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PA Bulletin, Doc. No. 10-1064



[ 49 PA. CODE CH. 6 ]

Crane Operators; Initial Rulemaking

[40 Pa.B. 3041]
[Saturday, June 5, 2010]

 The State Board of Crane Operators (Board) proposes to add Chapter 6 to read as set forth in Annex A. This is the Board's initial general rulemaking.

Effective Date

 This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

Statutory Authority

 This proposed rulemaking is authorized under sections 302 and 2102 of the Crane Operator Licensure Act (act) (63 P. S. §§ 2400.302 and 2400.2102).

Background and Need for the Regulations

 Section 2102 of the act requires the Board to promulgate regulations. Section 302 of the act directs the Board to regulate and enforce the act. Accordingly, the Board proposes a comprehensive regulatory scheme intended to implement and effect the General Assembly's intent as manifested by the act.

Legislative History

 It appears that legislation to license crane operators was first introduced by Senator Erickson on October 15, 2004, as Senate Bill (SB) 1235, Printer's Number (PN) 1867, and referred to the Senate Committee on Consumer Protection and Professional Licensure. In the following session, Senator Erickson reintroduced the same legislation as SB 140, PN 127 on February 1, 2005. The bill was reported from the Senate Committee for Consumer Protection and Professional Licensure and referred to the Senate Appropriations Committee where it remained for the duration of the session.

 During the same legislative session, Representative Mario Civera introduced a substantially similar bill in the House of Representatives on February 16, 2005, as House Bill (HB) 617, PN 690. After a series of amendments, the bill passed the House of Representatives on February 13, 2006, but its progress terminated in the Senate Appropriations Committee after referral on May 1, 2006.

 In the 2007-2008 session of the General Assembly, Senator Erickson reintroduced his bill on February 8, 2007, as SB 59, PN 80. Again, the bill was reported from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) and referred to the Appropriations Committee where it remained for the duration of the session.

 On March 6, 2007, Representative Civera also reintroduced his legislation as HB 647, PN 706. After a series of amendments in both chambers, Governor Rendell signed the bill on October 9, 2008 (P. L. 1363, No. 100) (Act 100). Discussion of the legislation can be found in the House Journal of June 27, 2007, page 1474; Senate Journal, October 7, 2008, page 2598; Senate Journal, October 8, 2008, page 2623; and final passage in the House Journal, October 8, 2008, page 2289.

 Legislative analyses prepared by staff of the House Democratic, Senate Democratic and Senate Republican caucuses of the General Assembly were reviewed and considered by the Board in the course of formulating this proposed rulemaking. Copies of those documents are available in the offices of the Board and are available for review upon request.

Historical Background of the Act

ASME and the Origins of Crane Operation Standards

 The American Society of Mechanical Engineers (ASME) is recognized as the principal authority for developing voluntary industry standards for the construction, installation, operation, inspection, testing, maintenance and use of cranes and other lifting and material-handling related equipment. ASME's activity in developing these standards dates back to 1916 and it has continued to revise its standards for nearly a century.

 The first National regulations applied to cranes were issued by the United States Department of Labor under section 107 of the Construction Safety Act (CSA), (40 U.S.C.A. § 333), but only applied to construction employment under government-funded contracts. Following the adoption of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. §§ 651—678), the Secretary of Labor transferred those regulations to the Occupational Safety and Health Administration (OSHA) with the effect of applying the CSA safety standards to construction employees. See 53 FR 29116 (August 2, 1988).

 The specific OSHA regulation regarding to crane operations in 29 CFR 1926.550(b)(2) (relating to cranes and derricks), included a requirement that the operation of cranes meet the requirements prescribed in the ASME B 30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes. In the 1968 standards, there were not requirements for a written examination for crane operators, but there were requirements for a physical exam and a practical test. However, OSHA did not enforce either requirement. (Source: Pennsylvania House of Representatives, House Democratic Bill Analysis, HB 647, PN 706, April 17, 2007.)

 In 1982, ASME further revised its standards and took the additional step of reorganizing its standards committee and obtaining accreditation of its procedures by the American National Standards Institute (ANSI). Since at least 2000, ASME standards have included a requirement for a physical examination, written examination and an operational test demonstrating proficiency in handling a specific type of crane. (Source: Pennsylvania House of Representatives, House Democratic Bill Analysis, HB 647, PN 706, April 17, 2007.) Since 1982, it appears that National and state regulations have fallen further behind voluntary standards in the industry.

The Industry Urges Stronger National Regulation

 Against this historical backdrop of the industrial and regulatory standards, the crane industry changed considerably. Within the last decade a number of industry stakeholders asked OSHA to update its cranes and derrick requirements. Experts and practitioners in the construction industry were concerned that accidents involving cranes and derricks continued to be a significant cause of fatal and other serious injuries on construction sites and believed that reform was needed to address the causes of these accidents and to reduce the frequency of personal injury, property damage, and disruption of worksite production. (OSHA proposed rulemaking published at 73 FR 59714 (October 9, 2008).)

 The Commonwealth was not an exception to the National experience. Between 1972 and 2004, there were 106 serious crane accidents in this Commonwealth reported to OSHA. Of the 106 accidents, 99 resulted in at least 1 fatality and some cases involved multiple fatalities. (Rep. Civera, House Journal, June 27, 2007, page 1477.)

 In 1998 OSHA's Advisory Committee for Construction Safety and Health (ACCSH) established a workgroup to develop recommended changes to the requirements for cranes and derricks. The workgroup developed recommendations on some issues and submitted them to the full committee in a draft workgroup report. (OSHA—2007—0066—0020). In December 1999, ACCSH recommended to OSHA that the agency consider using a negotiated rulemaking process. (OSHA proposed rulemaking published at 73 FR 59714.)

 In July 2002, OSHA announced its intent to use negotiated rulemaking to revise the cranes and derricks standard and established the Cranes and Derricks Negotiated Rulemaking Advisory Committee (Committee) (67 FR 46612 (July 16, 2002)). The Committee members were selected for their knowledge, expertise and experience in the industry and represented a broad cross-section of the industry. The Committee members relied upon their knowledge and experience to identify the most important issues and craft regulations that would solve problems. Due to the extensive practical experience of the Committee, the proposed amendments to the OSHA regulations were called ''practical and workable.'' (OSHA proposed rulemaking published at 73 FR 59718.)

 Significantly, the Committee concluded that incorrect operation was a factor in many accidents. Operating a crane is a complex job requiring skill and knowledge. To operate a crane safely requires a thorough knowledge of the equipment and controls and a complete understanding of the factors that can affect the safe operation. The latest OSHA regulations represent an informed judgment that it is essential to have qualified operators in order to reduce accidents resulting from incorrect operation. (OSHA proposed rulemaking published at 73 FR 59718.)

 The Committee gave exhaustive consideration to the processes for qualifying equipment operators and determined that it was necessary for crane operators to be certified or qualified through a formal process to ensure that they possessed the degree of knowledge necessary to operate their equipment safely. (OSHA proposed rulemaking published at 73 FR 59718.)

 Improper operation, including, for example, the failure to understand and compensate for the effects of factors, such as dynamic loading, may cause employees to be struck by a load. These, and other incidents arising from operator error, will be reduced by compliance with proposed 29 CFR 1926.1427 and 1926.1430 (relating to operator qualification and certification; and training). (OSHA proposed rulemaking published at 73 FR 59720, 59721.)

