U.S. Department of Labor

Occupational Safety and Health Administration

 

  

 Informal Public Hearing:

"Cranes and Derricks in Construction:

Operator Certification"

[Docket ID-OSHA-2007-0066]

9:30 a.m. to 4:02 p.m.

May 19, 2014

U.S. Department of Labor

Francis Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C.  20210

PRESIDING OFFICIAL:

JUDGE STEPHEN R. HENLEY, 

  Administrative Law Judge

OSHA STAFF PRESENT:

JIM MADDUX, Director,

  Directorate of Construction

JUDGE STEPHEN R. HENLEY, 

  Administrative Law Judge

RICHARD EWELL, Office of the Solicitor

PAUL BOLON, Directorate of Construction

VERNON PRESTON, Directorate of Construction

BRYAN LINCOLN, Directorate of Construction

C O N T E N T S

                                            PAGE

Welcome

  JAMES MADDUX, Director,

  Directorate of Construction, OSHA            6

Introduction and Hearing Guidelines

  JUDGE STEPHEN R. HENLEY                      8

Associated General Contractors of America (AGC)

  CHIP POCOCK                                 14

National Association of Home Builders (NAHB)

  ROBERT MATUGA                               40

Crane Institute Certification (CIC)

  DEBBIE DICKINSON                            57

Crane Training Group 

  BARNEY SHORTER                              81

National Commission for the Certification of

Crane Operators (NCCCO)

  GRAHAM BRENT                                93

W.O. Grubb

  CHUCK COOKE                                118

Specialized Carriers % Rigging Association

  BETH O'QUINN                               133

C O N T E N T S (continued)

                                             PAGE

NationBuilders Insurance Service

  WILLIAM SMITH                               140

Associated Builders and Contractors, Inc. (ABC)

  STEPHEN WILTSHIRE                           171

Caldwell Tanks

  BRIAN HOPE                                  181

Industrial Training International

  JOSEPH KUZAR                                199 Operating Engineers
Certification Program (OECP)

  JIM LESLIE                                  210

  LARRY HOPKINS                               212

International Union of Operating Engineers (IUOE)

  ELIZABETH NADEAU                            221

  DAVE D'OSTILIO                              223

  GLEN JOHNSON                                230

Crane Industry services

  CLIFF DICKINSON                             261

The Walsh Group

  MICHAEL GANNON	                             273

E X H I B I T S

                                             PAGE

Exhibit 1   Written testimony of Jeff Dudley,

            Walsh Construction                 14

Exhibit 2   NAHB submission of websites that

            show operator certifications       57

Exhibit 3   Testimony of Debbie Dickinson      81

Exhibit 4   Handwritten notes of

            Barney Shorter                     92

Exhibit 5   IUOE List of Witnesses            242

Exhibit 6   IUOE Testimony and PowerPoint     242

P R O C E E D I N G S 

Welcome

	MR. MADDUX:  Good morning, everybody.  My name is Jim Maddux, and I am
the Director of Construction here at OSHA.  I think I know most of the
folks that are here today.

	I'd like to thank you all for attending today's informal Public Hearing
on OSHA's proposed extension of the crane operator certification
deadline and of the separate existing employer duty to ensure that crane
operators are competent to perform their duties safely.

	OSHA appreciates the time that you have taken out of your schedule to
provide the agency with more information on this topic.  We will review
and evaluate all the information conveyed at this hearing along with all
the comments submitted to the Notice of Proposed Rulemaking, and we will
use those to make our decision about how to proceed in the best interest
of worker safety.

	A few logistical items before we begin, especially for people that
aren't familiar with the building.  Rest rooms are located outside the
auditorium, past the elevator bank and down to the right.  We have
scheduled a 1-hour lunch break, and we will have regular 15-minute
breaks as we go through the day.

	The cafeteria on the sixth floor is available and open until 2:30 p.m. 
There is also a snack bar on the fourth floor that's open until four
o'clock in the afternoon.  I would ask you to please at least turn your
cell phones to vibrate or "stun," as we call it, during the proceeding. 
It really is pretty annoying to have telephones go off in the middle of
one of these hearings.

	If there is an emergency of some sort, we'll hear a message over the
intercom that will tell us whether or not whether to stay in this room,
what we call a "shelter-in-place," or if we need to exit the building. 
If we do need to exit the building, please just find some of the OSHA
staff that are round.  You will recognize us all with these beautiful
IDs that we wear, and we will help you get to the shelter spot.

	I will now turn things over to Judge Stephen Henley, who will preside
over today's hearing.

	JUDGE HENLEY:  Thank you, Mr. Maddux.

	The hearing is called to order.  Good morning, ladies and gentlemen. 
This is a Public Hearing on the Occupational Safety and Health
Administration's proposed extension of the crane operator's
certification deadline from November 10, 2014, to November 10, 2017, an
extension of the employer's duty to ensure crane operator competency for
the same period.

	The Proposed Rule for this proceeding was published in the Federal
Register on February 10, 2014, at Volume 79, page 7611.  A Notice of
Public Hearing was published in the Federal Register on April 15, 2014,
at Volume 79, page 21154.

	I am Stephen Henley.  I am an Associate Chief Administrative Law Judge
at the United States Department of Labor and will be presiding over
these proceedings.

	The purpose of this hearing is to review the oral and written testimony
of interested parties as well as other information pertinent to the
promulgation of the Proposed Rule.  At the conclusion of the hearings,
the record of the proceedings will be reviewed by the Department of
Labor in determining whether a Final Rule should issue, and if so, what
the content of the rule should be.

	My participation in these proceedings is limited to conducting the
hearing and to ensure that a complete record is made and that all
concerned and interested parties receive an opportunity to express their
views.

	The rules governing this hearing as well as the prehearing guidelines
are available on a table outside the main entrance to the auditorium. 
There is also a list of witnesses available designating their proposed
order of appearance and the time at which they may be appearing.

	Despite the informal nature of the hearing, it is still governed by
some basic guidelines to ensure that everyone has an opportunity to
express their point of view.  Repetitious, argumentative, and irrelevant
testimony will not be allowed.  Questions should be limited to
addressing only the proposal to extend the operator certification
deadline as well as the proposal to extend the existing employer duty to
ensure crane operator competency.

	The hearing is not intended to address the issues of whether OSHA
should remove the type and capacity requirements from the standard or
whether OSHA should add new employers duties to its standard.  These
issues may be addressed in a separate rulemaking.

	The written submissions that have been provided will be a matter of the
public record, and participants in this proceeding should, accordingly,
concentrate on presenting the highlights or clarifying their written
submissions.  Witnesses may, if they wish identify and sponsor their
written submissions and make themselves available for questioning by the
other participants who filed a timely appearance.  If witnesses have
additional written materials that they wish to submit today, I ask that
they present them to the representative from the Solicitor's Office to
be labeled with an exhibit number and entered into the record.

	After a witness has completed his or her testimony, parties who have
filed a timely appearance may question the witness.  When a witness'
testimony is completed, I will ask for a show of hands of those
individuals in the audience who wish to question the witness.  I will
then determine the order in which the participants in this proceeding
will question the particular witness.

	Now, the guidelines for the hearing were set out in detail in the
second notice in the Federal Register and my order of May 9, 2014.  I
will just echo Mr. Maddux's request and ask that you turn off phones,
pagers, and other devices that could disrupt the proceedings.  If you
need to make a phone call or take care of some other business --

	[Cell phone sounds.] 

	[Laughter.]

	JUDGE HENLEY:  And on cue.  I have been told that I don't have any
contempt powers, so I can't have you arrested and shown the exit. 
Please turn it off.  Thank you.

	These proceedings will now begin.  I would like to call on the
representative of the Solicitor's Office, Mr. Richard Ewell.

	MR. EWELL:  Thank you, Judge Henley.

	My name is Richard Ewell.  I am an attorney with the Solicitor's Office
here at the Department of Labor.

	I just want to briefly introduce the panel of the people who are here
today.  We have Paul Bolon, who is with the Directorate of Construction;
Vernon Preston, who is also with the Directorate of Construction; and
Bryan Lincoln, who is an economist with OSHA.

	I also wanted to mention that on the appearance list, my colleague Kim
Robinson was listed as also sharing the duties with the Solicitor's
Office today, but because of illness, she is not going to be able to be
here, so you are stuck with me all day.

	And I will turn it over to Judge Henley.

	JUDGE HENLEY:  Mr. Ewell, I understand that we have an exhibit that has
been offered by an individual who was scheduled to appear in person that
would like his written testimony as part of the written record?

	MR. EWELL:  Yes.

	JUDGE HENLEY:  And I believe that is --

	MR. EWELL:  We have Mr. Jeff Dudley, who is a corporate crane trainer
and inspector for the Walsh Group and the Vice President of the Crane
Institute Certification.  He had filed a Notice of Intent to Appear;
however, due to, I understand, an accident, he is not able to be here
today, but he asked that we enter his planned testimony into the record.

	I am going to mark it as Exhibit Number 1, and it is also going to be
available, I understand, if it's not already, for people to review out
at the table outside of this auditorium.

	So I am presenting this to you.  That is Exhibit Number 1. 

	JUDGE HENLEY:  Without objection, Exhibit 1 is received.

[Exhibit 1 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Is the witness from the Associated General Contractors
of America present?

	Thank you, sir.  You can have a seat at the table.

Associated General Contractors of America

	MR. POCOCK:  Thank you, and good morning.  My name is Chip Pocock.  I
am the Safety and Risk Manager at Buckner Companies.  I am here to
testify on OSHA's Notice of Proposed Rulemaking on "Cranes and Derricks
in Construction: Operator Certification" on behalf of the Associated
General Contractors of America.

	Before I discuss a proposal, I want to tell you a little bit about my
company and my experience.  Buckner Companies is a steel erection and
heavylift crane service based in Graham, North Carolina.  We handle many
large complex construction projects throughout the United States,
including sports arena, petroleum, gas, wind, pharmaceutical, and
nuclear projects.

	As a steel erection, heavylift crane firm, we will be directly impacted
by the decision that OSHA makes regarding crane operator certification
and the 3-year extension.

	I have more than 30 years of experience in the construction industry
and have been a longstanding member of AGC.  As the Safety and Risk
Manager, I am responsible for, among other things, the training and
qualification of our operators, equipment, support personnel such as
assembly/disassembly personnel, mechanics.  I also proudly served as a
member of the Crane and Derrick Advisory Committee that worked on this
rule starting back in 2003 and as a part of the ACCSH group that worked
on the rule prior to that time.

	The CDAC committee viewed operator certification as a method to ensure
the cranes being operated in the construction industry were done so in
the safest possible manner and in a manner consistent with those that
were developed by the crane and rigging industry.

	At the time that the CDAC committee was meeting, there was only one or
possibly two certification bodies that were performing crane operator
certification.  Neither one of those two bodies provided any type of
training.  They only evaluated operators.  They are both non-profit
groups, and they are both supported by the crane industry.  And they are
also supported by employers like our company who support operator
certification.

	I make a note of this because I think the industry buy-in that came out
of the CDAC negotiated rule with regard to operator certification is
critical to the success of overall operator certification.  I think
anytime we can get that industry buy-in, we are all going to be much
better served by a safer industry.

	What brings us here today is OSHA's misinterpretation of the intent of
the CDAC committee in regards to the operator certification piece.  I'd
like the record to reflect that myself and I believe all the other CDAC
committee members knew exactly what the issue of type and capacity was
about.

	We didn't have a lot of discussion about it because at the time, as I
said, there were only two certification bodies out there.  We had every
anticipation as a committee that operator certification would look like,
feel like, taste like what we had been knowing since the early or
mid-1990s.

	While the notice issued to today's hearing witnesses seems to restrict
the discussion on proposed extension of the effective date for operator
certification as well as the employer's responsibility to ensure
operators art competent to safely operate the equipment, I do not see
how the two can be separated.

	In the final Crane and Derrick in Construction standard section,
1926.1427(b)(2), OSHA acknowledges inserting for clarity, which reads --

	[Cell phone sounds.]

	MR. POCOCK:  I did mute it. 

	[Laughter.]

	MR. POCOCK:  But now I have.  My apologies.

	An operator will be deemed qualified to operate a particular piece of
equipment if the operator is certified under paragraph (b) of this
section for that type and capacity of equipment or for higher capacity
equipment of that type.  If no accredited testing agency offers
certification examinations for a particular type and/or capacity of
equipment, an operator will be deemed qualified to operate that
equipment if the operator has been certified for the type and capacity
that is most similar to that equipment and for which certification is
sought.  The operator certificate must state the type and capacity of
equipment for which the operator is certified.

	OSHA also provided an example in their Small Entity Compliance Guide in
their compilation of Frequently Asked Questions that state an operator
certified for 100-ton hydraulic crane may operate a 50-ton hydraulic
crane but not a 200-ton hydraulic crane.  This response generated an
enormous amount of concern from the industry stakeholders resulting in 2
days of public hearings.

	During these meetings, it was made clear by the majority that
certifying by type and capacity is not practical and is costly. 
Additionally, there is no evidence supporting that certifying by type
and capacity provides any additional safety benefit or requires any
additional skill sets to safely operate a crane of a higher capacity.

	I will give you a small example.  Our company just took delivery of a
new Liebherr 11000 lattice boom crawler crane.  It is an 1,100-ton
machine, just set up in a very basic mode, although with the insertion
of parallel boom or "P boom," as we call it in the industry, and some
super-lift attachments, the crane capacity jumps to a 1,450-ton machine.

	To assemble that crane, freight and assembly time for crews, we're
talking about a cost of approximately $220,000.  If we had to test
operators on that crane so that they could run everything below that in
our company, that setup cost would be borne by us entirely, and we would
probably have to do that on the site of ours, because most of our
customers are not going to allow operator certification to take place on
the site.

	Furthermore, without an extension granted, many employers who have
already proactively certified their operators through either of the two
organizations whose programs are going to now be deemed noncompliant
would effectively be penalized for attempting to do what they thought
was right.  Our company has been certifying crane operators since 1996.

	We employ 70 operators, all who are certified by type of crane only. 
According to OSHA, these operators may no longer be considered certified
and therefore would be unable to earn a living, and that would leave us
with a huge void when our customers demand certified crane operators.

	I have already hit on the financial burden of testing by type and
capacity.

	There have been comments submitted to the record to suggest offering an
extension will compromise the safety of crane operations on construction
job sites.  This could not be any further from the truth.  We believe
that OSHA's interpretation of operator certification has created a
significant amount of uncertainty within the construction industry, thus
resulting in employers being reluctant to certify operators without
knowing if these certifications will be deemed compliant upon any
effective date set forth by OSHA.  In my view, this uncertainty has done
more to compromise safety than proposing to extend the compliance
effective date for operator certification.

	AGC and Bucker Companies fully supports OSHA's proposal to extend the
operator certification date, so that the agency can address all issues
surrounding operator certification by type and capacity, as well as any
other additional employer duties, to ensure operators are fully
qualified to safely operate equipment.

	Additionally, OSHA must provide assurances to employers who were
proactive in certifying their operators in advance of the original
effective date that their operator certifications will be viewed as
compliant.  However, we caution against setting an arbitrary deadline of
3 years.  We'd recommend that OSHA issue the proposal and utilize the
information submitted to the record to reestablish an effective date
that removes all uncertainty from within the construction industry.

	And I'll be happy to answer any questions at this point, Your Honor.

	JUDGE HENLEY:  Thank you, Mr. Pocock.

	Any questions?  If so, please approach the podium.

	[Pause.]

	JUDGE HENLEY:  Ma'am, if you could identify yourself, please, for the
record.

	MS. NADEAU:  Yes.  Elizabeth Nadeau, N-a-d-e-a-u, and I am with the
International Union of Operating Engineers.

	I had a couple of questions regarding the phase-in period and how you
ensured compliance with the requirement that the employer must ensure
that workers are competent to operate equipment safely.  If you have a
certified operator show up on site, what would you do at that point to
ensure competence for the various types of operations that they might be
engaged in? 

	MR. POCOCK:  Well, I don't know what all employers do, but as I was
saying, we just took delivery of a $12 million LR 11000, and we go to
great lengths to make sure that the people who operate it have either
been with us and they are a known quantity, they have the qualifications
in that type of equipment.  If we get a new operator in, we have people
on our staff that go out and actually check that operator out,
familiarize him with a piece of equipment, show him the operator's
manual, make sure he's comfortable with the load charts, physically
watch or assist him, operate the machine to ensure that he's qualified
to run the piece of equipment.

	MS. NADEAU:  Now, if you learn that somebody has operated a particular
type but not a model, what would you do at that point?

	MR. POCOCK:  Pretty much the same thing.  We'd check them out on one
piece of equipment versus another.  In other words, if somebody has run
a 888 Manitowoc and then we are going to jump them from a 225-ton crane
to a 275-ton crane, we simply have somebody go out, familiarize them
with any differences there may be between the 8's and the 9's, review
everything with them, watch them, check them out.

	We fill out a real simple qualification sheet and track that.  Probably
a little bit more time spent with somebody that might be moving, say,
from a 275-ton machine to a -- maybe a 275-ton Manitowoc to a 400-ton
Liebherr, now you're increasing a little bit in size, but you are also
making a change in the manufacturer, so controls are a little different,
computer is a little different, charts are a little different.  So we
spend a little bit more time with when we make a change like that than
we would maybe from a 888 to a 999.

	MS. NADEAU:  Can you name some crane functions or operations for which
you would expect to use a highly experienced crane operator versus
somebody who is newly certified? 

	MR. POCOCK:  Well, I mean, a two-crane lift, a multi-crane lift would
be one that we would want to have somebody pretty good in the seat.

	There's probably a couple hundred ironworkers back in Graham, North
Carolina, that would say just plain old steel erection, but things like
blind lifts, maybe taking a tilt-wall panel and taking it from a
horizontal to a vertical position using two hoist lines, is a fairly
complex, tricky operation that you would want somebody that you know is
pretty good in the seat to do.

	MS. NADEAU:  Now, if OSHA grants the extension that's proposed, what
impact do you see that it will have on safety?

	MR. POCOCK:  For us internally, I don't see any.  I think that from a
pure safety standpoint, I don't think it will have any.  I think it will
benefit, because we will be able to get more concise understanding of
the rule done in that time frame, hopefully less than 3 years, but we'll
see.

	MS. NADEAU:  Just one more question.  OSHA issued guidance question 4
on the small business guidance regarding capacity and type.  Would you
recommend rescission of that rule pending the period of extension?

	MR. POCOCK:  I would.  I think there was a couple pieces in it -- I
read some of them in my testimony -- that I think should be redacted or
that the guide ought to be pulled back, because I think there's some bad
information in there.  I think there's some information that confuses
employers.

	MS. NADEAU:  Such as?  Can you elaborate a little? 

	MR. POCOCK:  Well, if a guy is certified on a hydraulic crane, on a
large telescope or swing-cab telescope, where he's running a 50-ton,
100-ton, or 200-ton, there is not enough characteristical differences in
that, that he should be limited, so that's one issue that I think could
be cleared up right away.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Thank you, Ms. Nadeau.

	Any additional questions of this witness?

	Yes, sir.

	[Pause.]

	JUDGE HENLEY:  Thank you, sir.  If you could identify yourself, please.

	MR. DICKINSON:  My name is Cliff Dickinson, Crane Industry Services.

	This question is for Chip.  First of all, it was my understanding that
we weren't going to be discussing type and capacity here today, but
since we are, it's been my experience that customers welcome
certification on site, and many require qualification exercises be
conducted after the equipment is configured.

	You have mentioned examples of this employer qualification that you do
with such examples.  What would be the harm in leaving a certification
in place and requiring the employers to continue to do operator
qualification for specific types?

	MR. POCOCK:  I think the agency has a duty, Cliff, to all employers in
the construction industry to have clarity in the standards, and I think
that since CDAC was published that there has been misinterpretations
both from an industry perspective and certainly from OSHA's perspective
of what CDAC's intent was.  So I think the danger for me would be that
all employers are not going to go to the level that our company does.  I
think there is a lot of companies out there that may not do that due
diligence.  That is where I think the danger would be.

	MR. DICKINSON:  While that may be the case, do we just let them slide? 
Shouldn't the employer still be responsible, even though they are not
doing as safe a job as you are?

	MR. POCOCK:  I tend to agree.

	MR. DICKINSON:  Thank you.

	JUDGE HENLEY:  The initial questioning of the witness should be limited
to those who filed a Notice of Intent to Appear.  Sir, do you fall in
that category?

	Could you identify yourself, please.

	MR. BROWN:  Yes.  My name is Tony Brown with AD Brown Consulting
Company, and I just have, I guess, more of a question for Paul about the
scope of the hearing, and if since type and capacity has been entered,
can we continue with that?

	JUDGE HENLEY:  No.  Do you have a question that has to do with the
witness' testimony itself or just a general observation on type and
capacity?

	MR. BROWN:  It was a general observation.

	JUDGE HENLEY:  No, sir.

	MR. BROWN:  Okay.

	JUDGE HENLEY:  You could certainly question Mr. Pocock on his
testimony.

	MR. EWELL:  I believe Mr. Brown submitted a comment but not a Notice of
Intent to Appear, so I am not sure that he is entitled to a question.

	JUDGE HENLEY:  All right.  As I indicated, I was going to give
everybody an opportunity to speak or question the witness, but the
questioning would be limited to the purpose of the hearing.  So on that
basis, I am not allowing the question.

	Any additional questions from the members of the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.  Thank you Mr. --

	ATTENDEE:  We have got somebody.

	JUDGE HENLEY:  I'm sorry, sir.

	[Cell phone sounds.]

	JUDGE HENLEY:  Hold on, please. 

	MR. POCOCK:  It is not mine, Paul.

	MR. BOLON:  I know.  Paul Bolon from the Directorate of Construction. 
Thank you for coming today, Mr. Pocock.

	You are here representing the Associated General Contractors of
America, right?

	MR. POCOCK:  Correct.

	MR. BOLON:  I just had a couple of questions about the transition and
phase-in period.

	In your comment, you expressed concerns about the lack of adequate
transition and preparation time for operators if OSHA only extends the
rule for 3 years.  If OSHA extends the deadline as you request, which
would be tied to publishing a Final Rule, you suggest that OSHA, quote,
reestablish an effective date with an appropriate phase-in period for
operator certification based on all available information, unquote.

	What type of period are you envisioning?  A couple of years?  Thirty
days?

	MR. POCOCK:  Well, I think that would depend on how quick the agency
goes to work and comes out with a Final Rule.

	Operator certification is nothing new to the construction and the crane
industry.  I mean, we kind of know what it tastes like and feels like. 
Like I said, we've been dealing with it for 20 years, so I think barring
turning it upside-down, if the agency did something ludicrous in a Final
Rule, that the industry could be ready pretty quickly.  That's my
consensus.

	Now, I'm sure there's some people in the construction industry that may
not feel the same way, but I don't think it would take long for the
industry to be prepared.

	MR. BOLON:  Okay.  AGC was also concerned about extending the employer
certification deadline for only 3 years would, quote, actually delay
operators from getting certified, unquote, and that uncertainty over
whether a certificate would be compliant for 5 years would be a
disincentive to a company sending an individual to get their
certification right now.

	Would AGC's suggested approach extending the deadline until OSHA
publishes a new Final Rule -- would that provide any more incentive for
a company to send an individual to get certified right now?

	MR. POCOCK:  I think the concern in the construction industry at all
was that there's probably a large group out there that are waiting,
taking a waiting -- wait-and-see approach, if you will, about what the
agency is going to do in the type and capacity issue, the certified
versus qualified issue, and whether certification is going to be the
end-all.  And there's going to be those employers that do that, but I
think part of those comments -- and can go back and read there, but the
5-year qualification period, I think most of the certification bodies
qualify operators for 5 years prior to a recertification. 

	I personally think that the 5 years is the right thing to go.  It
follows the ANSI guidelines, B30.5 guidelines.

	MR. BOLON:  Your 5 years refers to the length of the certification.

	MR. POCOCK:  Correct, yeah.  Correct.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.

	The National Association of Home Builders offered an alternative of a
5-year extension.  Would you support an alternative extension like that,
and if so, why?

	MR. POCOCK:  The 5-year extension?

	MR. PRESTON:  Yes, to the 3-year extension.

	MR. POCOCK:  I couldn't support it.

	When CDAC finished the rule in 2003, 2004, and we're still talking
about rolling out operator certification, we still have no law in this
country governing operator certification in the construction industry,
and that to me is sad.  I'd like to see it done in 3 years or less.

	MR. PRESTON:  And if OSHA does not extend the operator certification
deadline, how would the members of your organization be affected, and
how do you feel it would affect safety?

	MR. POCOCK:  If they don't extend it?

	MR. PRESTON:  Yes.

	MR. POCOCK:  Well, for my company and a lot of other companies that
already have certified operators out there, it's going to impact us. 
Our customer base demands certified operators.  I guess it depends on
where the agency goes.  Does the agency disenfranchise operators that
are already certified?  There's a lot of questions along those lines. 

	I don't know.  We'd have to see and make comment at that time.

	MR. EWELL:  Thank you, Mr. Pocock.  This is Richard Ewell with the
Solicitor's Office.

	You had said in response to Paul's first question that if the phase-in
period, if OSHA actually extended indefinitely or until OSHA takes a
final action, that you thought depending on how the rule would come out
that people in the industry could respond pretty quickly.  Do you have
any idea of what -- what does "pretty quickly" mean?  Because I think
we're looking at what is the real impact of extending.  If OSHA issues a
Final Rule, how much longer are we talking about delaying until there is
actual crane operator certification requirement that would be in effect?

	MR. POCOCK:  Well, I think part of the issue, Richard, is trying to
understand what it is going to look like.  If it is similar to what we
know today with operator certification and we are not talking about --
the capacity issue is gone, we are certifying by crane type, I think the
industry is ready.

