Armed 
Forces and does not include employees of private contractors. This 
clarification was originally proposed in Sec.  1926.1427(m), which is 
removed from the final rule. Two commenters supported the clarification 
proposed by OSHA. (ID-0205.1; -0211.1.) Another said the provision 
should be clarified but did not express an opinion on whether OSHA's 
proposed clarification should be adopted. (ID-0122.) In the absence of 
any reasons presented in opposition to the proposed clarification, OSHA 
is retaining the clarification.
    Paragraph (d)(2) specifies that qualification under Option (3) is 
not portable. Because this option is designed specifically to 
accommodate civilian employees of the U.S. military, and therefore is 
not based on the same criteria and independent third-party 
verification. However, if a U.S. military entity meets the requirements 
of Option (1), OSHA would consider the operator certification provided 
by that entity to be portable.
Paragraph (e) Option (4): Licensing by a Government Entity
    Paragraph (e) of this section of the final rule addresses 
government licensing departments/offices that issue operating licenses 
for equipment covered by this standard. Paragraph (e)(1) makes it clear 
that OSHA is only requiring compliance with State or local operating 
licensing requirements when those licensing programs meet the 
requirements specified in paragraphs (e)(2). These requirements are 
commonly referred to as a ``Federal floor,'' meaning that they are the 
minimum criteria necessary to trigger

[[Page 48022]]

employer compliance with those licensing requirement under this 
standard. OSHA is including this ``Federal floor'' because it 
determines, as did C-DAC, that some, but potentially not all, State/
local governments will have effective, reliable licensing procedures. 
If OSHA determines that a State or local licensing department/office, 
or its testing, does not satisfy the minimum requirements set out in 
paragraphs (e) and (j), then employers would not be required by OSHA to 
comply with the licensing requirements of that government entity. In 
such cases, the employer would satisfy the requirements of this section 
by ensuring that their operators are certified or qualified in 
accordance with the options provided in paragraphs (b) through (d).
    The requirement for the government licensing department/office to 
meet the criteria in Sec.  1926.1427(e)(2) ensures that operators who 
qualify under Option (4) have the requisite knowledge and skills to 
operate safely. Paragraph (e)(2)(i) requires that the criteria used by 
the licensing department/office address the knowledge and skill 
requirements listed in Sec.  1926.1427(j). Section 1926.1427(e)(2)(ii) 
requires that the government entity follow the same test content, test 
administration and related criteria as required under Option (1). 
Section 1926.427(e)(2)(iii) requires that the office with authority 
over the licensing department/office assess the tests and procedures 
used by the licensing office/department and determine that the 
requirements of Sec. Sec.  1926.1427(e)(2)(ii) and 1926.1427(e)(2)(iii) 
have been met. Also, the government licensing office must have re-
certification procedures in place as discussed in Sec. Sec.  
1926.1427(b)(1)(iv) and 1926.427(c)(4).
    Under Sec.  1926.1427(e)(3)(i), a qualification under Option (4) is 
valid only within the geographic jurisdiction of the licensing entity. 
However, if the qualifications of Option (1) in Sec.  1926.1427(b) are 
met, OSHA would consider the operator certification provided by that 
entity to be portable. Under paragraph (e)(3)(ii), the qualification is 
valid for the time period specified by the licensing entity, but for no 
longer than five years.
    Several commenters expressed the concern that OSHA's new standard 
would preempt existing State or local laws, particularly those relating 
to licensing of crane operators. Others encouraged the Agency to 
expressly preempt those laws. The preemption issue is discussed in full 
at the end of this preamble within section V.D addressing federalism.
Other Recommended Options
    Commenters recommended that OSHA offer employers two additional 
options for qualifying or certifying operators. One is to allow 
employers to self-certify operators based on their own evaluation of 
the operator's ability. For the reasons discussed in the introduction 
to this section, OSHA rejects that suggestion.
    A number of commenters recommended that OSHA expand the range of 
options by allowing an accredited educational institution to certify 
operators. (ID-0105.1; -0147.1; -0151.1; -0187.1; -0193.1.) At the 
public hearing, a witness for a trade association further recommended 
an option whereby operators could be trained and qualified through an 
employer program developed by an accredited educational institution. 
(ID-0343.)
    Some commenters believed that additional options were needed 
because they believed that Option (1) was the only viable option for 
many employers and that an insufficient number of accredited testing 
organizations existed to meet the demand that an OSHA rule would 
create. (ID-0165.1; -0187.1; -0193.1.)
    OSHA notes that an educational institution, like any other testing 
organization, may become an accredited testing organization under 
Option (1) by becoming accredited by a nationally recognized 
accrediting agency based on the criteria listed under that option and 
complying with the ``firewall'' requirements of Sec.  1926.1427(g). 
However, OSHA determines the comments favoring this concept were 
addressing OSHA's request for comment on whether to allow an 
educational institution to certify operators based solely on its 
accreditation by an organization recognized by the Department of 
Education (DoE) without the need to be accredited under Option (1) (see 
73 FR 59812, Oct. 9, 2008).
    OSHA concludes that accreditation of an educational institution 
under DoE criteria is insufficient to ensure that a certification 
issued by the institution would reliably demonstrate that the crane 
operator has the knowledge and skills needed for safe operation. The 
fundamental reason is that the accreditation process for educational 
institutions does not include an assessment of an institution's ability 
to assess personnel competency.
    A representative from a consensus standard organization addressed 
this issue at the public hearing. The representative had experience 
both in accrediting educational institutions and personnel 
certification organizations. (ID-0344.) He testified that the 
accreditation of an educational institution under the DoE system is 
designed to assess the quality of the education an institution offers 
but does not determine whether the individuals who have attended that 
institution possess the specific skills or competencies required for 
particular jobs. Unlike an educational institution, which focuses on 
the number of graduates, attrition rates, and the percentage pass rate 
on any national certification or State licensure examinations, a 
personnel certification program is designed to address competency for 
job performance. Among the concerns cited by the representative were 
that the accreditation for an educational program does not assess 
competency, and that the tests administered by an educational program 
are not held to the same psychometric standards as those administered 
by an accredited personnel certification program. The commenter said 
higher education accreditation is concerned with the quality of 
education. Personnel certification accreditation, on the other hand, 
evaluates the quality of assessments to measure the acquisition and 
ongoing maintenance of valid job competencies. (ID-0344.) In addition, 
personnel certification is time-limited and certifying entities retain 
the ability to withdraw certification if the individual subsequently 
demonstrates a lack of competency. (ID-0344.) Institutions of higher 
education cannot revoke or repossess diplomas.
    The representative explained that a key difference between 
educational accreditation and personnel accreditation is surveillance 
of the test administration process by the accrediting body to ensure 
that an individual's score is not tainted by prior knowledge of the 
examination or by lack of security during the test itself. Using the 
ANSI accreditation process as an example, he explained that a 
certification entity seeking accreditation will undergo annual 
surveillance--onsite during the first and third years, which can 
encompass multiple sites if the certification entity's structure merits 
such review. ANSI examines the controls over test items and the 
development of test items, to ensure that these items are not released 
to the public. ANSI also looks to ensure that the organizational 
structure of the certifying entity is reflective of the population it 
is intended to serve, and that the administration is fair and equitable 
among all the applicants.

[[Page 48023]]

These criteria are not required elements of accreditation for higher 
education institutions, according to both the representative and 
Department of Education materials (see 34 CFR part 602).
    There is another reason why certification by an educational 
institution would, in most cases, not be suitable for crane operators: 
The need for personnel testing to be independent of the training that 
precedes the testing. As discussed below, Sec.  1926.1427(g) of this 
rule is designed to ensure that training is separate from testing to 
prevent an organization that offers both services from defeating the 
validity of the test by ``teaching to the test.'' OSHA acknowledges 
that it might be possible for an educational institution to provide the 
necessary ``firewalls'' between its training and testing, and obtain 
the separate accreditation required under this section, such that it 
could comply with Sec.  1926.1427(g). However, educational institutions 
typically both teach and test, and may do so within their educational 
accreditation without any requirement that the testing process be 
insulated from the teaching process.
    The purpose of a personnel certification test is different from a 
test offered by an educational institution, which is to determine 
whether the individual has mastered the material that was taught. As a 
labor representative stated at the hearing, personnel certification 
tests examine a random sampling of information that individuals must 
know to perform the function being tested. (ID-0341.) The labor 
representative pointed out that if the individual is tested only on the 
material he or she has been taught, the individual learns only the 
information needed to pass the test and the test is not a reliable 
measure of the person's depth of knowledge on the subject. Therefore, 
allowing educational institutions to certify crane operators based 
solely on their DoE accreditation would be inconsistent with the 
principle that testing for certification purposes should be independent 
of any training that the individual has received and would severely 
compromise the reliability of the certification process.
    In sum, the DoE accreditation system for educational institutions 
is not designed to assess the capabilities that are needed for 
developing or administering personnel competency tests.\117\
---------------------------------------------------------------------------

    \117\ At least one other Federal agency has also taken this view 
of certification. The Department of Defense requires the 
certification of certain personnel performing Information Assurance 
functions within that organization. Appendix 2 to DoD 8570.01-M, the 
directive addressing such certifications, requires that the 
certifications must be accredited, and maintain accreditation, under 
ISO 17024. (ID-0346.1.)
---------------------------------------------------------------------------

    Moreover, concerns about inadequate availability of certifying 
entities are unfounded. At the time of the proposed rule, two testing 
organizations, NCCCO and the Southern California Crane & Hoisting 
Association, had been accredited (see 73 FR 59812, Oct. 9, 2008). By 
the time of the hearing, four additional testing organizations had been 
accredited: The Operating Engineers Certification Program, Union 
Pacific Railroad, National Center for Construction Education and 
Research, and Crane Institute Certification. (ID-0343.) Although some 
of these are not available to all employers or crane operators, it does 
not appear that there will be a lack of availability of testing 
services under Option (1), particularly with the four-year phase-in 
period for Sec.  1926.1427.
    In addition, the record shows that testing organizations arrange 
for testing to be available at convenient locations. For example, NCCCO 
offers the written test anywhere in the country where it receives 
adequate notice and an appropriate testing room is available. (ID-
0343.) NCCCO also sends examiners to an employer's worksite to 
administer the practical tests. (ID-0343.) OSHA therefore concludes 
that the current four options afford crane operators and their 
employers sufficient opportunity to obtain qualification/certification 
and that additional options are not needed to make such services 
readily available.
    Two building trade associations recommended that OSHA add an option 
that combines aspects of Option (2) of this section with tests 
developed by an accredited educational institution. (ID-0218.1; -
0232.1.) Under their recommendation, the educational institution would 
develop written and practical tests, and the tests would be approved by 
an auditor who is certified by an accredited educational institution as 
qualified to evaluate such tests. The actual operator certification 
would be issued by the accredited educational institution.
    OSHA determines that this recommended program is, in practical 
effect, not significantly different than the general recommendation for 
OSHA to allow certification by an accredited educational institution. 
First, it is likely that educational institutions would be 
administering tests to individuals who have taken their training 
courses without ``firewall'' separation between those functions, 
thereby giving rise to the problem addressed above that testing would 
not be independent of training and would therefore be of reduced 
reliability. Second, although the commenters would not permit the 
auditor to be employed by the employer, there is no prohibition against 
the auditor being employed by the accredited educational institution 
who certifies him/her. In OSHA's view, this creates the potential for a 
conflict of interest because the auditor would not be independent of 
the institution whose tests he or she is reviewing. OSHA finds that the 
recommendation by the commenters does not contain sufficient safeguards 
to ensure that the tests provide an indicator of operator competence 
that is comparable to the other options permitted under this rule.
    One commenter asked OSHA to prohibit different organizations from 
administering the written and practical testing. (ID-0199.1.) The 
commenter stated that it is necessary for one organization to maintain 
oversight of the entire test process. The commenter did not provide any 
support for this assertion, nor has OSHA identified any other evidence 
in the record to support it. OSHA does not find the request persuasive 
and is instead relying on the accreditation requirements to ensure that 
the certifying entity administers all testing appropriately.
Paragraph (f) Pre-Qualification/Certification Training Period
    Section 1926.1427(f) establishes a process by which operators who 
are not certified or qualified can get experience operating the 
equipment to help prepare for obtaining a certification/qualification. 
Section 1926.1427(f) allows employees who are not yet qualified or 
certified to operate cranes provided that they qualify as ``operators-
in-training'' in accordance with Sec. Sec.  1926.1427(f)(1) through 
(5), which require appropriate monitoring of such operators-in-training 
to ensure worksite safety and places limitations on the tasks they can 
perform. OSHA revised proposed Sec.  1926.1427(f) to clarify that 
employees who do meet the requirements of an ``operator-in-training,'' 
and who are not otherwise certified or qualified under this section, 
are prohibited from operating equipment (except for maintenance, as 
provided in Sec.  1926.1429 of this subpart). OSHA has removed the text 
that was in proposed paragraph (f)(2) as redundant,\118\ and has 
renumbered paragraph (f) of this section.
---------------------------------------------------------------------------

    \118\ Proposed paragraph (f)(1) of this section had provided 
that ``[a]n employee who is not qualified or certified under this 
section is permitted to operate equipment'' by satisfying the 
requirements of proposed paragraph (f).'' Proposed paragraph (f)(2), 
and an alternative also included in the proposed rule, had granted 
the same permission to any employee who had not passed the written 
exam or practical tests required under Sec.  1926.1427. While OSHA 
still intends that employees who have passed either the written exam 
or practical test be eligible to serve as an ``operator-in-
training,'' it is not including this text in the regulation because 
these employees are already addressed by the language that was in 
proposed paragraph (f)(1) (``an employee who is not qualified or 
certified under this section'') and is included in the final rule as 
the introductory text for paragraph (f).