The Commonwealth Joins the National Trend

 While OSHA pursued a negotiated rulemaking, the General Assembly enacted Act 100. With the act, the Commonwealth becomes the 16th state to advance the prevailing view in the industry that higher standards must be applied to the training and qualification of crane operators and that entry and tenure in the industry must be subject to mandatory oversight by a governmental body backed by the force of law. Experience in the industry has shown that voluntary compliance is an unsatisfactory practice. Voluntary compliance does not produce the best results for workplace safety; efficient and productive construction practices; or lower costs to employers, contractors and property owners.

 Act 100 directed the formation of the Board. The act represents a significant delegation of legislative power to formulate and craft not only procedures but substantive standards as well. This proposed rulemaking is the product of that delegation of legislative power. In addition to considering the intent of the General Assembly, the Board has also taken into consideration existing and anticipated changes to ASME volumes and OSHA regulations. The Board did not think that it would be wise to promulgate regulations based solely upon current or existing standards or regulations when it was aware of changes that are likely to take effect before, or soon after, the effective date of its regulations. Therefore, this proposed rulemaking, when it is appropriate, accounts for what the regulatory environment will be in June 2010, as well as the current state of the law.

General Note on References to ASME B30

 The ASME B30 Standard contains provisions that apply to the construction, installation, operation, inspection, testing, maintenance, and use of cranes and other lifting and material-handling related equipment. For convenience, the ASME Standard has been divided into separate volumes. Each volume has been written under the direction of the ASME B30 Standards Committee and has successfully completed a consensus approval process under the general auspices of the ANSI. As of March 7, 2008, the B30 Standard comprised 26 volumes, with another 3 volumes in development. The volumes are designated as ASME B 30.1, Jacks, ASME B 30.2, Overhead and Gantry Cranes, and so forth.

 By its express terms, the act applies only to the types of cranes described in ASME B 30.3, Construction Tower Cranes; ASME B 30.4, Portal, Tower, and Pedestal Cranes; and ASME B 30.5, Mobile and Locomotive Cranes. However, because these volumes are routinely and regularly revised by ASME, the types of cranes currently covered under these volumes may be, and, in fact, are expected to be, covered by other volumes in the future. In particular, ASME B 30.29, Self-Erecting Tower Cranes, is expected to be published in 2011. Self-erecting tower cranes are currently covered by ASME B 30.3, but will be assigned a new volume designation with the issuance of the new volume.

 ASME B 30.3-2004, Construction Tower Cranes was approved by ANSI on January 22, 2004, and issued by ASME on November 15, 2004. Revisions are in process and the next edition was due to be published in 2009. The volume will begin a 3-year publication cycle beginning after the next revision.

 ASME B 30.4-2003, Portal, Tower and Pedestal Cranes, was approved by ANSI on February 19, 2003, and issued by ASME on June 16, 2003. It was reaffirmed on February 2, 2009. The subcommittee is preparing a new revision to be in line with ASME B 30.3 to be published in 2010. In the future, the Board anticipates that permanently-mounted tower cranes will be removed from ASME B30. At that point, the Board's jurisdiction over cranes covered by this volume will continue but the applicable standards will be taken from ASME B 30.3. This volume will be on a 5-year publication cycle.

 ASME B 30.5-2007, Mobile and Locomotive Cranes, was approved by ANSI on November 20, 2007, and issued on March 7, 2008. It is published on a 3-year cycle and will be published again in 2011.

Description of the Proposed Rulemaking


 The Board considered carefully the National standards adopted by the act and framed its regulations in furtherance of that legislative intent. Additionally, where the act left discretion to the Board, the Board selected options with an eye toward protecting important public interests, yet balanced competing values.

 Safety of the public and construction workers were deemed critically important, but the Board also gave careful consideration to the effects that its choices would have on business competitiveness, employee privacy, construction costs, openness of the market, freedom of contract, impacts on interstate commerce and private property rights. The Board adopted a broader, more intrusive option only when it deemed that option to be served by a greater public interest.

 When prudent, the Board has preferred to allow the marketplace to act as the principal source of allocation of resources and the proposed rulemaking expresses the Board's desire for an efficient and small governmental presence. Still, recognizing that economic forces do not have unlimited ability to provide public goods in the short term, the Board's proposed rulemaking reflects the Board's determination that the public interest should not go unserved because of a slavish devotion to a narrow economic philosophy.

General Provisions

§ 6.1. Findings and purpose.

 After considerable discussion, the Board adopted a section setting forth the findings and purpose underlying the final-form adoption of this proposed rulemaking. The Board believed that these findings would aid future boards, staff, courts and the regulated community to understand and interpret the regulations in specific cases.

 Of particular importance, the Board wished to express its position that the legislative intent of the act, and therefore, its mission, and the objective of its regulations, is to protect the lives and safety not only of construction workers, but also the general public. As if to highlight the risks to the broader public, during the Board's deliberations an accident occurred in the City of Philadelphia on October 12, 2009. Although the equipment in question would not have been subject to the Board's jurisdiction, the injuries sustained by members of the public and the damage to property outside the construction site illustrates the kinds of risks that may arise from improper operation of cranes.

§ 6.2. Definitions.

 The Board incorporated several definitions from the act and broke those definitions into separate elements represented in paragraph and subparagraph form for easier analysis. Also, the Board's definitions include several acronyms for ease of reference.

 Several definitions warrant specific explanation. In the definition of ''certification'' and throughout the remainder of the regulations, the Board preferred to use phrases such as ''applicable requirements,'' ''applicable provisions'' or ''applicable volumes'' of ASME B30, rather than enumerate ASME B 30.3, B 30.4 and B 30.5. There are two reasons for this decision. First, the Board desired brevity. Second, as previously discussed in the General Note on References to ASME B30, the specific designations of volumes may change, or new volumes may be added, that apply to cranes covered by these current volumes. Therefore, for the sake of anticipating changes, the Board determined that it would be more consistent with the legislative intent to use reference to ASME B30.

 The term ''certifying organization'' has been adopted to encompass the National Commission for the Certification of Crane Operators (NCCCO) and other bodies approved by the Board to issue certification.

 The act excludes coal mining and coal mining operations from the Board's jurisdiction. Therefore, the Board deemed it appropriate to define this exclusion. The Board's definition is adapted from section 3 of the Federal Mine Safety and Health Act of 1977 (30 U.S.C.A. § 802). The definition of the phrase ''work of preparing the coal'' is likewise drawn from the same Federal statute.

 In defining the coal mining exclusion, the Board believed that it was necessary to make it clear that construction activities remain covered, regardless of where the construction occurs. The mere fact that a crane is used to construct a building which happens to be located on the premises of a coal mine, for example, would not place the crane operation outside the jurisdiction of the Board. To the contrary, the use of a crane for construction, regardless of the premises where the construction occurs, is a regulated activity under the act. The Board adapted the language used in section 2 of the Tax Reform Code of 1971 (72 P. S. § 7201) to exclude construction from the definitions of ''coal mining'' and ''manufacturing.'' This construction exclusion was also used in the definitions of ''longshore operations,'' ''other intermodal operations'' and ''manufacturing application.''