	We have certification bodies out there that are supported by the
industry, that were developed by the industry, but if it looks
different, than I think there's a lot of financial impact studies got to
be done.  I mean at least one.

	I know the financial impact study that was done on the tail end of the
CDAC document didn't look at anything other than what we had back in the
early 2000s, 2000 through 2003.  CCO, the IOUE's program, Local 12 --
there might have been one other.  I'm not sure, but that was where we --
where CDAC came from.  That's what we knew as type and capacity was that
type of testing, and that's the way the financial impact study was done.

	If the agency comes out with something that looks a lot different --

	MR. EWELL:  But if it's generally the same, it would be like the normal
effective date of 30 days or so?

	MR. POCOCK:  I think I'd probably want a little more time than that,
but --

	MR. EWELL:  I'm not trying to pin you down.  The specific thing is just
like I'm talking a couple years.

	MR. POCOCK:  If it looks relatively the same as what we know operator
certification to be today, I would think that the industry could be
ready to go in 90 days.  That's my feeling.

	Some of the trade associations, AGC, one may want more time because not
all employers are in the crane industry.  They have a crane or two, and
they may not be as ready to go as quickly as what our company could be,
so . . .

	MR. EWELL:  I think if AGC has any additional information that they
want to add, they can add it in the post-comment time.

	MR. POCOCK:  We'll comment at that time.

	MR. BOLON:  I have one more question.  Paul Bolon.

	In your operations, are most of your operators your own permanent
long-term employees?

	MR. POCOCK:  Paul, for the most part, yes.  We do have some project
agreements where we have operators that aren't long term from time to
time, but --

	MR. BOLON:  Thank you.

	MR. EWELL:  Did you have any written submissions that you wanted to
enter?  You don't need to.  It's just if you want to.  Now would be the
time.

	[No audible response.]

	JUDGE HENLEY:  Mr. Pocock, thank you very much for your testimony.

	MR. POCOCK:  Thank you.

	JUDGE HENLEY:  You can step down.

	Is the witness from the National Association of Home Builders, Mr.
Robert Matuga, present?

National Association of Home Builders

	MR. MATUGA:  Thank you, Your Honor.  Thank you also for the OSHA staff
and for OSHA for having and holding this important hearing.  My name is
Rob Matuga.  I am the Assistant Vice President for Labor, Safety, and
Health for the National Association of Home Builders.

	NAHB, we represent about 140,000 members involved in home building,
remodeling, multi-family construction, subcontracting, as well as
property management, design, housing, finance, and lots of other aspects
of the home building industry.

	NAHB has been an interested stakeholders and has been involved in this
crane rulemaking for over a decade.  NAHB had one of its members, Craig
Steele, participate in the crane and derrick negotiated rulemaking
advisory committee, or the CDAC committee.  I guess I had the pleasure
to sit through.  I think there was 10 or 11 CDAC meetings, so I am
fairly familiar with many of the issues surrounding the crane and
derrick rulemaking.

	Just by way of background, cranes are used for lots of tasks in
residential construction, primarily for new home construction.  They are
used to hoist large components of the structure, primarily room trusses,
handling raw materials such as lumber, drywall, shingles, bricks, and
lifting and placing other sections of manufactured housing.

	Specialized subcontractors perform most of the work.  At any given time
in homebuilding, the home builders, who are usually the general
contractors, have really no idea whether or not a crane will be on the
job site or not.

	Getting to really the meat of this particular hearing, NAHB generally
supports OSHA's proposal to extend the dates for crane operator
certification as well as extending the employer duties for ensuring
crane operators are competent. 

	 guess we generally support this.  Why?  I guess the first question, I
am going to hit on really two topics there, is really the timing.  I
know that Vernon asked about the 5-year extension.  It's interesting
that the OSHA Advisory Committee for Construction Safety and Health
actually went beyond NAHB, went beyond what OSHA had proposed, which was
3 years.  NAHB had suggested 5 years.  The Advisory Committee on
Construction Safety and Health actually recommended that OSHA postpone
this indefinitely.

	I guess the reason why is that there's a number of things that need to
be fixed with this particular rulemaking and this particular issue. 
Obviously, the whole idea of crane operator certification was proposed
over a decade ago, and there are some issues that are just broken with
this.

	I think the first thing, in terms of the timing, the reason why NAHB
suggested 5 years is that we believe that this is pretty -- an extensive
issue.  It's not as cut and dry as many have -- that will probably lead
this group to believe today.

	The reason why is that I think that we are going to encourage OSHA to
actually reach out again to the small business community.  As we know,
the small business community really is impacted disproportionately by a
number of OSHA rules.

	OSHA did have a SBREFA panel for the original rulemaking, and we are
going to encourage OSHA and we are going to request OSHA to reach out to
small business and actually have another SBREFA panel on this particular
issue on the operator certification.

	There are a number of recommendations from the small business review
panel during the initial rulemaking, and I would encourage OSHA to go
back and look at those.  NAHB actually had a member to participate in
the small business review process, and we really focused on the need to
actually have trained, competent, and qualified individuals operating
cranes.

	It probably won't be a surprise to anybody in this room that NAHB since
the beginning was really opposed to this third-party certification.  We
believe that when OSHA goes down this path, it needs to look at not only
all the options that were laid out but also options that NAHB put
forward, as well.  There are significant alternatives that we believe
that the agency has not considered, and we encourage them to actually
consider those other alternatives.  That is why we suggested a minimum
of 5 year to go back and look at this, because we believe that the small
businesses really need a second bite at this apple.

	I know that this probably won't rise to the level of the $100 million
threshold to hold a SBREFA panel; however, I think the agency really
needs to -- if they are going to look at something different in terms of
operator certification, small businesses need to actually have some
input as well.

	One of the other issues that I did want to cover here is really the
issues surrounding the problems with the current rule.  Like I said,
NAHB has been opposed to the operator certification since the beginning.

	Just in preparation for this hearing, I just did a little bit of
research in terms of operator certification.  I went to two different 
crane operator certification websites, and one of the things, if I can
step back for one second, is that OSHA even recognizes that 50 percent
-- so there's four operating -- there's four certification bodies out
there right now.  Half of them -- half of them don't meet the current
OSHA criteria.

	So I went to two different websites, and I want to submit this for the
record.  I won't name the two bodies.  You all can try to figure this
out. 

	The one certification body actually has ANSI listed on their website as
well as the OSHA logo.  The second body actually has OSHA recognized and
nationally accredited certification.  I believe that one of these meets
the OSHA criteria, and the other doesn't.  That's the reason why I think
the certification is such a large issue, and it is going to take more
time than 3 years for OSHA to get through this.

	And I think this is one of the reasons why I think our members have
been opposed to this, because it's really you're taking much of the
criteria from the employers and putting it on a third party.  So if one
of our members actually had their credit operator certified by one of
these bodies, it may or may not be in compliance with the standard.

	Finally, I'd like to talk in terms of the additional serious
considerations that OSHA should really cover in this particular
rulemaking, and that's the why more time is needed.

	OSHA really should look at the feasible alternatives or consider making
the requirement permanent that the employers certify or ensure that
their crane operators are trained and competent.

	If you think about this, OSHA had a very large phase-in period, which
is 4 years.  OSHA is considering and proposing that at least another 3
years for the phase-in period.  My question is, if the phase-in period
was 4 years plus an additional 3 years -- that's 7 years -- if that's
sufficient to make sure that crane operators are qualified and
competent, NAHB believes that really it's important to actually have
trained and competent and qualified, not necessarily third-party
certified.  Why don't OSHA just consider making that requirement
permanent?

	I think that's all I have to say for right now.  I'd be happy to answer
any questions.

	JUDGE HENLEY:  Thank you, sir.

	Questions of this witness from any individual who has filed a Notice of
Intent to Appear?

	Yes, ma'am.  Ms. Nadeau.

	MS. NADEAU:  I am Elizabeth Nadeau, International Union of Operating
Engineers.

	I have a couple of questions regarding what the sector of the industry
has been doing since August 2010 to ensure that the operators are
trained, competent, and qualified.

	MR. MATUGA:  I guess I can speak in terms of talking with some of our
member that actually own and operate their cranes.

	Typically, how this works in home building is that the crane operator
or the owner of the companies will actually make sure that their crane
operators are trained at a local level and that they will make sure and
they'll go out and work with the crane operators to make sure that they
are competent and qualified to operate the piece of equipment.

	Since the downturn in the housing industry, many of our members that
own and operate their own cranes have either gone out of business or
have sold their cranes, just because there is not enough work to keep up
with having a crane operator and carrying a piece of equipment.  So
really what they're doing is that they're training at their local level,
and that the owners of the companies are making sure that whoever is
sitting in their piece of equipment -- and as one member told me, they
are not going to give anybody the keys to their $250,000 piece of
equipment without them qualifying and making sure that they are
competent and trained in order to operate that piece of equipment.

	MS. NADEAU:  Well, you used the word "make sure" a number of times, and
I am trying to understand what making sure entails.  How specifically do
you ensure that they are qualified and competent?  What assessment
process takes place?

	MR. MATUGA:  I don't know all the details, and we can certainly provide
that for the record, but from what I understand is that many of these
crane operators have been working for multiple years for these
companies.  And what they do is that they make sure that they're
trained.  I don't know if it's every 1 or 2 years, but they are
continually assessing them through some means to make sure that they are
operating that crane safely.  But I will be happy to provide that in the
post-hearing comments.

	MS. NADEAU:  I just had a couple of questions pertaining.  Do you have
a typical crane capacity that you operate?  Would it be less than 50
tons, 35 tons?  I mean, is there a range that' slower than other sectors
of the industry?

	MR. MATUGA:  We worked with our members when this rule was originally
proposed, and one of the things that we recommended is that OSHA really
allow employer certification for cranes 35 tons and under and with a
boom length of less than 102 feet.  So that's typically the largest type
of crane that you would find on any home building site, so under 35
tons.

	MS. NADEAU:  So the capacity and type issue would probably not impact
your industry because the typical capacity that was spoken of at the
stakeholders meeting would be at greater than 50,000-ton, 100,000-ton,
so you wouldn't be as impacted as other sectors in the industry?

	MR. MATUGA:  Based on that comment, I don't think so, but we think that
for crane operators to be competent and qualified by the capacity and
type of crane makes a lot more sense than making broad generalizations
with most of the crane types.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Any questions from the OSHA representatives? 

	MR. BOLON:  Yes.  Paul Bolon.

	Thanks for coming today, Mr. Matuga.

	I wanted to clarify one thing that you said first.  You recommended
that OSHA have a small business panel for the rulemaking, and I just
want to be clear.  You're referring to the second rulemaking, not this
rulemaking, on the phase-in period?

	MR. MATUGA:  Yeah.  That's what I'm recommending, which is not this
particular rulemaking, but OSHA had stated that they're going to address
the type and capacity and other issues in a separate rulemaking, and a
separate rulemaking is where we are suggesting that OSHA reach out to
small businesses with whatever they plan on proposing and get additional
feedback from the small business representatives.

	MR. BOLON:  Thanks.

	I know you already provided some explanation about why you're
recommending a 5-year extension on the deadline, but I would just ask
you, Is there anything magical about 5 years?  OSHA has proposed 3
years.  Is there, I mean, 4 or 5 -- what does 5 mean to you?

	MR. MATUGA:  There was really nothing magical about 5 years.  OSHA said
that you'll have about, I believe, 3 years from the deadline because you
assumed that you would get this particular -- I'm assuming you assumed
that you would get this extension through.

	I've been around, you know, a long time with rulemakings.  If you
really look at the time frame from when OSHA finished the crane and
derrick rulemaking, the recommendation from the Advisory Panel to the
time that the actual rule got proposed to the Final Rule, that was, I
believe, more than 5 years.  I know that this is just one small segment.

	The question is there seems like there is an awful lot of work to do
here, and we were wondering whether or not it could actually be done in
3 years.  I know that there's been some questions as to whether or not
there needs to be some certainty or not. 

	Obviously, ACCSH recommended an indefinite amount of time, so we sort
of split the difference and said on definite -- 3 years, we just think 5
years is more reasonable than 3 years and gives everybody a little bit
more certainty than an indefinite, or if OSHA wasn't unable to complete
this rulemaking in 3 years, having to go back and reopen this rulemaking
once again to add some additional time, that's the reason why we
recommended 5 years.

	MR. EWELL:  I just wanted to clarify one thing.  I think towards the
beginning of your comments -- and correct me if I'm wrong -- you said
that CDAC had recommended postponing indefinitely, and CDAC hasn't
existed for a number of years, so --

	MR. MATUGA:  If I did say CDAC, I was misspoken.  The Advisory
Committee on Construction Safety and Health, or ACCSH, recommended an
indefinite postponement.  I believe -- I'm not sure if "postponement" is
the right word.  An indefinite amount of time for this particular
rulemaking.

	MR. EWELL:  Okay, thank you.  That helps.

	MR. BOLON:  Are you going to ask?

	MR. EWELL:  So just to be clear, this is the same question that I posed
to Mr. Pocock.  So if we had an extension of time as OSHA had proposed
-- actually, if we have an extension of time that's more indefinite or 5
years as you requested, what type of phase-in?  You started to get into
this just a minute ago.  What type of phase-in period do you think would
be needed?  Mr. Pocock was saying it depended on what we do with the
rule, if anything, but he said if it was similar, it might be done
quickly within 90 days or something.

	MR. MATUGA:  That's a very good question.  I don't know how many
members of NAHB that own and operate cranes have actually gone out and
proactively gotten their crane operators certified under option number
1.  I think, basically, they are operating under the fact that the
employers have to ensure that the operators of the equipment are
competent to operate the equipment safely.

	So in terms of a phase-in, I think we need to go back to our members
and really take a look at that, and we'll do that in our post-hearing
comments.

	MR. EWELL:  You had something that you wanted to submit for the record?

	MR. MATUGA: Yeah.  I did want to submit these two websites.  Both of
them have OSHA's logo.  I believe that one of them meets the current
criteria; the other doesn't.  And like I said, this is just really
indicative of the problems associated with the third-party certification
on whether or not employers will be able to adequately make a
determination on their own as to which certification bodies actually
meet the standard and which ones don't.

	MR. EWELL:  Okay.  If I could get a copy of that?

	Your Honor, I am labeling the submissions from NAHB that show websites
of operator certification organizations.  There are two pages.  I am
labeling these as Exhibit 2.  I will try not to cover up anything that
is important on the website.

	Thank you, Mr. Matuga.

	MR. MATUGA:  All right.  Thanks again.

	JUDGE HENLEY:  Thank you, sir.

	Without objection, Exhibit 2 is received.

[Exhibit 2 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Is the witness from the Crane Institute Certification
present, Ms. Debbie Dickinson?

	[Pause.]

Crane Institute Certification

	MS. DICKINSON:  Hello.  My name is Deborah Dickinson.  I am the
Executive Director of Crane Institute Certification, CIC.  Thank you,
Jim, OSHA, Judge Henley, all who worked to provide this meeting here
today and to all of the industry who has taken the time to gather here
once again to discuss this important issue.

	CIC is endorsed by more than 300 crane and rigging professionals,
trainers, and examiners nationwide, the Institute for Safety and Health
Management, and is a member of SC&RA, the ACRP, NCCA, ANSI, the AGC, and
the National Safety Council.  CIC works with virtually every industry
where cranes and rigging are in use.

	Our world revolves around the lives and safety of the people working in
the crane and rigging industry.  Recently, dozens of CIC Governing
Committee and Advisory Board members spent a great deal of time focusing
on the crisis facing this industry for the purpose of finding solutions
to the OSHA regulation and the conflict that we have been discussing. 
Specifically, they looked at the projected cost of lives that delaying
certification 3 years would take and the necessity of ongoing employer
responsibility.

	The CIC Governing Committee and Advisory Board members and the
shareholders voted to publicly state and offer these solutions.  CIC
agrees that a delay of crane operator certification is necessary in
order to allow OSHA time to address the clarification of the employer's
responsibility.  We have listened to the industry, and we are here today
to present a solution that can be accomplished quickly, efficiently, and
with care and concern for the lives that are at stake.

	The language presented in the existing rule referencing employer
responsibility for qualification in 1926.1427(k)(2)(i) and (ii) is
sufficient to accomplish OSHA's goal.

	1926.1427(k)(2) states that when 1926.1427(a)(1) is not applicable, all
of the requirements in paragraphs (2)(k)(1) and (2) of this section
shall apply until November 10, 2014.

	1926.1427(k)(2)(i) states that the employer must ensure that operators
of equipment covered by this standard are competent to operate the
equipment safely.

	1926.1427(2)(k) -- wait a minute.  Start again.  1927 [sic]
point-1427(k)(2)(ii) states that where an employee assigned to operate
machinery does not have the required knowledge or ability to operate the
equipment safely, the employer must train that employee prior to
operating the equipment.  The employer must ensure that each operator is
evaluated to confirm that he or she understands the information provided
in the training.

	Maintaining the language in 1926.1427(k)(2)(ii) and (ii) and removing
the reference to the November 20, 2014, date keeps the employer's
responsibility for safe crane operation intact for as long as the
regulation is in effect.

	A shorter window for compliance reduces the anticipated reduction of
voluntary compliance, which OSHA determined to be estimated to be 2
years.  If extension was delayed until 2017, the industry has already
experienced a reduction in companies voluntarily seeking certification
promulgated by OSHA's May 22nd, 2013, announcement that it was
considering a delay.

	A 1-year delay is sufficient time to allow OSHA to make this change to
the regulation and to the industry to recover and resume pursuit of
accredited operator certification.

	The solution to remove the November 10, 2014, date from the regulation
will save lives and maintain the needed balance of accredited
certification and employer responsibility.  The solution is viable, and
precedence has been set for OSHA to shorten time frames for compliance
to protect workers.

	By comparison, the food industry concerned was raised over three
deaths; whereas, the crane and rigging industry estimated death toll for
1 year is over 20 deaths.  For example, OSHA acted swiftly according to
a Department of Labor statement that was issued over a concern for
workers in the food services industry.  Secretary Solis said, "I am
alarmed at workers exposed to food flavorings containing diacetyl may be
at risk of developing potentially fatal lung disease.  Exposure to this
harmful chemical may have already been linked to the deaths of three
workers.  These deaths are preventable, and it is imperative that the
Labor Department move quickly to address exposure to food flavorings
containing diacetyl and eliminate unnecessary steps without affecting
the public's ability to comment on rulemaking process."

	The estimate for the crane and rigging industry is that accredited
certification saves 22 lives a year and reduces serious accidents as
much as 80 percent.  That is according to a Cal/OSHA study and an
ongoing study by Province of Ontario since 1976.

	We appreciate the fact that the Department of Labor took a potential
three employee deaths a year seriously in the food industry.  The
solution offered today from the CIC Governing and Advisory members may
save more lives.  CIC asks that OSHA delay the effective date 1 year to
recover the 1 year since the announcement of the proposed delay and
require crane operators to be certified by November 10, 2015.

	CIC also asks OSHA to eliminate the end date of November 10, 2014, for
employer responsibility.  CIC gives employers a valid mean for
certification.  Whether it's from CIC or any one of the other accredited
certifications that are available today gives employers a valid means
for hiring and qualifying crane operators' knowledge and skill levels,
employer responsibility will never end.

	Thank you.

	JUDGE HENLEY:  Thank you, Ms. Dickinson.

	Any questions for this witness from any individual who has filed a
Notice of Intent to Appear?

	Ms. Nadeau?

	MS. NADEAU:  Hi.

	MS. DICKINSON:  Hi, Liz.  Good to see you came prepared, as always.

	MS. NADEAU:  Just one question, actually.  At the stakeholder meeting
in April 2013, Dr. Swift of ANSI stated and commented that there was no
national studies validating testing and certification by separate
capacities.  Are you aware of any national study?  Do you have any
commentary on what Dr. Swift said?

	MS. DICKINSON:  I was not at that meeting due to some circumstances
beyond my control at that point, so I don't know specifically what Dr.
Swift said, but I heard a lot about that comment.  And from ANSI
perspective of validation, I'm sure that he's absolutely right.

	There are studies that I referenced.  There was the Cal/OSHA study, and
the Province of Ontario has also given studies that I referenced. And
I'll be happy to provide a link to you -- I can send that to you if you
like -- that do provide a great deal of information about certification
and how certification does save lives.

	MS. NADEAU:  Now, on your --

	JUDGE HENLEY:  Ms. Nadeau?

	MS. NADEAU:  Yes?

	JUDGE HENLEY:  Please try to limit your questions to the purpose of the
hearing or in direct response to what the witness testified to.

	MS. NADEAU:  Okay, thank you.

	JUDGE HENLEY:  Thank you.  I don't mean to stop your questioning.

	Any questions from any other individual?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from the OSHA representatives?

	MR. BOLON:  Hi, Debbie.

	MS. DICKINSON:  Hi, Paul.

	MR. BOLON:  Thank you for coming today.

	I just wanted to clarify a couple of things.  Today, you are
recommending that OSHA delay the operator certification only for a year,
and I think in your written comments that you opposed any delay.

	MS. DICKINSON:  We locked ourselves in a room for days on end, and we
listened to our industry colleagues, what they've had to say.  I listed
out early on in my testimony that we are members of SC&RA.  We're
members of the AGC, the ACRP.  We have listened to what other people
have had to say, and though we are ready, we have certification by type
and capacity.  We always have, ever since we began, and regardless of
that, we also have a great deal of respect for our colleagues in the
industry and realize that every accredited certification is backed by
subject-matter experts.

	And given the fact that we all have come together in various ways for
the purpose of testing the knowledge, skills, and abilities of crane
operators, and just because our methodologies may vary a little bit,
they are still valid ways and valid means of testing that wouldn't be
accredited if they were not backed by subject-matter experts.

	And so we listened, and we said at some point, there has to be some
meeting ground.  These has been confusion in the industry.  There has
been companies who have just said, "We're confused.  We don't know what
we're supposed to do.  Is there a delay?  We don't want to spend money
on certification if we don't know what we're supposed to do at the end,"
and so it's been about a year since OSHA announced its proposed delay.

	And on one hand, yes, we really wish that we would just move forward
and not have a delay, because we think that that will reduce the number
of accidents, it will save more lives, but a reasonable solution, it's
been about a year.  We can recover that year, and so a compromise would
be let's recover this year.  Let's get the industry back on track, give
people time to recover.  There's been plenty of time since that
announcement.  It's only been off track 1 year.  Let's recover that year
and move forward.

	MR. BOLON:  Just clarify, I think in your written remarks, you didn't
think extending the employer duty was necessary, but now you are
recommending that we do extend the employer duty indefinitely, and you
are saying it is sufficient to protect employees at construction work
sites.

	MS. DICKINSON:  No.  I think in my original written remarks, we kept
referencing employer duty, and your comments back to me was, "No, it's
going away November 10, 2014."  And we said, "Well, that's ridiculous. 
Then employer responsibility should never go away."

	No matter what OSHA writes, no matter how much we test or any other
accredited organization tests, no matter what profession you look at,
there is a limit to how far testing can go.  There is a limit to how far
training can go.  The two together, certification, a quality
certification backed by subject-matter experts, coupled with quality
training, coupled with the wonderful associations that we all
participate in, coupled with the best that OSHA can bring to the table,
these things go hand-in-hand.  Nothing stands alone.  OSHA doesn't stand
alone.  Accredited certification doesn't stand alone.  Training doesn't
stand alone.  These are things that work in conjunction together, but
every single day, jobs are unique.  What happens on that job, unique
loads are created.  What happens has to be planned on a daily basis.

	Employer responsibility never goes away, nor should it have to stand
alone and on its own.  Those things work in conjunction.  So what I'm
saying is that accredited certification is automatically backed by
training.  There's very few individuals who are going to pass an
accredited certification exam without appropriate training.  The
requirement for accredited certification forces a higher quality
training.  It forces people into that higher level of competence that we
are all looking for in the industry.  It puts the industry in that mode,
in that plain where it needs to be.

	And so employer responsibility never goes away, so what I'm saying now
is eliminate the date.  Employer belongs as a permanent place on work
sites, as Chip and I think every employer would say.  It never goes
away.

	MR. EWELL:  Richard Ewell.

	I want to make sure that I understand.  So you are suggesting putting
the rule, so it would be in there permanently, but if you are willing to
extend the employer duty and you think that needs to be part of the
standard indefinitely, are you necessarily opposed to a shorter
extension while OSHA considers a longer extension?  In other words, are
you necessarily saying OSHA has proposed a 3-year extension?  Are you
necessarily saying that 3 years, which is shorter than indefinite, would
be inappropriate?

	MS. DICKINSON:  I think the longer that OSHA -- well, according to the
studies -- our world is a dangerous world, and we know that it is. 
Crane and rigging work is dangerous work, and the quicker that we can
come to a solution, the more lives we're going to save.  That's our goal
is to save lives, send people home without injury, and so I am in favor
of coming to a solution as quickly as possible. 

	So I am asking that we not wait 3 years, that if we can get it done in
1 year, if we can get it done -- the sooner the better is what I am
asking for, but I am trying to be reasonable and trying to say, "Okay,
we do need some time to recover."  It's been a year of confusion, and
so, yes, the sooner the better is what I'm asking for.  And keep the
employer responsibility.  Just simply eliminate the date.  The date of
saying that employer responsibility goes away and that employers would
rest everything they are going to do on a certification card, that part
was just not well thought out.  That was a mistake.

	That needs to be corrected by striking November 10, 2014.  Correct that
part by getting rid of that date that ends employer responsibility with
November 10, 2014, because anyone in this room, whoever has owned a
machine or rented a machine, is probably going to tell you, "Oh, I'm not
that stupid.  I'm not going to take that risk."  I hope they would say
that.  The people who are invested enough to be in this room, I don't
think they would, but the guys out there who might take that risk,
that's the ones that we're trying to prevent.