---------------------------------------------------------------------------

[[Page 48024]]

    The proposed rule used the phrase ``trainee/apprentice'' to 
describe an operator-in-training, the word ``supervisor'' to describe 
the individual responsible for monitoring the operator-in-training, and 
the word ``supervise'' to describe that individual's oversight of the 
operator-in-training. Several commenters suggested that the terms 
``trainee,'' ``apprentice,'' and ``supervisor'' could be construed to 
have labor/management consequences under the National Labor Relations 
Act (NLRA). (ID-0182.1; -0199.1; -0341.0.) OSHA did not intend for 
these terms to be construed as they are used under the NLRA, and, to 
avoid any possible confusion on the subject, has changed ``supervisor'' 
to ``trainer,'' ``trainee/apprentice'' to ``operator-in-training,'' and 
``supervise'' to ``monitor'' in the final rule.
    Paragraph (f)(1) requires that the operator-in-training be provided 
with sufficient training prior to operating the equipment to enable 
him/her to operate it safely under the limitations listed in this 
section and any additional limitations established by the employer. 
This ensures that, before beginning to operate the equipment at the 
site, the operator-in-training would have attained sufficient knowledge 
and skills to operate the equipment safely within the limitations and 
with the monitoring required by the remainder of Sec.  1926.1427.
    Paragraph (f)(2) restricts the operator-in-training operation of 
the equipment to those tasks currently within his/her ability. As the 
operator-in-training gains experience and demonstrates increased skill, 
this provision allows him/her to perform progressively more complex 
tasks.
    Paragraph (f)(3) sets forth the requirements that an employee would 
have to meet to be permitted to monitor the operator-in-training's 
operation of the crane. During the training period, the operator-in-
training must be closely monitored to ensure that he/she is operating 
in accordance with the training he/she has received and is adhering to 
the limitation in paragraph (f)(2) that he/she only performs tasks 
currently within his/her ability.
    Under paragraph (f)(3)(i) the operator-in-training's trainer has to 
be an employee or agent of the operator-in-training's employer. This 
ensures that the trainer has the authority to direct the actions of the 
operator-in-training.
    Paragraph (f)(3)(ii) requires that the operator-in-training's 
trainer must be either a qualified/certified operator (in accordance 
with Sec.  1926.1427), or to have passed the written portion of a 
qualification/certification test under one of the Options in Sec.  
1926.1427. In addition, the trainer must be familiar with the proper 
use of the equipment's controls. This provision is designed to ensure 
that the trainer has sufficient knowledge about the equipment to enable 
him/her to effectively oversee the safe operation of the crane.
    Paragraph (f)(3)(iii) requires that the trainer perform no tasks 
that would detract from his/her ability to monitor the operator-in-
training. This provision ensures that the trainer is able to devote 
sufficient attention what the operator-in-training is doing so that he/
she can intervene to prevent the operator-in-training from doing 
anything unsafe.
    Under paragraph (f)(3)(iv), for equipment other than tower cranes, 
the trainer and the operator-in-training must be in direct line of 
sight of each other and are required to communicate either verbally or 
by hand signals. This provision ensures that the trainer monitor can 
rapidly and effectively give instructions to the operator-in-training, 
especially for purposes of correcting anything that the operator-in-
training may be doing incorrectly.
    With respect to tower cranes, the height of the operator's station 
will often make it infeasible to maintain direct line of sight between 
the trainer and the operator-in-training. For the same reason, use of 
hand signals is also often not feasible. Therefore, the provision 
instead requires that they be in direct communication with each other. 
For example, direct communication could be achieved by radio or other 
instant electronic voice communication system.
    Section 1926.1427(f)(4) permits the operator-in-training to 
continue operating the crane in the absence of the trainer for short 
breaks under criteria designed to result in safe operation. This 
provision recognizes that monitoring 100 percent of the time is neither 
practical nor is it necessary for safe operation if appropriate 
limitations are imposed. Those limitations are listed in paragraphs 
(f)(4)(i)-(iii):
    Under paragraph (f)(4)(i), the break would be restricted to no more 
than 15 minutes, with no more than one break per hour.
    Under paragraph (f)(4)(ii), immediately prior to the break, the 
trainer must inform the operator-in-training of the specific tasks that 
the operator-in-training is authorized to perform and the limitations 
that he/she must adhere to during the break.
    Under paragraph (f)(4)(iii), the specific tasks that the operator-
in-training would perform during the break must be within the operator-
in-training's ability.
    Proposed paragraph (f)(2)(v) \119\ stated that a ``* * * trainee/
apprentice shall not operate the equipment in any of the following 
circumstances.'' This paragraph was followed by paragraphs 
(f)(2)(v)(A)-(E). Of these, paragraphs (f)(2)(v)(A)-(D) contained 
absolute prohibitions while paragraph (f)(2)(v)(E) contained a 
conditional prohibition. To avoid inconsistency between paragraph 
(f)(2)(v) and the paragraphs that followed, the paragraph, which is now 
at Sec.  1926.1427(f)(5) has been modified to make clear that there is 
an exception at (f)(5)(v).
---------------------------------------------------------------------------

    \119\ This requirement is now located at Sec.  1926.1427(f)(5).
---------------------------------------------------------------------------

    Paragraph (f)(5) recognizes that certain tasks are too complex or 
present such heightened risks that it would be unreasonably dangerous 
if a less than fully qualified operator were to operate the equipment. 
For the circumstances listed in Sec. Sec.  1926.1427(f)(5)(i)-(v), the 
operator-in-training is prohibited from operating the equipment in all 
cases. With respect to operations involving multiple-lift rigging, the 
Committee determined that the difficulty and/or risk involved is not at 
the same level as the operations listed in Sec. Sec.  
1926.1427(f)(5)(i)-(iv). Consequently, while Sec.  1926.1427(f)(5) 
contains a general prohibition against an operator-in-training 
operating the equipment during multiple-lift rigging operations, an 
exception would apply where the trainer determined that the operator-
in-training's skills are sufficient for this high-skill work.
    A utility company objected to the requirement in proposed Sec.  
1926.1427(f)(2)(v)(A) that operators-in-training who are performing 
subpart V work (construction and improvement of power lines) maintain 
at least a 20-foot distance from energized power lines, asking that 
operators-in-training only be required to maintain the same clearance 
from power lines (those listed in Table V-1 of subpart V) as certified 
operators. (ID-0144.1.) This commenter claimed that the prohibition 
would limit the ability of electric utility owners and operators to 
provide operators-in-training with hands on training.

[[Page 48025]]

    Based on the record as a whole, OSHA is convinced that the risk of 
injury from contact with an energized power line is so great that it 
warrants extra precautions, particularly with respect to operators who 
are still learning how to operate their equipment. OSHA notes that the 
other electric utilities and representatives who submitted comments and 
appeared at the hearing did not voice a similar concern, nor did the 
industry's representatives on C-DAC. OSHA also notes that the exclusion 
of digger derricks from the scope of this subpart for pole work should 
largely alleviate this commenter's concern. Accordingly, OSHA is 
retaining paragraph (f)(5)(i) in the final rule.
Paragraph (g)
    Paragraph (g) of this section provides that ``a testing entity is 
permitted to provide training as well as testing services as long as 
the criteria of the applicable accrediting agency (in the option 
selected) for an organization providing both services are met.'' This 
paragraph serves two purposes. First, it makes clear that an entity 
providing qualification/certification testing may also provide training 
to the individuals it tests, as well as others. Second, it establishes 
a condition such entities must satisfy: the testing agency must meet 
the criteria of its accrediting agency for an organization providing 
both services.
    For example, an industry consensus standard, the International 
Organization for Standardization (``ISO'') 17024, requires that a 
certifying entity only offer training if it can demonstrate that the 
training is independent of both evaluation and certification. This is 
intended to prevent the entity's training arm from ``teaching to the 
test,'' which would detract from the test's ability to determine the 
individual's true knowledge of the subject matter needed for safe 
operation. It is also necessary to protect the integrity of the 
testing. Therefore, with respect to those accrediting agencies that 
apply the ISO standard, a testing entity may also conduct training as 
long as an adequate ``firewall'' exists between the two functions.
Paragraph (h)
    Paragraph (h) of this section addresses C-DAC's concern that some 
competent crane operators may be hindered in obtaining qualification or 
certification under this section because they have difficulty with 
taking written tests even though they possess sufficient literacy for 
reading and understanding safety-related material such as the crane's 
operating manual and load chart. To avoid disqualifying individuals 
solely because they have this type of difficulty, paragraph (h) permits 
written tests under this section to be administered verbally, with 
answers given verbally, where the operator candidate (1) passes a 
written demonstration of literacy relevant to the work; and (2) 
demonstrates the ability to use the type of written manufacturer 
procedures applicable to the class/type of equipment for which the 
candidate is seeking certification. These would typically include, for 
example, the load chart and operator's manual for the crane the 
candidate would be operating. Thus, paragraph (h) only permits tests to 
be administered verbally where the individual demonstrates the literacy 
needed to read and understand written material needed for safe 
operation.
    As explained in the proposed rule, neither of the demonstrations in 
paragraphs (h)(1) or (h)(2) would have to be made in English (see 73 FR 
59816, Oct. 9, 2008). As an example, under these provisions, an 
employer could obtain a Spanish-language version of the load charts and 
operator's manual, and arrange to have the literacy test administered 
in Spanish. An operator able to meet the requirements of Sec.  
1926.1427(h) using these Spanish language materials would have 
demonstrated adequate literacy under the rule.
    A trade association supported the provision allowing examinations 
to be administered verbally. (ID-0151.1.) A testing organization 
opposed the provision, believing it adds an unnecessary and potentially 
harmful step in the qualification process. (ID-0343.) The testing 
organization was concerned that the rule does not identify standards or 
protocols by which the written demonstration of literacy relevant to 
the work and the ability to use written manufacturer procedures are to 
be made.
    OSHA recognizes the testing organization's concern but concludes 
that the rule must allow sufficient flexibility in the testing process 
to enable individuals who have sufficient literacy skills and are 
demonstrably competent to operate a crane, but are deficient in written 
test-taking ability, to obtain qualification/certification under this 
rule. Accordingly, OSHA is retaining the provision allowing tests to be 
administered verbally if the specified demonstrations of literacy are 
made.
    OSHA requested comment on several issues arising under paragraph 
(h), including (1) Whether, if an operator complies with paragraph (h) 
by demonstrating proficiency in a language other than English, the 
qualification/certification should be limited to the use of equipment 
that is equipped with materials in the operator's language; (2) whether 
the rule needs to incorporate safeguards to ensure that a translation 
of manufacturer-supplied materials conveys the same information as the 
original; (3) whether employers should be permitted to use manuals that 
have been re-written in simplified language to accommodate individuals 
whose literacy level does not permit them to understand the 
manufacturer-supplied materials.
    One trade association commented that, in many regions of the United 
States, employers rely on non-English speakers to operate cranes and 
stated that OSHA should require testing organizations to offer crane 
operator certification in languages other than English. (ID-0231.1.) 
OSHA's longstanding position is that workers must be trained and 
provided with information in a language that they can understand. That 
is particularly important for crane operators, who will be in control 
of large pieces of equipment, with the potential to inflict major 
damage and injury.
    It was C-DAC's intent in the proposed rule, and it is OSHA's intent 
in this final rule, that non-English speaking operators will have the 
ability to become certified using languages other than English. 
Paragraph (h)(2) of the rule, therefore, authorizes testing 
organizations to administer tests in any language that the operator 
candidate understands. Paragraph (h)(2) is intended to ensure that 
crane operators are certified in a language that they comprehend, and 
that the cranes they operate are equipped with the requisite materials 
in that language. OSHA intends to work with certifying organizations to 
ensure that examinations in appropriate languages are available within 
the four-year phase-in period under this section.
    OSHA expects employers who perform their own testing under 
paragraph (c) to test candidates in the languages understood by their 
workers. OSHA concludes that accredited testing organizations providing 
certifications under paragraph (b) should likewise provide testing in 
major languages understood by the relevant worker population of the 
regions in which they do business. Doing so will maximize an 
organization's share of the testing market. Moreover, OSHA expects that 
employers who rely on testing organizations will demand testing in the 
languages understood by their workforces.