 The Board inserted a definition of ''conviction'' for the purpose of defining the term as used in § 6.11(d) (relating to general requirements) and to make it clear that a disposition other than a conviction is not a disqualifying or disabling condition. This definition of ''conviction'' does not limit the grounds on which disciplinary action may be taken under § 6.44(b)(5) (relating to standards of conduct, disciplinary action, suspension and revocation), which permits disciplinary action not only for convictions of a felony or a crime of moral turpitude, but also dispositions of probation without verdict, Accelerated Rehabilitative Disposition, disposition instead of trial, and so forth.

 The language used in this definition was extracted from several authorities. Commonwealth v. Hughes, 865 A.2d 761 (2004) and Commonwealth v. Kimmel, 111, 565 A.2d 426, 428 (1989) are the source of the initial clause defining conviction as an ascertainment of guilt and judgment thereon. Section 9102 of 18 Pa.C.S. (relating to definitions), defines ''disposition.'' ''Guilty but mentally ill'' is defined in 18 Pa.C.S. § 314 (relating to guilty but mentally ill). Adjudications of delinquency are not to be considered convictions as provided in 42 Pa.C.S. § 6354(a) (relating to effect of adjudication).

 The Board broke the statutory definition of ''crane'' into its constituent elements for ease of reference and analysis. The reference to ''applicable ASME B30 volume'' in the description of a ''tower crane'' was chosen for reasons previously stated.

 In defining the types of equipment and machinery that are included in the definition of ''crane,'' the Board followed the statutory definition and the list of particular words or phrases has been enumerated in the regulations. However, the use of the word ''derrick'' requires further explanation.

 For the general public, the colloquial use of the word ''derrick'' is typically associated with oil rigs. Plainly, the act was not intended to cover the operation of oil rigs. However, ASME promulgated a standard for derricks in ASME B 30.6, as well as a standard for floating derricks in ASME B 30.8. The usage of the term ''derrick'' in the context of those two ASME standards is also outside of the act's definition of ''crane.''

 ''Derrick,'' when used in the specific, technical usage of ASME B 30.6 applies to guy, stiffleg, basket, breast, gin pole, Chicago boom, shearleg, and A-frame derricks. See Introductory Description of ASME Volume B 30.6. These derricks, powered by hoists through systems of wire rope reeving, are used for lifting, lowering and horizontal movement of freely suspended unguided loads. Derricks are usually stationary mounted and may be temporarily or permanently installed. Derricks covered by ASME B 30.6 are distinguished from cranes covered by the act in that this class of equipment does not have a boom moving laterally by the rotation of the machine on a carrier or base.

 The professional members of the Board, based upon their involvement in the passage of the act, hold the position that the term ''derrick'' was included in the act principally because the term ''derrick'' is used in the common title of all of the ASME B30 safety standards, including ASME B 30.3, B 30.4, and B 30.5. The legislative intent was not to include the types of equipment and machinery covered under ASME B 30.6 or B 30.8. Rather, in the context of the act, ''derrick'' only has a generic, common dictionary definition of the word, meaning ''. . . a hoisting apparatus employing a tackle rigged at the end of a beam'' (see Merriam Webster Dictionary) and which meets all of the other statutory criteria of a crane. In this general sense of the word, all cranes include a ''hoisting apparatus with a tackle rigged at the end of a beam.'' Therefore, the Board includes ''derrick'' to make it clear that regardless of the label that one might apply to a particular piece of equipment or machinery, the controlling issue is what components the machine has, what its function is, and how it operates.

 The Board thought it advisable to include a definition for ''engage in the operation of a crane'' or ''operate a crane'' because, in fact, the operation of a crane involves multiple individuals. Persons who assemble the crane, who rig the load, who signal or who inspect, are integral members of a coordinated team of persons who are required to safely operate a crane. However, it is only the person who actually controls the activation and movement of a crane who is ''operating a crane.'' Within this concept, the Board contemplates that operation of a crane includes an individual who is seated in a cab and who manipulates levers, wheels and other control mechanisms. However, in light of new and future technology, operation of a crane also includes an individual who operates a crane by use of a wireless or other remote device.

 The term ''lift director'' is defined according to the definition used in ASME B 30.5. This term is used in the regulations to define the reporting requirements for a crane operator under § 6.42(b) (relating to impaired operation of a crane and reportable conditions, incidents or events).

 The act excludes longshore operations, intermodal operations and manufacturing applications from the definition of ''crane.'' The Board deemed it appropriate to define these terms. The definitions of ''longshore operations'' and ''intermodal operations'' are adapted from 29 CFR 1917.2 (relating to definitions). Counsel for the Board contacted the Federal authorities and confirmed that the term ''marine terminal'' includes operations at the Port of Philadelphia, which handles ocean-going vessels, the Port of Erie, which handles shipments from lake freighters, and the Port of Pittsburgh, which handles river barges. A terminal on a body of navigable water, whether freshwater or seawater, constitutes a ''marine terminal'' as defined in 29 CFR 1917.2.

 The definition of ''manufacturing application'' borrows heavily from the definition in section 2 of the Tax Reform Code of 1971.

 The definition of ''trainee'' is taken from the act, but amplified by reference to § 6.13 (relating to qualifications and supervision of trainees). The Board notes that the statutory definition includes individuals who have neither certification nor a license. The Board entertained discussions about the proper status of persons who have obtained certification, but who are awaiting a license. In addition, the Board recognizes the remote possibility that a person may hold a current valid certification, but is disqualified from holding a license. The Board addresses the status of these individuals in § 6.12(e) (relating to certification), and discusses that provision in greater detail as follows.

§ 6.3. Applicability of general rules.

 This section makes clear that individuals may avail themselves of applicable remedies and procedures available under 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).

§ 6.4. Fees.

 Some of these fees are commonplace among licensing boards and require little explanation. The amount of the initial licensing application fee, biennial renewal fee and reactivation fee were determined based upon estimated costs of administering those licensing functions of the Board and an expected licensed population of approximately 2,750 licensees. The estimate of licensees was based upon the number of individuals residing in this Commonwealth who hold a current certification issued by NCCCO, plus an estimate of the additional individuals who would be licensed without certification or hold certification through another certifying organization.

 The fees for certified copies of records and addition of specialty were based upon an estimate of the pro rata share of staff expenditures required to perform those functions.

 The fee for addition of specialty applies to those persons who are licensed with certification who acquire a certification for an additional type of crane before the biennial licensing period expires. The fee represents the cost of staff time in amending the person's licensure record to reflect their authority to operate an additional type of crane.

 The fee for application for certifying organization represents the cost of obtaining a professional review of the application by a qualified outside evaluator who will determine whether the application satisfies the criteria for approval as a certifying organization.

 The trainee registration fee applies to those persons who register as trainees under § 6.13 and represents the value of staff expenditures needed to process that registration form.


§ 6.11. General requirements.

 As a general rule, applicants for licensure will possess certification. The Board notes that certification requires a passing score in a written examination and a practical examination, as well as physician's report confirming that the individual is physically capable of safely operating a crane. Because those requirements are already specified as prerequisites to certification, the Board did not repeat those requirements in these regulations. However, the Board does require the applicant for licensure to aver under penalties for perjury that they have been examined by a physician and determined to be physically capable of operating a crane.