	MR. EWELL:  In the proposal, OSHA had proposed a 3-year extension,
while it considered whether or not it wanted to have a more permanent
extension.  If OSHA had any legal concerns about whether or not it could
go directly, as part of this rulemaking, into the type of outcome that
you wanted, basically a permanent employer duty that would be put into
the standard, would a 3-year period be okay to you for OSHA to study
that?

	MS. DICKINSON:  Don't love it.  It's too long.  It's not necessary.

	MR. BOLON:  Paul Bolon again.

	And you also said that you are recommending to OSHA that we extend the
period for operator certification to take effect by just 1 year, and in
that 1 year, could you tell us a little bit your thinking that OSHA can
resolve all of the issues with operator certification in 1 year?

	MS. DICKINSON:  I think there's two things to resolve.  Strike the date
--

	MR. BOLON:  Well, I'm just talking about the one --

	MS. DICKINSON:  That's the reason I read through the paragraph.  If you
end 1926.1427(k)(2), if you end it with the word "apply," so that until
November 10, 2014, put a period after -- just strike, just strike the
"November 10, 2014," so that you keep employer responsibility as written
intact.  Then the employers are responsible.  The employer must ensure
that the operators of equipment covered by this standard are competent
to operate the equipment safely.  Boom!  That's what good employers do. 
Where the employer assigned to operate machine does not have the
required knowledge, ability to operate the equipment, the employer must
train the employee prior to operating the equipment.  The employer must
ensure the operator is evaluated to confirm that he/she understands the
information provided in the training.  It's language that works.

	Get rid of the date.  Get rid of the date.  Then move forward by the 1
year of confusion.  Let the accredited certification organizations that
exist that are backed by the subject-matter experts do what they do.

	MR. BOLON:  But, again, I just want to clarify.  So, in a year, we
should extend the date -- or eliminate the date for the employer duty,
and what about the date for operator certification then?

	MS. DICKINSON:  It's written in here, which I will provide, handwritten
notes and all, that what I am recommending is that the operator
certification date be moved out to November 10, 2015.

	MR. BOLON:  What would be achieved by moving it out 1 year?

	MS. DICKINSON:  That this year of confusion will be recovered, almost
to the day.  OSHA issued its date of proposed delay I think on May 22nd,
2013.

	MR. LINCOLN:  Hi.  This is Brian Lincoln.  I'm the economist, so I have
more of the numbers questions.

	One thing you have in your comments is you believe that we have a
number of 15,000 operators in the analysis of how many are compliant
with both type and capacity, and in your comments, you say that that's
too low.  And we were wondering if you had further information on that. 
Is there a number that you have estimated that you think is more
correct?

	MS. DICKINSON:  Since I didn't know I was going to be asked that
question, I don't have a current number, but I'll be glad to run a
current number for you and send that to you.  But I know it's too low,
just because I know that our numbers of certification are higher than
that.  I know that we've issued more than 50,000 tests, but some people,
some individuals do test at different levels, so I would need to get an
actual headcount for you, but I'll be glad to send that to you.

	MR. LINCOLN:  That would be great.

	MS. DICKINSON:  Okay.

	MR. LINCOLN:  And so you understand, in terms of the analysis is what
we need is not the number of tests or the number of certifications, but
the whole analysis as based on number of operators currently that have
such a certificate.

	Certainly, there is a relationship between number of certificates and
operators currently have it, but it's the latter number that we are
currently using in the analysis.

	MS. DICKINSON:  Right, got it. 

	MR. LINCOLN:  Okay.  One thing, though, that would be useful for us to
know, in, say, a normal month when it's normal circumstances, how many
operators does your certification program end up certifying?  Again,
it's a question out of the blue, if you need more time, but that would
be of interest to us.

	MS. DICKINSON:  Okay, great.

	MR. LINCOLN:  Okay.  And then I have slightly less numeric, so the
question is, in your comment, you stated that the deadline extension was
not necessary because, quote, OSHA could simply recognize the
certifications of each organization accredited by the NCCA or ANSI and
backed by reputable industry subject-matter experts, end quote.

	Are you suggesting that OSHA deem certifications of NCCCO and OECP as
to be in compliance with OSHA's existing standard?

	MS. DICKINSON:  Absolutely.

	MR. LINCOLN:  Thank you.

	MS. DICKINSON:  NCCCO is -- we benchmark our -- the  other
organizations.  We look at what they do.  I know that when they started
out, they started out issuing certifications by type and capacity.

	Even now, I also read the white paper that the OECP published.  They
certainly are here.  They can speak to this more, but as far as the type
and capacity statement is issued, every organization, we can all publish
statements to address the rather broad language that OSHA has written of
certification by type and capacity.

	With all due respect, OSHA has no crane experts on its panel, and so I
am suggesting that each of the accredited organizations -- and we
offered to do that, as I recall.  All of the executive directors at one
point did offer to come together and say that we would provide a
training to OSHA when the accredited certification was announced, and we
said that we would come together, that we would do a training, so the
compliance officers in the field would understand the difference between
our various cards, so that whenever they would look at a card and they
would see what someone was operating, that they would know what is this
guy certified to do.  Is he on the right equipment?  What does this
mean?  We can still do that, and so I think within the very broad scope,
every organization is capable of saying, "This is how we test.  This is
how our organization meets the letter of the law."

	The OECP issued a white paper that went into a great deal of depth to
explain how they tested operators and how they don't have a definition
like CIC does of type and capacity.  They do actually have definitions
and have had definitions in place for years that match up with pay
grades of union operators, and so there can be definitions that are put
forth by the different organizations as long as their subject-matter
experts agree on the validity of these statements. 

	If it is not a valid statement, if it is smoke and mirrors, these guys
are not going to sign off on it.  I know that from working with my own
Governing Committee.  If they don't agree with what you are trying to
sell them, you are not about to get their signoff on something, but the
subject-matter experts that back each one of these accredited
organizations, they can come up with a statement.  They can provide that
to OSHA.  We can figure out a way to make the statements that give the
clarity that support the law, that support the regulation.

	MR. PRESTON:  This is Vernon Preston from the Directorate of
Construction.

	We had a comment to the NPRM that asked OSHA to delay the certification
deadline to allow more time for the development of tests offered in
other languages than English, and I wanted to know if your group
currently offers any exams in languages other than English, and if so,
for how long have you offered them?

	MS. DICKINSON:  We do offer exams in Spanish also, and we went through
the entire validation process in Spanish.  2010 or '11 is when we filed
for our Spanish exams, I think.

	MR. PRESTON:  Okay, thank you.

	MS. DICKINSON:  Again, if you want an exact number, I am going to have
to go back and look.

	MR. EWELL:  Are there any other questions?

	[No audible response.]

	MR. EWELL:  You are welcome to submit a written exhibit, if you would
like.  You are not required to, but if you like, now would be the time,
and I can label it.

	MS. DICKINSON:  Okay.

	MR. EWELL:  This is your testimony from today?

	MS. DICKINSON:  Yes.

	MR. EWELL:  Okay.  So I am labeling as Hearing Exhibit Number 3, Ms.
Dickinson's testimony, which has been submitted in written form.

	JUDGE HENLEY:  Without objection, 3 is received.

[Exhibit 3 was marked for identification and received in evidence.]

	JUDGE HENLEY:  We will take a short recess and reconvene at 11:10.

	[Recess taken from 10:54 to 11:11 a.m.]

	JUDGE HENLEY:  The hearing is called to order.

	Is Mr. Barney Shorter from the Crane Training Group present?

Crane Training Group

	MR. SHORTER: Ready?

	JUDGE HENLEY:  Yes, sir.  Go ahead.

	MR. SHORTER:  Good morning.  My name is Barney Shorter, and I am the
President of a company called the Crane Training Group.  We are in the
business of training mobile crane operators.  We prepare them for their
accreditation, certification, written test, and we administer the field
or the practical exams.

	Not to take issue with your number, respectfully, but we've done 2,000
certifications since 2010, since it was announced, just our little
company.  

	I am a civil engineer, Clemson University, 1977.  I am a certified
mobile crane operator.  I'm a certified practical examiner, and I'm a
certified classroom instructor for mobile cranes.

	Our interests and concerns center around the instructions and education
of crane operators, riggers, signalers, and anybody in a ground crew in
and around a crane operation.  We like to say we are in the business of
educating operators and saving lives.  We have seen it firsthand several
times.

	There's been a lot of talk this morning about type and size and all the
issues that are in and around this proposal to extend the deadline.  In
the past, OSHA has used something called their "fast-track procedures"
in terms of medicine, disease control, vaccinations, several things.

	One that strikes me is one that was used before when there was an alarm
over the number of fatalities that would occur during a lengthy
rulemaking delay in 2009.  Just three deaths from lung disease were the
concerns of that particular fast track deal, and so OSHA fast-tracked it
to remove the threat of that lung disease for three deaths, and we are
talking now about maybe 10 times that many deaths in and around our
industry.  You won't use 22, 32, 15, you know.  What matters?

	So a fast-track method to solve these issues, as Ms. Dickinson outlined
earlier, is what we propose in my segment of this industry.  Employers
that I deal with are in a state of confusion.  We were online until the
announcement was made a few months back that you all were considering
lengthening this deadline, and I get two, three calls a week from folks
that we do business with asking me should they do, because they are
confused, and so their innate human tendencies take over, if you're
confused, "Well, let's just stop right here.  Maybe I shouldn't certify
until 2017 if that is what the deal is going to be," and it is hard to
tell them one way or another, accurately.

	For responsible companies, training their operators for liability
reason, a lot of them do it because the end user or the owner or the
people they are performing the work for require it in many cases, but in
the nooks and crannies and the hills and the dales of America, there is
tons and tons of small businesses, family pop, mother pop -- what do
they call it? -- mom-and-pop-type issues that have one or two or three
cranes, and they do lifting for folks all over the place, just a pick
here and a pick there.  None of those people are certified, yet they're
all going to wait until the last minute.  And there are tons and tons
out there.  I deal with them quite a bit.

	So fast-tracking this thing would not only save lives, but it would
also inject a sense of stability coming from the mandate that has been
in a state of confusion for 2 or 3 months now, and I am here to address
that and tell you guys that there is an opinion out there that the folks
that are involved in this room and in this organization from the agency
down to me are perceived as not knowing what we want to do.  It's been
2010, and we want to go to 2017.  You know, folks look at me and say,
"Barney, this is 2014.  This is the 21st century.  What are you talking
about?"  Most business plans have a 1-, a 3-, and a 5-year plan.  People
have come and gone since this thing was enacted.

	In my expression and in my business and in my line of fire, I think
this is one of those times, coupled with the solution that CIC has put
forth, to issue a fast-track 1-year delay, if need be, 6 months, a year
and 2 months, not 3 years.  It's 2014.  I realize there are lots of
things that have to be done, but if you really look at this thing -- and
we really have -- this does not require 3 years to right the ship.

	And with that said, I'm done, and I'll answer any questions.

	JUDGE HENLEY:  Thank you, Mr. Shorter.

	Any questions of this witness?  Anybody in the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from the OSHA representatives?

	MR. BOLON:  Thank you for coming, sir.

	Just to summarize and clarify your messages that you agree with, I
guess, the positions that were presented by Ms. Dickinson for CIC?

	MR. SHORTER:  Yes, sir.

	MR. BOLON:  And I gather also that you are finding that the confusion
about -- or the possibility of extending the op-cert date, that's
affected the number of people that are coming for training?

	MR. SHORTER:  Yes, sir.  Both sides.  For those that were responsible
enough that got trained and started in 2010, nationally accredited
certification processes, they feel penalized in some ways, and then the
folks that are waiting to the last minute are going to wait another 3
years.  And that's obvious.  I mean, I'm a businessman, and it's plain
as the nose on my face.  It's obvious, so yes.

	MR. BOLON:  If OSHA didn't follow through on its proposal, we could
always revisit the substantive issues and decide whether to propose
changes, regardless of whether it extends a certification deadline or
not.  How would it impact your customers if OSHA does not extend the
certification deadline but then decides to change the standard a year or
two later?

	MR. SHORTER:  Great question.  You know, to not extend the deadline
puts some certainality into the marketplace and law.  To reopen it up 2
years later, you know, that's sort of a hypothetical.  However, I guess
you deal with that when you got to it, cross that bridge when you get
there.  I don't know how the industry would respond.

	By and large, the industry itself has changed, and people have --
there's been a mad push for accredited certification.  There are lots of
folks out there certifying, quote/unquote, operators that weren't
accredited prior to 2010 that clean that up quick, and now with the four
certification entities that are out there now, even though they may vary
from entity to entity, as Ms. Dickinson said, they are all backed by
subject-matter experts, and they know -- they know the right way.

	We're in the business of designing and writing those testing
procedures.  So if one is a little different than the other, they are
both backed by subject-matter experts that are probably a lot more
knowledgeable about what people should be tested on and what type, what
size, whatever, than anything that has been proposed or anything that we
might want to look at 2 years from now.  That's my opinion.

	MR. EWELL:  Thank you.  I am going to ask the same question that I
posed to Ms. Dickinson.  It sounds like you are in agreement with Ms.
Dickinson that there should be a permanent extension of the existing
employer duty.

	MR. SHORTER:  Definitely.  Yes, sir.

	MR. EWELL:  And if OSHA is not able to do that for legal reasons, would
a 3-year extension with an intent to consider a longer extension, is
that just not your preference, or is there a real problem with that?  I
know you are saying you would rather have it be permanent, but is there
a problem with having a 3-year extension to consider that issue and
possibly have a longer extension?

	MR. SHORTER:  You know what, if you turn up reason in your due
diligence in the next year and it could be explained to me, you know, I
would have an opinion about it, but being involved in training on all
sides of the fence -- you know, I don't represent this entity or that
entity or this organization or that organization -- we are a
boots-on-the-ground kind of an organization, and the language that's in
the standard in the ruling, subsequent with the dates that are at the
end of the sentence, is truly in my mind a simple way of accomplishing
something that you should not take 3 years to do.

	So I think the solution is at hand already, so I'd have to say 3 years
would be -- according to what I see and what I read and what I've heard
and what I know, we have the tools to solve it now, and so I don't think
we need 3 years to solve it, sir.  That's my opinion.

	I hope I've answered your questions.

	MR. EWELL:  Just to follow up a little on that -- sorry.

	MR. SHORTER:  You bet.  You bet.

	MR. EWELL:  I was thinking it was answered.  I understand that you and
Ms. Dickinson are in agreement that that should be the permanent
extension.  Should OSHA have hearings?  Should they consider other
people's opinions about that?  Should they be reaching out to other
people to find out whether they agree?

	MR. SHORTER:  Oh, absolutely, but, you know, I think it -- yes.  You
know, I don't believe it should take 3 years, though, to find that out.

	MR. EWELL:  Thank you.

	MR. SHORTER:  You're welcome.

	MR. EWELL:  And if you have anything that you'd like -- you are not
required at all to submit anything in writing, but if you have anything,
now would be the time.

	MR. SHORTER:  I have some things I'm going to share with you.  Sure.

	MR. EWELL:  Okay.  To enter into the record?

	MR. SHORTER:  This is a little bit crude, but I'm going to enter it
into the record, please.

	MR. EWELL:  All right.

	MR. SHORTER:  My handwritten notes.

	MR. EWELL:  Okay.  So these will be posted on the Internet.  Are you
okay with that?

	[Laughter.]

	MR. EWELL:  All right.

	MR. SHORTER:  That's part of the record.  Thank you for that.

	MR. EWELL:  You're not required to, but if you want, we will post these
up on the Internet as part of you --

	MR. SHORTER:  Erase any phone numbers.  No, I'm just kidding.

	MR. EWELL:  We're actually not going to edit it at all, so if you want
to do anything --

	MR. SHORTER:  No, I'm kidding.  I'm joking.

	MR. EWELL:  All right.

	MR. SHORTER:  Thank you.

	MR. EWELL:  I will then enter as Exhibit Number 4, the notes that were
provided for Mr. Shorter.

	Here you are, Your Honor.

	JUDGE HENLEY:  Without objection, Exhibit 4 is received. 

[Exhibit 4 was marked for identification and received in evidence.]

	JUDGE HENLEY:  Thank you for your testimony, Mr. Shorter.

	Mr. Graham Brent from the National Commission for the Certification of
Crane Operators present?

National Commission for the Certification of

Crane Operators

	MR. BRENT:  Good morning.  Thank you, Judge Henley and members of the
OSHA panel for this opportunity to provide some testimony at this OSHA
hearing.

	My name is Graham Brent, and I am the Executive Director of the
National Commission for the Certification of Crane Operators, NCCCO, or
CCO, as we're also known.  I intend to keep my comments brief and to the
point, given the limited time we have here today.  Also, we will not
reiterate the comments we have already made on the record submitted into
this docket previously and including anything that we might also submit
after the hearing.  Rather, this is a summary of our position with a
couple of other pertinent details, some of which has been prompted by
conversation here this morning.

	I should like to make ti clear that my comments are from the
perspective of an organization that considers itself to be a service
organization to the industries that it serves.  NCCCO, or CCO, has never
thought it appropriate to seek to dictate to the industry the type of
certifications it should have.  Rather, having been established by the
industry almost 20 years ago and continuing to be supported by it, we
develop programs in response to industry requests and that are of a
nature designed to meet those industry needs.

	Since it became certification testing in 1996, NCCCO has issued more
than 170,000 certifications.  Of the almost 80,000 individuals currently
certified, 65,000 or more than 65,000 are CCO-certified crane operators.
 That equates, in another metric I heard this morning, to over 900,000
tests.

	We estimate that accounts for between 80 and 90 percent of all
accredited certifications issued from all sources combined.  I recount
these figures because we often hear about the impact on industry of
OSHA's decision to effectively deem certain certifications to be
noncompliant with the federal role in November 2014.

	The flip side of that position and much the more important, given the
safety goal, which this rule is aimed is that CCO certification is, we
believe, highly compliant with the intent of CDAC, the Cranes and
Derricks Advisory Committee, that authored the document that was the
basis of the rule.

	It is unfortunate it has taken us this long, as we've heard the
commentators say this morning, as long as it has to recognize, for OSHA
to recognize that the industry has some real concerns over certain
aspects of the rule, notably the issues of certifying by capacity and
whether certification is equivalent to qualification, which are the two
issues we understand OSHA would address -- well, the two main issues in
the proposed 3-year extension.

	We are gratified, however, that OSHA has appeared to recognize those
issues and we are here today to discuss them.

	On the first point, from our point of view, is the question is not can
crane operators be tested and certified by capacity but should they be. 
There is no particular secret or difficulty in designing tests that
would do that, but industry has said over and over again that this is
not what it wants.  CDAC members have stated it's not what they
intended.  An accrediting body such as ANSI, on whose opinion OSHA
currently places considerable weight, have challenged OSHA to provide
data that would support its position.

	Most importantly, there is no evidence that testing by capacity would
make the certification more effective nor the industry more safe.  On
the contrary, the Cal/OSHA study that we have heard reference this
morning that was published in 2008 that compared the 3 years prior to
Cal/OSHA mandating certification in the state to the 3 years afterwards
did show an 80 percent drop in crane-related fatalities, was based on
certification not issued by capacity.

	No state requires testing by capacity, even though remarkably they
wouldn't have to under the rule as written, because certifying by
capacity only appears to apply to option one.  So anything that falls
into option two, three, and four isn't wrapped into that part of the
rule.

	And the industry has spoken.  First, at the stakeholder meetings OSHA
hosted, unbelievably, in April last year, during the 3 meetings that
were held then, an overwhelming majority of the more than 40 industry
representatives that respond to OSHA's invitation to comment provided
ample evidence as to why they believe that OSHA's stance was
ill-founded, including another federal agency, the Army Corps of
Engineers.

	Secondly, ACCSH, we have already heard this morning, the representative
body to OSHA on construction issues and of course the group that
originally requested negotiated rulemaking all the way back in 2002, has
also put its support behind the rule postponement.

	Third, in response to the Notice of Proposed Rulemaking issued in
February, when the industry sent OSHA a clear and unequivocal two-part
message, postpone the crane operator certification requirements and
change the crane role to reflect industry's intent on the role the
certification should play in an employer's qualification process, the
response to OSHA's request for comments on its proposal to extend the
deadline for operator certification by 3 years to November 2017 was
overwhelmingly positive and a further validation of prevailing industry
opinion that OSHA's understanding of CDAC's original intent with respect
to operator certification is flawed.

	I think it's worth pointing out that among the more than 40 letters of
support received by OSHA before the March 12th deadline, there were no
less than 10 from national and key regional industry associations, a
couple of which we have already heard from this morning, representing
tens of thousands of employers from all facets of the U.S. construction
industry.  And this is across the board -- union, open shop, labor, and
management.

	Contractors, steel erectors, crane rental, utilities, the crane
distributors, the industry were all represented.  Perhaps most
significant of all, however, was a letter signed by no less than 16
members of the Cranes and Derricks Committee, CDAC -- Cranes and
Derricks Advisory Committee, one of them, you have already heard from,
and others who are present here today, that should finally put to rest
any doubts as to what they meant when they wrote the rule in 2003.  It
was never the intent of CDAC that crane operator certification should be
according to the capacity of the crane, the letter states, nor to imply
that crane operator certification was equal to qualification.  And in
addition, five CDAC members wrote individual letters of support. 
Perhaps just as importantly, no member of CDAC has come out against the
3-year proposed extension.

	So given the nationally accredited crane operator certification has
been proven to save lives, as we have seen through the Cal/OSHA study as
well as various other informal reports from around the country, some
industry observers have pointed to the continued exposure to risk that
such a delay might cause crane operators, but industry has responded to
the major areas of concern for the future safety of employees working
around cranes must be addressed before the regulation can effectively
save lives.  Leaving the rule as written would take us back in time, not
forward.

	Therefore, in view of the industry's overwhelmingly clear position on
the matter, the NCCCO would support, reluctantly, OSHA's proposal to
extend the deadline based on OSHA's statement that it needs this time in
order to address these concerns.  However, we would strongly urge OSHA
to pursue the second phase of this initiative, which we understand would
be the development of further rulemaking with all haste.  An extension
of the deadline is obviously not worthwhile without immediate and
substantive action to solicit industry comments that will result in a
resolution that accurately reflects the intent of the industry group,
CDAC, that OSHA itself assembled to develop this rule.

	Your Honor, thank you for the opportunity to address the hearing on
this very important matter, and I am open to any questions that the
panel or the assembled stakeholders here may have.

	JUDGE HENLEY:  Thank you, Mr. Brent.

	Questions of this witness from any member in the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from any of the OSHA representatives?

	MR. BOLON:  Yes.  Thank you for coming.  Paul Bolon.

	I guess we have heard from two -- several other witnesses, suggestions
that OSHA take various amounts of time to reach a conclusion on another
rulemaking, actually, and that affects the extension of time for op-cert
and for the employer duty.  Do you have any -- we have proposed 3 years.
 We have heard someone suggest 5 years.  We have heard indefinite, and
we have heard 1 year.  Do you have any comment on that?

	MR. BRENT:  Well, I appreciate the question, but really the 3 years was
proposed by OSHA presumably because that's the amount of time you felt
like you would need to take.  If you can get it done in 2, fabulous.  I
don't think anyone in this room would disagree with that.

	I mean, I would emphasize what you have already heard this morning, is
that the longer you take, the longer the industry is unregulated.

	On the flip side, all of those certifications I mentioned that we had
issued have been issued without a federal requirement.  So it's not like
the world stops because we don't have the OSHA rule.  Proactive
employers have a sense that accredited certification was available. 
Ever since we started certifications in '96, they have been taking those
steps.

	Obviously, it doesn't capture everybody.  We don't know how many, even
though OSHA has some estimates, but we don't have any real sense of how
many uncertified crane operators there are out there.

	But, honestly, I think that question really is one that the agency has
to answer.  If you feel that you need less time, then I am sure you will
take less time.

	MR. LINCOLN:  This is Bryan Lincoln.

	A couple numbers.  In the testimony, you said that about 80,000
operators -- you believe your organization has certified 80,000 as of
today; is that right?

	MR. BRENT:  No.  We have certified a good number than that -- more than
that.  There are 80,000 currently certified.

	MR. LINCOLN:  Right.  Sorry.  Yeah, that was -- and then I think also
you said you believe that was probably 80 to 90 percent of all
certified.  So working that out -- and I don't have the calculator, but
something like 100,000 is what you believe are for the whole pool or how
many are certified?

	MR. BRENT:  So, you know, this question goes back to 30 years, before
even my organization was established, estimates as to how many potential
certified operators there were out there, and it's a moving target,
because as you bring in regulation, some folks that are running cranes
now, either voluntarily or otherwise, that get excluded from that pool,
because they are not qualified.  They are not competent.  They don't
have the skill set.  So you never really get a figure because you don't
know until you kind of run out, which I guess you never do.

	We actually a number of months ago instituted an effort internally to
try and establish what the field of current certified operators was, and
it was actually rather difficult, because not all certification
providers provide as complete and as current information.  Some are
completely transparent about it, and others, it's rather more difficult.

	For what it's worth, we believe that there are potentially about
190,000 -- there have been around 190,000 certifications issued, which
would be deemed accredited.  However, not all of those are current,
because included in that is 170,000 or so, 60 to 70, that CCO has issued
since the beginning, some of which obviously are no longer current.

	You can slice the data all kinds of different ways, but we are
continuing to work on this, and we'd be happy to provide whatever we can
to the agency.

	MR. LINCOLN:  Yeah, that was going to be my next -- that would be
great.

	MR. BOLON:  Yeah, if I could.  There is really one principal way we'd
like to slice it.  We'd really like to know the number of current
individuals that are certified.

	MR. BRENT:  Well, one approach I would suggest that agency might take
is to go directly to the accrediting bodies.  Every certification body
has to make a full disclosure to either whichever body they are
accredited by, one or both, and the veracity of that data ought to be
questioned, because the accreditation depends on a completely
transparent and honest assessment of each certification body's data.  So
I think an approach by OSHA to NCCA and to ANSI, with which agency those
accrediting bodies might feel more comfortable sharing that kind of
data, I think would be appropriate.