[[Page 48026]]

Paragraph (i) [Reserved.]
Paragraph (j) Certification Criteria
    Paragraph (j) of this section sets out the qualification and 
certification criteria applicable to Options (1), (2), and (4) of this 
section. These criteria address the knowledge and skills that are 
fundamental to safe crane operation. As stated in the introductory 
language in Sec.  1926.1427(j), these would constitute ``minimum'' 
criteria; the accredited testing organizations, employers, or local or 
State licensing offices would not be precluded from adding additional 
requirements to their certification or qualification programs.
    Paragraph (j)(1) describes the criteria that must be covered by the 
written examination portion of a qualification/certification program. 
As stated above in the discussion of examination administration, the 
written portion of the examination may be administered orally, so long 
as the candidate has demonstrated sufficient literacy relevant to the 
work (e.g., load charts and equipment manual).
    Paragraph (j)(1)(i) states that the individual seeking 
qualification or certification must know ``the information necessary 
for safe operation of the specific type of equipment the individual 
will operate * * *'' Paragraph (j)(1)(i) goes on to list specific types 
of information the individual must know.
    Paragraph (j)(1)(i)(A) requires that the written examination 
address the candidate's knowledge of the equipment controls and 
operational/performance characteristics of the specific type of 
equipment. Operational/performance characteristics would include, for 
example, the deflection characteristics of the boom, including how 
deflection affects the positioning of the load and the extent to which 
deflection varies with boom angle and length as well as load weight. 
Also, equipment with lattice/cable supported booms has different 
deflection characteristics than equipment with non-lattice booms (that 
is, hydraulic ram extensible booms).
    Paragraph (j)(1)(i)(B) requires the candidate to know the use of, 
and be able to calculate (manually or with the use of a calculator), 
load/capacity information on a variety of configurations of the 
equipment. Such information is typically contained in load charts and 
manuals. This provision ensures that the operator is able to accurately 
determine, independently, the capacity of the equipment in each 
situation that he/she might encounter and thereby avoid overloading the 
equipment.
    Paragraph (j)(1)(i)(C) requires the candidate to know procedures 
for preventing and responding to power line contact. As discussed above 
in relation to Sec. Sec.  1926.1407-1926.1411, electrical contact with 
power lines is one of the principal causes of crane-related fatalities 
and injuries, and those sections contain detailed requirements for 
preventing such contact and for reducing the likelihood of death or 
injury should such contact occur.\120\ Knowing how to prevent and 
respond to power line contact is therefore critical knowledge for any 
crane operator.
---------------------------------------------------------------------------

    \120\ As provided in Sec.  1926.1408(g)(1)(i)(A) on power line 
safety, operators must be aware of the danger of electrocution if 
they simultaneously touch energized equipment and the ground. They 
must also, pursuant to Sec.  1926.1408(g)(1)(i)(B), be trained to 
understand that when the equipment makes electrical contact with a 
power line, the operator's safety requires him or her to remain 
inside the cab except where there is an imminent danger of fire, 
explosion, or other emergency that necessitates their leaving the 
cab.
---------------------------------------------------------------------------

    Paragraph (j)(1)(i)(D) addresses the need for crane operators to 
have technical knowledge similar to the subject matter listed in 
Appendix C applicable to the specific type of equipment the individual 
will operate. These criteria were selected by C-DAC because, in the 
experience of the committee's members, they are critical knowledge and 
skill areas for equipment operators. OSHA defers to C-DAC's experience 
on this issue and notes that the Agency did not receive any comments 
suggesting that a particular item be removed from this list. While 
testing based on the specific list provided in Appendix C is not the 
means of satisfying the requirements of Sec.  1926.1427(j)(1)(i)(D), 
alternative criteria must be ``similar to'' that of Appendix C. The 
appendix also serves as a ``safe harbor,'' meaning that testing on all 
of the criteria provided in Appendix C would satisfy the requirements 
of Sec.  1926.1427(j)(1)(i)(D).
    In addition to the technical knowledge that is required under Sec.  
1926.1427(j)(1)(i)(D), technical knowledge applicable to three specific 
subjects is required under Sec.  1926.1427(j)(1)(i)(E). Paragraph 
(j)(1)(i)(E)(1) requires that an operator have technical knowledge 
about the suitability of the supporting ground and surface to handle 
expected loads. Paragraph (j)(1)(i)(E)(2) requires operators to possess 
technical knowledge applicable to site hazards, such as hazards posed 
by excavations or vehicular traffic. Paragraph (j)(1)(i)(E)(3) requires 
operators to have technical knowledge about site access so that the 
operator can evaluate whether conditions at the point of access to the 
site enable the equipment to travel safely onto or off of the site. For 
example, where equipment must descend or ascend a dirt ramp, the 
operator needs to be able to assess the effect of the ramp's steepness 
and to detect signs of instability.
    Paragraph (j)(1)(i)(F) requires operators to demonstrate a thorough 
knowledge of this subpart, including incorporated materials. Operators 
play a key role in the application of these requirements, and it is 
therefore essential that they understand them. Paragraph (j)(1)(ii) 
provides that the individual is able to read and locate relevant 
information in the equipment manual and other materials containing 
information referred to in paragraph (j)(1)(i) of this section. As 
discussed above in relation to paragraph (h), the written materials to 
which this paragraph refers must be in a language that the individual 
can read and in which the individual is tested.
    Paragraph (j)(2) requires that the qualification/certification 
examination include a determination through a practical test that the 
individual has the skills necessary for the safe operation of the 
equipment. It also states criteria for such a test. Paragraph (j)(2)(i) 
requires that an individual demonstrate the ability to recognize, from 
visual and auditory observation, the items listed in proposed Sec.  
1926.1412(d), which sets criteria for shift inspections. Paragraph 
(j)(2)(ii) requires the operator to demonstrate operational and 
maneuvering skills. Paragraph (j)(2)(iii) requires that the operator 
demonstrate the ability to apply load chart information. Paragraph 
(j)(2)(iv) requires that an operator be able to apply safe shut-down 
and securing procedures.
    One commenter suggested incorporating standard verbal operation 
signals into the certification criteria. (ID-0110.1.) A different 
commenter asked OSHA to require knowledge of the ``dynamics of boom 
flex'' in its criteria for certification. (ID-0125.) To the extent that 
knowledge of such signals and the dynamics of boom flex are required 
for the safe operation of the type of equipment the individual will 
operate, they would be covered under Sec.  1926.1427(j)(1)(i). The 
examples of the types of information that would be required for 
certification are not all inclusive. OSHA defers to C-DAC's experience 
with respect to the determination of which examples should be 
highlighted in paragraph (j).
    No other comments were received on Sec.  1926.1427(j); it is 
promulgated as proposed, except that OSHA has corrected ``audible 
observations'' to read

[[Page 48027]]

``auditory observations (observations through the use of the ear).
Paragraph (k) Phase-In
    As discussed above, a number of commenters believe that Option (1) 
of this section (certification by an accredited testing organization) 
is the only viable option for many employers and expressed concern 
about the availability of sufficient accredited testing organizations 
to meet the demand that this rule would create. Therefore, in the final 
rule, OSHA has provided a four-year phase-in period for compliance with 
paragraph (a)(2), which requires employers to have their operators 
certified or qualified under Option (1) (independent certifying 
organization), Option (2) (audited employer certification), or Option 
(3) (U.S. military employees). Paragraph (k)(1) of this section of the 
final rule sets out different effective dates for the different 
provisions of Sec.  1926.1427: all provisions except paragraphs (a)(2) 
and (f) of this section are enforceable as of the effective date of new 
subpart CC, whereas the certification required under paragraph (a)(2) 
will not be required until the end of the phase-in period, which is 
four years after the effective date of subpart CC.
    The phase-in period does not apply to compliance with licensing 
requirements of government entities. Those government entities already 
require compliance with their own licensing requirements, and OSHA sees 
no rationale for delaying compliance with existing law. Employers would 
be required to comply with State or local government entity licensing 
requirements only to the extent that State or local government entity 
licenses comply with the ``Federal floor'' established in paragraphs 
(e)(2) and (j) of this section. The options available under Sec.  
1926.1427(a)(2) would remain available, and the four-year phase-in 
period would apply.
    As already discussed, C-DAC determined that the market would 
respond to a qualification/certification requirement, and the increase 
in the number of accredited testing organizations since C-DAC completed 
its consensus document validates that view (OSHA notes that several 
more testing organizations have become accredited since the proposed 
rule was issued). There is no evidence in the record that the available 
testing organizations will be unable to meet the demand even if almost 
all employers choose that option. The four year period will provide 
time for additional testing organizations to become accredited for 
purposes of Option (1).
    A labor organization suggested that the four-year phase-in period 
be reduced to two years. (ID-0409.1.) The commenter stated that C-DAC 
agreed to the four-year period when it issued its report in 2004 to 
allow sufficient time for additional certification services to become 
available. It noted that several additional testing organizations had 
become accredited since 2004 to meet the demand for certification under 
various State laws and suggested that the number of accredited testing 
organizations was now sufficient to meet the demand under this rule 
within two years. Another commenter also suggested that the phase-in 
period could be reduced to two or three years if sufficient certifying 
organizations are available when the final rule is issued. (ID-0104.1.)
    OSHA concludes that the rulemaking record supports the proposed 
four-year phase-in period. While the availability of certification 
services has increased since C-DAC issued its report, four years is a 
reasonable amount of time to ensure that the supply of certification 
services will be sufficient to meet demand. It will also provide time 
for those operators who need additional training to pass qualification/
certification tests to complete that training, and for accredited 
testing organizations to develop tests in languages other than English 
to accommodate crane operators for whom English is not their first 
language.
    The four year period will also provide time for the market to also 
respond to demand for certification programs for certified auditors as 
described under Option (2) of this section (and for employers who so 
choose to develop audited programs for use under Option (2)). Some 
State and local government entities now offer licenses and, if those 
licensing organizations do not already meet the criteria under Option 
(4) of this section, the four-year phase-in period gives them time to 
do so if they so choose. C-DAC's determination that four years is a 
reasonable phase-in period was not based solely on the availability of 
testing services under Option (1) of this section, and OSHA continues 
to agree that period is appropriate.
    Under paragraph (k)(1), during this four year period, Sec. Sec.  
1926.1427(k)(1)(i) and (ii) address the qualifications and training an 
operator must have before becoming qualified or certified under one of 
the four options. Section 1926.1427(k)(1)(i) requires that operators be 
competent for the purposes of operating the equipment safely. This 
means that the operator must have the requisite knowledge and skill to 
identify, anticipate, and avoid actions which could result in hazardous 
conditions related to the equipment and job site.
    Paragraph (k)(1)(ii) requires that employers ensure that operators 
who do not already have sufficient knowledge or skill to operate the 
equipment safely undergo training prior to engaging in operations. In 
addition, the employer is required to ensure that the operator is 
evaluated to confirm that he/she understands the information provided 
in the training.
    The interim measures in paragraph (k)(1) are not significantly 
different from requirements that were effective under subpart N of this 
part at former Sec.  1926.550, Sec.  1926.20(b)(4) (``the employer 
shall permit only those employees qualified by training or experience 
to operate equipment and machinery''), and Sec.  1926.21(b)(2)(``the 
employer shall instruct each employee in the recognition and avoidance 
of unsafe conditions . . .''). However, they are included in this final 
rule to ensure that there will not be a gap with respect to operator 
qualifications between the termination of the requirements under 
subpart N of this part at former Sec.  1926.550 and the effective date 
of Sec. Sec.  1926.1427(a) through (j) and (m).
Paragraph (l) [Reserved.]
Definitions
    The proposed rule contained definitions of ``portable'' and ``not 
portable'' in proposed Sec.  1926.1427(m). In addition, OSHA stated 
that it was considering adding a definition of ``employee of the U.S. 
military'' to paragraph (m). As noted above, OSHA has moved the 
definitions of ``portable'' and ``not portable'' to the provisions 
where those terms are used, and has added a definition of ``employee of 
the U.S. military'' to paragraph (d). As a result, proposed paragraph 
(m) is not needed and is removed.
Physical Qualifications and Substance Abuse Testing
Physical Qualifications
    C-DAC considered whether to include in this standard provisions 
that would require equipment operators to meet particular physical 
qualifications. After considering various possible approaches, 
including those in industry consensus standards, the Committee decided 
that it would be very difficult, and likely unnecessary, to identify 
minimum physical requirements that would be appropriate.
    First, the physical demands of equipment covered by this rule vary 
significantly depending on the type and,

[[Page 48028]]

in some cases, age of the equipment. For example, some equipment is 
operated largely by electronic controls. In contrast, older ``friction 
cranes'' have pedal controls that can require significant strength and 
stamina to operate. Some equipment is air conditioned whereas other 
equipment is not. Tower cranes can require very long climbs to the 
operator station; small mobile hydraulic cranes typically have an 
operator's station that is much more easily accessible. A requirement 
regarding physical qualifications would have to account for these types 
of differences.
    Second, establishing physical qualifications that would 
appropriately account for the effect of medical conditions would be a 
complex undertaking. The Committee ultimately determined that, in light 
of its members' experience that accidents caused by problems associated 
with the operator's physical/medical condition are rare, the issue of 
physical qualifications did not need to be addressed by this standard.
    Several commenters suggested that OSHA should require operators to 
undergo and pass medical examinations. (ID-0104.1; -0143.1; -0151.1; -
0152.1; -0187.1.) A trade association suggested that medical testing of 
vision, hearing, and potential for seizures, epilepsy, emotional 
instability, high blood pressure, and other physical impairments should 
be part of requirements for safe crane operation. (ID-0187.1.) A safety 
consultant stated that establishing physical qualifications that would 
appropriately account for the effects of medical conditions would not 
be a complex undertaking. (ID-0152.1.) This commenter suggested that a 
doctor who performs an operator's physical and medical examination 
could determine if an operator was medically qualified to operate a 
crane.
    OSHA is not persuaded by these comments. First, OSHA concludes that 
it would not be reasonable to rely on the unguided discretion of 
examining physicians to determine whether an operator is medically 
qualified to operate a crane. Doing so would likely lead to a wide 
variation in the medical conditions that different physicians believe 
are either necessary or unnecessary for crane operation. Moreover, 
individual physicians are unlikely to be aware of the variety of 
conditions that may influence an individual's ability to operate a 
crane safely, such as the variation in strength needed to operate the 
controls on different types of cranes. Although physicians are able to 
determine if an individual has a particular medical condition, they are 
not well situated to determine if that condition should preclude the 
individual from operating a crane.
    OSHA also finds the comment by the trade association to be 
unpersuasive. First, this commenter nominated a C-DAC member, who did 
not dissent on this issue. The commenter did not explain why it is 
deviating from the position its nominee took on C-DAC, and for that 
reason OSHA gives reduced weight to its comment. Moreover, OSHA notes 
that some of the criteria suggested by the commenter, particularly the 
phrase ``other physical impairments,'' are of questionable value in 
determining the physical qualifications of crane operators. Indeed, 
OSHA determines that the commenter's inclusion of such a catchall 
phrase highlights the difficulty of trying to list the medical 
conditions that should preclude a person from operating a crane.
    In short, OSHA has not been given any persuasive reason to deviate 
from the considered judgment of C-DAC that this standard should not 
address the issue of physical qualifications of equipment operators.
Substance Abuse Testing
    As explained in the proposed rule, C-DAC considered whether to 
include mandatory substance abuse testing for equipment operators and 
others, such as signal persons, whose jobs affect safety. It decided 
against doing so because of the procedural limitations such a 
requirement would impose on employers who have voluntarily instituted 
substance abuse programs; a government mandate for substance abuse 
testing would have to meet constitutional safeguards.\121\ For example, 
under a government-mandated testing program, an employer likely would 
not be permitted to ``stand down'' an operator based on an unconfirmed 
test result but would need to wait until a positive result is verified 
by a medical review officer. The Committee did not want to restrict an 
employer's ability to suspend an operator who tested positive pending 
confirmation of the result.
---------------------------------------------------------------------------