 There is one requirement for persons obtaining a license under section 502 of the act (63 P. S. § 2400.502) that is not specified in this section that is specifically required under ASME B30 volumes and OSHA's negotiated rulemaking. Under ASME B30 and OSHA's negotiated rulemaking, crane operators shall submit to a physical exam performed by a physician as a prerequisite to obtaining certification. Furthermore, ASME B30 volumes and OSHA's negotiated rulemaking require the physical exam to be repeated every 3 years. The Board considered a requirement that the applicant submit a copy of the physician's report with the license application. However, that requirement was deemed unnecessary because widespread practice in the industry is that crane operators are frequently reviewed by employers for a current physical exam. Therefore, a simple averment that a physical examination has occurred was deemed to be sufficient.

 In addition to the statutory qualifications for licensure, the Board also concluded that it would be prudent to enunciate a standard for ''progress in personal rehabilitation.'' The Board believed that it would be prudent because it would provide a fixed point of reference on which to judge each applicant, and thus decrease the likelihood of arbitrary or inconsistent decisions. Also, based upon the experience gained from other licensing boards, an applicant can be confused or uncertain as to what type of information that he should offer to support the application for licensure, as well as the negative information that may be brought up in opposition to licensure.

 ''Totality of the circumstances'' is a familiar term of art in the common law. While it is impossible to create an exhaustive list of the possible circumstances that may be relevant to evaluating any particular case, the Board's proposal does provide a substantial coverage of the most common factors that will bear upon a typical case.

 The reference to refraining from ''tortious'' conduct deserves further explanation. The Board considered that an individual may be involved in conduct which may not rise to the level of criminality, but may evidence instability, lack of judgment or risk-taking behavior. The Board does not purport to offer a comprehensive list of the types of tortious acts that may be relevant to the Board's consideration. However, a person who has a driving record that includes reckless driving, who has been found negligent in one or more automobile accidents or who has a history of domestic abuse may give rise to concern about the individual's judgment and lack of inhibition against dangerous or risky behavior and it would also bear upon the degree of an individual's ''progress in personal rehabilitation'' from felonious conduct.

 Another factor sometimes overlooked by applicants is a history of successful therapy. It is likely that a person with a felony conviction for a violation under The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101—780-144) has been engaged in abuse of one or more substances. It is well-established that a person with a history of substance abuse or dependency has a health problem. The mere fact that the individual has been able to refrain from abusing the substance does not demonstrate that they have entered recovery. The so-called ''dry drunk syndrome'' describes this phenomenon. In light of that possibility, the Board concluded that an individual's history of therapy bears upon whether that individual would pose a substantial risk of harm to workers and the public.

§ 6.12. Certification.

 The act provides that a crane operator's license obtained by certification is only valid in conjunction with a current certification in the specialty for which the crane operator has been certified. Based upon that language, the Board determined that every crane operator will need to possess two documents as evidence of their authority to operate a crane. First, the crane operator shall possess the license that is issued by the Board. Second, the crane operator shall also possess the certification. NCCCO issues a wallet size card with a photograph of the crane operator. Photo identification is a critical element for verification of the crane operator's identity. Certification through NCCCO offers that means of verification.

 NCCCO provides its examinees with copies of written and practical examination scores. A photocopy of those scores must be attached to an application for licensure. In addition, the Board administrative staff is able to submit a list of applicants and obtain independent affirmation from NCCCO that the applicants do, or do not, possess current valid certification from NCCCO.

 Because certification is limited to only certain types of cranes the license, too, only constitutes authorization to operate the type of crane for which the applicant possesses certification. (See previous discussion of ASME B 30 volumes.) The Board plans to insert a code or other information on the license and wallet card to indicate which types of cranes the licensee is authorized to operate.

 The Board included a regulation that a person who possesses an acceptable certification cannot bypass the licensure with certification requirements and seek licensure without certification. There are three principal reasons for this prohibition.

 First, the act demonstrates that licensure by certification is the preferred means of demonstrating an individual's qualification to operate a crane. Section 506 of the act (63 P. S. § 2400.506), regarding license without certification, was added in the late stages of HB 647. The original intent of the bill was for certification to be the exclusive pathway to licensure. This suggests that licensure without certification was added only as a secondary option for persons who were unable to satisfy the written examination requirements of certification, to avoid a harsh result for a few individuals.

 Second, an individual shall renew certification on a 5-year cycle, which overlaps the biennial period for licensure. Therefore, certification is evidence of continuing proficiency and understanding of the latest standards and practices. That the legislation requires certified individuals to continue to be recertified as crane operators as a prerequisite to licensure renewal demonstrates the legislative intent to require proof of continued proficiency and skill.

 Third, as previously discussed, the Board has taken account the OSHA standards that are the subject of the negotiated rulemaking. Those standards would, if enacted in their current form, disqualify persons without certification to operate a crane. In other words, the licenses issued under section 506 of the act may ultimately prove to be invalid under OSHA regulations that are in the course of being promulgated.

 This third point warrants further explanation. Under OSHA's proposed 29 CFR 1926.1427, an individual would need to be certified or qualified to operate a crane. This requirement would be fully effective in 4 years from the effective date of the OSHA rulemaking, which will be approximately 2014. Under proposed 29 CFR 1926.1427(j), acceptable qualification and certification programs will need to include both a written and a practical examination. This qualification or certification requirement could be satisfied by one of four options.

 First, an accredited crane operator testing organization could certify the individual. Act 100 satisfies this requirement by reference to NCCCO as a statutorily recognized body. Second, OSHA would accept qualification through an audited employer program. However, this option also requires a written and practical examination and an independent audit to verify the authenticity and reliability of the employer's testing program. Furthermore, qualification under this provision is not portable, meaning that it is valid only with that particular employer. Act 100 does not recognize this second option as a basis for granting a license.

 Third, OSHA would accept qualification by the United States military. However, military qualification, like the second option, is not portable. Fourth, OSHA would accept licensing by a qualified governmental entity. To qualify as a governmental testing agency, the Board would need to administer its own written and practical examination. However, the Board has neither the statutory authority nor the resources to administer its own written or practical examinations for individuals who are licensed under section 506 of the act. Furthermore, if the Board were to engage a contractor to administer written and practical examinations, it would, in effect, require certification for licensees under section 506 of the act, which the provisions of section 506(b) of the act prohibit.

 Accordingly, the Board concluded that unless its standards for licensure without certification under section 506 of the act are rigorous and satisfy the requirements of OSHA regulations, the license without certification will become meaningless in approximately 3 to 4 years from the date the window closes for this licensure option. Therefore, the Board concludes that the only rational policy is to prohibit individuals who hold certification from applying for licensure without certification.

 The Board also noted that the definition of ''trainee'' in the act as an individual who holds neither certification nor a license, would not cover an individual who has recently obtained certification, but who awaits the issuance of a license. The Board determined that it should address the status of this group of individuals in § 6.12(e) for two reasons.

 First, the Board contemplated that there will be a lag time between the date on which an individual obtains certification, but either has not filed an application for licensure with the Board or who is awaiting that application to be processed and the license to be issued. The Board deemed it prudent to clarify that this individual would be authorized to continue to operate a crane under supervision as a trainee, even though that individual does not meet the technical definition of a ''trainee'' in the act.