	MR. LINCOLN:  It was a question I also asked Ms. Dickinson -- and it
was a little out of the blue -- but one piece of information that would
be great to have is, in normal circumstances, how many individuals you
end up getting certified?  That would be nice to know.

	MR. BRENT:  So I can tell you the figure we use is about 1,000 a month.
 Sometimes it's 1,500.  Sometimes it's -- it's not usually less than
1,000, and that will depend.  There's a seasonal variety to that too,
because we do less practical testing during the winter months, and
sometimes there's a slowdown in the summer.  That, of course -- I think
when you ask that question, it ought to be clear that you are asking for
crane operators within the purview of this rule, because a lot of us do
other types of certifications or qualifications of other types of
individuals.

	I think it's always going to be mobile crane operators are the big
piece of that, and I would just add that we certainly want to make sure
that we aren't talking about data that is crane operator-related,
because this is a crane operator certification rule.  But I think we
need to be careful that we are comparing apples to apples, and that we
are talking about current versus historic.

	MR. LINCOLN:  Right.  So the 1,500, that is total for your
organization, not just crane operators?

	MR. BRENT:  That would be -- yes.  That would be a true statement, and
that is a figure I'm pulling out, more or less, of the air.

	MR. LINCOLN:  Okay.

	MR. BRENT:  I can certainly give you the monthly statistics for every
month in 2013 if that would be helpful.

	MR. LINCOLN:  Sure.  And, if possible, even just an estimate of how
many of those are crane operators versus the other.

	MR. BRENT:  Yeah, certainly.  Well, again, a ball-park figure, if
you're just looking for that right now, is going to be 80 percent.

	MR. LINCOLN:  Okay, great. 

	So one question that's the same -- I guess the question is, just to
clarify the record for the purposes of the numbers and the economic
analysis for the rulemaking, does NCCCO currently issue certificates
that identify the type and capacity of the equipment for which the
operator is certified?  I know you talked about highly compliant with
intent, but this is more the letter.

	MR. BRENT:  We do not issue cards that indicate the capacity of the
certification, and just to make sure the record is accurate, I think a
statement was made earlier this morning that we used to.

	MR. LINCOLN:  Mm-hmm.

	MR. BRENT:  Actually, we've never done that.

	We used to have a certification that used the threshold of 17.5 tons,
and in the telescopic boom category, we had two separate certifications.
 One was below 17.5 tons, and one was above 17.5 tons.  However,
capacity was never the defining element in that certification.

	The 17.5 tons was a marker, if you will, or a reflection of the point
at which at the time that that decision was made, fixed-cab cranes
available from manufacturers in their model lineup changed to swing-cab
cranes.

	Now, you could say why in the world didn't you just say swing cab and
fixed cab, which is what we now do.  That's because back in the early
formulation days of this program, in the early '90s, we were thinking
about capacity, and one of the models we looked at was a series of
capacity bands.

	We went away from that for two reasons before we even launched the
program, one of which was the issue that the industry is now, I think,
pretty clear about, is that capacity in and of itself is not helpful, is
not indicative of any particular skill-set change.

	We've seen testimony on the record that indicates the capacity could
reflect, say, 350 tons, the point at which additional attachments get
added to cranes or which cranes are configured in different
configurations, but the capacity itself is not the key element.

	In fact, as that 17.5 ton threshold started to move, as, of course, it
will with technological advances, we were in a quandary then because we
had, if you will, fixed-cab cranes that had more capacity than 17.5
tons, and in some cases did the reverse.

	So a number of years ago, we made the decision to re-label that back to
a more accurate identifier, which was always the intent, which is fixed
cab because fixed-cab cranes do have a different skill set than
swing-cab cranes.

	I know it was a long explanation --

	MR. LINCOLN:  No, no.

	MR. BRENT:  -- but I think it's important the record reflects that.

	MR. PRESTON:  This is Vernon Preston from Directorate of Construction.

	Does NCCO offer any of their exams in other languages besides English?

	MR. BRENT:  So we've begun to look at that.  Well, we've been looking
at it for a long time, but in the last couple of years, we have started
running pilots, and we're quite well advanced in some of the tests in
Spanish and some of the tests in Chinese, Mandarin Chinese.  That's in
response to market request, industry request.  You can probably guess
that the Mandarin Chinese was not coming from China.  It was coming from
San Francisco, and Spanish has been certainly requested from -- and it
is in the Southern states.  That would be Florida, Texas, and Southern
California.

	However, when we explain to those requesters the full package that goes
with delivering a test in another language, which is in the rule, and
the obligations, additional obligations it imposes on employers, a
number of those requests tend to go away, because there are type
requirements.  The operator's manual has to be in the language of the
certification.  Everyone on the site has to be able to communicate with
the operator in that same language, and then once employers realize that
they are actually not finding an easy solution necessarily, we have
actually seen some of those requests go away.

	It also isn't a solution for literacy.  Just because you don't speak
English doesn't mean to say you're literate in your own first language. 
We have actually run into that with a lot of the pilot exams that
literacy issues tend to get masked or characterized as language issues
when in fact it's not the case.  It is a literacy in whatever language.

	MR. BOLON:  I had one follow-up question.  If capacity includes not
just maximum weight but the other factors we heard in our stakeholder
meeting, like boom length, configuration, counterweights, software
operating systems, if capacity includes all that, would you say or would
you agree that it's virtually impossible for a certification scheme to
cover all those permutations?  

	MR. BRENT:  Is it possible?

	MR. BOLON:  Isn't it virtually impossible to cover it all?

	MR. BRENT:  Oh, impossible.  Well, from a test design perspective, you
could probably do it, given enough time and enough subject-matter
experts and enough willingness of the industry to support that in terms
of buy-in, but I would suggest it would just implode under its own
weight.  In fact, that's one of the reasons why we went away from those
multiple capacity bands in addition to realizing that capacity was not
in and of itself a skill set determinant.

	You have to always consider once you produce any service or product,
will it float, and if you have 20 or 30 or 40 or 50 or more different
categories, how are you going to administer that program?  How is it
really going to function?

	So our advice, incidentally, we received from the Province of Ontario,
which in North America at that time was really the only model that we
had to look at, we made that change.

	I would say, theoretically, it is possible to do that.  As a matter of
practice, it's probably impractical.

	MR. EWELL:  Any other questions from the panel?

	[No audible response.] 

	MR. EWELL:  Thank you.  If you have --

	MS. DICKINSON:  I'm sorry.  I was trying to get my hand up in the
window from the floor pretty fast.  Is it too late?

	JUDGE HENLEY:  Is it Ms. Dickinson?

	MS. DICKINSON:  Yes.

	JUDGE HENLEY:  You can approach.

	MS. DICKINSON:  Thank you.

	Hi, Graham.

	MR. BRENT:  Hi, Debbie.

	MS. DICKINSON:  Graham, as we look at our numbers and we talk about the
number of certified individuals that we have currently, both from your
organization, from mine, what projections are you looking at for the
average age of the crane operator?  Some said you say it's 54, some say
it's 56, and so we're looking at a great need for ongoing training and
certification and people who don't have the awareness of where we are
with this issue that's been going on, as we have a lot of people
retiring from the industry and youthful workers coming into the
industry.

	Where are -- and we've been asked by OSHA for these numbers, and so
have you done any projections as we've been asked for these numbers for
the younger side of the population and not just the existing?

	MR. BRENT:  Well, it's been a concern, I think, of the industry from
the get-go.  I can remember when I first became involved in the
discussions that eventually led to NCCCO being established in '95, the
concern over the average age of a crane operator, and at that time, the
figure -- I don't know how much data there was to support it, but it was
54 or 53.  And I don't know that that's changed a whole lot.  At that
time, 53 or 54 felt quite old.  Now, you know, it doesn't seem quite as
such a bad age to be at.

	[Laughter.]

	MR. BRENT:  Certainly, we have that data.  We capture dates of birth in
our records, I believe, so we have it to contribute to that ongoing
study.

	And, of course, we don't do any training, so that's not part of our
purview, but we could certainly contribute what we know about these tens
of thousands of operators we've certified, what the median age is.  That
would be actually very interesting to do.

	MS. DICKINSON:  All right.  Okay, thank you.

	MR. LINCOLN:  Yeah.  That would be interesting to have from all the
organizations.  That would be great.  Thanks.

	MS. DICKINSON:  Right.  Because as that changes, then we're also losing
some of the experience, and some of the studies we're looking at is a
great concern for the number of accidents to actually increase along
with it, just because of the fewer years of experience that goes on with
that as well.

	MR. BRENT:  Thanks for the question.

	MS. DICKINSON:  Thanks, Graham.

	MR. EWELL:  And as I've said to other witnesses, if you have anything
that you would like to turn in, you are not required at all, but if you
have anything you'd like to submit, you are welcome to.

	MR. BRENT:  I would really hesitate to submit this to you.

	MR. EWELL:  That is fine.  You are not required.  Everything you said
will be recorded in the transcript.

	MR. BRENT:  Thank you, and we will be submitting additional documents
before the deadline. 

	Thank you.

	JUDGE HENLEY:  Thank you, Mr. Brent.

	And for the record, you don't look a day over 50.

	[Laughter.]

	MR. BRENT:  Well, that's made my day.

	JUDGE HENLEY:  Is Mr. Chuck Cooke form W.O. Grubb present?

W.O. Grubb

	MR. COOKE:  Good morning, Judge Henley, members of the board.  I'm
Chuck Cooke, W.O. Grubb Steel Erection and Crane Rental, a little, small
company out of Richmond, Virginia.

	Last year, we set and had a wonderful meeting.  Basically, I'm going to
stand what I said last year.  Mr. Pocock stole all my thunder this
morning in what he was saying.  I agree with proposal of extending the
certification date another 3 years or however long it takes to get it
right.

	We have kicked this around enough on certification versus
qualification.  I know we are supposed to just stick to the rules on
proposal of the 3-year period running out, but the employers' due
diligence to qualify operators to specific machines, you can certify. 
I'm a certified crane operator, operating engineers for 30 years, been
in the trade my entire life, does not make me qualified to go run any of
the 200 cranes we have in our fleet.  The large ones, we have a process
in place.

	So based on that, if it takes 3 years to get this right, get the
verbiage right, then so be it.  We run out with it.  I do recommend that
you think about getting the CDAC committee back on board, the ones that
want to come in, as an advisory committee to get this straightened out.

	That's all I have.

	JUDGE HENLEY:  Thank you, Mr. Cooke.

	Questions of the witness by any member of the audience?

	Ms. Nadeau.

	MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers.

	I just had a couple of questions about the impact of the extension on
your company.  How do you feel the extension would impact you?

	MR. COOKE:  It won't impact us.  We've been certified operators since
1997.  It's expected in the industry.  Our customers, our clients,
Federal Government, military bases, so forth, they require a
certification as it is right now, so there won't be a big impact.

	If we do change over to capacity, then it will be a huge monetary
impact.  You figure last year when we sat down at the meetings, we had
116 operating engineers proper, crane operators, about 175 total
operating engineers.  We're up above that now, probably in the
neighborhood of 130 to 150 crane operators proper.  If we had to break
it down, the 200 cranes or thereabouts that we have, seven types, eight
manufacturers, and we broke it down in half to certify and qualify a
type and capacity -- all right, let's break it down to each crane --
you're looking at about 6,000 training hours per employee, roughly -- I
had it last year.  I can't remember the exact figures.  About
$30,000-some per employee for a brand total of about $34 million of
out-of-pocket expense for our company to recertify everyone to every
type and size of crane that we have in our fleet.

	MS. NADEAU:  So, currently, between August 2010 to November 2014, what
are you doing in order to ensure the qualifications of each crane
operator for each type of crane, and what would you do if there was an
extension from 2014 to 2017?  Would there be any difference in what you
are doing?

	MR. COOKE:  There would be no difference whatsoever.

	Like Mr. Pocock's company, we have a variety of cranes, from 6-ton to
450-ton, with multiple configurations on the larger cranes.  When we buy
a new crane, we get the manufacturer to come in and give training. 
Sometimes it's 40 hours, sometimes it's 80, whatever the manufacturer
sees fit and how many configurations we're going to go with in the crane
if we don't have another of that particular type.

	We will put anywhere from two to five operators, operating engineers,
with that manufacturer's representative to get trained on that crane,
and we take those and do train the trainer in-house.  That's how we go
about it.

	Just because an operator has a certification does not mean we are going
to turn them loose on a $5 million piece of equipment.  That's not going
to happen.

	We have qualified, competent individuals in our company that can go
out, set with these people, observe them, watch them, and train them to
the nuances of all the different machinery.

	MS. NADEAU:  Is that typical industry practice, or is that the practice
of your employer, of your company?

	MR. COOKE:  That's what we do, and I fully expect that the industry
does it, as well.

	We have the luxury of being a union company, that we rely on the
operating engineers through the apprenticeship program, which partners
incoming younger generation with us older guys, the over-50 group that
are out here running cranes.

	So bringing them in, teaching them at the early level, and bringing
them up through a 4-year apprenticeship program, then they are qualified
by the operator they are assigned to, and that might be on multiple
cranes.  It might be on one crane.  Then they are evaluated as time goes
by.

	MS. NADEAU:  Have you observed any confusion that's been created by
OSHA's announcement among -- in the industry?

	MR. COOKE:  There is confusion.  I get a lot of calls from some of our
competitors, which are also colleagues, and the industry on what are we
going to do, what do we have to do.

	Well, like I say, we've been certifying since 1997.  Okay, we're in the
program, we know what needs to be done, this is how we do it.  And if
those companies are doing basically the same thing, I said just do what
you're doing, ride it out, and let's see if we can get the language, as
it is now where it's a little more comprehensive or understandable of
the type and capacity, to what we're doing, and talk with NCCCO.  Our
operators are all NCCCO-certified.  Talking with NCCCO, they're going to
back us, what we've got, and going to make sure everything is right,
should the rules change and stay in pat with type and capacity.

	With type and capacity, unless a crane training company owns these
particular type of machines, you can't afford to bring one in.  It's
ridiculous to think that a crane operator that is not associated with a
permanent employer might be working out the hall or hits outages, just
goes from job to job to job.  That if it goes by type and capacity --
I'm going to throw a number out -- it might be $1,000.  It might be
$2,000 to get certified.  They're not going to be able to afford it. 
It's going to put a burden on the industry and the individuals that are
out just trying to make a living, where it's doable now.  There's a lot
of support by the employers, but if you got to go, have to go by
capacity, that is going to be outrageous.

	MS. NADEAU:  Well, is there any value, given how the tests are
currently administered, to testing by capacity?

	MR. COOKE:  No.  No.  The certification is a great tool, a mechanism in
place to assure that your operators coming in are coherent, they know
the language, they know how to read and interpret a load chart, they got
the conceptual idea of the regulations, but it's up to the employer to
qualify and assure that that operator can operate that piece of
machinery.

	MS. NADEAU:  And one final question.  Would the phase-in time differ,
depending upon the result reached?  For instance, if OSHA reached the
result of capacity and type being required versus OSHA said type only,
would the phase-in time differ for the ability of the industry to sort
of adjust to the requirement?

	MR. COOKE:  I believe it would take a large amount of time to adjust to
that, so everyone that's in the testing business can make arrangements
to get that type or the capacity of the machine that they are going to
test to.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Additional questions from the members of the audience?

	Yes, sir.  You are Mr. Shorter, correct?

	MR. SHORTER:  Yes, sir.

	Hi, Chuck.  Good morning.

	MR. COOKE:  How are you doing?

	MR. SHORTER:  Good.

	I was just listening, and, you know, $34 million hit me pretty hard,
and I was trying to understand the math of that, because I think I heard
you say 9,000 hours?

	MR. COOKE:  6,000.

	MR. SHORTER:  6,000 hours?

	MR. COOKE:  I've got -- I don't have the hard copy.  I have it on my
phone.  I can show you where I broke those numbers down last year.

	MR. SHORTER:  I'm just trying to understand them.  So $6,000 -- 6,000
hours per operator per each one of those seven manufacturers and eight
different types?

	MR. COOKE:  Let's break it down to what you generally do on a testing. 
It's 40 hours for your testing, you know, to get used to the material. 
Okay.  Then you got your practical exam, and that's based on about $45
an hour that the employee makes, his hourly wage.

	MR. SHORTER:  Total, okay.  I'm with you.

	MR. COOKE:  Yes.  Do you see where I'm going with that?

	MR. SHORTER:  Yeah, yeah.  I got it.

	MR. COOKE:  Being in the business, you have to figure this employee is
costing me X amount of dollars --

	MR. SHORTER:  Lost time.

	MR. COOKE:  -- of an hour.  I have to replace him.  That's not counting
the replacement cost.  That's just one employee based on our industry
with the different unions that we deal with and the different locals we
deal with, roughly about $45 an hour out of pocket, what it's going to
cost us.

	So run that out, and then that's based on our company alone, the
different types of machine and the capacities that we have and the
manufacturers.  If we're going to have to test all that, it's
conceivable to get to 6,000 in a few hours of just training to get to be
certified on each type and capacity of machine that we have as a company
at W.O. Grubb.

	MR. SHORTER:  Well, I heard you say 200 or so, 150, 180 operators, 200
operators, you guys have roughly?

	MR. COOKE:  We were at a 116, this time last year.  We probably put on
about another 40 or 50.

	MR. SHORTER:  I see.  Well --

	MR. COOKE:  About another 40 cranes.

	MR. SHORTER:  I wasn't listening to everything, but I thought, boy, I'd
like to have a chance to train those 200 operators for 34 million bucks.

	[Laughter.]

	MR. COOKE:  Well, I'll tell you what, you cut me some prices, we might
be able to work a deal.

	MR. SHORTER:  I understand.  I understand.

	[Laughter.]

	MR. SHORTER:  Thank you.

	MR. COOKE:  Thanks.

	JUDGE HENLEY:  Glad we're able to make a deal, Mr. Shorter.

	[Laughter.]

	MR. COOKE:  Judge, you heard that.

	JUDGE HENLEY:  Questions from the OSHA representatives?

	MR. PRESTON:  This is Vernon Preston from the Directorate of
Construction.  Thank you for your testimony.

	I just wanted to clarify.  You believe it's important to extend the
employer's duty to ensure the operator is competent to operate the
crane?

	MR. COOKE:  I think it's important to extend it to make sure we get the
language right, and like I said before, I highly recommend you entertain
getting the CDAC committee back in as a good sounding board for where
you're going to go with this.

	MR. BOLON:  Thank you for coming.

	Of the highway, have any of your operators encountered issues with
passing the certification tests, such as ones that have difficulty with
language or literacy or test-taking?

	MR. COOKE:  No.  We have some gentlemen that just get nervous taking a
test in general.  Even in my Safety Department, when we test, when we're
doing the OSHA 10-hour or even doing a first aid CPR class, when it
comes to paperwork, they get nervous, and that's it.

	But as far as literacy side of things and comprehension and
understanding it, not really.

	MR. EWELL:  Thank you.  Richard Ewell here.

	Earlier, you heard Ms. Dickinson for CIC suggest a 1-year extension of
operator certification.  Do you think that that is a sufficient time for
OSHA to extend it as opposed to the 3 years or opposed to a different
length?

	MR. COOKE:  I think in OSHA's infinite wisdom, you all know how much
time it's going to take you all to make this happen and get it right, so
I have no view on that.

	Three years, as it is proposed right now, should be doable.  Shorter
time would be nice, but you all know what you need to do.

	MR. EWELL:  Thank you.

	Are there any other questions?

	[No audible response.]

	MR. EWELL:  If you have anything that you would like to submit, you are
welcome to.  You are not required to.

	MR. COOKE:  Do I get recouped for my time today?

	MR. EWELL:  Yeah, send a bill.

	[Laughter.]

	MR. COOKE:  Gentlemen, thank you.

	JUDGE HENLEY:  Mr. Cooke, thank you for your testimony.

	The hearing will take a lunch break, and we will reconvene at 1:10.

	[Luncheon recess taken from 12:06 to 1:12 p.m.]

	JUDGE HENLEY:  This proceeding is called to order.

	I'd like to call next, Ms. Beth O'Quinn from the Specialized Carriers &
Rigging Association.

	Ms. O'Quinn?

Specialized Carriers & Rigging Association

	MS. O'QUINN:  Good afternoon.  I am Beth O'Quinn, Vice President of the
Specialized Carriers & Rigging Association.  I'd like to thank you for
the opportunity to share our concerns and comments on the proposed rule
to extend the compliance date for the crane operator certification
requirement and the existing phase-in requirement that employers ensure
their operators are qualified to operate the equipment.

	SC&RA is an international trade association with more than 1,300 member
companies from 43 nations.  Using the Small Business Administration's
definition, over 75 percent of our members are small business owners.

	Our mission is to provide the unique information and any other lawful
activities members need to safely, legally, and profitably transport,
lift, and erect oversize and overweight items.

	Over our 65-year history, SC&RA has taken its commitment to safety very
seriously.  SC&RA members regularly tackle some of the most daunting and
dangerous challenges covered by the cranes and derricks in construction
standard.  Any injury or fatality within our industry is one too many.

	For the past year, we have been very actively involved in the
conversation regarding type and capacity issue that's been ongoing since
the new crane rule was published back in 2010.  In addition to
discussions with our members, we have participated in several meetings
with other industry stakeholders, including the Small Business
Administration and OSHA's Advisory Committee for Construction Safety and
Health on this issue. 

	We are completely confident in OSHA's decision to extend the compliance
date for crane operator certification requirements until such time that
OSHA completes its recommended rulemaking on operator certification,
which includes clarifying third-party certification and employer
training and qualification requirements.

	We further agree that while the rulemaking is going forward, current
employer duties to ensure operator qualification remain in place.  It is
the employer's duty to ensure their operators are trained on an ongoing
and constant basis and are qualified to operate the equipment to which
they are assigned.  SC&RA agrees this is the right solution to pursue.

	As sometimes happens when multiple parties have varied, vested --
excuse me -- vested interest in the outcome of a particular problem, the
focus strays from the core issue.  I think most of us agree that the
issue, the focus has strayed far from where it rightfully belongs.

	We emphatically believe the type and capacity problem isn't an issue
between certifying bodies or anyone else on the periphery for that
matter.  It is an industry issue.  Any decision made on these issues
will have the greatest effect on the crane and rigging industry.  Right
now, there are just too many questions and too much ambiguity to move
forward with the rule in its present state with no additional
recognizable safety benefits to be realized.

	SC&RA exists to represent the crane and rigging industry.  We do not
stand to gain any profit from the implementation nor from the delay of
this rule.  There are many ways SCR&A supports its members.  One of the
most important benefits we offer is advocacy.  In fact, on our Member
Benefits webpage, you can find the following language.

	SC&RA tirelessly advocates for the specialized transportation, crane,
rigging, and millwrighting industry.  Working with a multitude of
organizations, SC&RA members and staff fight to keep regulations less
burdensome.

	Further rulemaking along with the proper procedures and analysis is the
only way to initiate a Final Rule that the industry can not only live
with but can support.  All major association and unions representing the
workers in the industry support the extension.

	Any decision made impacts thousands of companies employing tens of
thousands of workers, hundreds of thousands of workers.  It is
imperative this issue be properly vetted and not adversely affect the
industry nor cause additional, unnecessary, burdensome requirements,
with no additional safety gain.

	As we all know, 23 dedicated individuals, of which many in this room,
SC&RA being one, have representatives, represented the entire industry,
spent hundreds of hours to write a standard to address the complexities
of the crane and rigging industry, without compromising the safety of
the individuals working in this industry.

	SC&RA firmly believes that we not waste any more time debating the
issue, but rather spend the time addressing the concerns brought forth
by the industry to ensure a safe working environment for all.

	Thank you again for the opportunity, and I'll answer any questions.

	JUDGE HENLEY:  Thank you, Ms. O'Quinn.

	Questions of Ms. O'Quinn by any member of the audience?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions of Ms. O'Quinn by OSHA?

	MR. BOLON:  Thank you for coming.

	You mentioned just now that without change that there wouldn't be
recognizable safety benefits from the crane rule.  So I take it,
certainly, part of your support for the extensions is to maintain a high
level of crane safety at the construction sites?

	MS. O'QUINN:  That is our concern, yes, is to maintain it, but if I
misspoke, we do want the change from capacity.  I mean, for us, we don't
believe that there is any additional safety benefit by testing and
certifying by capacity.

	MR. BOLON:  Right.

	MR. PRESTON:  Vernon Preston from Directorate of Construction.

	We've had some suggestions for extensions of 1 year and 5 years today,
and I just wanted to know what your opinions of some of those
alternative discussions was.

	MS. O'QUINN:  I've been involved with the standard when it was a
subcommittee under the ACCSH group, before it even went to become
negotiated rulemaking.  It's been a very long, arduous path.  Any
extension is too long, but at the same time, there needs to be an
extension.  So I wouldn't say 5 years, 10 years.  I would say, again,
what some of the other people have already stated.

	OSHA knows how long it's going to take, and we would say give yourself
adequate time.  Don't limit yourself to a year and then have us all back
in the room again next year requesting an extension again.

	MR. PRESTON:  Thank you.

	MS. O'QUINN:  Thank you.

	MR. EWELL:  Are there any other questions from the panel?

	[No audible response.]

	MR. EWELL:  Thank you.

	If you have anything that you'd like to submit in writing, you are not
required to, but you may at this time.

	MS. O'QUINN:  No.  Thank you.

	JUDGE HENLEY:  I'd like to call on Mr. William Smith from the National
Builders Insurance Service.

NationBuilders Insurance Service

	MR. SMITH:  Thank you, Your Honor, and members of the committee.

	I am going to be as brief as I can, but for those in the audience that
know me, that's a difficult task in itself --

	[Laughter.]