    \121\ See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 
602 (1989); International Brotherhood of Teamsters v. Department of 
Transportation, 932 F.2d 1292 (9th Cir. 1991).
---------------------------------------------------------------------------

    In short, the Committee balanced the potential benefits from a 
requirement for substance abuse testing that would have more 
restrictive procedures against the fact that many employers already 
have their own programs in place that, in C-DAC's view, may be more 
protective than what could be enacted as an OSHA requirement. C-DAC 
concluded that it would be better not to include a substance abuse 
requirement.
    Several commenters recommended that OSHA include substance abuse 
testing in the final rule. (ID-0104.1; -0105.1; -0151.1; -0152.1; -
0187.1.) These commenters did not, however, address C-DAC's conclusion 
that an OSHA mandate for such testing could have the adverse 
consequence of limiting employers' ability to enforce their own 
substance abuse testing programs and could thereby detract from 
worksite safety. OSHA therefore defers to C-DAC's judgment and declines 
to include a substance abuse testing requirement in the final rule.
Section 1926.1428 Signal Person Qualifications
    As discussed under Sec.  1926.1419, Signals--general requirements, 
the safety of equipment operations depends in many situations on 
signals given to the operator. It is critical that the operator 
understand the signals given, and the signal person must therefore be 
able to give clear, accurate and appropriate signals that unambiguously 
convey the needed information. The Committee, which included a number 
of members with significant experience with signal persons, was 
concerned that some signal persons are not able to recognize the 
hazards involved with certain crane operations, do not, in some cases, 
understand what it is that the crane needs to do to accomplish the 
task, and do not know how to give the appropriate signals. This poses 
hazards, such as struck-by and crushed-by hazards, due to either 
miscommunication or the communication of instructions that are 
inappropriate.
    An example of the type of accident that can be caused by 
miscommunication from not knowing the appropriate signals is as 
follows: The signal person intends to indicate to the operator to hoist 
up, since the load needs to be raised straight up. However, the signal 
person uses the standard signal for booming up in the mistaken belief 
that this signal is for hoisting up. A struck-by or crushed-by incident 
could result because, when booming up, the load will move laterally as 
well as vertically.
    A failure to understand what it is that the crane needs to do to 
accomplish a task can also lead to struck-by or crushed-by incidents. 
For example, as a crane booms down, boom deflection tends to increase, 
which has the effect of lowering the load more than if there were no 
boom deflection. If the signal person is unfamiliar with this boom 
characteristic, he or she may fail to

[[Page 48029]]

signal in time for the load to stop at the correct point or may cause 
the load to descend too quickly.
    The Committee concluded that to prevent such accidents it is 
necessary to establish qualification criteria that would have to be met 
for an individual to serve as a signal person (that criteria is set out 
in proposed Sec.  1926.1428(c), discussed below). The employer would 
have the option of using one of two methods for ensuring that these 
criteria were met. Under Option (1) of this section (Sec.  
1926.1428(a)(1)), the signal person would have documentation from an 
independent ``qualified evaluator (third party),'' as defined in Sec.  
1926.1401, showing that the evaluator had determined that the signal 
person meets the requirements of Sec.  1926.1428(c).
    This qualification would be portable, that is, any employer could 
rely on such documentation to show that a signal person meets the 
criteria. C-DAC determined that such portability would be appropriate 
because of the independence and expertise of the third-party evaluator.
    Under Option (2) of this section (Sec.  1926.1428(a)(2)), an 
employer's own qualified evaluator (not a third party) would determine 
that a signal person meets the qualification requirements. Since such a 
determination would not be done by an independent entity, other 
employers would not have a basis to assume that the assessment had been 
done correctly. Therefore, a qualification under this option would not 
be portable; other employers would not be permitted to rely upon it to 
show that the signal person meets these requirements.
    One commenter argued for the deletion of Option (2) of this section 
(the employer option) altogether to ensure that an independent 
evaluator trains signalpersons according to the established best 
practices of the industry. (ID-0156.1.) The commenter did not explain 
why employer evaluations were less effective. To the contrary, the 
Agency notes that C-DAC experience indicated that employer evaluations 
of signal persons were effective. The employer evaluation may in some 
cases be even more effective and efficient than independent 
evaluations, such as for the evaluation of employer specific signals. 
Sections 1926.1428(a)(1) and (2) (Options (1) and (2)) are promulgated 
as proposed.
    The term ``qualified evaluator'' used in proposed Sec.  
1926.1428(a)(2) was defined in proposed Sec.  1926.1401 as ``a person 
employed by the signal person's employer who has demonstrated that he/
she is competent in accurately assessing whether individuals meet the 
Qualification Requirements in this subpart for a signal person.'' In 
reviewing the C-DAC document, the Agency realized that the Committee 
had not provided a definition for the term ``third party qualified 
evaluator,'' which was used in proposed Sec.  1926.1428(a)(1). OSHA 
therefore added to the proposed rule a definition for this term.
    The Agency requested public comment about whether this definition 
is appropriate, and two commenters indicated support for the 
definition. (ID-0187.1; -0205.1.) One commenter requested that, in the 
phrase, ``due to its independence and expertise,'' the Agency add 
``history in providing training'' as an additional criterion and 
include labor-management joint apprenticeship training programs as an 
example of an entity that meets this definition. (ID-0191.1; -0194.1.)
    The role of the third-party qualified evaluator in Sec.  
1926.1428(a)(2) is to assess the individual's competence. The expertise 
needed for training is not the same as the expertise needed for 
evaluating competence (see the explanation of the distinction between 
training expertise and competence evaluation in the discussion of Sec.  
1926.1427). Therefore, it would be inappropriate to require training 
expertise as a prerequisite for being considered a third-party 
qualified evaluator.\122\ Similarly, while labor-management joint 
apprenticeship training programs that train and assess signal persons 
would typically meet the definition for a third-party qualified 
evaluator, OSHA concludes that including them as an example in the 
definition could incorrectly imply that training expertise (as opposed 
to assessment expertise) is a prerequisite.
---------------------------------------------------------------------------

    \122\ A third party evaluator that did not have signal person 
training expertise would nonetheless have to have substantive 
expertise in signaling and the other subjects referred to in Sec.  
1926.1428, as well as expertise in assessment, to meet the 
``expertise'' criterion in the definition.
---------------------------------------------------------------------------

    Several other commenters expressed general support for the 
definition of a third-party qualified evaluator but requested 
clarifications. Two of these commenters proposed changing the 
definition to specify that an ``individual'' could also qualify as a 
third-party qualified evaluator. (ID-0205.1; -0222.1.) This is 
unnecessary because the word ``entity'' already encompasses an 
individual. The other commenters recommended that OSHA further clarify 
the definition by requiring an evaluating entity to ``demonstrate'' its 
competence through an independent body's audit, certification, or 
accreditation. (ID-0169.1; -0211.1.) OSHA agrees with C-DAC that 
competence can be demonstrated in a variety of ways and is not 
establishing an accreditation requirement as for evaluators of crane 
operators. The assessment of a signal person's qualifications is 
inherently less complex than the assessment of a crane operator's 
qualifications because the range of signals and their applications are 
more finite than the wide assortment of scenarios and skills for which 
a crane operator must be tested. As such, the need for independent 
assessment of the evaluator is diminished. Therefore, the Agency has 
not made the suggested changes; the definition is promulgated as 
proposed except that the defined term is ``qualified evaluator (not a 
third party)'' in the final rule.
    Another commenter at the hearing, citing the availability of 
experienced, trained signal persons in his organization, requested a 
``grandfather'' clause for signal persons so that previous training and 
proof of hands-on practical experience would qualify signal persons 
under this rule, citing the availability of experienced, trained signal 
persons in that organization. (ID-0345.17.) OSHA does not agree that a 
``grandfather'' clause is necessary or appropriate. The experienced, 
trained workers to which the commenter refers should be able to pass 
the required assessment with little additional training.\123\
---------------------------------------------------------------------------

    \123\ In many cases the only additional training that likely 
will be needed for those experienced and trained workers will be to 
become familiar with the relevant requirements of Sec. Sec.  
1926.1419-1926.1422, and Sec.  1926.1428 (knowledge of that 
information is required under Sec.  1926.1428(c)(4)).
---------------------------------------------------------------------------

    OSHA concurs with the C-DAC Committee's determination that it is 
important for employers to make the documentation of signal person 
qualifications readily available to employees and others who need to 
rely on those qualifications, such as crane operators who rely on 
signal persons provided by a different employer, or OSHA for compliance 
purposes. In proposed Sec.  1926.1428(a)(3), OSHA included C-DAC's 
language requiring that the documentation be ``available,'' rather than 
``available at the site,'' but noted that C-DAC intended that the 
documentation be available at the site by, for example, the 
documentation being physically present at the site or through use of an 
on-site computer. OSHA asked for public comment on changing the term 
``available'' to ``available at the site.''
    Two commenters objected to the proposed change, indicating that it 
is not necessary to have the documentation on site so long as it can be 
readily produced. (ID-0205.1; -0222.1.) The commenters did not,

[[Page 48030]]

however, provide further explanation or cite any examples of how the 
documentation would be ``readily produced'' quickly through means other 
than via computer. Moreover, the commenter's suggestion that documents 
be ``readily produced'' is vague and could encompass documents that 
might be ``produced'' offsite quickly but not transmitted in a timely 
manner to the work site. OSHA has decided to modify the language used 
in the proposed rule and require in the final rule that the 
documentation be available at the site, and is also adding language to 
make it clear that the employer is responsible for making that 
documentation available at the worksite.
    In the proposed rule preamble, the Agency noted that the C-DAC 
draft of Option (2) of this section did not explicitly state that 
documentation of the signal person's qualification by this method is 
required. However, proposed Sec.  1926.1428(a)(3) stated that ``the 
documentation for whichever Option is used shall be available. * * *'' 
It was not clear to the Agency if C-DAC intended to require 
documentation under Option (2) of this section as it did for Option 
(1), or if it only intended that any documentation the employer chose 
to create under Option (2) would have to be made available.
    One reason to require documentation under Option (2) of this 
section is the Committee's concern that, at present, the operator's 
employer has no ready means of determining if the signal person (who is 
typically a different employer's employee) has the necessary knowledge 
and skill for signaling until after hoisting operations have begun. In 
other words, a problem with the signal person's ability may not become 
evident to an operator until a hazardous situation has already arisen. 
Requiring documentation enables this determination to be made before 
hoisting operations begin.
    Requiring documentation under Option (2) of this section addresses 
C-DAC's concern. Therefore, in the proposed rule, OSHA expanded the 
first sentence of the C-DAC version of Sec.  1926.1428(a)(2) to clarify 
that documentation is required under Option (2). The only comment 
received on OSHA's inclusion of an explicit requirement for 
documentation under Option (2) was from SC&RA, which supported its 
inclusion. (ID-0205.1.) Therefore, in the final rule, documentation is 
required under Option (2).
    The Agency concludes that the rationale for including an explicit 
requirement for documentation under Option (2) of this section--the 
need for other affected employers at the site, such as the operator's 
employer, to have a ready means of determining if the signal person has 
the necessary knowledge and skill before beginning hoisting 
operations--also necessitates that the documentation be available at 
the site. OSHA is concerned that if it is not available at the site 
(either in paper form or electronically), it is less likely that the 
documentation will serve its intended purpose. Therefore, in the final 
rule, the documentation required under both Option (1) and Option (2) 
of this section must be available at the site.
    OSHA is also adding a requirement in paragraph (a)(3) of this 
section of the final rule that the documentation must specify each type 
of signaling for which the signalperson has been tested and meets the 
requirements of Sec.  1926.1428(c). This requirement parallels the 
requirement in Sec.  1926.1427(b)(2) in which operator certification 
documents must specify the type and capacity of the equipment for which 
an operator is certified. This new provision fills a potential 
communication gap that would have existed in the implementation of the 
rule as proposed. As explained above, one of the main reasons that OSHA 
is requiring the documentation to be available at the site is so that 
the operator, or any person on the job site, who is unfamiliar with a 
signal person may review that documentation to ensure that the signal 
person is sufficiently qualified to provide the signals required for 
that job. Because many of the qualifications that must be tested under 
paragraph (c) of this section are conditional (e.g., if hand signals 
are to be used, the signal person must understand the Standard Method 
hand signals), and the proposed rule did not specify any content for 
the documentation, the documentation provided by a third-party 
qualified evaluator under Option (1) of this section might simply have 
generally noted the satisfactory completion of testing in accordance 
with Sec.  1926.1428(c). In that case, under the proposed rule, an 
operator preparing for a job requiring the use of hand signals would 
not have been able to use that documentation as intended to determine 
whether the signalperson knew and understood the Standard Method for 
hand signals. Under the final rule, the operator will be able to make 
that determination quickly because the documentation must specify 
whether the signalperson was examined on hand signals. This requirement 
is not intended to require significant detail, such as specifying that 
the signalperson knows the hand signals for ``hoist'' or ``stop.'' 
Rather, it is intended to identify satisfactory completion of testing 
on different categories of signals, such as hand signals, radio 
signals, or flag signals.
    Paragraph (b) of this section addresses circumstances in which a 
signal person who had been qualified under Sec.  1926.1428(a) 
subsequently acts in a manner that indicates that he or she may not 
meet the qualification requirements. Such an indication would result, 
for example, where the use of Standard Method signals have been agreed 
to but the signal person does not give a Standard Method signal. 
Another example would be where the signal person gives inappropriate 
signals (such as indicating to the operator to boom up when the action 
that is needed is to hoist up).
    In such circumstances the employer is prohibited from allowing the 
individual to continue working as a signal person until he or she is 
re-trained and has been requalified in accordance with Sec.  
1926.1428(a). No comments were received on this provision; it is 
promulgated as proposed.
    Paragraph (c) of this section sets forth the qualification 
requirements for signal persons. Paragraph (c)(1) requires that the 
signal person know and understand whatever signal method will be used 
for that particular job site.
    In addition, if hand signals are used, the signal person must know 
and understand the Standard Method for hand signals. Hand signals are 
widely used in this industry. As discussed above with respect to Sec.  
1926.1419(c), C-DAC determined that accidents due to miscommunication 
could be reduced if there were more widespread use of standardized hand 
signals. C-DAC concluded that this provision will promote greater use 
of standardized hand signals through the use of the Standard 
Method.\124\ No comments were received on this provision; it is 
promulgated as proposed.
---------------------------------------------------------------------------