 Second, the Board anticipates that there could be rare instances in which a person has obtained certification, but may not qualify for a license, especially because of character issues, such as a past felony conviction for a nondrug related offense involving fraud or violence. The Board deemed it prudent to preclude this individual from operating a crane under the fiction of operating as a trainee, for an indefinite period of time.

 For these two reasons, the Board concluded that a person who has obtained certification, but who has not obtained a license, may operate a crane for a period of 90 days following the date of certification, with the option of obtaining an additional 90-day period with permission from the Board, to allow time for an application for licensure to be filed, processed and, when a denial occurs, to appeal that denial.

§ 6.13. Qualifications and supervision of trainees.

 The qualification and supervision of trainees is addressed in section 501(c) of the act (63 P. S. § 2400.501(c)). The Board evaluated this section in light of the knowledge that an individual who is a trainee on one type of crane may already be certified and licensed to operate another type of crane. In other words, not every trainee is a complete novice to the field of crane operation. Nonetheless, with respect to a type of crane for which the individual is not certified, even a long-tenured crane operator remains a trainee for purposes of operating the crane for which he is not certified. Therefore, § 6.13 should be read together with §§ 6.11 and 6.12 and § 6.14 (relating to specialties).

 With respect to this principle, the Board notes that a trainee and supervisor will be required to comply with the requirements of two other standards, the applicable ASME volume for the type of crane being operated and OSHA regulations. The applicability of ASME standards is noted in § 6.13(b)(2). A corollary requirement for the supervising crane operator to comply with applicable ASME and OSHA rules has been set forth in subsection (d).

 One point that is not specifically addressed in ASME or OSHA is whether an individual may supervise simultaneously two or more trainees. ''Immediate supervision'' is defined in § 6.2 (relating to definitions) as ''circumstances in which the crane operator is in the immediate area of the trainee, within visual sighting distance and able to effectively communicate with the trainee.'' Immediate supervision is further explained in subsection (e) as requiring a one-to-one ratio between supervising crane operator and trainee and adds that the supervisor may not perform other functions or have other responsibilities while supervising a trainee.

 The Board contemplated certain types of cranes that actually require more than one individual to manipulate the controls. In that case, an employer who assigns a trainee to operate that crane has two options. First, have only one trainee, supervised by a single crane operator, with licensed crane operators in the other positions for that crane. Second, if more than one trainee is involved in the operation of a crane such as this, then each trainee shall have an individual supervising one trainee and only one trainee.

 The Board concluded that this one-to-one ratio is not only justified, but necessary, for the safe operation of the crane and the proper supervision and instruction of the trainee. Construction sites are characterized by the presence of many large, loud, diesel engines along with hydraulic and pneumatic tools and machinery. At any given moment, traffic intersects, multiple operations occur and, as a result, there are many causes of distraction and unexpected movement.

 Furthermore, because of the small size of a crane cab, the supervising crane operator may not be within arm's reach of the trainee. In many circumstances, the supervising crane operator and trainee may be separated by a considerable distance measured in feet or yards. So long as the supervising crane operator and trainee can communicate effectively, and taking into account other relevant circumstances, that type of physical distance may be appropriate and safe. To permit an individual to supervise multiple trainees, though, creates an unreasonable degree of risk.

 In light of the complexity of human activity that occurs on a construction site, in the Board's judgment, there is no room for error as a result of a supervising crane operator trying to supervise multiple trainees, or to perform other functions at the same time. The Board concluded that it is of vital importance that a supervising crane operator devote his undivided attention to observing and instructing the trainee. Because of the momentum of moving loads and similar factors, dangerous conditions can rapidly deteriorate and result in catastrophic accidents if immediate corrective measures are not taken. Because a response to a dangerous condition may be necessary in the span of seconds, or a split second, a supervising crane operator who is distracted only for a moment by the performance of another duty poses an unacceptable degree of risk to proper supervision of a trainee. Therefore, the Board concluded that the one-to-one ratio is a necessary requirement.

 Finally, the Board also determined that a crane operator shall evaluate his own ability and competence to supervise a trainee before accepting that responsibility. Therefore, subsection (f) provides that a crane operator may not accept an assignment if supervision of a trainee is beyond the competence and experience of the crane operator, considering the type of crane to be operated, the nature of the task or operation to be performed and the skill and knowledge of the licensed crane operator. The issuance of a license to operate a crane does not grant the individual an unqualified permission to begin supervising trainees. Subsection (f) places a responsibility upon the licensee to assess the licensee's own ability as a supervising crane operator and to refuse an assignment when it would be unsafe to supervise.

§ 6.14. Specialties.

 The act requires the Board to issue specialty licenses for the following crane types: tower cranes; lattice boom crawler cranes; lattice boom truck cranes; telescopic boom cranes with a rotating control station; and telescopic boom cranes with a fixed control station.

 The Board concluded that the most efficient means of satisfying this requirement was to add a designation or code to each license to specify the type of crane or cranes that a licensee would be authorized to operate. At this time, there are no other types of cranes for which a specialty license is deemed to be appropriate.

§ 6.15. Licensure of a crane operator from another jurisdiction.

 To facilitate interstate commerce and increase employment and business opportunities for residents of this Commonwealth who are crane operators, the Board provided for licensure for persons licensed by other jurisdictions in a manner consistent with the practice of other licensing boards.

Licensure without Certification

§ 6.21. Licensure without certification generally.

 This section, together with §§ 6.22 and 6.23, (relating to licensure without certification by practical examination; and licensure without certification by experience), implement section 506 of the act. As reflected in the discussion of § 6.12, the Board was obliged to consider the implementation of section 506 of the act in light of the anticipated provisions of OSHA regulations and the requirements of proposed 29 CFR 1926.1427.

 There is a limited time frame for submitting applications for licensure without certification. As of the date of the initial discussion and drafting of this proposed rulemaking, on May 29, 2009, HB 1551, PN 1926 passed the House of Representatives and been referred to the SCP/PLC. HB 1551 was introduced at the recommendation of the Bureau of Professional and Occupational Affairs (Bureau) to correct a technical defect in HB 647 regarding when this limited time frame would begin and end.

 The Board drafted §§ 6.21, 6.22 and 6.23 on the assumption that HB 1551 would be enacted into law before the effective date of the Board's regulations. Under HB 1551, the window for applications under section 506 of the act would open on the effective date of the Board's regulations, which was estimated to be June 8, 2010. In any event, because the act requires a license beginning on October 9, 2010, regulations needed to be in place before that date. Under this same amendment proposed in HB 1551, the window would close on December 9, 2011, thus allowing individuals pursuing licensure without certification a period of 14 to 18 months to obtain that license. Subsection (a) reflects the date of closure of that window, based upon the expected passage of HB 1551.

 In addition to the requirements under the act, subsection (b)(5) is a corollary statement of the principle expressed in § 6.12(d) that an applicant who possesses a valid certification cannot apply for a license without certification.

§ 6.22. Licensure without certification by practical examination.

 One point that bears highlighting is that section 506(a)(2) of the act specifically requires a passing score on a practical examination administered by NCCCO. The act does not authorize or permit the Board to accept the results of examinations administered by another testing organization, even if that organization has been approved by the Board as a certifying organization.