	MR. SMITH:  -- as you can hear.

	But, also, seeing that it looks like there comes to an agreement now to
extend, I am going to try to keep it as brief as I possibly can, as
well.

	I currently am the Executive Vice President of NationBuilders Insurance
Service.  We insure the crane, rigging, and heavy haul industry.  We
have about 600, plus or minus, crane and rigging companies all over the
country with multiple lines, all lines, property, casualty, inland,
auto, comp, and also access.

	Just a brief history, I started out years ago -- over 50, but years ago
-- as a crane operator in the field, moving on to be a training and
safety director at the International with the operating engineers for
all 50 states and Canada.

	Switch over to the management side as a corporate safety manager for
the largest crane company in North America but maybe in the world at the
time. 

	Then I went to -- actually to OSHA as a crane specialist.  At that
point, I used to be able to say that I am from the government, I'm here
to help you, but that has changed, and now I'm on the insurance industry
insuring crane companies, and I am actually the Vice President of Claims
and Risk and Loss Control.

	B30 member for 25-plus years, CDAC member as well on the committee a
SENRAC committee member back prior to CDAC on the steel erection
negotiated rulemaking, and NA-10 committee and also commission with CCO,
just a quick background.

	The extension issue, it has to be an extension just to fix some of the
major -- a couple major issues.  CDAC never intended -- you heard that
today -- to the type and capacity being an interpretative argument, and
that's where we are at today.

	The economic impact to the rule the way it was written doesn't reflect
the fact that if you go to type and capacity, it will be a huge and a
big change from the economic impact.

	The reason I say that is because when I was here at OSHA in that crane
specialist stint for the period of time after CDAC had finished its
work, one of my jobs, the biggest job I had at that time, was to work
with Jasbinder Singh.  He was the external economist that was hired to
do the feasibility study.  And in that years' time that Jas and I worked
together to determine what the cost would be to the industry, he and I
never discussed type plus capacity in all the categories to come up with
a dollar amount, and that's critical and I think that's important to
show what the economic impact was to the industry, both large and small,
but the mere fact that we never discuss how different it would be if you
had to, as some people said, including Chuck Cooke, the cost of doing
business to certify by that particular type.

	Additionally, because of time, I think, an extension to compliance
directive that is somewhat written or almost, if it is silent to this
issue because it is not fixed, that's fine.  If it mentions or talks
about the issue, then I think the government needs time to fix that, as
well.  Just like it was mentioned earlier about the small business
entity talking about what they think it means by certification of type
and capacity, that small business entity as well is somewhat of a
misguidance to the industry when they read it, because that's not what
the rule intended, but that is what's been published and probably needs
to be redacted.

	The other issue about time on the extension is the notion of
certification equal qualification.  Now, personally for me, back then,
our mission was to make a rule that was old, 30-plus years, a better
rule, but by doing so to provide a safer workplace.  And we never -- and
I don't know how the certification equals qualification got up, but the
committee never discussed it in that frame.

	And if OSHA is bound by the fact that because qualifications of
individuals in their employment goes away and the only thing that stays
is a third-party certification and that's what OSHA would have to look
to, to cite, that's wrong, and that's so wrong that it takes us back
beyond 1970 when the Act was created.  It actually takes us further back
in time, so the time it takes to fix everything includes the
interpretation of what certification means.

	And for the industry, the notion that certification equals
qualification is a good sales tool maybe that's out there, but it is
also a misunderstanding for the industry as well.

	One thing for sure, the emotional side and the interest in these two
issues that come up to extend the rule, you would have thought that 23
member of CDAC, as Beth said, that met for 11 months, they were all
experts in the industry from all phases, would have had a lot of
conversation in the minutes and in the notes and in the history of what
that meant to them, and it is almost silent.  The only place you see it,
as Graham said, is in type one, group one.  You lose it in two, which is
the employer.  It's not mentioned in the states.

	And naturally, if the committee would have said we meant to test by
type and capacity as group one is, third-party accredited, we would have
never said, "But the states can do it a different way by making it
lesser than this," or an employer -- and Grumman was the employer at the
time, because they were so big, they wanted the ability to do their own.
 We would have never said to Grumman, "You could do it way different
than what we do it over here."  We all had the same, and that's why it
was somewhat probably overlooked or a moot point, or it never rose to
the attention it has today, for whatever reason it is today, and that's
one of the better reasons for extending as well.

	The other thing is OSHA needs to be able to enforce the rule as what we
would call -- and I can remember -- the "vertical standard" versus a
general duty.  You can't leave it like it is, empty, look for a
certification, check the box, that's as far as you can go, and if prior
to an accident or after an accident, then you've got to go somewhere
else like a general duty catch-all, that's not what it was intended to
before.  It doesn't help OSHA.  It doesn't help the industry, and it
surely won't provide a safer workplace than what we intended it to be.

	There's been a lot of conversation about time.  Here is my challenge
with time.  We've had -- from 2003 and '04, we met for almost a year, to
2014, 10-plus years later, with a 4-year stay, phase-in.  That gives us
14 years from the time we stopped and entered the information together. 
Now we are extending three more possibly, hopefully less, and everybody
has said it's really up to you guys, not us.  I mean, you guys are the
ones writing the rule and how fast you can do it.

	The other challenge, though, is that when you extend to the 3 years and
any time in that 3 years -- let's say it takes you 3, but the rule has
changed where the industry doesn't know what the rule is going to look
like, how different it's going to be.  The reason we had a 4-year
phase-in is because we thought we knew what it looked like in 2010, and
we would give the industry 4 years to comply.

	If we are going to extend now for a period of zero to 3 years and it is
going to change and we don't know what it's going to change to, will
there be another phase-in after that final document of change?  And that
frustrates us as well as extends the opportunity to provide for a safer
workplace by the rule across the board.

	We're all doing it now, as best they can, but it's not mandatory, and
you've heard from many people say that employers are somewhat reluctant
to move forward.  They are not recertifying.  They are slow in the game.
 They threw an anchor out, and they're dragging it.  They are still
running down the rope in the boat, but they are still dragging an anchor
now because they are slowing down.

	And you can ask me that question, and I'll tell you the same answer. 
It is what it has to be.  One thing for sure is that of the 80,000-plus
that are done plus the other several thousand that are done with CIC
plus some that are done with North American plus some that are done with
IUOE, there's a lot of people already certified.

	If the rule would stay like it is, as type, fix the capacity because
it's not in the other three, and somehow OSHA can clarify that
certification does not equal or mean qualification and never intended,
November of '14, we could still do it, and we could start moving forward
with a better workplace and saving lives.  That's the given.

	We don't need the 3 years.  I reluctantly, like Graham, agreed to the
extension, because if that's what you need to do it, do it, but if we
can fix the two things sooner, I think we're on a right road and a
better road to making it right.

	For 17-plus years, the industry has moved forward with certification on
its own.  It's not because of OSHA; it's because it was the right thing
to do, 17 years ago.  The owner community are demanding it.  The
petrochems, the refineries, the auto plants, everybody says, "You can't
come in my plant unless you're a certified operator."  They don't say to
what program.  They just said you have to meet criteria and
certification.

	It's funny.  I told you I was in insurance.  There was a crane accident
a month ago that I went out on, and the OSHA compliance officer was
there.  And one of the things he asked the employer for was the operator
certification.  Even though it doesn't exist, by rule, one of the things
that even the OSHA CO-SHOs are looking for out there is evidence of some
method of testing and training, and they are asking for it in the form
of certification, so it exists even in your own institution as well.

	Last couple things, I think that the industry is going to continue to
move forward.  I would hope that it would be at a rocket pace that it
was, but it's not.  We hear it slowing down.

	There has to be some characterization and fix of the type, capacity,
and certification, just to eliminate the confusion that everybody has
talked about.  It's the right thing to do.

	You know, I'm in the risk business, insurance.  Basically, it's the
risk of you transfer your risk to me, and we insure it.  As one of the
only insurance companies out there to offer some premium incentives for
companies that certify the crane operators, because we believe it makes
sense and we've seen it over the years, the biggest study which was
mentioned earlier about Ontario shows a huge dramatic decline in
fatalities occur with cranes once they started training and certifying
operators in that little province.  We know that's taken place here in
this country as well.

	The hard part is that we are pushing it.  We're trying to incentivize
it to get it in the same place.  The industry is going to move forward. 
The really nice part that I would like as a risk taker is once the
government mandates it, then everybody across the board is going to be
doing it, whether I offer an incentive premium or not or whether
somebody asks for it or not.  That's a great place to be.  It's the
right place for us to be.  It's taken way too long for us to get there. 
We are very frustrated with it, because we are very passionate about
what we do, and we are very safety and pro about the fact that we don't
want any of our people -- classic example is the action I went on.  The
owner that called me and said he had an accident, it was his employee
that was in a fatal accident, and he couldn't hardly speak to be on a
phone.  That's where none of us want to be.

	It's a great thing.  It's sad it's taken it this long with all the
fighting going on, but it's time to get it done.  November could happen.
 Three years is fine.  Less is better.  It's just there's 42 new
sections of 1926.1400.  The only one in question is this one.  The other
41 are working.  The industry is moving further away for power lines. 
We got signal people that are trained better than they ever were.  We
got riggers, hopefully, that are getting trained better but not exactly
right.  Everything else in there -- ground conditions, site supervisor
-- all the requirements are starting to take place and take hold.  The
only issue that we're fighting over is a couple small ones, and it's sad
because in 1926.550, which is what it replaced, there wasn't anything
that existed for an employer to validate other than past work and
history and go out with Joe for an hour in the yard and see if you can
run a crane. 

	This is where we need to be, and we're just waiting on you guys to get
us there.  Thank you.

	JUDGE HENLEY:  Thank you, Mr. Smith.

	Questions of the witness by any member of the audience?

	[No audible response.]

	JUDGE HENLEY:  Ms. Nadeau.

	MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers.

	Bill, you mentioned the potential phase-in period, and I was wondering
if you could assess or estimate the period of phase-in that would be
needed if certifications that weren't by capacity and type were
nullified when the Final Rule became effective.

	MR. SMITH:  I guess Liz was picking it up, because nobody else said
about a stay of 3 years with already a 4-year phase-in from 2010, is
there another phase-in that goes on with the stay when you finally get
it, and naturally, the answer is really hard and very difficult.

	One thing for sure is if you drastically change the way people have
been certified for 17 years and you move it to a different level of
certification or you change it where their certification becomes
invalid, we've been 17 years trying to get 80,000 people done.  I don't
know what the answer or the phase-in would be if you change that
drastically.  It ain't going to be 4.  It's going to have to be a lot
longer, because you are going to have 80,000-plus people trying to get
certified on our brand-new one.  If they have to retake tests and do it
differently than they did before, that phase-in is going to be huge. 
You're taking a milestone and going backwards than we would be if we
just fixed a couple things.

	Let the bodies certify and test the way they want to.  I will give you
my example, and I hate to be longwinded, but you know if you give me a
minute, I'll take a lot.

	[Laughter.]

	MR. SMITH:  When we did certification, we did talk around the table,
and we all said that.  Steve Wiltshire is here as well.  He hasn't
testified yet.  We all said certification is the fundamental foot in the
door.  That's all it is.  That's all it was ever intended to.

	It's like your driver's license.  I've said this story over and over
again.  My 16-year-old daughter gets her license today.  Today, she
finally passes the test.  Maybe she failed it twice, but today, she gets
her test.  She passes; she's got a driver's license.

	She says to me, "Hey, Dad, I got my license" -- we live in Maryland --
"I'm going to California tomorrow."  Me as her parent, quote, her
employer says, "No, you're not, because you're not qualified to drive
from East Coast to West Coast."  "But I got my license.  But I got my
license."

	Same way with certification.  It's a milestone from where it was.  Some
argue, "It's not good.  It doesn't have any value.  Let's throw the
certification away and go back to where it was."  I beg you the same
thing.

	If people believe, like we do, that it sets a table, it sets a bar, it
sets a foundation, it's great.  It's a good thing.  If we throw that
away, it's like throwing our license away.  Can you imagine what it
would be like today if we just said, "That license really doesn't have
any validation?  Let's just let everybody get behind the wheel and start
driving tomorrow"?  As bad as it is out there today, it would be 10
times worse tomorrow if we take the bar away, the minimum criteria to
get in the seat of a car, behind a wheel, the seat of a crane behind
levers.

	MS. NADEAU:  One more question.  Mr. Bolon asked Graham Brent whether
it would be virtually impossible to have a practical test that tests for
all of the various configurations, capacities, et cetera, and I was
wondering if you could address that from a financial viewpoint and just
as a sense of a possibility viewpoint.

	MR. SMITH:  Chuck said it.  Chip has said it over and over again. 
Everybody in this room will say it that owns multiple levels of cranes
with capacities and tons of operators.

	We had this challenge, and you know what, there's an argument that like
nothing is impossible, and it's true you can make sense, and you could
try to get things done.  "Feasible" and "practical," they are all the
words that come in.  Even OSHA, even with the rules that are written
today, if you can show an infeasibility, you can get a variance, if you
can show an infeasibility.  I mean, that's the way the laws are set up
today.

	This is very similar where it's infeasible for this industry to think
that you would have to set up all these big cranes and multiple tests,
and somebody will argue, "Well, set up the biggest one you got and test
down."  Everybody tests on the biggest one.  When you got an 800-ton or
1,000-ton or some other one, Deep South, we insure them, and they have
the VersaCrane.  It's a million dollars in and a million dollars out to
put it together.  It's infeasible to think about doing that, just to
certify a handful of operators, and once you set that up, you might as
well try and certify everybody because you got it set up.  You don't
want to set it up for three or four people and tear it back down again,
and it just doesn't make sense.

	What makes sense is the employer qualifying the individuals based on
the type of crane that they are asked to run with the configurations,
with the wind, with the location.  Listen, we're all good operators. 
Some are better than others.  You hear this thing.  Chip and I talked
about it earlier.  You know, Bill Smith, yeah, he's smooth, what we call
a smooth operator.  And then you talk about somebody else, it's like,
yeah, he's pretty rough, because we're all different.  The employer
decides where they put Bill and Chip and everybody else.  That's the
qualification side, and that's the way it needs to say.

	MS. NADEAU:  You mentioned it from a financial point of setting up the
crane and the cost of a high-capacity crane, but could you also address
the financial costs of trying to simulate the various things that a
high-capacity crane can do?

	MR. SMITH:  Yeah.  I mean, that's why the minutia is not there in the
rule.  Minutia is not there in the certification.  If you try to set up
capacity first, then configuration, then multiple configurations, then
counterweight wagging on top of it, it's just unrealistic to try to do
that.

	I think Graham said it, and I'm not sure if he did, but when we started
this 20, almost, years ago, all of us, a lot of us in this room were in
the room at Shady Grove, Pennsylvania, at a grow facility.  That's where
the 17.5 and over and under came in.  We actually started with that
mentality:  Let's do what an operator needs to know.  And we had 12.  We
had what we thought was 12 certifications.

	The accrediting body, the third party, the approved institution that
tests, at the end of a week said, "All you're doing is charging more
people money for the same stuff, with no different a result.  You're
going to get the same result.  You're just charging more money with a
bigger wallet for certification cards."

	So by the time we were done looking at what we asked them on the
written and what we asked them to do practically, we ended up going from
12 to 4, and that's the way it's been, because that makes sense, both
financially, economically, and feasibility.  It makes sense to
practically test in that manner right now, and that's why it's existed
for 20 years almost, because if it was bad or not good, it would have
been 5, 6, 7, 8, 10, 12 of the same ones, so --

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Sir, if you could identify yourself, please?

	MR. GANNON: Good afternoon.  My name is Michael Gannon.  I'm with The
Walsh Group.  I am their Corporate Safety Trainer.  I have a question
for Mr. Smith.

	MR. SMITH:  Hey, Mike.

	MR. GANNON:  Hey, Billy.

	Mr. Smith, you mentioned that it's the employer's responsibility to
identify the qualification of that crane operator to run a particular
crane the way that it's set up.  Is there any guidelines or any method
as to how to identify that crane operator is qualified to operate that
piece of equipment?

	MR. SMITH:  The only method an employer has is internally within his
own company.  In other words, whatever I use as my management culture to
determine whether Mike, who just came to me to be a new crane operator,
either by the union hall with all the criteria and certification he
comes with or through the paper with the non-union side where I got to
get my next employee, what I decided, my management culture, to be able
to make me sleep at night and comfortable is what I need to do. 

	Every one of them is different.  I could take my best crane operator
and put you with him for a day or two or three, either in smaller
cranes, or if you're going to run the big one, if that's what you're
hired for, you're going to sit with the guy who actually runs that crane
to make sure he tells me, because, listen, I'm an owner of a company,
like your company.  I'm an owner of a company, and I'm probably not a
crane operator.  I own the company, but I want to guarantee that safety
is assured.  The best way I could do that is put my best crane guy with
you to tell me whether you are qualified or not.  That is usually how it
should be done, because other than that --

	And the certification, by the way, which I said before was a great
foundation, when you walk in the door, at least I know you have been
through some load charts.  You understand some math.  You've got general
knowledge of the industry.  You've got rules and regulations for the
industry.  You've been out into the field with whatever type of crane
they are testing you on to make sure that at least you can control an
empty hook with a headache ball without wrapping it around a boom.

	That's a good thing, because in the old days, when you first started,
we have New York where they used to videotape them, and we'd have the
camera fall over, because they were running away because the headache
ball would be all over the place.  Well, that's good, because what it
does is it takes the people with some good basic knowledge and
understanding of the rules and memory and learning capabilities and puts
it with some skill sets of fundamental hand-eye coordination to be able
to balance them both.  Coming in the door, that's better, because if you
take that away, we're back to the old 550, which says you don't have
anything but work history, and if I ask your previous employers, they
are not going to tell me anything because they don't want a lawsuit. 
They are just going to tell me you're a good guy, and that's where you
as an employer got to set up your own criteria on what you qualify.

	And I might be qualified on a crawler rig, but to do the capacity
issue, it's a moot argument.  It's what that crane is set up as, how
much boom, does it have luffer, how much counterweight, because even
though I have run that capacity crane, I might have been in an concrete
plant bailing concrete all day with a basic boom.  That's okay, but now
you are putting me in a max, luffer max jib, max situation, and I am
going to get run off with the ironworkers, because they are going to
throw spud wrenches at me, because I am not going to be able to control
it.  That's where you as an employer need to qualify the individual.

	Certifications, Liz talked about multiples.  It's not the identifier. 
It's the foundation that gets you in the door is what certification
does.

	MR. GANNON:  Thank you.

	MR. SMITH:  Thanks, Mike.

	Did the Judge say it was okay for you to come up here?

	[Laughter.]

	JUDGE HENLEY:  We have him on a short leash.

	MR. POCOCK:  Chip Pocock, AGC, Buckner.

	Billy, you mentioned when you guys met in Shady Grove all those years
ago, there was conceptually or initially 12 different categories for
practical testing, maybe even written testing at that time.  Do you
think that CDAC would have reached a consensus had they decided that
there needed to be more categories, more in tune with the capacity or
ranges in capacity?

	JUDGE HENLEY:  Mr. Smith, if you can tie that to the purpose of the
rule hearing today, that's fine.  Otherwise, it's probably best left for
a separate session.

	I'll give you a chance.

	MR. SMITH:  Give me a chance?

	[Laughter.]

	MR. SMITH:  When it comes to why --

	JUDGE HENLEY:  Just in a minute.

	MR. SMITH:  -- we need an extension for argument of the fact that there
is a blurred line as to what's in the current rule, type and capacities
in the current rule versus some others, and if you're asking me if the
CDAC community would have thought and we would have revised that rule
and made it different if we all knew that you're asking if we'd have
changed it from what currently knew was in the marketplace, CCO and
IUOE, to something different, I could tell you right now with the
economic impact that we're talking about earlier, what it would cost to
do it, if we all on CDAC would have sat around and said, like Chuck
Cooke who wasn't on CDAC, but if we'd have said to the employer, "Here
is what you are going to have to do," every one of them would have voted
it down.  Every one of us would have voted it down, because it would not
have been practical or economically feasible for us to do something like
that, so I hope that answers your question within the Judge's
parameters.

	[Laughter.]

	MR. SMITH:  Thank you, sir.

	JUDGE HENLEY:  Thank you.

	Questions from OSHA representatives?

	MR. BOLON:  Thank you for coming to Washington, Mr. Smith.

	I think all of your comments have really been responsive.

	MR. SMITH:  That's a movie.

	[Laughter.]

	MR. BOLON:  They have really been responsive to most of the things we
wanted to find out, but there might be one or two.

	MR. EWELL:  I have one question.  You mentioned --

	MR. SMITH:  You had to ruin it, didn't you?

	MR. EWELL:  Yeah, yeah.  That's what lawyers do.

	Ms. Nadeau had asked you a question about the phase-in period and what
it might require if the rule was very different than what it is now, but
I guess the other part of that question is what -- and I think this is
what I asked Mr. Pocock earlier on.  What might the phase-in period be
if the rule is fairly similar if OSHA decides that there is not going to
be a big change?  He had said maybe 90 days.

	MR. SMITH:  90 days.

	MR. EWELL:  Maybe whatever.  What is your opinion on that?

	MR. SMITH:  Here's just my personal opinion, because we ensure a ton of
companies that are working to be in compliance, and this is why I want
OSHA to move forward as quick as they can, because it's very difficult
to get 100 percent of your operator certified 100 percent of the time. 
Workload changes.  The construction industry booms, and it falls apart. 
It booms, and it falls apart.

	So when they get an influx of operators, some with, some without, and
they work to try to get them certified while they're there, if they are
going to stay for a longer period of time than maybe the job, it would
be great once OSHA mandates across the board.  That's a given.	

	Now, having said that, if we would not change this drastically from
what it was originally intended to be and we've already had 4 years of
waiting based on what we thought it was back in 2010, you got to
remember in 2010 when this came out, it wasn't a big argument of type
and capacity.  It just came up because somebody read the black-and-white
words, and they said, "Oh, we might have an issue," right?  Legally, we
might have an issue.

	So once that happened -- and I don't know when, '11 or '12, but once it
happened, it started a frenzy over the next 2 years of what it means. 
If we would go back to what we intended it to be -- we've had 4 years to
get there -- I think that the phase-in that was 4, now all of a sudden
we've clarified what it really means, that phase-in is a whole lot
shorter.  It could be 90.  It could 6 months.  It could be a year if you
want to give the industry 1 more year, because we've been working for 4
years to get there.

	Most people are there.  It's a handful that aren't, and it's a few that
aren't starting to slow down, because they are waiting on you all.  Once
you tell them what it is and you give them 12 months, let's say, or some
short time, I like the fast track.  Once you get to where you guys can
decide what it really means to tell us, fast track that thing to a year
phase-in after the 4 years you have already had.  You give us 5 years. 
I'm of the opinion shame on you if you're not there yet, because you
should have been.  All right?

	And we can deal with that, but I think it's a right thing to do, and I
think we can do it a lot quicker than what you were planning on doing it
right now.

	MR. EWELL:  Any other questions?

	[No audible response.]

	MR. EWELL:  All right.  I will offer you the same opportunity.  If you
have anything that you'd like to submit in writing, now would be the
time.  You're not required to do so.

	MR. SMITH:  I think my verbal is good, so that's fine.

	[Laughter.]

	MR. SMITH:  Thank you.

	JUDGE HENLEY:  I think we will proceed, if Mr. Wiltshire from
Associated Builders and Contractors is present.

Associated Builders and Contractors, Inc.

 	MR. WILTSHIRE:  Thank you for giving me the opportunity to testify
before you today on Notice of Proposed Rulemaking on "Cranes and
Derricks in Construction:  Operator Certification" requirement.

	My name is Steve Wiltshire.  I am Vice President and Director of
Corporate Safety at ECS Corporate Services.  Today, I am testifying on
behalf of Associated Builders and Contractors, a national construction
industry trade association representing nearly 21,000 chapter members.

	Founded on the merit shop philosophy, ABC and its 70 chapters help
members develop people, win work, and deliver that work safely,
ethically, profitably, and for the betterment of the communities in
which ABC and its members work.

	I have been employed in the construction safety industry for 34 years,
beginning as a medic and advancing through the ranks to Vice President
responsible for safety and health of over 1,000 engineering,
construction, and environmental testing professionals and technicians,
and serve on ABC's National Environment Safety and Health Committee.

	I have participated on the advisory committee on construction safety
and health, several OSHA workgroups, and was stakeholder with OSHA's
crane and derrick negotiated rulemaking committee, CDAC, as Billy and
others have mentioned earlier.

	And while I have never pulled a lever in a crane, I was drawn to the
topic of crane operator certification as a young, very young safety
professional, much long ago, working with a heavy highway construction
firm.  At the firm, we instituted internal training classes for crane
operators in the mid-'90s, and when the opportunity came to present
itself in 2003, I was more than eager to accept the challenge of working
with OSHA in developing a national consensus on crane operator
certification.

	ABC members know exceptional job site, safety and health practices are
inherently good for business.  ABC understands the importance of
common-sense regulations based on sound evidence and scientific analysis
with appropriate consideration paid to implement cost and input from
employers.  Many ABC company safety programs are among the best in the
industry, often far exceeding OSHA requirements, and ABC's number-one
priority is for every worker to return home safe each night to his or
her family.  At ECS, we tell our employees, "Nothing we do is worth
getting hurt."

	On February 10, 2014, OSHA issued a proposed rule to extend the
deadline for crane operator certification by 3 years from November 10,
2014, to November 10, 2017, and to extend the existing employer duties
for that same period.

	Currently, OSHA maintains that two out of the four accrediting
certifying programs fail to meet the current type and capacity
requirements for certification, making those certifications invalid.

	As a result, employers that were diligent in certifying their operators
in one of those programs will now be faced with recertifying them before
the November 10, 2014, certification deadline.  Without an extension,
many argue that the construction industry will face a crane operator
shortage in the coming years, as there will not be enough time for
operators -- for employers to certify their operators in time.