    \124\ As discussed above with respect to Sec.  1926.1419(c), 
there are circumstances when it would be permissible to use hand 
signals other than the Standard Method signals. Also, under Sec.  
1926.1419, signals other than hand signals can be used.
---------------------------------------------------------------------------

    Paragraph (c)(2) of this section will help prevent miscommunication 
between the signal person and the crane operator by requiring the 
signal person to be competent in the application of whatever signals 
are used. No comments were received on this provision; it is 
promulgated as proposed.
    Paragraph (c)(3) of this section requires the signal person to have 
a basic understanding of crane operation

[[Page 48031]]

and limitations, including crane dynamics involved in swinging and 
stopping loads and boom deflection from hoisting loads. As explained in 
the proposed rule preamble, it is critical that the signal person 
understand how the crane and load will move in response to the various 
signals he or she gives so that the signal person will give the most 
appropriate signals and reduce the occurrence of struck-by, crushed-by 
and other hazards (see 73 FR 59823, Oct. 9, 2008). No comments were 
received on this provision; it is promulgated as proposed.
    Paragraph (c)(4) of this section specifies that signal persons must 
know and understand the relevant requirements in Sec. Sec.  1926.1419-
1926.1422, which address the types of signals that may be used and the 
circumstances surrounding their use, and the requirements of Sec.  
1926.1428. C-DAC included the phrase ``relevant requirements'' to make 
clear that a signal person's qualification could be limited with 
regards to the use of a particular type of signal and associated 
information.
    For example: A crane operation is going to use Standard Method hand 
signals. The signal person knows and understands all aspects of Sec.  
1926.1419 that are relevant when using hand signals, as well as Sec.  
1926.1422, Signals--hand signal chart. In addition, the signal person 
meets the requirements in Sec.  1926.1428(c)(1) and (2) with respect to 
the use of Standard Method hand signals. The signal person also has the 
knowledge necessary to meet the provision in Sec.  1926.1428(c)(3), and 
demonstrates through a verbal or written test, and through a practical 
test, that he/she has this knowledge and capabilities. However, the 
signal person is unfamiliar with the contents of Sec.  1926.1420, 
Signals--radio, telephone or other electronic transmission of signals, 
or of Sec.  1926.1421, Signals--voice signals--additional requirements.
    In this example, it would be appropriate for the signal person to 
be qualified under either Option (1) or Option (2) of this section (see 
1926.1428(a)) so long as that qualification was limited to signaling 
with Standard Method hand signals. Since the signal person would be 
qualified only for Standard Method signaling, there would be no need 
for that person to have the knowledge or capabilities associated with 
other types of signaling. In such a situation employers, though, would 
be precluded from using such a person if other types of signals were to 
be used. No comments were received on this provision; it is promulgated 
as proposed.
    Paragraph (c)(5) of this section would require that the signal 
person pass knowledge and practical tests to demonstrate that he or she 
meets the qualification requirements. The knowledge test may be either 
oral or written. C-DAC noted that signal persons normally need not read 
or write to perform their jobs effectively. No comments were received 
on this provision. Therefore, OSHA agrees with C-DAC that administering 
the knowledge test orally, without a separate demonstration of 
literacy, should be permitted. The provision is promulgated as 
proposed, with one minor grammatical correction.
Section 1926.1429 Qualifications of Maintenance and Repair Workers
    This section addresses the qualifications that the workers who 
maintain and repair cranes/derricks must possess. Subpart N of this 
part at former Sec.  1926.550 contained no provisions concerning the 
qualifications of maintenance and repair workers.
    The Committee had two basic concerns regarding maintenance and 
repair work. First, it was aware of accidents that had occurred when 
the equipment that was being maintained or repaired was operated 
improperly. For example, a maintenance worker who booms down a mobile 
hydraulic crane to one side without following the manufacturer's 
instructions for deploying outriggers may overturn the equipment. C-DAC 
concluded that placing restrictions on equipment operations during such 
work would help prevent such accidents.
    Second, the Committee sought to avoid hazards that can result from 
maintenance and repair work that is done improperly by ensuring that 
maintenance and repair workers are sufficiently qualified to perform 
their work. For example, if a load-bearing component is removed for 
maintenance or repair and re-installed incorrectly, unintended movement 
of the load or even a collapse could occur during operations.
Paragraph (a)
    The Committee was aware that maintenance and repair workers 
sometimes need to operate equipment to perform maintenance, inspect the 
equipment, or verify the performance of the equipment. This work 
typically involves operating the equipment to get access to components, 
diagnose problems and check repairs.
    C-DAC did not determine it necessary for maintenance, inspection 
and repair personnel to meet the requirements in proposed Sec.  
1926.1427, Operator qualification and certification, when operating 
equipment for such purposes. The operations involved for these purposes 
are almost always done without a load on the hook. The only instance 
when there is a load on the hook is if the equipment is load tested. 
However, even when load testing, the operation is very limited, since 
the load is not moved about as it would be during normal crane 
operations.
    While such limited operation does not, in C-DAC's view, necessitate 
the maintenance, inspection or repair personnel to meet the proposed 
Sec.  1926.1427 requirements, a failure to operate the equipment 
properly even in these limited circumstances can result in accidents 
from, for example, unintended movement or tip-over. OSHA agrees, and is 
therefore permitting maintenance and repair workers to operate 
equipment during their work only under specific restrictions designed 
to ensure safety.
    Specifically, under paragraph (a)(1) of this section, maintenance 
and repair workers are permitted to operate the equipment only to the 
extent necessary to perform maintenance, inspect the equipment, or 
verify its performance. Under this provision, maintenance and repair 
workers are not permitted to operate the equipment during regular 
operations.
    Paragraph (a)(2) of this section requires the maintenance and 
repair worker who operates equipment to either (i) do so under the 
direct supervision of an operator who meets the requirements of Sec.  
1926.1427, Operator qualification and certification, or (ii) be 
familiar with the operation, limitations, characteristics and hazards 
associated with the type of equipment involved.
Paragraph (b)
    In light of the safety hazards that could result from maintenance 
and repairs that are performed improperly, C-DAC determined that it was 
necessary for maintenance and repair workers to meet the ``qualified 
person'' criteria. OSHA agrees. Paragraph (b) of this section therefore 
provides that maintenance and repair personnel must meet the definition 
of a qualified person with respect to the equipment and maintenance/
repair tasks they perform. As defined in Sec.  1926.1401, a ``qualified 
person'' is ``a person who, by possession of a recognized degree, 
certificate, or professional standing, or who by extensive knowledge, 
training, and experience, successfully demonstrated the ability to 
solve/resolve problems relating to the subject matter, the work, or the 
project.''

[[Page 48032]]

    Two commenters requested that maintenance and repair workers be 
certified by a third party. (ID-0061; -0156.1.) As noted in the 
preamble to the proposed rule and again here, C-DAC considered the 
requirements for maintenance and repair workers and found that the term 
``qualified person'' would adequately address these concerns. OSHA 
agrees, and is promulgating paragraph (b) without substantive change. 
OSHA is substituting the word ``must'' for ``shall'' in the last 
sentence of that paragraph to avoid any implication that a maintenance 
and repair worker is, by definition, a qualified person.
Section 1926.1430 Training
    With a few exceptions, the requirements in this final rule for this 
section are the same as those in the proposed rule (see 73 FR 59939, 
Oct. 9, 2008). This section both references training criteria required 
by other sections of subpart CC and sets forth additional training 
criteria and requirements. Additionally, Sec.  1926.1430(h) requires 
employers to evaluate employees' understanding of the training.
    The Agency determined that both training and testing of certain 
employees are critical to the safety of crane/derrick use in 
construction.\125\ The requirements of this section and subpart with 
respect to training do not replace those established by Sec.  1926.21, 
Safety training and education, which requires the employer to (1) 
``establish and supervise programs for the education and training of 
employers and employees in the recognition, avoidance and prevention of 
unsafe conditions in employments covered by the [OSH] Act,'' and (2) 
``instruct each employee in the recognition and avoidance of unsafe 
conditions and the regulations applicable to his work environment to 
control or eliminate any hazards or other exposure to illness or 
injury.'' Instead, they supplement and clarify the general training 
requirements for particular conditions and activities. These specific 
provisions ensure that employees have the necessary knowledge and skill 
to work safely with and around cranes. Greater specificity highlights 
the particular tasks (and the hazards associated with them) for which 
certain types of training are necessary.
---------------------------------------------------------------------------

    \125\ With respect to operator testing, as discussed in 
connection with Sec.  1926.1427, Operator qualification and 
certification, this standard places special emphasis on ensuring 
that equipment operators have acquired the knowledge and skills 
necessary to operate their equipment safely. This standard also 
includes specific assessment requirements for signal persons (see 
Sec.  1926.1428(a)).
---------------------------------------------------------------------------

    The Agency is also clarifying in Sec.  1926.1430 that employers 
have a duty to train each employee covered by subpart CC, and to 
provide that training at no cost to the employee. In the introductory 
text to proposed Sec.  1926.1430, the Agency specified that the 
employer ``shall provide'' all applicable training, which was included 
to indicate that the employer would bear the cost of training. This is 
consistent with the Agency's treatment of training costs in the 
preliminary economic analysis provided in the preamble for the proposed 
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification 
training treated as cost to employer).) In the final rule, OSHA is 
rewording each of the training requirements to further clarify the 
employer's responsibilities with respect to all training requirements 
under subpart CC, and is adding new Sec.  1926.1430(g)(3) to expressly 
state that employers must provide all training at no cost to the 
employee.
    Several commenters recommended that additional training be 
required. (ID-0126.1; -0156.1;-0182.1; -0209.1.) One suggested that 
maintenance and repair personnel be certified by either the 
manufacturer or an independent third party that they are trained in the 
maintenance and repair of the crane. (ID-0156.1.) However, under Sec.  
1926.1429(b), maintenance and repair employees are required to be 
qualified persons. Those employees must be trained on the requirements 
of subpart CC as required by Sec.  1926.1430(d) and must have the 
education or experience to be considered a qualified person as defined 
in Sec.  1926.1401. This commenter has not presented evidence showing 
that manufacturer or third party certification would significantly 
improve the qualifications of maintenance and repair personnel who meet 
the test of ``qualified person.''
    Another commenter felt additional hazard awareness training should 
be required for employees. (ID-0182.1.) OSHA determines that the 
training requirements of this and other sections of subpart CC, along 
with Sec.  1926.21, provide for adequate training of all employees and 
allow employers flexibility to provide training as needed for each 
employee at various worksites.
    Proposed Sec.  1926.1430(a), Overhead powerlines, stated that 
employees listed in Sec.  1926.1408(g) must be trained accordance with 
the requirements of that paragraph. As discussed in Sec.  1926.1410, 
OSHA has added Sec.  1926.1410(m), which requires that operators and 
crew assigned to work with equipment that comes closer to power lines 
than the minimum clearance distance permitted under Sec. Sec.  
1926.1408 and 1926.1409, must also be trained in accordance with Sec.  
1926.1408(g). To accommodate this change, Sec.  1926.1430(a) also 
includes a reference to Sec.  1926.1410(m).
    Under paragraph (b) of this section, Signal persons, employees 
assigned to work as signal persons and need training to meet the 
requirements of Sec.  1926.1428(c) must be trained in the areas 
addressed in that paragraph. As discussed in Sec.  1926.1428(c), each 
employee who serves as a signal person must pass a verbal or written 
test, and a practical test demonstrating the required knowledge and 
skills. One commenter believes the training requirement outlined in 
this paragraph could be interpreted to mean that only training is 
required and the qualification requirements of Sec.  1926.1428 are not 
applicable. (ID-0292.1.) This is incorrect. This paragraph requires an 
employer to ensure the employee assigned as a signal person receives 
training, or re-training if needed, to be a signal person according to 
Sec.  1926.1428. This is not a replacement for the qualification 
requirements of Sec.  1926.1428. This provision is promulgated as 
proposed except for the clarification of the employer's duty to train 
each employee.
    Proposed paragraph (c) of this section was entitled Operators, and 
set forth training requirements for operators of equipment covered by 
this subpart. Proposed Sec.  1926.1430(c)(1) stated that ``operators 
who are not qualified or certified under Sec.  1926.1427 shall be 
trained in the areas addressed in Sec.  1926.1427(j). * * *''
    Several commenters believed that the language of proposed Sec.  
1926.1430(c)(1) indicated that operators who have not been qualified or 
certified under Sec.  1926.1427 may nonetheless operate cranes. (ID-
0156.1; -0182.1; -0208.1; -0292.1.) One commenter noted it could be 
interpreted to mean that certification was not required, only training. 
(ID-0182.1.)
    Such interpretations are contrary to the Agency's intent. OSHA used 
the word ``operator'' in the proposed Sec.  1926.1427(c) to refer to 
any employee, with the exception of maintenance and repair workers, who 
operates equipment, whether or not that employee has completed all 
necessary training. It has the same meaning when used in final Sec.  
1926.1427(c).
    Proposed paragraph (c)(1) was intended to apply to operator 
trainees who must be qualified or certified under Sec.  1926.1427 to 
operate equipment, but