 Under § 6.22, the applicant will be required to produce three pieces of documentation, in addition to the required personal identifying information essential to licensure. First, the applicant shall submit scores for the NCCCO practical examination demonstrating a passing score. As with crane operators certified by the NCCCO, the Board administrative staff can independently confirm that the applicant has a passing score.

 Second, the applicant shall make an averment subject to the penalties for perjury that the applicant has passed a physical examination meeting the requirements of ASME B 30.5.

 The Board considered whether to use the language of ''applicable ASME B30 volume'' that is repeated elsewhere in the proposed rulemaking. That language would have meant that the applicant would submit to the relevant physical examination based upon the crane type for which he applied. However, in this particular instance, the Board chose to specify ASME B 30.5 for two important reasons.

 First, ASME B 30.5-3.1.2 is the only provision that expressly requires a substance abuse test. ASME B 30.3 and B 30.4 do not include this requirement for their physical exams. In this regard, the Board considered safety of workers and public to be better served by requiring a substance abuse test, as required by ASME B 30.5, of licensed crane operators.

 Second, from the standpoint of ease of administration, the Board concluded that it would be more efficient to specify a single physical exam for licensees. Adding to the strength of this reason is that the Board expects ASME to adopt the same substance abuse requirement in future revisions of ASME B 30.3 and B 30.4.

 Third, the physical examination requirements of ASME B 30.5 include language that is more protective of individual crane operators who have a disability that is capable of accommodation without jeopardizing safety.

 The third item of documentation that an applicant shall produce with the application is a copy of results from assessments administered in the 2-year period prior to the date of application. The purpose of this requirement is to inform the Board of assessments that resulted in a failing grade or score. The rationale of the Board is that it should be advised of indicators that a particular crane operator may not be qualified.

 The Board is concerned about the possibility of testing shopping. That is, an unqualified individual who fails to obtain certification, and who may have failed one or more attempts to become certified, may shop around for the easiest path to licensure. Because there are no residency restrictions in the act, there is the possibility that unqualified, out-of-State residents may attempt to use section 506 of the act as a pathway to entry into the industry. This is clearly not the legislative intent behind the act. (See House Journal, June 27, 2007, pages 1475 and 1476.) In light of the legislative intent to assure competence, the Board concludes that a failing grade on an assessment, whether on the written or practical portion of the examination, is a fair indicator of a lack of competence.

 The Board considered two basic fact patterns that may give rise to adverse consequences to the applicant. The first scenario occurs when the applicant obtained a passing score on the NCCCO practical exam, but is denied certification due to a failing score on the written examination. The same applicant then takes the practical exam for the same type of crane with another organization, with an audited employer assessment program or an assessment program administered by another jurisdiction, but obtains a failing score on its practical examination.

 In this case, the Board believes that the subsequent failing grade on the second practical exam would negate the passing grade on the NCCCO practical examination and may constitute grounds for denial of a license under this section. The failing grade indicates a degradation of the individual's knowledge and skill to an unacceptably unsafe level. Therefore, a license may be denied.

 In the second scenario, the applicant obtains a passing score on the NCCCO practical examination for mobile cranes. The same applicant had, prior to the passing score on the NCCCO practical exam and within the 2 years prior to the date of application, failed the written examination for either an audited employer assessment program or an assessment program administered in another state for a mobile crane. Under these circumstances, the Board believes that it could grant a license for mobile cranes, but with restrictions. An appropriate restriction may be, for example, limiting the licensee to working for the current employer, or the employer with whom the applicant failed the audited employer assessment.

 Although the Board would not be able to deny a license to an applicant under this scenario, the Board believes that the failing scores would be appropriate grounds for a license restriction appropriate to the circumstances. For example, if the individual failed an audited employer assessment program, the license may appropriately restrict the licensee to work for that specific employer and none other. If the applicant failed an assessment program administered by another state, then the Board may appropriately restrict the licensee to this Commonwealth and deny the licensee the right to use the license from the Commonwealth to apply for a reciprocal license issued by another jurisdiction.

§ 6.23. Licensure without certification by experience.

 As previously discussed, Act 100 was amended in both chambers of the General Assembly. The Civera Amendment was adopted by the House of Representatives and added section 506 of the act, regarding license without certification. The Civera Amendment created one pathway to licensure without certification.

 The Waugh Amendment was offered in the Senate and amended section 506 of the act. The effect of the Waugh Amendment was to create two distinct pathways to licensure without certification. The Board grappled with this distinction and the implications both for public safety, as well as consistency with OSHA's negotiated rulemaking.

 Licensure without certification by experience is a pathway to licensure as provided in section 506(a)(3) of the act. That paragraph states that an individual is eligible for licensure without certification if they meet the requirements of section 502 of the act, except for certification, plus ''. . . document five or more years' experience immediately preceding the date of application for licensure to operate a crane as defined in this act.'' Section 506(a)(3) of the act further provides that ''Licenses granted under this provision shall be issued only for the operation of cranes where documentation, acceptable to the board, has been provided. Licenses issued pursuant to this section shall only authorize the operation of a crane within the experience documented and accepted by the board.''

 From the Waugh Amendment arises an issue not contemplated, or at least not discussed, when the Civera Amendment was offered in the House of Representatives. Under the Civera Amendment, as well as under the current pathway for licensure without certification by practical examination in § 6.22, there is a clear, objective standard for determining which type of crane or cranes an individual is qualified to operate. Passing a practical examination that assesses competence and skill in operating a particular type of crane demonstrates to the Board which type of specialty license may be issued to an applicant. For example, if an applicant passed the tower crane practical examination, then the Board knows that the applicant is eligible for a license to operate a tower crane.

 However, in the absence of a passing score for a specific examination that demonstrates the type of crane for which an applicant is qualified, the Board will possess documentation that proves an applicant's competence and skill with a particular type of crane. As a result, the extensive debate that occurred in the House of Representatives between Representatives Fairchild, Sturla and Civera loses some of its value in amplifying legislative intent as to how the Board is to evaluate experience under section 506 of the act.

 Under the Civera Amendment, it appeared that the legislative intent was for the Board to credit all experience obtained in operating all types of cranes, so long as a significant amount of the 5 years of experience regarded the specific type of crane for which the applicant sought licensure. The rationale behind this thinking is easy to understand, namely, that instead of passing a written examination for a specific type of crane, the Board could accept overall experience as a substitute.

 By detaching the element of experience from the practical examination, then, the Waugh Amendment requires the Board to substitute experience not only for the assessment of a written examination, but also the assessment gained from a practical examination. Thus, the second and third sentences of section 506(a)(3) of the act, which state ''Licenses granted under this provision shall be issued only for the operation of cranes where documentation, acceptable to the board, has been provided. Licenses issued pursuant to this section shall only authorize the operation of a crane within the experience documented and accepted by the board,'' acquire added significance under the Waugh Amendment and the final version of Act 100, as adopted.

 Based upon this analysis, the Board determined that it would need to have a procedure of documentation that would allow its staff to analyze each individual applicant's qualifications to operate a specific type of crane. In designing this procedure the Board turned to the established, familiar and time-tested practices employed by other licensing boards within the Bureau. The State Board of Accountancy, the State Board of Certified Real Estate Appraisers and the State Board of Professional Engineers, Land Surveyors and Geologists (Engineering Board) require documentation of experience, to cite three examples.