	For the industry to continue performing work without disruption, it is
crucial for an extension to be granted.  While ABC appreciates OSHA's
proposal to extend the crane operator certification deadline, we are
concerned the 3-year time frame will not provide a sufficient amount of
time for the agency to complete the additional rulemaking.  Therefore,
ABC supports ACCHS's recommendation of postponing the certification
deadline indefinitely until the agency has clarified the type and
capacity issue, as well as continuing the employer duties for the same
period.

	Limiting the amount of time the agency has to complete the rulemaking
could lead to a rushed and unclear regulations.  Further, ABC encourages
OSHA to consult with its industry partners to arrive at a mutually
agreeable interpretation in regard to the certification process. 
Employers and employee representatives and equipment manufacturers
should be included in the discussion.

	As a member of OSHA's CDAC, I understand the importance of industry
participation.  The construction industry can provide the agency with
unique perspectives on how work is being performed daily on job sites,
what we see as the biggest industry threats to safety, and by including
stakeholders in the process, OSHA allows for a more substantive
discussion between the agency and industry partners.

	ABC also would like to take this opportunity to offer the agency any
assistance in drafting a common-sense solution on the type and capacity
issue.  OSHA's current interpretation artificially limits the equipment
that a crane -- that a certified crane operator may operate.  Requiring
crane operators to be certified on multiple crane capacities provides no
additional safety or risk management benefits.

	For the reasons set forth above, ABC agrees with ACCSH's approach,
encourages OSHA to grant an indefinite extension of the crane operator
certification, and continue with the existing employer duties for that
same period.

	Extending the certification deadline indefinitely will alleviate any
confusion regarding the current compliance deadline and allow OSHA to
craft the safest possible solution to the type and capacity issue.

	We look forward to working with OSHA, with its industry partners, to
complete the additional rulemaking and setting a new certification
deadline, and thank you for allowing me to testify before you today on
this important issue.

	JUDGE HENLEY:  Thank you, Mr. Wiltshire.

	Questions of this witness by any audience member?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	Questions from the OSHA representatives?

	MR. BOLON:  Thank you for coming.

	You said in your comments -- this is a quote -- by extending the
certification deadlines indefinitely, OSHA will alleviate any confusion
on the compliance deadline, as OSHA in cooperation with its industry
partners will be able to complete the additional rulemaking and then set
a new certification deadline.

	We have talked about this with previous witnesses.  What type of period
are you envisioning between the announcement and a new deadline for
certification?  A couple of years, 30 days, 90 days?

	MR. WILTSHIRE:  Great question.

	I agree with Bill in that -- in Billy Smith in that we are already
looking at 11 years since we got together in June of 2003, and now we're
11 years later.  I would say as soon as possible.  A 1-to-3-year thing
sounds right, but more importantly, I think it is getting it right,
getting it done correctly, and if that takes 3 years, then it takes 3
years.  But as long as it gets done correctly with the right input from
the industry, then I would say as soon as possible; 1 to 3 years sounds
fine to me.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.

	A phase-in period of time, what would you envision for that?

	MR. WILTSHIRE:  Again, as soon as possible.  Like I said, we've already
been 14 years with the process.  I'd say as soon as possible.

	MR. PRESTON:  Okay.

	MR. EWELL:  Just because we are trying to develop the record here,
earlier there was a suggestion that operator certification might be
extended for -- the deadline might be extended for just 1 years as
opposed to the proposed 3 years or opposed to indefinitely.  I am
assuming that that doesn't change your opinion or anything.

	MR. WILTSHIRE:  No.  No.

	MR. EWELL:  Can you talk a little bit about why -- how -- if OSHA did
accept a 1-year or a 3-year extension and then -- or I'm sorry.  If OSHA
did not extend the rule and then did make some of the changes that you
have requested, how would that impact your industry?  What would happen
if OSHA did not put the extensions into place?

	MR. WILTSHIRE:  If OSHA did not put the extensions into place now?

	MR. EWELL:  Yes.

	MR. WILTSHIRE:  I think there would be a little bit of confusion within
the industry for the most part.

	Our people, our ABC members are already far ahead of this, but I think
there is a small group that would be a little bit, you know, probably
set aside by this or confused by this.  I would like to see it go,
again, from a -- a 3-year extension would work for me.

	MR. EWELL:  A 3-year extension of the operator certification?

	MR. WILTSHIRE:  Right, right.

	MR. EWELL:  And the employer duty too?

	MR. WILTSHIRE:  Mm-hmm.

	MR. EWELL:  Any other questions?

	[No audible response.]

	MR. WILTSHIRE:  And you are welcome to submit written testimony if you
would like.

	MR. WILTSHIRE:  We're good.  Thanks.

	JUDGE HENLEY:  Thank you, sir.

	Is Brian Hope from Caldwell Tanks present?

Caldwell Tanks

	MR. HOPE:  Good afternoon.  Thank you for this opportunity to testify.

	My name is Brian Hope.  I am the Corporate Safety Manager with Caldwell
Tanks.

	A little bit of information about me, I am a certified safety
professional, served on CDAC, Derrick Workgroup, authorized OSHA
instructor with construction and general industry, and I have 17 years
of experience working in the construction industry.

	I'd like to tell you a little bit about Caldwell Tanks.  Since 1887,
Caldwell has been building innovative custom water tanks, industrial
filled erector tanks, and vertical concrete storage structures
throughout North America.  Caldwell's broad capabilities, we do turnkey
design, fabrication, and construction for the water, wastewater, grain,
coal, process, power and energy industries. 

	Caldwell initially certified operators with an organization that did
not certify based on type and capacity.  However, based on the type and
capacity component to the crane and derrick standard, we chose to be
proactive with certifying and recertifying our operators with CIC. 
Whether it was the intent of CDAC to include type and capacity
literally, it has been many companies' reality, such as ours, based on
the written standard.

	As mentioned earlier today, CIC is one of the two organizations that
meet the OSHA type and capacity requirement by banding the categories. 
I am paraphrasing.  There's been a lot of talk about money today and the
economic effect, but I am paraphrasing.  I believe Mr. Cooke with Grubb
stated earlier that NCCCO has already committed to ensuring current
certifications will be made valid if OSHA requires them to comply with
the standard, as written; hence, saving a substantial amount of money to
his company and other companies, certified as such.

	Caldwell works with many vendors throughout the country who provide
crane services with certified operators.  This certification does put
teeth behind corporate policies that require vendors supplying crane and
rigging services have certified, qualified operators.  In my opinion,
any delay will endanger lives.

	By OSHA's own account and through testimony today, certification does
improve health and safety of workers.  Who is going to be accountable
for the injuries and lives lost during the time that we continue to, as
many people have said, argue this point about operator certification?

	If I am not mistaken, it's a few crane -- catastrophic crane accidents
that got the crane and derrick standard back on track, as it sat idle
for a few year after CDAC had turned it over.  I believe it's only a
matter of time before there is another high-profile crane catastrophe.

	At least a third of the comments to OSHA's proposed delays support it,
support it only because the industry sees no other alternative, not
because they don't agree with certification is good for saving lives.

	I propose a delay is made for no more than 1 year to allow OSHA to
resolve language related to the employer's responsibility to qualify
workers.  However, to put an exact time on it, there is a due process,
and I understand that.  However, the shorter amount of time that's put
on it, hopefully, will allow everyone to work a little bit harder, not
that they are not, to see this resolved and to be able to move on, if
possible, to adequately -- to adequately address this issue by making
minimal changes to the regulations in Section 1926.1427(k)(2) where it
references the November 10th, 2014, date.

	By removing this date and retaining the language in (k)(2)(i) and (ii),
the employer -- it requires the employer to train and qualify workers
for the equipment that they operate.

	I will spare you reading all of that.  I know Debbie read it earlier
into the record, so there is absolutely no need in extending the
deadline for more than a year if OSHA is allowed to fast-track the
change.

	I also recommend changing 1926.1427(k)(2) to reflect certified to
operate versus qualified to operate.

	In my opinion, OSHA has been asked to provide an extension for type and
capacity due to organizations choosing to ignore the current type and
capacity requirement.  I believe as a safety professional, it is not
OSHA's responsibility to rewrite or extend a deadline that has been in
place for many years due to individuals, groups, et cetera for not being
proactive.  Reactive or no planning is the exact reason OSHA was
initially created.

	It is my understanding based on testimony earlier that tens of
thousands of operators have already been certified by type and capacity
by CIC and in CCER as the current regulation requires.

	In summary, I believe there should be a year extension to allow OSHA
time to hopefully, quote/unquote, fast-track the removal of the November
10th, 2014, from 1926.1427(k)(2) and change "qualified" to "certified"
in 1926.1427(b)(2).  So let's pull the anchor up and move out to calmer
seas.  Respectfully submitted.

	JUDGE HENLEY:  Thank you, sir.

	Questions of Mr. Hope by any member of the audience?

	Yes, ma'am, Ms. Dickinson.

	MS. DICKINSON:  Hi, Brian.

	MR. HOPE:  Hi, Debbie.

	MS. DICKINSON:  I should have warned you I might be coming up here.

	MR. HOPE:  Yeah, you should have.

	[Laughter.]

	MS. DICKINSON:  That's all right.  You can handle this.

	I was curious as I was listening to you, Brian.  You talked about
maintaining what Caldwell Tanks, as you guys have been going through the
process of certification for a number of years with the two different
accredited certification providers.  Could you please address what the
advantages are of maintaining the momentum?  Because we have experienced
some of the start and the stop, so I'd be interested in hearing from
your perspective about what are some of the advantages of maintaining
the momentum of the certification of crane operators that we have
currently, as you talked about what you've been doing.

	MR. HOPE:  Yes.  I agree that crane operators in general, many
companies started certifying their crane operators prior to this
standard.  However, this is the mechanism that has really started
driving the certification out in general in industry as a whole, in the
construction industry, and this is the mechanism that many companies are
now citing and quoting why they want a certified operator in, because of
the pending, the upcoming OSHA standard.  It's not because necessarily
they are operating above and beyond.  It is this standard that has
created the momentum for that.

	MS. DICKINSON:  Okay, thank you.

	MR. EWELL:  Thank you, Ms. Dickinson.

	Mr. Smith?  Yes.

	MR. HOPE:  And be nice.  I included a quote from you.  I was trying to
build on your anchor story.

	[Laughter.]

	MR. SMITH:  Bill Smith.  NationBuilders Insurance Service.

	Hi, Brian.

	MR. HOPE:  How are you doing, man?

	MR. SMITH:  Listening to your testimony -- and you know I'm from the
insurance industry -- and certification, I see cranes, small and large
in accidents, it doesn't have any bearing of type, size, capacity,
whatever.  You as an employer, do you still believe and agree that you
still want to maintain the ability to qualify an individual in whatever
crane he goes on, regardless of certification, whether it has type
and/or capacity in it?

	MR. HOPE:  We will qualify them, yeah, based on the language of me
asking to continue to include that in the standard --

	MR. SMITH:  Right.

	MR. HOPE:  -- the qualification component.

	MR. SMITH:  And this is going to the extension of the problem of
clarification.  What does the capacity give you as the employer
different than if it wasn't on there, as far as safety or the ability to
sleep at night, or what does it give you?  Because you still have to
qualify that individual, regardless of what type of crane he was tested
on.

	MR. HOPE:  Correct.  And I believe it was mentioned earlier by
yourself, when you qualify someone, they come on your site, you spend
some time with them.  I think you said you put the best crane operator
with them to train them. 

	However, when they walk in that door, it does give you a good baseline
of what that operator has been operating in the past or they at least
have passed a proficiency exam, to what class they have operated.

	I don't want to bring someone in that has a small certification, which
we don't know any of the large, but, you know, if I had a large crane
and bringing them in and just make the assumption that they're a crane
operator, we're going to qualify them for a little bit of time and put
them out.

	MR. SMITH:  So what levels of capacities does your company have as far
as different ranges?

	MR. HOPE:  We have small and medium.

	MR. SMITH:  Just small and medium?

	MR. HOPE:  Yeah.  But, however, we rent all the way through the large
and in conventional, as well.

	MR. SMITH:  Because I think the challenge, too, as we said, is to get
the extension to get clarification to what it really means, because
that's where the confusion is in the industry.

	If a testing agency would do your small crane capacity, whatever that
might be, and then they give you the certificate for the small, but then
they scope the boom out long and then they give a certificate for a
different type, size, but it's the same crane, would that satisfy you?

	MR. HOPE:  It's the same crane, but it's not necessarily the same
course. 

	MR. SMITH:  But the same crane --

	MR. HOPE:  Have you taken it?

	MR. SMITH:  I mean, capacity doesn't change.  That's my point, exactly,
is the capacity hasn't changed, but yet they are going to give you a
smaller capacity certification and a larger, but it's the same capacity
crane.  Would that make a difference?

	MR. HOPE:  Correct.  It is a -- but they have taken a proficient -- the
written exam that is a little bit more in depth for that class of crane.
 So just because they took the practical on one that has a boom that's
scoped out a little bit further, it does make a big difference when you
take the practical.

	MR. SMITH:  But the capacity itself doesn't matter as far as the crane
goes?

	MR. HOPE:  The capacity itself on that crane, taking the practical does
not.

	MR. SMITH:  Doesn't matter.

	MR. HOPE:  However, the capacity does matter when you're taking the
written exams.

	MR. SMITH:  No different than right now.  Written exams are all
overboard.  You could have a load chart with a 400-ton or a load chart
with a 40-ton, but you're still doing load-chart questions.  It's still
math.

	MR. HOPE:  But I think you would agree that a load chart between a
40-ton and a 400-ton is dramatically different, wouldn't you?

	MR. SMITH:  And that's my point is it's still load charts, and it's
still math.  So if I do one that has -- but I don't have the whole
binder in front of me.  I just have the test.

	MR. HOPE:  Mm-hmm, mm-hmm.  But the math is -- the level of math that
you're doing between the two is quite a bit different.

	MR. SMITH:  So that's what I'm saying is it's confusing, because
capacity didn't matter is what you're saying.

	MR. HOPE:  I don't know where actually we started and end in this
conversation, to be honest with you, but I believe it does, yes.

	MR. SMITH:  Okay.

	MR. HOPE:  Yeah.

	MR. SMITH:  All right.  I thought you said it didn't, because it was
the same capacity crane.

	MR. HOPE:  As I said, I don't know.  We just talked in circles, I
believe.

	MR. SMITH:  Okay, gotcha.

	MR. HOPE:  But, yeah.  No, it does matter when you are taking the
written exams, in my opinion.

	JUDGE HENLEY:  Any questions of the witness by any OSHA panel member?

	MR. BOLON:  Paul Bolon.  Thanks for coming today.

	In your comments just now, you mentioned that if there is a delay to
certification, safety would go down.  I assume you don't mean at your
company at Caldwell, but you mean just the construction one?

	MR. HOPE:  That is correct, because we are certifying our operators,
and we are qualifying them as well.  So we're not going to regress at
Caldwell if there's a delay in the standard.

	MR. BOLON:  Right.  I'm trying to remember what I know about your firm,
and what it is, is that you recruit and train and mentor and evaluate
operators from your employees, and certification is kind of the crown at
the end.

	MR. HOPE:  Yes.

	MR. BOLON:  Right.

	And generally, you agree with the suggestions from CIC this morning for
a 1-year extension and extend the employer duty indefinitely?

	MR. HOPE:  I do.

	MR. BOLON:  I think that's all I got.

	MR. EWELL:  I'll step in here.  Richard Ewell.

	You recognized a due process concern, so my lawyer ears perk up right
there, but if OSHA is not sure whether it can complete an additional
rulemaking within a year, should it provide a longer period as a
deadline and then work hard to get it completed before that deadline, or
should it go to deadline -- should it risk setting the deadline that it
might not be able to meet?  And if it is not able to meet that deadline,
then what would be the consequences for your industry?

	MR. HOPE:  Well, I believe that if they set a deadline of 1 year versus
3 years, if I'm not mistaken, when CDAC was created, they had, what, 12
months, and then after the 12 months, whatever they not have completed,
they still had to turn over.  Whatever they had completed, they turned
over.  If there was something missing, OSHA at that point would then
take over.

	In my opinion, if you set it as a year, it is going to help drive the
fast-tracking.  If you set it at 3 years, I think by the arguments today
that are taking place, it's going to be drug out for 3 years.  You set
it at 5 years, it's going to be 5 years.

	So I think you guys are setting your own time frame, and it's going to
be us in this room and other individuals to come alongside and help you
meet that deadline.

	MR. EWELL:  But what you are saying is you are not necessarily
expecting OSHA to be able to meet that 1-year deadline?

	MR. HOPE:  Oh, absolutely.

	MR. EWELL:  You think that --

	MR. HOPE:  Why would you set it if you can't meet it?

	MR. EWELL:  So you want OSHA to set a deadline that it can meet, but
what happens if OSHA doesn't meet the deadline?  What would happen to
your industry, or what would be the --

	MR. HOPE:  We're still going to continue to certify and qualify our
operators.  We're going to continue to operate based on the crane and
derrick standard as it's written today.

	MR. EWELL:  Okay.  And you think that OSHA can --

	MR. HOPE:  I guess what could happen --

	MR. EWELL:  You're confident that OSHA can meet this 1-year deadline
and gather information?

	MR. HOPE:  I'm not confident of anything right now, right?  We've been
17 years is what I keep hearing, 14, 17 years, so I do believe it's time
to move forward.

	MR. PRESTON:  Vernon Preston from Directorate of Construction.

	I think I might know the answer to his, but I just want to get it on
the record to make sure I have it correct.  Do you support the extension
of the employer duty to assure that the operator is competent?

	MR. HOPE:  Yes.

	MR. PRESTON:  And if OSHA does not extend the existing employer duty
and in December employer hires a new crane operator, the operator is
certified, and the employer checks the certification card, hands the
keys to the operator for the crane, because he's seen the type and
capacity for which they've been certified.  Operator has never had any
experience operating the crane before, just brand-new to the job site. 
In your opinion, does the employer have any duty at that point beyond
checking the certification card and giving the keys over to that
operator to make sure that the operator is competent to operate the
crane?

	MR. HOPE:  At that point, per the OSHA standard, do they have a
requirement?  You just got done saying it's removed, correct?

	MR. PRESTON:  Yes.  If we do not --

	MR. HOPE:  So, at that point, if it's removed, then they do not have a
reason per the OSHA standard.  However, morally, ethically, they do have
a right.

	MR. PRESTON:  So you think the employer should have a duty, even if we
do not?

	MR. HOPE:  Oh, absolutely, yeah.

	MR. EWELL:  Any other questions?

	[No audible response.]

	MR. EWELL:  You have the opportunity to submit anything as an exhibit
that you would like, but you're not required to.

	MR. HOPE:  We're good.  Thanks.

	JUDGE HENLEY:  Thank you, Mr. Hope.

	Is Mr. Kuzar, Joseph Kuzar, Industrial Training International, present?

Industrial Training International

	MR. KUZAR:  I was anticipating a break.

	JUDGE HENLEY:  After you testify.

	MR. KUZAR:  No worries.  Let's get this thing going.  We've got things
to do.

	[Laughter.]

	MR. KUZAR:  I am Joseph Kuzar, Lead Instructor with Industrial Training
International.  I hold crane operator's certification cards from both
CIC and NCCCO.  I am an alternate member on the ASME 30.1 Committee for
lift-planning and load-handling activities, and I'm an authorized OSHA
outreach instructor.

	I've been involved in the construction industry as a crane operator,
rigor, safety professional, and trainer for 18 years.  My company, ITI,
is a U.S.-based training provider.  In addition to training courses, we
also conduct examinations using both CIC and NCCCO certification
programs.

	ITI employs 13 full-time trainers in North and South America and is one
of the largest crane and rigging training providers in the world.  Our
trainers provide instruction for over 400 employees per year whose land
and marine-based crane fleets range from 2-ton to 7,000 tons.  In all
cases, our organization is much more interested in ensuring competency
of the operator sitting in the seat of the crane than simply putting a
certification card in their pocket.

	The following points represent our opinion regarding this manner.  We
believe the proposed delay should take place for a duration not to
exceed 1 year, to buy back some of that time since last May with this
proposed rule.  We believe this is ample time for certification groups
to make any necessary modifications to their programs in order to comply
with the law.

	We believe that the certifying of employees as a benchmark demonstrates
a minimum competency level.  We do not believe that a certification exam
should replace the employer's responsibility to qualify an employee to
operate any specific piece of equipment.  However, we would like to
point out that we do have customers who experience difficult with this
part of the law.  Many of our clients do not have a crane-related
subject-matter expert.  For these employers, when the situation arises
to rent a crane and hire a certified operator, they currently rely on
operator certification as sole proof of competency and qualification.

	Short of the employer hiring an SME to evaluate the operator, they have
no recourse but to rely on the certification card of the contracted
operator.

	Utilizing the fast-track procedure to save lives, the November 2014
date can be eliminated, and the employer's responsibilities continue as
it should.  In closing, this satisfying (k), Roman Numeral (i), Roman
numeral (ii), and (B) of 1926.1427 in that a certified operator is
qualified in the context of the certification, sets parameters for
hiring and assigning work based on valid assessments of an operator's
knowledge, skills, and abilities.

	Thank you for the opportunity to express our opinions on the topic of
delaying the certification requirement.

	Any questions?

	MR. EWELL:  Thank you, sir.

	Questions of Mr. Kuzar by any member in the audience?

	[No audible response.]

	MR. EWELL:  Apparently not.

	Questions by the OSHA panel?

	MR. BOLON:  Thank you for coming, Mr. Kuzar.

	I think you just said that you view certification as ensuring a minimum
competence level and also that many of the employers who send their
employees to you, they are not subject-matter experts themselves.  Is
that correct?

	MR. KUZAR:  What I said was that we do -- could you please repeat the
question?

	MR. BOLON:  I was just trying to summarize what you said.  I thought
you said the certification represents a minimum level of confidence --

	MR. KUZAR:  That is correct.

	MR. BOLON:  -- and that a lot of your customers, employers that send
employees to you to be trained, they are not themselves subject-matter
experts on cranes.

	MR. KUZAR:  What I said was that they -- that some of the employers
that we have don't have subject-matter experts to evaluate their own
employees, and that they will rely upon the certification process to put
the right operator with the right machine.

	MR. BOLON:  Okay.  That just leads to the following.  It is kind of
saying then if once they receive certification, they go to employers
like that, then the certification becomes -- for that employer becomes
the qualification, and they would be -- they'd be considered qualified
to operate a crane.

	MR. KUZAR:  Not necessarily.  I think we got to consider the activity
that they are performing also.

	Speaking from the -- you know, I mentioned that I was a safety
professional when I was in safety.  An operator comes on the site, I'm
going to ask for their certification card to see that they have the
basic abilities to operate that machine, but, you know, you could take
an operator that can operate a thousand-ton crane, but if he's never
driven pile before, he might not be qualified to perform that activity. 
I think we're overlooking that part of this too.  It's what activity are
they performing with that machine, not just the size of the machine.

	MR. BOLON:  Right.  But, again, if the employer is looking to the card
for insurance -- or assurance that the operator can operate that type or
that type and capacity, depending on the certification, it just kind of
makes it an open question about -- I mean, the card doesn't come with
experience.  The card doesn't come with other things that you associate
with employers qualifying operators.

	MR. KUZAR:  I don't believe it alleviates the employer of qualifying
that individual for that crane.  They are still responsible for the
people around that machine and working underneath that hook.  They still
have a due diligence to protect those people and make sure they're
qualified, and if they need to bring in an SME from the outside to
assist in that, so be it.

	We've been instructed as per the hearings, procedures, not to discuss
type and capacity, even though I think we all agree that that went out
the window early.  That's one method to assure that they are getting the
right person with the machine.

	But by no means do we remove the requirement for an employer to qualify
their people.

	MR. BOLON:  Okay.  You are agreeing with the CIC proposal to delay
certification just for one year?

	MR. KUZAR:  I think it should be as short as possible.  There are other
methods.  We've heard the fast-track method is a possibility to expedite
the process.  I think those should be seriously looked at.  Simple
changes in language, why not remove what is meant by a certified
operator, and just leave it to something to the effect that, you know,
an accredited certification is required.  Let the marketplace decide if
they want a certification with type and capacity or if they want one
without.  That way, no one really has to rewrite their procedures, and
we can keep moving forward.

	As we have heard, we have been in this now for a number of years. 
Almost my entire operating career, we've been kicking this can down the
road, and I'm afraid, based upon experience thus far, that in 3 years,
if we let it go that far, in 2 years we're asking for another extension,
and we're still stagnating and stumbling over something.

	I was excited when the standard came out.  It was nice to see movement,
and I think there's other things in play that we could use, such as
variances, letters of interpretation to keep this thing moving while we
rewrite a new standard or what have you down the road behind the scenes.
 I mean, we kept 1925.550 on life support long before its useful life.

	MR. BOLON:  And you do support the indefinite extension of the employer
duty?

	MR. KUZAR:  Yes.  I think it should be -- it should never go away.  The
employer should always have the duty to qualify their people --  make
sure they have qualified people.  Excuse me.

	MR. EWELL:  Richard Ewell.

	I am going to try to get at the same question that I posed to Mr. Hope.

	If OSHA -- trying to basically put you in OSHA's shoes.  If OSHA is not
sure whether it can meet a shorter period deadline, like a 1-year
deadline, to complete another rulemaking would it be better for OSHA to
err on the side of caution and extend, put a deadline out for a longer
period of time, or risk not being able to meet that deadline?  And I
guess the follow-up would be, if you can't meet that deadline, what
happens to the industry?