[[Page 48033]]

are not yet qualified or certified. Also in this category are employees 
who need training to become re-qualified or re-certified, or who failed 
to pass a qualification or certification test and need additional 
training. Such employees are only permitted to operate cranes under the 
conditions specified in Sec.  1926.1427(f), and the proposed rule 
required them to be trained in the operator certification/qualification 
criteria provided in Sec.  1926.1427(j).
    Because the certification and qualification requirements of Sec.  
1926.1427 will not be phased in until four years after the effective 
date of the standard, see Sec.  1926.1427(k), OSHA specified in the 
preamble to proposed paragraph (c)(1) that operator training during 
this phase-in period would likewise be required to address the criteria 
in Sec.  1926.1427(j) (see 73 FR 59826, Oct. 9, 2008).
    To clarify its intent in the final rule OSHA has split proposed 
paragraph (c)(1) of this section into three separate paragraphs, (c)(1) 
through (3), and renumbered proposed (c)(2) as (c)(4). Revised 
paragraph (c)(1) is intended to apply after the four-year phase in 
period to employees who must be certified, or qualified, under Sec.  
1926.1427 and are training to do so for the first time, and to 
employees who are training for re-certification/re-qualification. These 
employees, who will only be permitted to operate the equipment as 
``operators in training'' and subject to several conditions, must be 
trained in the areas addressed in Sec.  1926.1427(j) (criteria for 
operator certification testing).
    Paragraph (c)(1) also requires employers to provide the necessary 
additional training if the operator-in-training does not pass a 
qualification or certification test. C-DAC determined, and OSHA agrees, 
that it is important for an employer to provide the training necessary 
for its operators to be qualified or certified as required by this 
subpart.
    C-DAC selected the criteria in Sec.  1926.1427(j) as the minimum 
knowledge and skill requirements necessary for safe operation of 
equipment. OSHA is therefore requiring training in the same areas to 
ensure consistency with the certification/qualification process and to 
develop the trainee's knowledge and skills in the areas that the record 
reflects are critical to the safe operation of equipment.
    New paragraph (c)(2) addresses training during the 4-year phase-in 
period in the same way for the same people as in paragraph (c)(1): Each 
must be trained in the areas addressed in Sec.  1926.1427(j). Although 
the certification/qualification requirements do not apply until four 
years after the effective date of this standard, OSHA concludes that it 
makes sense for two reasons to train employees in the same areas that 
they will need to master to pass the certification/qualification 
examinations: (1) It will facilitate their preparation for the 
examination, and (2) these areas have been identified in the record as 
the minimum knowledge and skill sets that all operators should possess.
    Paragraph (c)(3) applies to operators of equipment covered by this 
subpart but are expressly excepted from the certification and 
qualification requirements of Sec.  1926.1427. This includes those 
operators for whom the qualification or certification requirements of 
Sec.  1926.1427 do not apply based on the type of equipment being 
operated. Section 1926.1427(a) provides: ``Exceptions: Operator 
qualification or certification under this section is not required for 
operators of derricks (see Sec.  1926.1436), sideboom cranes (see Sec.  
1926.1440), and equipment with a maximum manufacturer-rated hoisting/
lifting capacity of 2,000 pounds or less (see Sec.  1926.1441).'' For 
the same reasons that the Agency has concluded that the operator 
certification/qualification criteria in Sec.  1926.1427 are not 
appropriate for these operators, the Agency concludes that training on 
the same Sec.  1926.1427(j) criteria would also not be necessary. 
Instead, these operators, must be trained in the safe operation of the 
type of equipment they will be operating.
    Proposed paragraph (c)(2) has been renumbered in the final rule as 
paragraph (c)(4). Final rule paragraph (c)(4) applies to all persons 
operating equipment under subpart CC, regardless of whether that person 
must be certified or qualified under Sec.  1926.1427, and regardless of 
whether it is during or after the four-year phase-in period, and 
requires operators to be trained in two practices that C-DAC deemed 
worthy of specific emphasis for the safe operation of any equipment. 
Paragraph (c)(4)(i) requires training in the testing of the boom hoist 
brake on friction equipment prior to moving a boom off a support to 
determine whether the brake requires adjustment or repair. The purpose 
of this procedure is to ensure that the brake is sufficient before the 
boom is at too great an angle or height. Using this procedure, if the 
brake is deficient, the boom will fall only a short distance. This 
provides an additional safety measure related to the hazards resulting 
from an uncontrolled boom. Moving the boom when the brake is not 
working properly can result in uncontrolled lowering of the boom, which 
can endanger workers in the proximity of the hoisting equipment. 
Paragraph (c)(4)(i) also requires similar training for testing the 
brake on all other equipment with a boom. Again, this procedure 
provides an additional safety measure related to the hazards resulting 
from an uncontrolled boom. For clarity, the Agency has added a 
reference to Sec. Sec.  1926.1417(f) and (j) for additional 
requirements related to tag-out procedures and communication for any 
necessary repairs. See discussion of these requirements above at 
Sec. Sec.  1926.1417(f) and (j).
    Paragraph (c)(4)(ii) requires the operator to be trained in the 
manufacturer's emergency procedures, when available, for stopping 
unintended equipment movement. This provides another level of 
protection to minimize employee injury resulting from unintended 
equipment movement. OSHA recognizes that manufacturer's emergency 
procedures for halting unintended equipment movement may not always be 
available and therefore this training is required only when the 
procedures are available.
    One commenter requested that more specialized training, such as 
model-specific training, should be required for newly hired operators 
or operators assigned to new or different models of equipment. (ID-
0199.1.) OSHA determines that the rule addresses this commenter's 
concern. An operator qualified or certified under Sec.  1926.1427 has 
shown that he/she is qualified to operate any type of equipment covered 
by the qualification/certification. Others must be trained in the type 
of equipment they are operating under paragraph (c) of this section.
    Paragraph (d) of this section, Competent persons and qualified 
persons, requires competent persons and qualified persons to be trained 
regarding the requirements of this subpart applicable to their 
respective roles.
    A person assigned by an employer to be a ``competent person'' or 
``qualified person'' under this rule must already have had a certain 
level of training (or, in the case of a competent person, either 
training or experience) to meet the criteria applicable to such a 
designation. This paragraph does not address such training--it does not 
require the employer to provide the training needed for an employee to 
meet the criteria to become a competent or qualified person. The sole 
purpose of this paragraph is to require the employer to ensure that 
both competent persons and qualified persons are trained on the 
requirements of this subpart applicable to the person's role and 
responsibility. For example,

[[Page 48034]]

under Sec.  1926.1430(d), a ``competent person'' assigned to conduct 
shift inspections required in Sec.  1926.1412(d) must be trained in the 
required elements of a shift inspection. This training is necessary to 
ensure that the competent person or qualified person is aware of his/
her role under this subpart regarding finding/correcting hazardous 
conditions.
    Another example is maintenance and repair personnel, who may 
operate equipment under limited conditions necessary to perform the 
maintenance or repair (see Sec.  1926.1429(a)). Such an employee must 
be a ``qualified person,'' Sec.  1926.1429(b), and must be trained in 
accordance with Sec.  1926.1430(d) to operate the equipment as 
necessary to perform the maintenance or repair. The Agency notes, 
however, that maintenance and repair workers are not considered 
``operators'' for the purposes of paragraph (c) of this section and are 
therefore not required to be trained in all of the areas addressed in 
Sec.  1926.1427(j), or as required under Sec.  1926.1427(c)(3).
    No comments were received on this paragraph; it is promulgated 
without change from the proposed rule except for the clarification of 
the employer's duty to train each employee.
    Paragraph (e) of this section, Crush/pinch points, provides that 
employees who work with equipment covered by this subpart must be 
instructed to stay clear of holes, crush/pinch points and the hazards 
that are addressed in Sec.  1926.1424, Work area control. See the 
discussion above of hazards and requirements addressed by Sec.  
1926.1424. No comments were received on this provision, and it is 
promulgated as proposed except for the clarification of the employer's 
duty to train each employee.
    Paragraph (f) of this section, Tag-out, states that operators and 
other employees authorized to start or energize equipment or operate 
equipment controls (such as maintenance and repair workers) must be 
trained according to the tag-out and start-up procedures in Sec.  
1926.1417(f) and (g). See the discussion above of these procedures in 
Sec.  1926.1417.
    On review of this paragraph, OSHA determines that a reference to 
the start-up procedures was inadvertently omitted in the text of the 
proposed rule since these employees are ``authorized to start/energize 
equipment.'' OSHA has corrected this omission in the final rule by 
adding a reference to start-up procedures in Sec.  1926.1417(g) in the 
regulatory text.
    Paragraph (g) of this section requires employers to ensure that 
employees understand the required training and provide refresher 
training when necessary. Specifically, Sec.  1926.1430(g)(1) requires 
the employee to be evaluated to verify that he/she understands the 
information provided in training required by this subpart. The Agency 
determined that, to ensure that the training is effective, some means 
of assessment for understanding is needed.
    One commenter believed this requirement was unclear and did not 
understand how an employer would determine if training was effective. 
(ID-0232.1.) This commenter also indicated that it could be interpreted 
that a test would always be required to determine whether training had 
been effective.
    The Agency purposely does not use the term ``test'' in this 
paragraph. ``Test'' may be interpreted to mean a standardized written 
or a structured oral exam, which may not be appropriate for all 
situations. OSHA determines the method of evaluating an employee's 
training for effectiveness will vary by the subject matter of the 
training and the employee, and the Agency has therefore drafted this 
paragraph to provide sufficient flexibility for the employer to 
determine the most appropriate method of evaluation. Any number of 
methods could be used to determine if an employee has understood the 
training provided. For example, during assembly/disassembly a certain 
method of blocking may be needed. The supervisor trains and instructs 
the employee on the proper method. The supervisor can then evaluate the 
employee's comprehension of training in a number of ways. One way could 
be simply to ask the employee to orally describe how he/she would do 
this task, or to have the employee physically emulate the blocking 
method. Another would be to provide blocking to the employee and ask 
the employee to arrange the blocking in the proper manner. Either 
method can give the supervisor the necessary information to determine 
if the employee understood the proper method or if additional training 
is required.
    Another commenter recommended the incorporation by reference of 
ANSI/ASSE Z490.1-2001 for how to test trainees. (ID-0178.1.) Much of 
sec. 6.2 of that standard reflects the same concepts referred to above 
and may be useful to employers. However, a ``Note'' to sec. E6.2.2 
suggests that self-evaluations may be adequate. OSHA does not conclude 
that a self-evaluation is appropriate to meet the requirements of Sec.  
1926.1430(g)(1). While other aspects of the ANSI/ASSE standard may be 
useful as a guide to employers, it is not drafted in a way that is 
suitable for enforcement of this provision. For these reasons, OSHA 
declines to incorporate it by reference as a requirement.
    Paragraph (g)(2) of this section requires the employer to provide 
refresher training for an employee when, based on evaluation or 
employee conduct, it is indicated that retraining is needed.
    One commenter recommended a requirement for a minimum number of 
continuing education courses each year for employees. (ID-0209.1.) 
Another commenter recommended that refresher training be done every 3 
years or earlier when based on evaluation of employee conduct. (ID-
0182.1.)
    The Agency finds these comments to be unpersuasive. As proposed, 
the employer is required to retrain an employee based on the 
individual's conduct. OSHA determines this promotes a more effective 
retraining requirement than one based on time or type of coursework.
    Therefore, paragraphs (g)(1) and (2) of this section are 
promulgated as set forth in the proposed rule. As noted above, the 
Agency is adding new paragraph (g)(3) to clarify that employers are 
responsible to provide the training required under subpart CC at no 
cost to employees.
    The following chart summarizes the location of the training 
requirements in the final rule:

------------------------------------------------------------------------
                Section                        Training requirement
------------------------------------------------------------------------
Sec.  Sec.   1926.1408(g) and            Power line safety.
 1926.1410(m).
Sec.   1926.1424(a)(2).................  Swing radius hazards.
Sec.   1926.1437(c)(2)(ii).............  Swing radius hazards (floating
                                          cranes & land cranes on
                                          barges).
Sec.   1926.1430(e)....................  Crush/pinch points (Work Area
                                          Control).
Sec.   1926.1430(f)....................  Tag-out.
Sec.   1926.1430(f)....................  Start-up.
Sec.   1926.1430(d)....................  Competent and Qualified
                                          Persons.
Sec.   1926.1430(g)(2).................  Refresher training (general).