 However, these three boards, as well as nearly all of the other licensing boards that require experience documentation, have one key requirement that a new board like the Board cannot mandate. Boards require a currently licensed individual who has supervised the applicant to attest to the accuracy of the documented experience. It is unusual for a board to allow the applicant to self-verify his own experience without corroborating verification by a supervising licensee.

 The reason for this requirement is clear. It is fundamentally unreliable to take the applicant's uncorroborated claims. The Board was aware of evidence to suggest that self-verification is, in fact, unreliable. The only other state known to allow for licensure without certification is West Virginia. Based upon the reports from that state, the Board determined that it could not prudently rely upon an applicant's uncorroborated self-verification. Since there are no licensed crane operators in this Commonwealth, the Board cannot require an applicant to have documented experience verified by a supervisor who is a current licensee.

 In addition, the Board recognized that some of the individuals that would apply for licensure by experience would be self-employed and proprietors of their own companies. Therefore, it would not even be possible to allow the applicant to obtain verification from a third-party employer because that would, in effect, also constitute uncorroborated self-verification.

 Another factor that the Board considered is the effect of OSHA's negotiated rulemaking. When the negotiated rulemaking is expected to take effect in 2014, it may have the effect of excluding this class of licensees from working in the construction industry. Certification would be required by OSHA to operate a crane in a construction setting 4 years after final promulgation of the negotiated rulemaking. At that point, the grandfathered licensees would continue to be eligible to operate a crane under the Board's jurisdiction in nonconstruction settings that may include, for example, quarrying or general industry.

 Accordingly, the Board determined that it is in the interests of licensees as well as public safety to establish a procedure under section 506(a)(3) of the act that is rigorous and reliable. The standard may be a challenge for applicants to meet, but a higher standard will allow the Board and the individuals granted licenses under this section to argue credibly to Federal authorities that licenses issued under this provision are substantially equivalent in quality to a license issued with certification, and thus have a credible basis on which to request relief from OSHA. By no means can the outcome of an appeal be assured, but the Board concluded that it was a more responsible position to assume, and one that was more consistent with legislative intent, than the alternative of adopting a lax standard that may, in the space of a few years, be rendered worthless by National regulations.

 Based upon these considerations, the Board looked to the procedure used by the Engineering Board to provide a starting point or template for its regulations. Of the 29 licensing boards in the Bureau, the Engineering Board has the most in common with operation of cranes. Looking to that precedent, the Board developed the criteria of required documentation.

 The Board found that several factors were critical to properly evaluate an individual's experience and qualifications to operate a crane. Those criteria include verifiability of information, physical fitness and ability to safely operate a crane, sufficiency of the quantity of experience and crane specialty experience.

The principle of verifiability

 The first principle that the Board seeks to address through its application process is that the information that is supplied by the applicant can be verified as true and correct. To accomplish that objective, the Board discussed the possibility of requiring applicants to produce some type of business records prepared by independent third parties that would supply information regarding crane specialties and amount of experience. The Board believed that documents prepared by third parties at the time that the applicant actually performed the work would provide an inherently high degree of reliability since none of the information could have been created in contemplation of a future application for licensure.

 Based upon the combined experience of the four professional members, the Board determined that, unfortunately, there business records in the industry are not routinely created by an independent third party that would supply the information that is required to assess an individual's competence to operate a crane. In fact, there are few business records that would be prepared contemporaneously at the time the work was performed that would identify the crane type and the number of hours worked on a particular type of crane.

 In light of these limitations, it became apparent to the Board that it will be necessary for the professional Board members to scrutinize each application to determine if the applicant's documented experience is credible.

 The Board identified several types of business records that would make the process more efficient. IRS Form W-2 as required in § 6.23(b)(1) will provide reliable documented evidence of the applicant's employers over a 5-year period. Alternatively, if the crane operator were self-employed during all or part of that 5-year period, IRS Form 1099 would identify the prime contractors who retained the applicant's services. These forms would also tend to supply corroborating evidence of the amount of work that the applicant performed over that same period.

 The Board noted, though, that these documents by themselves would not supply evidence whatsoever as to whether the applicant actually worked as a crane operator rather than in some other capacity. The Board took note of the fact that many individuals who work as a crane operator are also qualified to operate other heavy equipment. Therefore, these documents would only identify source of employment and not actual qualifying experience.

 For applicants who worked as independent contractors for all or part of the previous 5-year period, certificates of insurance for policies of comprehensive general liability insurance also supply a central source of information. An insurer would be able to supply a comprehensive, independent source of information regarding the type of work that the applicant performed, where the work was performed and whether claims or injuries arose from the applicant's work.

The principle of physical fitness and ability to safely operate a crane

 The Board recognized that OSHA's negotiated rulemaking and ASME's standards require a physical examination performed by a physician to confirm the individual's physical ability to operate a crane. Based upon those two standards, the Board determined that it is necessary for licensees to demonstrate their physical fitness. Therefore, under § 6.23(e), the Board requires the applicant to aver subject to the penalties for perjury that the applicant passed a physical examination meeting the requirements of ASME B 30.5.

The principle of sufficiency of quantity of experience

 The act requires 5 years of experience to be documented in a manner acceptable to the Board. However, the act is not more specific. As a general rule, there are 2,000 hours in a standard work year and 10,000 work hours in a 5-year period. On one extreme, the 5 years' experience requirement could be interpreted to mean that an individual could document that he operated a crane for 1 day 5 years before the date of application and 1 more day on the date before the application. The Board viewed that interpretation as unreasonable and unsafe.

 At the other extreme, the act could be interpreted to mean that an individual would need to document 10,000 hours of crane operation during the 5-year period. This, too, seemed unreasonable to the Board, especially in light of the experience of the professional members that many people in the profession are qualified to operate other apparatus, as well as the fact that construction is a somewhat seasonal work activity.

 Looking to West Virginia, the Board noted that uncertified operators were required to document 2,000 hours in a 4-year period. Viewing that standard as a happy medium between the two extremes, the Board opted for a requirement of 5,000 hours of experience documented over a 5-year period. See § 6.23(b)(2).

 To permit inspectors to verify that information, the Board requires information about the particular projects where the crane operation was performed. The required information includes the name and business address of the general contractor or other person who employed or engaged the services of the applicant, whether the applicant worked as an employee or independent contractor on the project, the location of the project and the number of hours worked on the project. See § 6.23(c)(1), (2), (3) and (6).

 The Board also requires an applicant under § 6.23(c)(5) to identify incidents in which an injury occurred in the operation of the crane resulting in disability to an individual in excess of the working shift or turn in which the injury was received. The Board would not give credit for hours on a project in which an incident occurred as a result of the applicant's failure to exercise reasonable care in the operation of the crane.

 Under § 6.23(f), the Board also requires reporting of past assessment results. The Board will not give credit for experience to an individual who has submitted to an assessment for crane operation within the 2-year period immediately preceding the date of application and failed that assessment. The Board holds the position that it cannot reasonably accept experience as evidence of competence if the individual has objective testing results demonstrating a lack of competence.