	MR. KUZAR:  Well, when the target is constantly moving, we never hit
it.  You know, it's been set for November of this year, and now we're
getting ready to move it.  Once again, the concern is that if we move it
again, that's more opportunity to move it again.  Let's set our sights. 
I think a 1-year -- pushing it off 1 year to make up, to recover the
year we've lost, and let's put our heads around this and get it done. 
The industry needs it.  We don't want to have another 2008 with multiple
high-visibility accidents happening in our industry.  We just don't need
that.

	MR. EWELL:  Do you have greater confidence than Mr. Hope did about
whether or not we would be able to meet that 1-year deadline?

	MR. KUZAR:  It's amazing what we can do when we put our heads together
and work together.

	MR. EWELL:  Thank you.

	Are there any other questions?

	[No audible response.]

	MR. EWELL:  You are welcome to submit anything you have in writing, but
you're not required to.

	MR. KUZAR:  Thank you so much.

	JUDGE HENLEY:  Thank you, Mr. Kuzar.

	We will be in a 15-minute break.  We will reconvene at 2:40.

	[Recess taken from 2:27 to 2:43 p.m.]

	JUDGE HENLEY:  The hearing is called to order.

	We will next hear from Jim Leslie and Larry Hopkins from Operating
Engineers Certification Program, followed by Elizabeth Nadeau, Dave
D'Ostilio, and Glen Johnson from the International Union of Operating
Engineers.  At the conclusion of their testimony, we will open the floor
up to questions.

	First, Mr. Leslie and Mr. Hopkins.

Operating Engineers Certification Program

	MR. LESIE:  Good afternoon.  My name is Jim Leslie.  I am the Executive
Director of OECP.

	I am going to keep this pretty short.  There's been so many good things
said today.  I want to let you know that OECP is in agreement for an
extension, with the extension being to be able to clarify the
certification versus qualification issue, and the type and capacity
issue, with the extension of the employer duties.	There's been a
tremendous amount said here, and just a little background, I've been
involved with crane training for the last 25 years, and when OECP came
about and certification came about, it was about certifying the
minimally competent operator.  It was never about qualifying operators
that I could ever remember.

	As far as capacity bands, capacity bands are there, and at one
particular time, OECP had capacity bands in, just like the other
organizations as well.  The problem was, statistically, it was difficult
to differentiate between our -- our particular capacity band, I think we
had an under-40 and over-40 in the capacity bands, and it was very much
statistically hard to tell the difference between the two.  There was no
dramatic difference.  So that is one of the reasons that we eliminated
capacity bands and stayed with going with crane types.

	And I also believe that -- just a little background from the operating
engineers' side of it, I've been in the operating engineers for 35 years
now, came through the apprenticeship program.  I worked my way through,
and it's always been the employers have been the sole qualifier.  It
doesn't matter what you have, what experience you have.  The employer
always was the sole qualifier.

	OECP is in favor of the extension.  I don't know if changing the date
-- I know that Debbie has a great idea.  I haven't had a chance to
explore that.  I don't know if that single thing would change that or
not.  I would like a chance to be able to explore that.

	But the employer responsibility needs to stay there.  That's all I
have.

	MR. HOPKINS:  Larry Hopkins.  I'm on the Board of Directors of the
OECP, also the Director of Training of the Operating Engineers Training
Trust in Local 12 in Southern California, Southern Nevada.

	A few points.  I've taken a lot of notes today, as Jim did.  I didn't
have a formal statement made because, quite frankly, I wasn't exactly
sure where all the discussion was going to go, but a couple of key
points that I wanted to point out was, first of all, I am on my 35th
year in the industry also, of which the majority of that has been in the
crane industry, either operating or training other crane operators.

	With regards to the qualification -- and this all, of course,
substantiates why I support this extension.  We've got a lot of language
issues here that I think need to be cleared up.  Obviously, deeming
somebody qualified because they carry a certification card, I don't
think anybody in the certification organizations involved in this would
dispute the fact that they would not be comfortable taking that kind of
liability, saying because they are carrying their card, they are
qualified to run a particular piece of machine as there are -- you have
heard testified -- people testified today, and I know pictures will be
shown later.  There are literally hundreds of different types of models
and configurations and stuff that we can put cranes into, absolutely
impossible to test in every configuration that could create an issue,
not to mention, as I testified back in March of last year, I believe it
was, computers.

	Load moment indicators and so forth on these cranes change so fast that
we can hardly keep up with them in the training side of things.  They
are evolving annually.  Somebody has a new gimmick or another type of
tracking mechanism that they have loaded to load moment indicators on
the crane, and they are very complex and for good reason.  They avoid a
lot of accidents and work as a secondary backup to the operator's
judgment.

	Nevertheless, deeming somebody qualified because they ran a larger
crane would be like deeming -- most of us probably flew here today or in
the last couple of days -- saying that a pilot that flies a 747 would be
deemed qualified to fly a 727 because he flew a bigger airplane. 
Dramatically different systems, dramatically different capabilities of
the airplane, and the FAA would not allow that to happen.  They leave it
in the responsibility of whoever owns those aircraft to make sure that
their pilots are trained and qualified to fly that aircraft, even though
he carries a license from the FAA that says he can fly multi-engine jet
aircraft.  So I think that is a reasonable parallel to what we're
talking about in the crane industry.

	And although I agree with Debbie in theory on the extension on the
(k)(1), (k)(2) issues, which would relieve or put the responsibility on
the employer for qualification, that is only true if the crane
certification law is not put into effect, because if we put it into
effect, then that only pertains to those that are not covered under the
(a)(1) section of certification, which means we are talking about
sideboom cranes, cranes less than 2,000 pounds and derricks.  Other than
that, industrywide in the United States, there would be no employer
responsibility to qualify, because (k)(i) and (k)(ii) would become
ineffective at that point, regardless of whether there was a date on it
or not.  That was the first issue.

	I think that we need to take the time to resolve this qualification
issue, and I am going to focus on that for a minute, because I think it
actually needs to be added into the standard that the employer will be
responsible to qualify and properly train their personnel to make sure
that they are conducting safe operations and can properly operate the
crane for a matter of, obviously, worker safety but also public safety.

	You guys can drive around this city or any other city and see booms
sticking 2- and 300 feet in the air.  We're not just talking about
crews.  We're talking about people that are maybe walking down the
street.

	One of my areas is Las Vegas.  You can imagine a big crane accident in
downtown Las Vegas, how far reaching that maybe and how many people that
could possibly effect.

	So it's absolutely imperative that we put the onus of qualification on
a particular employer.

	The other question with that is I think the language, by seeming them
qualified, directly subverts the general duty clause and probably would
be argued at some point down the road by an employer saying that they
have done their due diligence by hiring a certified crane operator, and
therefore, they've done their due diligence, because the regulation
states that if they carry certification, they are deemed qualified, so
why go any further.

	I could see that litigation happening at some point, especially when
multi-million-dollar accidents happen and fingers start pointing to
blame whoever they can blame, other than the one that's likely going to
pay the bill, so I would like to make sure that operators are protected
and the public is protected, to lay that onus on that people who are
typically responsible for crane operation, which is the employer or the
owner.

	Also, earlier, a comment was made by -- I'm not sure of the name of the
company, the gentleman with the tank company, of not having SMEs with
some of the smaller organizations to be able to deem somebody qualified
or to be able to verify qualifications of somebody.  That in itself
becomes an issue that you have a person, whoever has hired the crane for
that lift, is responsible for the safety of that lift.  Whether they
have the experience or not, it still lies in their hands, and I think
ASME themselves lay that responsibility on the person in charge of the
lift, the supervisor, so to speak.  I don't think you can transfer that
liability to a crane operator, there again with limited experiences.

	I've heard many people in this discussion talk about the card does not
come with experience, and that's very true.  As a matter of fact, our
requirement is a thousand hours of experience, which is the highest in
the industry, but a thousand hours, just 6 months of experience.  There
again, think of yourself flying in an airplane with a pilot with 6
months of experience and see how comfortable you might feel with that.

	With the capacity issues, I think that besides the fact, as I explained
with the parallel with aircraft, the capacity of a particular crane is
not what makes a crane complex.  It's the configuration of the crane
that makes the crane complex, and because we only certify and the law
only requires that we certify for operation of the crane, nobody does
erection dismantle in certification processes.  So when we start getting
up into these larger cranes, 300 tons and up, where you're doing boom
installations and counterweight installations and so forth, there's a
lot to go with crane responsibility that an operator needs to know, and
they're all different.  They vary, depending on who the manufacturer is
and what configuration the crane is going into.  There's no way that our
industry could test for that.  There's no way any industry could test
for that.

	And Graham had commented before about could we generate tests for all
of these different configurations and these different applications that
we use in a crane.  Well, we probably could, but would it be feasible to
actually do tests on literally -- I myself have probably 60 or 70
different cranes and models, either by brand or different model of the
same brand, which be a completely different crane.

	So I don't think there's any question with any of the certifying
organizations that this deeming qualified anybody to run a crane, simply
because they carry our card, is a good idea, so that certainly needs to
be thought out.

	I think that covers pretty much everything that I wanted to raise, so
I'll answer any questions after the IUOE gets done.  Thank you.

	MR. EWELL:  If you could just maybe state your name, so that the
transcriber can know who has moved up to the table.

International Union of Operating Engineers

	MS. NADEAU:  I am Elizabeth Nadeau, N-a-d-e-a-u, with the International
Union of Operating Engineers.  With me at the table here is Mr. Dave
D'Ostilio from the Operating Engineers Local 478 in Hampton,
Connecticut, and Mr. Johnson, Glen Johnson from IUOE Local 49 in
Minnesota, is going to be operating the computer while Mr. D'Ostilio
testifies.  And then they are going to switch spots, since we don't have
a remote control.

	And in the interest of time, I put the credentials of Mr. D'Ostilio and
Mr. Johnson on a sheet that I've given to OSHA, and there's some for
anybody in the audience who are interested in the specific credentials,
so that we can save a little bit of time.

	The IUOE filed extensive comments on March 12th, 2014.  We're not going
to repeat our comments, so we're going to, through our testimony,
attempt to foster better communication between OSHA and the regulated
community on the following issues:  the relationship between
qualification and certificates, the limitations on practical testing,
and the irrelevance of crane capacity to practical testing.  The need
for the proposed extension of time to address these issues appears to be
the result of miscommunication between this agency and the regulated
community on matters essential to crane safety.

	The IUOE supports the 3-year extension of the enforcement date for
crane operator certification, provided that there is continuation of
existing employer duties in paragraph 1427(k)(2).  The extension of the
enforcement date without continuation of the employer duties to train
and access operator competence would endanger workers.  The IUOE's
testimony will underscore the danger of extension of enforcement date
without continuation of these duties.

	MR. D'OSTILIO:  Okay.  Are you ready over there?

	The practical exam --

	MS. NADEAU:  Are you going to put the slides up?

	MR. D'OSTILIO:  The practical exam is a minimum standards test, which
assesses the ability of the operator to perform basic tasks.  It is
extremely useful in measuring eye-hand coordination, depth perception,
and ability of the operator to control the load.  The exam screens out
candidates who lack these abilities.  This process is vital to crane
safety, because there is typically a crew working adjacent to the crane.
 Pedestrians and other members of the general public may also be in the
vicinity.

	To pass the practical test, the operator must demonstrate the ability
to keep the load stable and level.  The candidate does so by moving the
boom and hoist proportionally, so that the chain on the load does not
leave the ground, and the load does not touch the ground.

	The candidates must also demonstrate the ability to perform a number of
different operations at the same time during the test.  On the zigzag
course used during the OECP practical test, the operator must perform
three different functions simultaneously to move the load around the
corners on the test site, while maintaining the load level.  While
moving the load sideways around the first corner, the candidate is
required to swing a load, boom down, and raise the load all at the same
time.

	Movement around the second corner is more complicated.  The candidate
must boom up, swing the load, and then lower the load to maintain the
level of the load.  These functions are completely reversed when the
operator returns a load through the zigzag course.

	To pass the practical test, the candidate must understand and
demonstrate the ability to operate basic controls.  The candidate must
successfully execute a number of procedures, such as clearing the load,
following hand signals, and shutting down or securing the crane
properly.

	Slides 2 to 9 show practical tests on various types and capacities of
cranes.  The practical test is exactly the same, regardless of crane
capacity.  Under OECP standards, the load is qualified to 20 to 30
percent of the line pull of the crane.  The test weight standard ensures
that the weight of the load relative to the capacity of the crane is
uniform.  The candidate performs the same functions on higher capacity
crane of the same type that he or she performs on lower capacity cranes
of the same type.

	Slides 2 to 4 are photographs of hydraulic telescoping cranes.  The
image on the left side of 3 shows a lower capacity hydraulic crane.  The
image in the middle and right side of Slide 3 show the same tests with
higher capacity hydraulic cranes.  There is no distinction between the
task performed during a practical test using a higher capacity crane
versus a lower capacity crane.

	Separate practical testing for different types of cranes advance a
compelling safety interest, because operation of different types of
cranes requires different skill sets.  It is common for a candidate to
pass a practical test on one type of crane but fail the practical test
on another type of crane when he or she takes two or more tests on the
same day.

	Slide 5 shows a lattice boom crane.

	Slide 6 shows operations of an overhead crane, with remote controls.

	Slide 7 shows the operation of a boom truck with controls that are
fixed to the carrier.  The boom truck has no cab.

	Slides 8 and 9 are photographs of the operation of power crane during
an exam.

	I will provide examples of the differences in the operation of
different types of cranes on which practical exams are administered.

	Safe operation of a tower crane requires a development of the necessary
skills to adjust to a different perspective on the load in relation to
the ground.  The operator trolleys a load horizontally to extend or
retract the radius, to move the load in and out on the test site.

	The operation of a boom truck is different from the operation of most
other type of cranes.  There is no cab on most boom trucks, and the
operator remains stationary are the load swings.  On most other cranes,
the operator swings with the load.  The operator of the boom truck
cannot feel the crane moving as he observes the movement of the load.

	The IUOE would be happy to respond to questions concerning other
differences in the operations of different types of cranes.  As we will
discuss in detail in this PowerPoint presentation, the practical test
does not test on the breadth of activities that are involved in the
operation of cranes.

	During a practical test, the crane is set up before the candidate
enters the crane.  The candidate does not attach the load.  The hook and
test weights are attached by the administrator of the test.

	Working in the blind.  The image on the left side of Slide 10 is a
photograph of a training exercise taken at an IUOE training site.  This
exercise is an example of working in blind.  The operator operates in
the blind when he cannot see -- he or she cannot see the load.  In this
slide, the operator is preparing to lift the tire over the wall and
telephone pole and place it on the ground behind the wall.

	The goal of the training exercise is to enable the crane operator to
develop the skills needed to operate in the blind on a construction
site.  The image on the right side of Slide 10 shows a signal person
giving signals to an operator who is placing the load in a hole.  The
crane operator relies on the signal person.

	Safe operations of the crane requires skilled communication between the
operator and signal person.  The practical test does not test on blind
picks.  It does not test on the ability of the operator -- it does test
on the ability of the operator to follow directions and hand signals,
which are skills needed to operate safely in the blind. 

	However, before assigning an operator to perform a blind pick, industry
good practices to evaluate the competence of the crane operator, because
these are particularly difficult picks.

	During a practical test, the load weight remains the same throughout
the test.  The practical test is designed to assimilate a typical load
on a construction site, but does not encompass the range or variations
that an operator will encounter.

	On a construction job, the weight and size of the load constantly
changes, depending on what is being lifted, such as trusses, personnel,
2-by-4's, plywood, concrete buckets, iron, precast materials, and other
items.

	Slide 11 shows two different loads.  The image on Slide 11 shows a load
that appears to be unstable.  An experienced crane operator would direct
the rigger to stabilize the load before lifting it.

	The image on the right side of Slide 11 shows an irregular-shaped load.
 Proper oversight of the rigging is important.

	The right image on Slide 12 shows the hoisting of aluminum trailer,
which is a bulky lighter load.  The left image on Slide 12 shows
hoisting a light object with a higher capacity crane.  As a general
matter, lighter loads are more difficult to control.  Environmental
factors, such as wind, have a great impact upon lighter loads and upon
larger loads with greater surface area.

	MR. JOHNSON:  Glen Johnson, IUOE.

	The practical exam does not test operation of a crane from a barge. 

	On a construction site, an operator is required to comply with a number
of standards that are applicable only to lifting personnel.  The
operator must de-rate the capacity, which means that the operator cannot
lift the basket and the personnel at a combined weight of over 50
percent of capacity.

	The operator cannot lift or lower at a rate of over 100 feet per
minute.  If there are two lines on a crane, the second line cannot be
used for anything else while the personnel are being hoisted.

	Candidates are not tested on personnel lifts during the practical test.
 The written test includes questions on special rules concerning
personnel hoisting.  The rules are the same, regardless of the capacity
of the crane.

	On a construction site, the operator typically inspects the crane.  If
he or she doesn't perform the hands-on inspection of a crane, he or she
is nonetheless responsible for confirmation that the crane has been
inspected.

	Slide 15 shows a sheave inspection to check for excessive wear.  Crane
operators oversee oilers to make sure measurements are done properly.

	Slide 16 shows standard walk-around inspections.

	Slide 17 shows inspections of cables and cable drums.  It also shows a
friction clutch.  The clutch and the brake pads must be inspected to
make sure they are not excessively worn.

	In Slide 18, the operator has lowered the boom to inspect the lines to
support a lattice boom in an erect position. 

	In Slide 19, the crew is inspecting the boom on a tower crane, the
cable drum on a rough terrain crane, and the load block, which includes
the hook and the sheaves.

	Shift inspection does not vary by crane capacity.  There are, however,
significant differences in shift inspection based on type and model
within type of crane.

	Slide 20 shows a level bubble inside a crane.  The operator puts a
level on the super structure of the crane to make sure it is level.  If
the crane is not level, the operator must ensure that it is.  Every
crane has to be leveled to within 1 percent for the load chart to be
valid.  Use of appropriate matting under the crane is one way to level
the crane.

	The lower right side of Slide 10 shows a crawler crane.  There are no
outriggers on the crane to make it level.  The crane operator must be
knowledgeable about the adjustment of the crane to the train by adding
additional material, such as dirt or mats, to level it.

	In Slide 21, there is a hydraulic outrigger that may be used at full
extension or mid extension.  Different load charts are applicable for
different outrigger positions.  An operator needs to know which chart to
use and how to read it.	

	Slide 22 shows a crane setup on outriggers.  When a rubber-tire,
rough-terrain crane is set up, its tires must be clear and free of the
crane's weight.  In this setup, the tires do not touch the ground.  An
operator needs to know proper setup and leveling techniques.  By
contrast, on a practical test, the crane is set up and leveled before
the candidate takes the test.

	In Slide 23, the candidate is not tested on the operation of a crane in
tight space.  On a construction site, an operator may encounter many
obstacles while lifting beams, glass, or performing tilt-up operations
such as pre-cast walls.  There are many opportunities for "fouling,"
which is the term used for when any part of the crane or load comes in
contact with an obstacle.

	Wind speed.  A candidate is not required to make judgment about wind or
weather conditions.  Practical testing is canceled if there is rain or
gusting winds of over 20 miles an hour.

	Slide 24 shows a critical lift.  On a construction site, a lift plan
would have been prepared in advance of this lift.  Wind speed is a key
factor in operating a crane.  Crane operator must operate the impact of
the wind on the load.  This is a complex crane configuration because of
the height and the weight of the blades of this wind turbine.  The
operator is required to have the skill to make sure that the boom does
not hit the blades and vice versa.

	Industry good practices for the employer to assess the competence of
the crane operator to perform this highly technical lift for two
reasons.  First, the unsafe operation of this crane during a critical
lift threatens the well-being of the crane operator and surrounding
crew.  Second, this equipment is worth millions of dollars.  The
potential liability is enormous.

	Tip-overs.  These two pictures here, we have two crane accidents. 
Errors during critical lifts can result in injuries to workers and
property damage.  Miscalculation of wind speed can topple a crane.

	This was discussed earlier.  Pile driving.  The practical test does not
test on pile driving, which involves driving pile into the ground with a
hammer.  During a pile-driving operation, a crane operator is sometimes
responsible for up to three lines at a time.

	Slides 26 and 27 depicts sophisticated crane operations.  The operator
must have the necessary experience and skill to manage the operation.

	Piles are often put into the ground at an angle, and the pile-driving
crew and the operator are in constant communication to make sure that
the piles are driven into the ground at the correct angle.  In addition
to the usual hazards associated with operation of cranes, mistakes
during pile driving can result in millions of dollars of damage to
underground utilities and infrastructure.

	Slides 28 and 29 are examples of pics with two cranes.  Multiple crane
lifts require coordination between the two crane operators and their
crews.  During a practical test, there are no multiple crane lifts. 
Multiple crane lifts are complicated and difficult.  In order for the
line on both cranes to be vertical at all times, the distance between
the lines must be the same at all times. 

	Side-loading the crane is very dangerous.  In performing multiple crane
lifts, industry good practice is for an employer to confirm the skills
and experience of the operator before the execution of the lift.  The
employer may directly evaluate the operator's skills and/or contact
reliable references, such as the union training site.

	Traveling with a load, the operator is responsible for reviewing the
applicable load chart.  The capacity of the crane is greatly reduced
when the crane is on its tires.  The operator must understand the impact
of ground conditions on the operation of the crane.  On level ground
will change the center of gravity on a crane.

	Slide 31 depicts an operator traveling with no load.  The operator must
have the skill and control to travel safely around corners and must be
aware of the impact of ground conditions on the stability of the crane.

	In addition to evaluating the operator's ability to operate a crane
during lifts and other challenging operations, industry good practices
for the employer to find out whether the operator has previously
operated the model of the crane to which he or she is assigned.

	As shown in Slides 32, 33, and 34, controls vary based both on
manufacture and model within the same manufacturer.  Before operating a
crane, the employer should allow the operator to have sufficient time to
become comfortable with the controls on the crane to which he or she is
assigned.

	The basic controls are the same, but the placement of the levers on the
cranes change.  In an emergency, the reaction time and accuracy of an
operator who has not had sufficient time to adjust to the controls would
be longer and less reliable.

	The operator must have the ability to read and understand the
operator's manual.  The manual for demag in Terex show that there are
different indicators for the same function on similar cranes produced by
different manufacturers.

	This will be part of our submitted testimony, so --

	Boom deflection.  Boom deflection occurs because of the weight of the
load.  The heavier the load, the more deflection.  When beginning a
pick, the operator needs to understand that the must be adjusted based
on the amount of boom deflection if the operator adjusts the boom up or
down to keep the load centered.  If an operator does not adjust for boom
deflection, the load could be over the capacity of the crane and could
cause a tip-over.

	Electrocution risk is the leading cause of fatalities during the
operations of cranes.  On a construction site, an operator must be aware
of all external hazards.  By contrast, all external risks are removed
from practical test sites.

	The practical test does not include examination of an operator's
ability to operate a crane with more than one line in operation at a
time.  Multiple lines on a crane are used simultaneously during
tripping, clamming, and drag-line operations.  These three operations
require a high degree of skill.  An experienced operator develops timing
and coordination to safely operate both lines at the same time.

	Additionally, drag line operations present unique hazards because the
operator may destabilize the ground under the crane and cause the crane
to topple.

	That's the extent of my testimony.

	MS. NADEAU:  We have a copy for the record, a written copy of the power
point, and then we have a written copy of the IUOE testimony.

	MR. EWELL:  Do you have an electronic copy?

	MS. NADEAU:  I think I gave the disc -- I mean, it's in the computer
right now, right?

	MR. EWELL:  Okay, so it's in the computer.

	And so these copies are identical in substance to the materials that
you just presented?

	MS. NADEAU:  Yes.

	MR. EWELL:  Okay.  I am going to label them as Hearing Exhibit 5, the
first thing that you offered, which was the list of witnesses.  That
will be Exhibit 5.  Second will be the testimony of -- that was just
offered along with the PowerPoint.  I am going to put that together as
Exhibit 6.  Is that okay?

	MS. NADEAU:  That's fine.

	MR. EWELL:  So those two documents, because they are meant to be
presented together, will go together as Exhibit 6, and then if it's all
right with you, Your Honor, what we will do is put up an electronic copy
on the regulations.gov, so that there will be a nice, clean copy that
everybody can see.

	So I am giving you Exhibits 5 and 6 now.

	The disc is also an identical copy, correct, of the materials?

	MS. NADEAU:  Yes.

	MR. EWELL:  All right.

	JUDGE HENLEY:  Without objection, Exhibits 5 and 6 are received.

[Exhibits 5 and 6 were marked for identification and received in
evidence.]

	MR. EWELL:  Does that include your testimony?

	MS. NADEAU:  Yes.

	MR. EWELL:  Questions for any of the last five witnesses from anyone in
the auditorium?

	[No audible response.]

	MR. EWELL:  Apparently not.

	OSHA representatives?

	MR. BOLON:  Paul Bolon.

	Mr. Hopkins particularly, I just wanted to make sure that I got your
statement correctly, and I think you characterized the extension of both
deadlines, that actually both would be good for safety, for crane safety
at construction worksites?

	MR. HOPKINS:  That's correct.

	MR. BOLON:  Also, I think you emphasized that your certification was
not equivalent or really like what you expect from employer
qualification of operators?

	MR. HOPKINS:  I don't understand the question there.

	MR. BOLON:  I just jotted down a note that our certification is not the
same as qualification.

	MR. HOPKINS:  Correct.

	MR. BOLON:  I guess I have one more question before Vernon.

	Do you find that some experienced operators failed the test, the
certification test, because of literacy, test-taking, whatever?

	MR. HOPKINS:  We have people who routinely fail the written test and
the practical test.  Whether it's due to literacy or not, I probably
couldn't testify to that.

	I am aware of a couple of cases that I was directly involved in where
we did have literacy issues in the written exam.  After their third or
fourth attempt, they were able to pass the written test.  They did every
well on the practical because they could run the crane.  Their issue was
understanding all of the regulations, flowcharts and stuff, that are
very important to a safe crane operation, so that's my experience with
that.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.