[[Page 48035]]


Sec.   1926.1430(b)....................  Signal person training
                                          (equipment with greater than
                                          2,000 pound maximum rated
                                          capacity).
Sec.   1926.1428(b)....................  Signal person re-training.
Sec.   1926.1427(f)....................  Operator-in-training.
Sec.  Sec.   1926.1427(k),               Operator training during
 1926.1430(c)(2) and                      transitional period.
 1926.1430(c)(4).......................
Sec.   1926.1430(c)(3).................  Operator training for equipment
                                          where qualification or
                                          certification is not required
                                          by this subpart.
Sec.   1926.1430(c)(1).................  Operator training for
                                          qualification or
                                          certification.
Sec.   1926.1430(c)(4)(i)..............  Operator training--boom hoist
                                          brake test.
Sec.   1926.1430(c)(4)(ii).............  Operator training--emergency
                                          procedures (halting unintended
                                          movement).
Sec.   1926.1441(e)....................  Operator training (2,000 pound
                                          maximum rated capacity).
Sec.   1926.1441(f)....................  Signal person training (2,000
                                          pound maximum rated capacity).
Sec.   1926.1423(k)....................  Fall protection training.
------------------------------------------------------------------------

Section 1926.1431 Hoisting Personnel
    This section of the final rule sets forth additional requirements 
when equipment is used to hoist employees. Because equipment covered by 
this subpart is designed to move materials, not personnel, additional 
requirements are necessary for employee safety. This section replaces 
the requirements of subpart N, former Sec.  1926.550(g). Those 
requirements have been effective in reducing accidents and as a result 
most of the requirements have been continued in this rule. However, 
while continuing most of the hoisting personnel requirements that were 
in subpart N, subpart CC clarifies requirements where needed and has 
added requirements for certain activities, such as hoisting personnel 
in a drill shaft, as discussed below. With a few exceptions, the 
requirements in this final rule are the same as those found in the 
proposed rule (see 73 FR 59714, 59939-59943, Oct. 9, 2008). The 
following discussion will primarily focus on the differences between 
the proposed rule and this final rule.
    OSHA stresses the provisions in this section are additional 
requirements that must be met when equipment is used to hoist 
personnel. During such use, all other applicable requirements of this 
subpart must be met.
Paragraph (a)
    This paragraph states that equipment may be used to hoist personnel 
only when all other means of reaching the work area present a greater 
hazard or is not possible because of the project's structural design or 
worksite conditions. It reflects OSHA's longstanding recognition that 
using cranes and derricks to lift personnel is inherently hazardous and 
should only be done when it is either the least hazardous means or 
when, in light of the configuration of the worksite, it is the only 
means of performing required work.
    This paragraph does not apply to work covered by 29 CFR part 1926 
subpart R, Steel Erection. Subpart R, at Sec.  1926.753(c)(4), allows 
the use of equipment to hoist personnel in a platform that complies 
with subpart CC without the need for a showing that other means of 
reaching the work area would create a greater hazard or is impossible. 
OSHA's reasons for including this exception in subpart R are discussed 
in detail in the preamble to the steel erection standard (66 FR 5196, 
5209, Jan. 18, 2001).
    One commenter asserted that employers engaged in work covered by 29 
CFR part 1926 subpart V, Power Transmission and Distribution, should be 
allowed to use equipment (with a boom attached platform) to hoist 
personnel without showing that other means of reaching the work area 
creates a greater hazard or is not possible. (ID-0144.1.) This 
commenter bases this assertion on the premise that many manufacturers 
offer a platform specifically designed to attach to the tip of the boom 
which may include platform mounted controls. The commenter believes 
that when using this type of platform, the equipment ``essentially 
transforms the crane into a large aerial lift.''
    The Agency finds this comparison unpersuasive. As stated above, 
equipment covered by this section is primarily designed for hoisting 
materials, not people. C-DAC concluded that it was important to 
differentiate between equipment primarily designed for moving 
personnel, such as an aerial lift, as compared to equipment that is 
primarily designed to lift materials. In the judgment of the Committee, 
a personnel platform attached to equipment covered by this section 
presented a greater hazard than a machine that is designed for moving 
personnel. Therefore, the proposed rule would have required an employer 
to show that another means of reaching the work area presents a greater 
hazard or is not possible. OSHA agrees, and is retaining the same 
substantive requirement in the final rule.
    Upon review of this provision, the Agency realized the use of the 
word ``worksite'' in the phrase, ``conventional means of reaching the 
worksite'' could be misleading. The Agency has changed the phrase to 
``conventional means of reaching the work area.'' The term worksite 
could be interpreted to mean the entire construction worksite. This 
requirement is about an employee working in a particular area or place 
on a larger worksite. OSHA finds the use of the phrase ``work area'' to 
provide greater clarity. Therefore, the provision is promulgated as 
proposed incorporating this terminology change.
Paragraph (b) Use of Personnel Platform
    Paragraph (b)(1) of this section generally requires the use of a 
personnel platform when hoisting employees and requires that criteria 
specified in Sec.  1926.1431(e) be met for such platforms. Paragraph 
(b)(2), Exceptions, sets forth the construction activities in which 
hoisting personnel without using a personnel platform is allowed. These 
activities are: hoisting employees into and out of drill shafts 8 feet 
and smaller in diameter, pile-driving operations, marine worksites, 
storage tanks (steel or concrete), shaft operations and chimney 
operations. OSHA considers the use of a personnel platform in these 
situations to be generally infeasible or more hazardous than other 
means. This section contains specific requirements for hoisting 
personnel during these operations at Sec. Sec.  1926.1431(o), (p), (r), 
and (s), including alternatives to the use of a personnel platform. 
Each of the exceptions is discussed below under the particular 
paragraph related to that operation.
    No comments were received on Sec.  1926.1431(b); it is promulgated 
as

[[Page 48036]]

proposed except that ``must'' replaces ``shall'' to ensure that the 
sentence is imperative, not merely descriptive.
Paragraph (c) Equipment Set-Up
    This paragraph sets forth the basic criteria for equipment set-up 
for personnel hoisting.
    Paragraph (c)(1) of this section requires the equipment to be on 
level, firm and stable footing. A qualified person must determine if 
the footing is ``sufficiently firm and stable.'' Stable footing is 
essential to minimize the hazard of the equipment tipping while 
hoisting personnel. C-DAC determined that the danger of the equipment 
potentially tipping when hoisting personnel justifies the need for a 
qualified person to examine and approve the equipment's stability. OSHA 
agrees.
    Paragraph (c)(2) specifies that each outrigger must be both 
extended and locked. The amount of extension must be the same for all 
outriggers and also be in accordance with the manufacturer's 
specifications. Proper placement and deployment of outriggers, C-DAC 
concluded, is essential to prevent the hazard of equipment tipping 
while hoisting personnel.
    Equal extension of outriggers eliminates the hazard of the operator 
forgetting that one or more outriggers has a shorter extension and 
swinging into that area with a load that exceeds the crane's capacity. 
The essential factor is to have each outrigger extended equally within 
the manufacturer's specifications and procedures, whether it is a full 
or partial extension. No comments were received on Sec.  1926.1431(c); 
it is promulgated as proposed.
Paragraph (d) Equipment Criteria
    This paragraph sets forth requirements for the equipment used to 
hoist personnel.
    Paragraph (d)(1) of this section, Capacity: Use of suspended 
personnel platform, limits the total load to 50 percent of the 
equipment's rated capacity and specifies that the total load includes 
the hook, load line, and rigging. The 50 percent capacity limit does 
not apply during equipment proof testing.
    The 50 percent limit reflects C-DAC's conclusion that using this 
equipment to hoist personnel requires a greater number of safety 
precautions than when lifting materials. The limit provides for an 
extra margin of safety to prevent overloading the equipment, which 
could cause tip-over or structural collapse.
    One commenter asserted that a specific boom limit of not less than 
65 degrees should be added to the requirements of this paragraph. (ID-
0178.1.) The commenter did not provide any rationale for this 
recommendation. Therefore, OSHA defers to C-DAC's expertise in this 
area and is promulgating this provision as proposed.
    Paragraph (d)(2), Capacity: Use of boom-attached personnel 
platforms, establishes the load limit at 50 percent of rated capacity 
for platforms that are attached to the boom. It also provides an 
exception to the 50 percent capacity limit during equipment proof 
testing. The same reasons for the 50 percent limit in Sec.  
1926.1431(d)(1) apply here.
    In the proposed rule, OSHA requested public comment on whether 
additional requirements (i.e., requirements other than those specified 
in the proposed rule for a suspended personnel platform) should apply 
when using boom-attached personnel platforms. No comments were received 
stating that this type of platform could present an additional hazard 
to employees. One commenter stated that this type of platform is safer 
than a suspended personnel platform. (ID-0144.1.) Since no comments or 
information were received demonstrating that precautions beyond those 
already proposed are needed for boom attached personnel platforms, OSHA 
has not added any further requirements for this type of platform in the 
final rule. Therefore, this paragraph is promulgated as proposed.
    Paragraph (d)(3), Capacity: Hoisting personnel without a personnel 
platform, establishes the load limit at 50 percent of rated capacity. 
In calculating the load, the weight of the personnel, including the 
hook, load line, rigging and any other equipment that imposes a load 
must be included. No comments were received on this provision; it is 
promulgated as proposed.
    Paragraph (d)(4) requires engaging all the equipment's locking or 
braking devices when the platform has reached its stationary work 
position. The purpose is to minimize sudden and unintended movement or 
tipping of the platform when employees have reached the work area. No 
comments were received on this provision; it is promulgated as 
proposed.
    The provisions of paragraph (d)(5), Devices, require certain safety 
devices for equipment addressed by this section (see 73 FR 59829-59830, 
Oct. 9, 2008). OSHA received one comment on Sec.  1926.1431(d)(5)(i), 
which stated that a boom angle indicator would not provide useful 
information on an articulating crane because such cranes have up to 
three boom sections at various angles and numerous combinations of boom 
angles will achieve the same lifting capacities. (ID-0206.1.) OSHA 
agrees that essential design of the articulating crane precludes the 
use of a boom angle indicator. However, to provide some protection 
against falling and tipover hazards, OSHA has determined that an 
alternative device must be used on articulating cranes when they are 
used to hoist personnel. As discussed under Sec.  1926.1400, Scope, the 
record indicates that many articulating cranes are equipped with 
automatic overload-prevention devices. Such a device provides 
protection comparable to that provided by a boom angle indicator, which 
helps the operator prevent the crane from becoming overloaded by 
providing the boom angle information needed to apply the crane's load 
chart. Because overload protection is particularly vital when equipment 
is used to hoist personnel, OSHA is addressing the comment about 
articulating cranes by adding Sec.  1926.1431(d)(5)(ii), which 
specifies that articulating cranes must be equipped with a properly 
functioning automatic overload protection device.
    No comments were received on the remaining provisions of paragraph 
(d)(5); they are promulgated as proposed, except that Sec. Sec.  
1926.1431(d)(5)(ii)-(vi) have been renumbered as Sec. Sec.  
1926.1431(d)(5)(iii)-(vii) because of the addition of new Sec.  
1926.1431(d)(5)(ii). Additionally, with respect to paragraph 
(d)(5)(vii), the following has been added: ``(See Sec.  1926.1417 for 
tag-out and related requirements.)'' This sentence has been added to 
ensure the reader is aware of the applicable tag-out and related 
requirements of Sec.  1926.1417, Operation.
    Paragraph (d)(6) prohibits the use of a personnel platform directly 
attached to a luffing jib. In the experience of C-DAC members, a 
complete prohibition of use of a boom-attached personnel platform to a 
luffing jib was necessary in light of the range of motion of a luffing 
jib and the fact that boom-attached personnel platforms are not 
designed for attachment to a luffing jib. Thus, only a suspended type 
personnel platform may be used on a luffing jib. OSHA defers to the 
expertise of the Committee. No comments were received on these 
provisions; they are promulgated as proposed.
Paragraph (e) Personnel Platform Criteria
    This paragraph establishes the minimum criteria for a personnel 
platform. Paragraph (e)(1) of this section requires that both the 
platform and its

[[Page 48037]]