	My question is for you, Mr. Hopkins.  Does the OECP offer any other
tests in other languages besides English?

	MR. HOPKINS:  We do not.

	MR. PRESTON:  Any plans to create a test in another language or --

	MR. HOPKINS:  I could defer that to the Executive Director.  I'm just a
board member.

	MR. LESIE:  We haven't had a call for that, and we have it under
advisement with our computer-based testing to do that.

	MR. PRESTON:  Okay.

	MR. LINCOLN:  A couple questions on OECP.  You alluded to at one point,
you had a 40 -- a band below and above 40-ton.  When did that stop?

	MR. LESIE:  I am not positive on the exact date.  I can send it to you
if you wanted, but we changed our accreditation with the NCCA, and one
of the reasons was because statistically they couldn't support it.

	MR. LINCOLN:  It would be good at some point, but it is certainly not
crucial.

	My next question was on statistically significant in terms of -- I
wasn't quite sure what we were measuring there.

	MR. LESIE:  When you have a test -- somebody gave the illustration the
other day.  If I have 60 people that pass a test at under 40 and then we
turn around and give a test for over 40 and you have 61 pass, it is not
a huge statistical difference, especially when you get into practical
examinations.  It is hard to differentiate between those capacities.

	MR. LINCOLN:  And so these are different people.  So it's kind of the
success rate for one group of operators versus another?

	MR. LESIE:  Or it could be the same group, the same group that took the
under 40 and the over 40.

	MR. LINCOLN:  Okay.  At some point, we are not quite sure when, but
currently, at this moment, you just certified for type and not capacity,
just to be clear.

	MR. HOPKINS:  We just got a clarification on that.  It is actually
November 28th of 2006.

	MR. LINCOLN:  Okay, great.  Thank you.

	MR. HOPKINS:  And what was the follow-up to that?

	MR. LESIE:  Currently, we're certified with NCCCO for unlimited
capacity.

	MR. HOPKINS:  Yeah.  The last accreditation, the last accreditation
that was given -- the last accreditation, the job task analysis that was
done showed that there was no statistical relevance between any of the
data that we had compiled over a period of years of testing, and so,
therefore, capacity was not discriminatory enough, statistically
speaking, to be an issue with crane certification, which is when the
over and under was disbanded and went to type only.

	MR. LINCOLN:  I don't know if it would be possible, but data on that
issue would certainly be useful for OSHA, but, of course, only if you
wish.

	MR. HOPKINS:  We can follow up on that with you.

	MR. LINCOLN:  Okay, great.

	Another -- again, I didn't -- you may not be prepared, but in terms of
this number of operators that are certified under different programs and
so forth, I was wondering for OECP if you guys had a number of how many
individuals are currently certified under your program.

	MR. LESIE:  Right now, we have currently certified about 6,700, just a
little over 6,700 operators.

	MR. LINCOLN:  Great.

	And then the other question I have been asking people is in kind of
normal circumstances, how many individuals in a month could you certify?

	MR. LESIE:  Currently, we on an average test about 110 people on the
written test per month and about 65 as far as practical examination.

	MR. LINCOLN:  Okay.  I think I'm good.

	MR. EWELL:  This is Richard Ewell.

	Just to follow up on Bryan's question, when you said the 6,700 number
following up on one of the commenters who came earlier today, is that
crane operator -- individual crane operators who would be operating
cranes subject to the OSHA standard?

	MR. LESIE:  That is currently certified.  6,764 are currently certified
with OECP as current operators, individuals.

	MR. EWELL:  Right.  That would be operating cranes subject to OSHA's --

	MR. LESIE:  That would be operating, that are operating claims.

	MR. EWELL:  Okay, thank you.

	MR. BOLON:  Some questions for the operating engineers.  Do you have an
estimate of the number of your members currently that are certified by
any certifying body?

	MS. NADEAU:  We'd have to get you that  in our posting or in comments,
because I have an estimate, but I don't want to give it and be
inaccurate.  So we will submit it post hearing.

	MR. BOLON:  Okay.  Let's see.  In your comments, you state, quote, IUOE
supports the 3-year extension of the enforcement date for crane operator
certification provided that there is continuance of existing employer
duties under paragraph 1427(k)(2).

	Is IUOE support over the 3-year extension of the employer duties also
contingent on the extension of operator certification deadline?

	MS. NADEAU:  We support the employer having that duty to train and
assess competence permanently, so it would be for the 3-year period and
thereafter.

	The one thing that we wanted to be very clear on is that if you extend
the date of enforcement for certification, that without extending the
other, there would be essentially nothing there, and there would be no
protection at all, except for the people's voluntary compliance with
certification.  But that would be, obviously, inadequate.

	MR. BOLON:  I guess we've had some recommendations made to us today for
extensions that would go beyond the 3 years OSHA proposed.  You propose
OSHA propose 3 years and suggest that's a safer option because it keeps
certification as an essential component of crane safety.  Can you
explain a little bit more your rationale for why you view the 3-year
extension would preserve operator certification as an essential
component of crane safety better than an indefinite extension?

	MS. NADEAU:  I think our thought in writing the comments was if there's
no forced impetus to keep the momentum going by having the deadline,
then it may slip through the cracks.

	Now, I know others were saying a 1-year extension, and our thought on
that is, given our experience with rulemaking, it may be unrealistic,
and then you'll be back here saying, "Oh, can we have another
extension?"

	So the IUOE wants to have it happen as quickly as possible, but it
seems as though, given all the variable is place and given the need
presumably to have a hearing on qualification not equaling certification
and all those issues subsumed therein, that it will take that period of
time.

	We are hoping, of course, that it's far less, because it's such an
important issue.

	And the other thing that I was listening to today that we didn't
address in our comments was -- I think Mr. Pocock and Billy Smith and
Graham all addressed the issue, is that if you change the rule so that
all of the various certifications are honored, meaning that you are not
going to nullify OECP certification, you are not going to nullify NCCCO
certification, and everyone is good to go because it is not capacity and
type, then, obviously, you wouldn't need much of a phase-in period, and
it could all occur within the 3-year period, because you wouldn't be
forced to test all these people with nullified certifications.

	But if things change dramatically -- and we consider it dramatic
because our view is that capacity and type was never contemplated --
then that would require more of an adjustment period.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.

	In your comment, you indicate that OSHA needs to preserve the existing
employer duties to train its operators.  However, you also indicate that
if the training provisions were not extended, employers would still have
a duty.  And I quote, while employers would still have an obligation
under the general duty clause to ensure that employees can operate
cranes safely, employees would be less protected because employers would
be confused about their obligations.

	Would you please explain more about this theory and how the general
duty clause would apply?

	MS. NADEAU:  I think our theory was that when the proposed rule came
out -- and I spoke to a number of people -- they were unaware of the
fact that during the phased-in period that an employer had to train and
assess the competence of certified operators.  They thought it was for
noncertified operators, and the rule was pretty clear on that.  So we
were surprised with the level of confusion.

	Obviously, whatever is promulgated to the regulated community needs to
be clear, so that they comply with it and everyone is up to the task.

	Now, in terms of -- I guess we cited Deep South in our comments.  I
think the thought in that one was there was a general duty that they
relied on, even though the employer -- the employee was certified.  So
our thought is that if you remove the requirement of employer competence
and training and you have just left with a vertical standard, we
wouldn't want to undermine the safety of the employees.

	MR. PRESTON:  Sorry.  I remember from your comments, you also weren't
quite sure some of our numbers in terms of number of operators that were
certified under various categories was correct, and if you had any data
you wanted to share with us that could help us on that issue, it would
be great.

	MS. NADEAU:  We can submit some post hearing.

	I think that one of the things that we were reacting to in writing the
comments was OSHA had stated in the notice that it was relying on sort
of informal conversations that it had with the various parties, and I
think Mr. Graham Brent said this morning that the best source of getting
the information would be to go to the NCCA or ANSI to get the
information.  And I think that makes the most sense, and also maybe to
have something more formal in writing from the testing organizations, if
you would like it, as to how much time it takes to test each person.  It
gives you more reliable information for an economic analysis.

	MR. PRESTON:  Vernon Preston from the Directorate of Construction.  I
just have one more question.

	When an IUOE member is hired to operate a crane at a construction
project and the employer is completely brand-new to that operator and
there is no existing relationship, does the new employer interview and
assess that operator, regardless of their certification status?

	MS. NADEAU:  I am going to let the local union representatives respond
to this, because they have more firsthand knowledge of what occurs on
construction sites.

	MR. JOHNSON:  Glen Johnson, Local 49, Minnesota.

	I would say that if a contractor comes into our jurisdiction and he's
new to us and he calls and orders a crane operator, we ask him a lot of
detailed questions about what he is looking for.  We keep a detailed log
on operators of what they've operated, what types of jobs they have been
on and so forth, so we ask them do you need a power crane, is it a
lattice boom crane, whatever, what type is it, what model is it, and we
send out an appropriate person that has a skill and ability proven by
his work history to that project.  And then it is up to the employer
again to assess whether or not the operator has the qualifications when
he gets there to stay and perform on that job.

	MR. PRESTON:  Okay, thank you.

	MR. D'OSTILIO:  Dave D'Ostilio, Local 478. 

	Works the same way in Connecticut as it does Local 49.

	MR. PRESTON:  Thank you.

	MR. EWELL:  I think you had said, Ms. Nadeau, that you support having
an extension of the employer duty, and that was the important thing,
that the operator certification deadline not be extended without also
extending the employer duty.  Is the converse or the opposite also true?
 Would you support extending the employer duty even if the operator
certification deadline was not extended?

	MS. NADEAU:  Yes.  It is extremely important to have the employer duty
extended permanently, right.  Right away.  It's already there till 2014,
but we would want it extended permanently, regardless of whatever
happened with a certification.

	Obviously, I think the record in the rulemaking in 2009 was that CDAC's
opinion was that third-party verification was essential to getting any
improvements in crane safety.  So, obviously, having certification in
place and having meaningful certification in place that isn't going to
be disruptive to the industry and so exorbitant that it can't be
effectively implemented, that would be a bad result, but the worst
result is to say that qualification equals certification because, as we
know, with all the -- the great point behind this PowerPoint
presentation was to illustrate these are highly complicated operations
that occur in the real world, and the mere fact that somebody has the
eye-hand coordination, depth perception, and all those basic necessary
ingredients to operate through a practical course on an exam, it doesn't
mean that they can automatically go operate a crane with the round wind
turbines or that they can do pile driving or any of these really highly
technical, complicated lifts.  So that's essential to crane safety.

	But we want the tests to be meaningful, and if you have capacity
testing when practical testing doesn't matter, I mean, capacity doesn't
matter to practical testing, it is a wasted resource to the industry as
a whole but also to the individual worker, because if you're out of work
and you don't have the right certifications, you are not going to get a
job.

	MR. EWELL:  And on the time extensions, the amount of time extension,
do you see hurdles that OSHA would face in terms of preserving operator
certification if we extended both operator certification and the
employer duties indefinitely as opposed to just extending it for 3
years?  Would that be additional hurdles that OSHA would face because of
the indefinite extension?

	MS. NADEAU:  Well, I know that OSHA said that in the notice that they
were concerned about hurdles that they might encounter, and I guess my
concern was more about inertia on OSHA's part if it doesn't have a
drop-dead time period.

	MR. EWELL:  Thank you.

	Are there any other questions?

	MR. HOPKINS:  If I could just -- I'm sorry.  Larry Hopkins, OECP.  If I
could just add for clarification on the extending of the (k)(1), (k)(2)
again, that that only applies if (a)(1) is not in effect.  So that would
only apply in areas where crane operators are not required to be
certified.  So by extending that, we are not -- by just simply extending
that one section, we are not requiring the employers to qualify their
people if they fall under the category of (a)(1) requiring certified
operators.  I just want to be clear on that.

	MR. EWELL:  This is Richard Ewell again.

	But you would support it if there was a tweak to the language that
would get rid of that issue, so that it would apply to everything?

	MR. HOPKINS:  Then we could support that.

	MR. EWELL:  Any other questions?

	[No audible response.]

	JUDGE HENLEY:  Thank you very much.

	MS. NADEAU:  Thank you.

	JUDGE HENLEY:  Are there any individuals in the audience who may have
missed the deadline to file Intent -- Notice to Appear who would like to
testify?

	Yes, sir.  And the testimony would be limited to the issue of the
3-year extension of crane operator certification and the employer's duty
to train.

	MR. DICKINSON:  Could you say that last part again?  Limited to the
3-year extension and --

	JUDGE HENLEY:  And the employer's duty to train.

	MR. DICKINSON:  Okay.

	MR. EWELL:  And it would be helpful for the transcriber if you could
spell your name and state it.  State it first, then spell it.

Crane Industry Services

	MR. DICKINSON:  Hi.  I'm Cliff Dickinson, D-i-c-k-i-n-s-o-n, Cliff,
C-l-i-f-f.

	I am here today.  I'm with Crane Industry Services.  We're a crane
operator training provider.  We do practical exams for crane operator
certifications, crane inspections, things of that nature.  I've been in
the crane and rigging business since 1972.

	I am going to jump around a little bit because of a number of things
that have been said today, but regarding an extension of time, I agree
with the proposal that Debbie made this morning regarding changing the
language a bit, tweaking it, as you just mentioned, so that it applies
to the entire document that employer responsibility stays intact. 
Intact, period.  Not with any end date.  I am a big believer in that. 
It has to be in place.  There's too many variables, too many new things
that can come along to have an entity such as a crane operator testing
organization have already anticipated what the manufacturers may do, et
cetera, regarding new equipment and new configurations.

	But in regards to the many statements that have been made about type
and capacity -- and I don't want to stay long on this, but I do want to
say one thing.  I am the Chairman of the Governing Board of CIC, and
when this first started, we had to sit down, and we did it for days,
many of us, trying to figure out exactly how and exactly what OSHA meant
and how to apply this by typing and capacity.  And I think we figured it
out.

	And here's what we did.  We said, "Well, what are we trying to prove
with a practical examination, for example?"  Well, we proved the
operator's control of the load.  Well, what hinders the operator's
control of the load?  Well, the longer the boom, the harder and more
difficult a task, the more skill it requires.  The operating engineers
give different pay grades to operators with longer booms than they do
with those with shorter booms, for example.  So the industry recognizes
that throughout.

	Well, not in every case, but very generally speaking, within the
industry, the larger the crane capacity, the longer the boom can be on
that particular crane.  In other words, it will accommodate or can be
configured with lots of boom versus just a short boom.  So we came up
with the average type of cranes that most employers encounter, and we
started the banding of shorter booms, associating them with boom trucks
and industrial cranes and the larger or the more common RTs and truck
cranes, up to about 75 tons, and then we did an over-75.  You are
familiar with how we've done that over the years.

	Coincidentally, up in Canada, all the way across the continent in a
different country, a whole different set of people came up with almost
the exact same definition lines and banding lines.

	So that is the reason for capacity, and that's why capacity makes a
difference.  It does make a difference, because the longer the boom, the
more difficult it is to operate.  The operator needs to prove that he
has the abilities with a longer boom.  Test course is different.  It's
larger.  It's farther away for the longer booms, et cetera.

	So with the tweaks made to the language in the existing standard,
eliminating the end date -- I don't see anything wrong with using the
exact end date, but I don't know OSHA regulation as far as how you guys
are covered by what you can and can't do in a certain time frame to the
industry, but the industry is pretty well prepared for this year in
November that everybody needs to be certified, and we're ready for it. 
The industry is ready for it.  The industry expects it, and just until a
few months ago, when a proposed delay came about, the industry was
headed directly for that day to be ready, of those that cared.  There's
always going to be people that don't care and are going to try to slide
under the radar and not comply, but the industry as a whole is governing
itself.

	We've got contractors, huge contractors that are required -- and
anybody that comes on their job site to be certified operators and to be
in compliance, so people can't even in many cases get work with these
contractors without complying with the rule.

	So I'm not sure I've addressed everything I really wanted to say up
here.  There's been many things I've heard today and thoughts that have
gone through my mind, but that is my general opinion about what we need
to do with this rule.

	Now, if a delay is necessary, then what goes through my mind is, well,
what happens to fix -- what's the need for the delay?  We talk about
editing a document, and I'm not sure exactly, but if I looked at it
right, there's only six or seven lines of editing needed here.  I don't
know if that can be done and we still use the November 14, 2014, or if
we have to extend it a year in order to notify the industry that this is
the new change and give some kind of an explanation for it.  Then I
understand that.

	But I think whatever you do in the interest of one thing, saving lives,
that you take as little time as possible, and I don't think anything
else within the standard needs to be edited or addressed.  I certainly
don't want to see massive changes in this document to which we've all
got to go back and get -- the whole industry has to get reoriented to a
different standard now than what we've complied with in this last 4
years.

	So, certainly, no other changes are the kind of thing that I would want
to see happen to that document, but to eliminate the date, so that
employer responsibility stays intact and employer certification is a
requirement in this country and construction.

	Any questions?

	JUDGE HENLEY:  Thank you, Mr. Dickinson.

	Questions of Mr. Dickinson by any member of the audience?

	Mr. Smith.

	MR. DICKINSON:  Hi, Bill.

	MR. SMITH:  Just to clarify, too, for the record -- and you and I are
on the same page about safety and been doing this all of our life.

	Did you say that your current program has banding of capacities now?

	MR. DICKINSON:  I think I did use the term "banding."  We don't call it
that.  I just heard that so many times today, I thought it might help in
the explanation of what we're talking about.

	We have different categories, up to 21 tons, from 21 to 75, over 57, et
cetera.

	MR. SMITH:  	That's it.

	So that I'm clear, though, on the capacity, if I test for -- what the
government says too.  If I test for a certain level, I'm good for
everything below that.  If I test yours, for clarification, and I test
on an over-75-ton, I'm good for everything under and now everything
over, because that's your highest?  So I've got an unlimited capacity?

	MR. DICKINSON:  Well, everything under, and what we're talking of, the
reason we say that is because you have tested with the most difficult
boom length, the longest of the boom lengths, and it's pretty obvious to
most of us that if you can operate a crane and negotiate one of these
practical exam courses with a very long boom, then a boom length that's
half of that, it's kind of a no-brainer.  You can do it.

	I don't see wasting the customer's money or time in going through that
process on a different crane, but we think that the longest boom length
is enough.	

	And by the way, we don't test with the longest boom length possible,
because I'm not sure exactly what that is today, probably 6- or 700 feet
today, but next month, it may be longer than that, and a year from now,
even longer.

	But, typically, as the crane booms get longer than several hundred
feet, then you are looking at a very calculated control lift.  It's a
slower operation.  There's not much that is taken care of by the
operator himself.  It's all signal-operated, and there's not any big
gaps in swing time, for example, from over here to there where he
wouldn't have a signalman directing every action, and it's just an
easier, frankly --

	MR. SMITH:  I understand.

	MR. DICKINSON:  -- lift.  And the machines are more sophisticated and
able to handle that --

	MR. SMITH:  And I don't know what your longest boom length is. 

	JUDGE HENLEY:  The particular standards really are beyond the scope of
this rulemaking proceeding.

	MR. SMITH:  Thank you.

	JUDGE HENLEY:  Thank you.

	Does OSHA have any questions of the witness?

	Hold on.  Mr. Johnson, did you have questions, or Mr. D'Ostilio?

	MR. D'OSTILIO:  David D'Ostilio, the operating engineers.

	Cliff, Thursday, I was on CIC's website looking under practical exam
site prep, and right from your website, your site is responsible for
cranes that will be used during the exam.  These cranes must be able to
pass a daily inspection --

	JUDGE HENLEY:  Mr. D'Ostilio?

	MR. D'OSTILIO:  Yes?

	JUDGE HENLEY:  This question is relevant to what?

	MR. D'OSTILIO:  To testing, and my follow-up will be needing to extent
to the --

	JUDGE HENLEY:  If you can tie it to the purpose of the rulemaking,
you're fine. 

	MR. D'OSTILIO:  Yes.

	JUDGE HENLEY:  You can ask the question.

	MR. D'OSTILIO:  If I finish the question, I want to -- okay.  I guess
I'm done.

	JUDGE HENLEY:  Questions from the OSHA panel?

	MR. EWELL:  I'm just going to ask the one question that I put to the
other witnesses, which is if OSHA is concerned that it won't be able to
meet a specific deadline, whether it's 1 year, 3 years, would you rather
-- should OSHA put out a date that it will be certain to meet, or should
it put out a date that it wants to meet, recognizing that it may have to
change that date if it's not able to put out a second rulemaking in
time?

	MR. DICKINSON:  I'm faced with many deadlines in my lifetime, and most
of them, I've had to meet.  There have been exceptions.  Many times, I
have not made it and had to beg forgiveness and do something different,
but I'm in business.  And I'm not doing things that affect the entire
nation or an industry.

	If you put out a deadline for coming up with a new regulation, you have
already done one.  It's 2014.  First of all, you are going to need to
explain to the industry why you had to change that.  You should.  You
owed them that, and in my business, people that don't meet deadlines
don't do very well.  Heads roll, and so I think you can do the type of
edits that I've talked about and we've discussed in here today in a very
short period of time, and I would think that the dates that have been
thrown out here have ranged from doing it on the 14th of this year -- of
November this year, doing it in a year, a few months, as quick as
possible, 7 years, 5 years, as long as it takes.  We've heard every one
of those today.  I think as quick as possible, and you should stick to
it.  However, I don't think it should go anywhere beyond 1 year.  That's
very practical.

	MR. EWELL:  Any other questions here?

	JUDGE HENLEY:  Thank you again, Mr. Dickinson.

	MR. DICKINSON:  Thank you.  I appreciate your indulgence. 

	JUDGE HENLEY:  Any additional witnesses?

	Sir, please again identify yourself.  Spell your last name.

	MR. GANNON:  Certainly.  My name is Michael Gannon, G-a-n-n-o-n.  I'm
with The Walsh Group.  I'm their Corporate Safety Trainer, and thank you
again for opening the floor up to comment. 

	My employer currently requires all of its crane operators and
sub-tiered contractors and  -- subcontractors and sub-tiered
contractors, for the operator to be certified through one of the four
certifying agencies that have been mentioned today.

	I hope that OSHA does not roll back the requirement for crane operator
certification, but I have learned today that it's a challenging issue
within the organization, and I would hope that OSHA does try to come to
this as quickly as possible.

	I would prefer to see that the certification date of November 2014
remains, but for us, we're going to continue to require certified crane
operators.  We're in a little bit Dodd-Frank position than some of the
representatives from various agencies that are here today.  So through
contract language, we've been able to put that in place where they are
required to get that or that operator does not operate the crane, so I
just wanted to mention that if that helps bring to light anything for
the agency.  So you guys have the heavy-lifting to, so to speak.  Thank
you.

	JUDGE HENLEY:  Thank you, sir.

	Any questions of the witness?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	OSHA?

	MR. BOLON:  You gave us your views on the date for operator
certification.  Do you have any views or comments on extending the
employer duty?

	MR. GANNON:  At this time, I do not.  I would like to discuss that with
fellow associates to determine what we would deem appropriate.

	The way that I understand it, though, is the employer needs to verify
an individual's abilities.

	MR. BOLON:  Do you have permanent or long-term crane operators are
employees?

	MR. GANNON:  We used to, but due to the economy -- no, but we do -- one
of our challenges is we have expanded into new regions where we're not
familiar with, nor is the local craft worker familiar with The Walsh
Group requirements, and that has been a little bit of a challenge for
us.

	I think in the sectors where we operate in organized markets, it's a
little bit easier for us.  We ask for an operator with certain skills to
be able to present.  In the markets where it's non-union, it's been a
little bit more challenging, and we do have an individual, Jeff Dudley
-- that is his primary responsibility is to verify operator skill and
ability, and he has mentioned to me that there's been challenges for an
operator being able to operate a specific type of crane.

	MR. BOLON:  So when you have an operator that arrives at a work site,
if the operator already has a certification for the crane that he or she
is going to use, does Mr. Dudley do a further evaluation of their skills
or knowledge?

	MR. GANNON:  I can't speak for Mr. Dudley, but it's my understanding
that that is what he will do, or perhaps site supervision will ask him
to come out and verify an individual.  If they're not sure, perhaps a
site superintendent is not sure if an operator has the ability or skill
to perform the task, that superintendent or project manager would ask
Jeff to come out and evaluate that individual.

	MR. BOLON:  Thanks.

	MR. EWELL:  Any other questions?

	[No audible response.]

	MR. GANNON:  Thank you.

	JUDGE HENLEY:  Any additional witnesses?

	[No audible response.]

	JUDGE HENLEY:  Apparently not.

	We now conclude the informal Public Hearing on the 3-year extension of
the crane operator certification deadline and the employer's duty to
ensure crane operators are trained and competent for the same period.

	Let the record show that all persons, organizations, and entities that
filed Notices of Intent to Appear had an opportunity to do so.

	Let the record also show that following the presentation of testimony,
interested party, including OSHA representatives, had an opportunity to
question each witness and panel of witnesses, provided the questions
were relevant to the 3-year extension of the crane operator
certification deadline and employer's duty to ensure crane operators are
trained and competent for the same period.

	Exhibits were offered and received and identified as Exhibits 1 through
6.

	As I noted in my prehearing guidelines, the record will remain open
until June 3, 2014, for the submission of additional data and relevant
information by participants who filed a timely appearance.  The record
will then close for the submission of data and relevant information but
will remain open for written arguments, comments, and summations until
June 18, 2014.

	Participants who filed a timely appearance may submit final written
arguments, comments, and summations at any time during this 30-day
period.

	On behalf of the United States Department of Labor, I wish to thank all
the participants in today's hearing for their testimony, time, and
interest in this important matter.

	This informal Public Hearing is adjourned.

	[Whereupon, at 4:02 p.m., the informal Public Hearing was adjourned.]

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