attachment/suspension system be designed by a qualified person who 
understands structural design and be designed for the particular 
function of personnel hoisting. The purpose of this paragraph is to 
clearly stipulate that the platform must be designed for employee 
safety. This addresses the hazards of structural failure of the 
platform, failure of the attachment/suspension system, and precludes 
the use of designs that would be inappropriate for hoisting people.
    Paragraph (e)(2) requires the system used to connect the personnel 
platform to the equipment to be within 10 degrees of level. This 
addresses the hazard of platform tipping by maintaining the platform 
close to level.
    Paragraph (e)(3) requires the platform designer to consider the 
movement of employees on the platform and design the suspension system 
to minimize platform tipping from such movement. The purpose is to 
design the platform in such a way as to limit the likelihood of 
platform tipping while employees are working from the platform.
    Paragraph (e)(4) requires the platform to support its own weight 
plus a minimum of five times the maximum intended load without failure. 
C-DAC selected this minimum limit because it would provide an adequate 
margin of safety for employee protection from structural failure of the 
platform. The guardrail system and personal fall arrest system 
anchorages are not subject to this requirement but instead are subject 
to Sec.  1926.1431(e)(6).
    Paragraph (e)(5) requires that welding of any part of the platform 
or its component parts be performed by a welder who is certified and 
familiar with the weld grades, types and material specified in the 
particular platform's design. This requirement is designed to prevent 
structural failure of the platform due to improper welding.
    Paragraph (e)(6) details the requirements of the platform for 
guardrails, fall arrest anchorage points and enclosure of the platform 
between the toeboard and mid-rail. Proper guardrails and fall arrest 
anchorage points are critical fall protection devices, and the required 
platform enclosure is needed to protect employees below from falling 
objects. In addition, points to which personal fall arrest systems are 
attached must meet the anchorage requirements in 29 CFR part 1926 
subpart M.
    Paragraph (e)(7) requires the placement of a grab rail within the 
entire perimeter of the personnel platform except for access gates/
doors where a grab rail can be impractical. The grab rail provides a 
place for the employee to hold onto while in the platform instead of 
using a guardrail as a hand hold. Using a guardrail as a hand hold 
exposes the employee's hand to being smashed by external objects.
    No comments were received on paragraphs (e)(1) through (e)(7); they 
are promulgated as proposed.
    Paragraphs (e)(8)(i) and (ii), Access gates/doors, specifies that 
access gates/doors must be designed to not swing outward and must also 
have a mechanism that will keep the gate/door from being opened 
unintentionally.
    One commenter, a platform manufacturer, stated that generally their 
platforms have doors that do not swing outward. (ID-0238.1.) However, 
for certain custom platforms, such as a one-person platform, the size 
and design of the platform makes it unsafe for a person to enter the 
platform and close the gate behind the occupant when it is an inward 
swinging gate. The commenter indicated that for this type of platform, 
the gates are designed to swing outward to provide safe access for the 
individual. To protect against accidental opening of the gate, a 
positive latching system is included with an outward swinging gate.
    The Agency agrees that certain types of personnel platforms could 
be of a size or configuration that would necessitate an outward 
swinging access gate or door to allow for safe entry and egress of an 
occupant. Therefore, OSHA has revised this paragraph to include an 
exception for this type of platform. When it is infeasible to have an 
inward swinging gate due to the size or design of the platform, the 
gate can swing outward. However, the additional feature of a positive 
latching or similar system that prevents accidental opening must be 
included. This conforms with the intent of this requirement to prevent 
an occupant from falling from the platform due to an access gate or 
door opening unexpectedly.
    Paragraph (e)(9) requires adequate headroom to allow employees to 
stand upright in the personnel platform. This provides adequate space 
for the employee to work from the platform while keeping his/her entire 
body within the platform, and contributes to greater stability during 
platform movement. No comments were received on this provision; it is 
promulgated as proposed.
    Paragraph (e)(10) requires an overhead protective cover attached to 
the platform when an employee is exposed to falling objects. It 
mandates the overhead cover of the platform to be of such material and 
design to provide visibility for both the operator and the employees on 
the platform, while maintaining adequate protection from falling 
objects. The reference to a wire mesh with \1/2\ inch openings is an 
example of a type of material and design that could be used for the 
platform cover. The nature of the worksite conditions and likely type 
of falling objects determines the type of material and design needed to 
protect the platform occupants. Full overhead protection (i.e., no 
visibility through the protective cover) is allowed when conditions are 
such that a full protective cover is necessary to protect employees 
from falling objects.
    Paragraph (e)(10) explicitly states that the protection provided by 
the cover is supplemental to the protection provided by hard hats--the 
use of hard hats does not obviate the requirement for the platform 
cover.
    One commenter noted that having overhead protection for employees 
in the power line industry interferes with the ability to work 
overhead, which is a routine occurrence. (ID-0144.) Additionally, at 
the public hearing, a representative from a labor union noted that 
typically an overhead cover would not be used on a personnel platform 
when they are working near power lines, as it is desirable to minimize 
the amount of conductive material. (ID-0344.) The Agency acknowledges 
that it is common for those in the power line industry to work 
overhead. However, the use of a personnel platform attached to a crane 
is not the only means of reaching this work location. As noted in Sec.  
1926.1431(a), the use of a personnel platform attached to a crane is 
only permitted where the employer demonstrates that conventional means 
of reaching the worksite, such as an aerial lift, would be either more 
hazardous or impossible. OSHA notes that aerial lifts are commonly used 
in utility work, and it therefore determined that crane-suspended 
personnel platforms will be used rarely in such work. OSHA also notes 
that paragraph (e)(10) mandates overhead protection only when an 
employee is exposed to falling objects, and that should not be a common 
occurrence in utility work. Therefore, the Agency does not determine 
that this provision needs to make special accommodation for work near 
power lines. Paragraph (e)(10) is promulgated as proposed.
    Paragraph (e)(11) requires that all edges of the platform be smooth 
enough to prevent injury. The purpose is to protect the employee from 
injuries such as lacerations and puncture wounds.
    Paragraph (e)(12) requires conspicuous posting of a plate or other 
permanent written notice on the personnel platform listing the weight 
of

[[Page 48038]]

the platform itself and the platform's rated capacity. The purpose of 
the provision is to make employees aware of the platform's limits to 
prevent overloading, which could result in structural failure of the 
platform or equipment, and to facilitate compliance with Sec.  
1926.1431(f)(1), which prohibits loading the platform in excess of its 
rated capacity.
    No comments were received on paragraphs (e)(11) or (e)(12); they 
are promulgated as proposed.
Paragraph (f) Personnel Platform Loading
    Paragraph (f)(1) of this section prohibits loading the platform in 
excess of its rated capacity.
    Paragraph (f)(2)(i) requires the platform to be used exclusively 
for personnel hoisting and not for hoisting materials. However, it does 
allow the necessary materials and tools for the work activity to be 
hoisted along with the employees. Using a personnel platform to hoist 
materials can lead to damage of the platform due to materials shifting 
or excessive loading. This can subject the platform to structural 
stresses that may not be visible and contribute to platform structural 
failure.
    Paragraph (f)(2)(ii) provides an exception to paragraph (f)(2)(i) 
to allow materials and tools on the personnel platform during the trial 
lift as long as the materials/tools are properly secured and 
distributed as specified in Sec.  1926.1431(f)(3).
    Paragraphs (f)(3)(i) and (ii) require that any materials and tools 
that are on the platform during the hoist be secured, and evenly 
distributed within the platform itself while the platform is suspended. 
These precautions are designed to prevent platform tipping and injury 
to employees due to movement of materials or tools during the hoist. 
OSHA concludes that the combination of paragraphs (f)(2)(ii) and (f)(3) 
strikes the appropriate balance by accommodating the practical 
requirements of the job while reducing the potential for overloading.
    No comments were received on paragraphs (f)(1) through (f)(3); they 
are promulgated as proposed.
    Paragraph (f)(4) limits the number of employees on a personnel 
platform to the lesser of either the number needed to perform the work 
or the maximum number for which the platform was designed. The purpose 
is to expose the fewest possible number of employees to the hazards 
presented when hoisting personnel and to minimize the load on the 
platform to the extent possible.
    One commenter stated that boom attached personnel platforms should 
be limited to a maximum of 4 employees. (ID-0178.1.) Because no reason 
was provided to support this requirement, OSHA has not changed the 
requirement that the maximum number of employees on a platform is 
limited to the lesser of the number the platform was designed to hold 
or the number required to perform the work. Therefore, paragraph (f)(4) 
is promulgated as proposed.
Paragraph (g) Attachment and Rigging
    Paragraph (g)(1) of this section establishes the requirements for 
the device used to connect the personnel platform to the hoist line.
    The nature and type of connector used is critical to the overall 
safety of the suspended personnel platform. Under this paragraph, a 
hook used to connect the hoist line and personnel platform must be the 
type that can be closed/locked and must be closed/locked when attached 
to the platform. When a shackle is used in lieu of a hook, it must be 
of the alloy anchor type with either: A bolt, nut and retaining pin in 
place; or: The screw type with the screw pin secured against accidental 
removal. Any detachable device other than a shackle or hook that is 
used must be closable and lockable to the same extent a hook or shackle 
would be when in compliance with this section. When used to connect the 
personnel platform, such a device must be closed and locked to ensure 
that the platform is secured to the hoist line.
    Paragraph (g)(2) requires that each bridle leg in a rope bridle be 
connected to the master link/shackle in a manner that allows the 
platform's load to be equally distributed among each bridle leg. The 
purpose of this type of attachment is to avoid platform tipping.
    Paragraph (g)(3) requires that all hardware used for rigging must 
be able to support five times the maximum intended load applied to or 
transmitted to that component. Additionally, slings using rotation 
resistant rope must have a safety factor of ten. These measurements 
continue the requirements that were in former Sec.  
1926.550(g)(4)(iv)(C).
    Paragraph (g)(4) requires the eyes in wire rope slings to be 
fabricated with thimbles. The purpose of this requirement is to prevent 
excessive wear to the eyes and possible failure of the platform's 
rigging.
    No comments were received on paragraphs (g)(1) through (g)(4); they 
are promulgated as proposed with minor grammatical clarifications.
    Paragraph (g)(5) requires that bridles and rigging used to suspend 
the personnel platform be used exclusively for hoisting personnel 
operations. Rigging components must be dedicated for the sole use of 
personnel hoisting to help ensure that they are not damaged. Materials 
hoisting can lead to damage of the rigging components due to material 
shifting or excessive loading. This can make the rigging components 
susceptible to structural stress that may not be visible, yet 
contribute to failure. To clarify that the bridles and rigging used for 
hoisting personnel may only be used if they have not ever been used for 
other operations prior to being designated for the purpose of hoisting 
personnel, OSHA has modified the regulatory text from the proposed rule 
to state that the bridles and rigging ``must not have been used for any 
purpose other than hoisting personnel.''
Paragraph (h) Trial Lift and Inspection
    Paragraph (h)(1) of this section requires a trial lift without 
occupants and with the platform loaded to at least the anticipated 
liftweight. The purpose of the trial lift is to confirm that: The lift 
set-up works properly; the lift route is free of obstacles; the work 
location is accessible; no work location will place the crane or 
derrick in such a configuration where the intended load would exceed 50 
percent of the equipment's rated capacity; the soil or other supporting 
surface is stable; and that the lift route is suitable for the intended 
lift. The path of the trial lift must begin at the point the employees 
enter the platform and end at the ultimate location the platform is 
being hoisted to and positioned (end point). When there are multiple 
destination locations from a single set-up point, the trial lift must 
be conducted in one of two ways.
    First, individual lifts may be conducted in which the platform is 
moved to one of the end points from the starting point, returned to the 
starting point, moved to a second end point, again returned to the 
starting point, and the process repeated until each end point has been 
reached. Alternatively, a single lift may be conducted from the 
starting point to all of the end points in sequence, without returning 
to the starting point until after the last end point has been reached.
    OSHA determined that the phrase ``a single trial lift for all 
locations'' in the text of the proposed rule for Sec.  1926.1431(h)(1), 
based on C-DAC consensus language, was not sufficiently clear to 
describe the intended meaning of this requirement (see 73 FR 59714, 
59940-59941, Oct. 9, 2008). In addition, OSHA was concerned that 
allowing the trial lift to be conducted in either of these two ways, 
irrespective of how the personnel will actually be hoisted, may

[[Page 48039]]

result in the trial lift failing to reveal problems that would be 
encountered in the actual personnel lift.
    To address these concerns, OSHA suggested language in the preamble 
to the proposed rule to clarify that the employer must use a lift path 
and sequence of stops in the trial lift that will match the lift path 
and sequence of stops when actually hoisting personnel. As noted above, 
the purpose is to detect any problems that could arise before personnel 
are hoisted. OSHA asked for public comment on these issues and the 
suggested language (73 FR 59714, 59833, Oct. 9, 2008).
    Two commenters stated that the language in the proposed rule was 
sufficient and should not be changed (ID-0205.1; -0213.1); another 
commenter stated that the text suggested by OSHA in the preamble to the 
proposed rule should be used in the final rule (ID-0104.1). The Agency 
concludes this suggested text provides a better description of what 
needs to be done to ensure safety--i.e., that the trial lift method 
needs to match the actual hoist method. Therefore, the provision in the 
final rule includes this suggested language.
    Paragraph (h)(2) requires the trial lift to take place immediately 
prior to each shift when hoisting personnel, and each time the 
equipment is moved and set up in a new location or a previously used 
location. This is to ensure that the conditions for the trial lift will 
be nearly identical to those of the actual personnel lift. 
Additionally, a trial lift must be done each time the lift route is 
changed, unless a competent person determines the new lift route does 
not present new factors affecting safety.
    Paragraph (h)(3) requires a competent person to ensure that all 
required safety devices and operational aids required by this section 
are activated and properly functioning, that nothing interferes with 
the equipment or personnel platform during the trial lift, that the 
lift load does not exceed 50 percent of the equipment's rated capacity, 
and that the load radius used is accurately determined. These 
requirements ensure that necessary safety measures are in place and 
validated by a competent person for the trial lift. It is important for 
this to be the responsibility of a competent person because such a 
person not only has the knowledge necessary to make the determinations, 
but also has the authority to take any necessary corrective action.
    Paragraph (h)(4) establishes the duties of the competent person 
immediately after the trial lift. It requires the competent person to 
conduct a visual inspection of the personnel platform and equipment to 
determine if there is any problem or defect resulting from the trial 
lift or if it produced any adverse effect. In addition, the competent 
person must ensure that the test weight used during the trial lift has 
been removed prior to personnel loading.
    The purpose of these requirements is to ensure that any defects in 
the equipment, base support, or ground and personnel platform, revealed 
by the trial lift are seen by a competent person prior to hoisting 
personnel. (Note that, under Sec.  1926.1431(h)(6), any condition found 
during the trial lift that fails to meet a requirement of this standard 
or otherwise constitutes a safety hazard must be corrected before 
hoisting personnel.) Paragraph (h)(4) continues the requirements from 
former Sec.  1926.550(g)(5)(iv) while adding the requirement that the 
competent person ensure that the test weight is removed. This is needed 
because overloading the personnel platform can occur if the test 
weights are not removed and left on the platform when hoisting 
personnel.
    No comments were received on Sec. Sec.  1926.1431(h)(2) through 
(h)(4); they are promulgated as proposed.
    Under paragraph (h)(5)(i), immediately prior to each personnel 
lift, the competent person must inspect the platform while it is lifted 
a few inches to ensure that the platform is secure and properly 
balanced.
    The purpose of this procedure is to ensure that, with the occupants 
and materials/tools to be hoisted on the platform immediately before 
the hoist is to take place, the platform is secure and properly 
balanced. The purpose of having the occupants and materials/tools on 
board during this check is twofold. First, it ensures that the check 
takes place just before the personnel lift, which minimizes the chance 
that damage or other problems affecting the platform's security will 
occur after the check. In addition, it would be difficult to ensure 
that the platform will be properly balanced when in actual use without 
having the employees and materials/tools on board.
    In the proposed rule, the text did not state that personnel and 
materials were to be on board during the trial lift (see 73 FR 59941, 
Oct. 9, 2008).