The principle of documented crane specialty experience

 Section 506(a)(3) of the act states that a license based upon experience must only be issued to operate the specialty crane for which the individual has supplied acceptable documentation. Therefore, for each project, the applicant shall identify the type of crane that he operated. The Board cannot give credit for time operating a crane that is not covered by the act.

 The Board will not require 5,000 hours for each type of specialty crane, that is, tower, lattice boom crawler, lattice boom truck, telescopic boom fixed control and telescopic boom rotating control cranes. However, the Board will require at least 5,000 hours overall and 1,000 hours of experience in the specialty, free of incidents resulting in injury as described in § 6.23(c)(2).

 Because the licensee does not possess certification, the Board determined that it would be necessary to provide the individual with a declaration identifying the specialty type of crane that the licensee is qualified to operate. The provision of this additional declaration will result in the charge of an additional fee in the amount specified in § 6.4 (relating to fees).

 An individual licensed under this section shall possess both the license and the declaration to hold himself out as a crane operator. See § 6.23(h).

Renewal of License

§ 6.31. Duration of license.

 Under section 504 of the act (63 P. S. § 2400.504), licenses will be issued for not more than 2 years. To clarify the statutory language, this section states that the license is only valid until the end of the biennial licensure period. In other words, if a person obtains a license midway through the biennial license period, the license will not last for 2 years, but only for the balance of the licensure period. This is consistent with other licensing bodies.

 In developing this proposed rulemaking, the Board was advised that the anniversary date for renewal may be adjusted by several months for administrative reasons within the Bureau. Therefore, if inaugural licenses are issued in October 2010, licensees should be aware that the renewal period may not occur in October 2012. Appropriate measures will be taken to communicate with licensees regarding the renewal date.

§ 6.32. Renewal of license.

 The procedures for renewal of licenses will vary depending on the initial pathway to licensure. For persons who hold a license through certification, those individuals will be required to attach proof of current, valid certification with the renewal application. Board administrative staff will be able to independently verify that information with the certifying organization. The Bureau encourages the use of online renewal of licenses. Online renewal does not allow for the submission of documentation to accompany the renewal. Therefore, licensees who renew online will be required to answer a question in the online process verifying that they possess current and valid certification. The answers to these online questions are subject to penalties for unsworn falsification to authorities. Administrative staff will have the ability to independently verify the licensee's certification with NCCCO or another certifying organization. NCCCO certification runs on a 5-year cycle.

 Under ASME and NCCCO requirements, an individual shall submit to a physical examination by a physician as evidence of the ability to meet the physical demands of operating a crane. The physical examination must be repeated every 3 years. Accordingly, in § 6.32(a)(5), the Board requires a certified crane operator to aver that the physical examination has been performed.

 For individuals who have not been certified, whether they obtained licensure through passing the practical examination or by documenting 5 years of experience, the Board requires the individuals seeking renewal to state that physical examinations were performed by physicians that satisfy the requirements of ASME B 30.5 in § 6.32(b)(2) and (c)(2).

 With respect to individuals who have been licensed without certification, the question arises as to how continued competency could be determined. The Board considered this question because of a desire to assure that individuals seeking license renewal have maintained proficiency and remain abreast of technical developments in the industry. The continuous critical examination and revision of standards and procedures in the industry has been discussed at length previously in this preamble in reference to OSHA and ASME proceedings. This question is answered with respect to certified crane operators by the OSHA and ASME requirement that crane operators be recertified every 5 years. The process of recertification includes a written examination, plus a practical examination or documentation of 1,000 hours of crane-related experience over the 5-year recertification period.

 The answer to this same question required the Board to analyze the problem and extrapolate from the act a satisfactory alternative. The act explicitly prohibits the Board from requiring certification as a condition for renewal of a license obtained under section 506(b) of the act. Still, the fact that the General Assembly subjects licensees to the same biennial renewal requirement demonstrates the legislative intent that licensees prove some degree of continued competency as a prerequisite to renewal of the license.

 For individuals who have obtained licensure without certification by practical examination under section 506(a)(2) of the act and § 6.22, the Board requires in § 6.32(b)(1) that the individual demonstrate continued proficiency by a passing score on the NCCCO practical examination administered during the biennial period immediately preceding the date of application for renewal. The Board also requires that the licensee submit scores for other assessments administered during the biennial period in § 6.32(b)(3). Consistent with of §§ 6.22 and 6.23, the Board views a failing score obtained after a passing score as prima facie evidence of a lack of proficiency or skill that may justify a refusal or restriction of the license.

 The Board considered a requirement that licensees under this section obtain a passing score on a practical examination over a 5-year cycle. However, the Board recognized that there would be additional costs, enforcement challenges and administrative complications for this option. If the Board were to adopt this alternative, each licensee under section 506(a)(2) of the act would have his own 5-year anniversary for passing the NCCCO practical examination. Therefore, the Board's administrative staff would have additional responsibility and expense of monitoring each licensee's personal 5-year cycle for passing the practical examination.

 Another consideration weighing against the option of a 5-year cycle is that it would terminate during a biennial period. There are two negative consequences arising from this fact. First, the Board would need to decide whether the failure to repeat the practical examination by the 5-year anniversary date constituted grounds for a disciplinary action and lead to a suspension or restriction of a license in midterm. If it would constitute grounds for disciplinary action, as it would for certified crane operators who fail to be recertified, the Board foresees additional expense and demands on administrative resources due to an increased number of disciplinary actions. If not, licensees under this section would, in effect, have as many as 7 years to obtain a passing score on the practical exam, that the 5-year anniversary could end immediately after the license has been renewed and the licensee would not need to pass the practical exam for another 2 years when the next renewal occurred. A 7-year delay in demonstrating continued competency represents an unreasonable risk to public safety.

 The second negative consequence of a termination of a 5-year cycle in midterm is that it would effectively create a multiple standards for licensees in this classification. That is, as previously noted, a licensee whose 5-year anniversary date ends just after the renewal of the license could effectively get 7 years until taking the practical examination again. The individual whose anniversary date falls just before the expiration of a biennial period will need to take the practical examination in 5 years. Because each individual will have a different anniversary date, the length of time to complete the practical examination will vary from person to person.

 The Board concluded that to avoid additional cost of administration, to better confirm a licensee's continued competency, to avoid multiplicity of enforcement actions and to avoid arbitrary and disparate treatment of licensees within the same class, the only reasonable option would be to require biennial passing scores on the NCCCO practical examination as a condition for renewal.

 For individuals who have obtained a license without certification by experience, under section 506(a)(3) of the act and § 6.23, the Board would require the licensee to satisfy conditions that parallel the requirements for licensees without certification by practical examination. Those requirements include that the individual submit documentation in the form described more fully in § 6.23(c)(1) that demonstrates that the individual has at least 2,000 hours of experience in operating a crane during the biennial period. The 2,000 hours of experience follows the reasoning employed for initial licensure, that is, that the licensee document experience equivalent to 1/2 of the standard 4,000 work hours for the biennial period in the operation of a crane.

 The Board also requires in that the individual submit the results of an assessment administered in the previous 2 years in § 6.32(c)(3). As discussed in regard to § 6.23(f), the Board will consider a failing grade in an assessment to be prima facie evidence of a lack of skill or proficiency that may justify a refusal or restriction of the license.

 Section 6.32(c) also expresses that a failing score on an assessment that is not cured with a subsequent passing score constitutes grounds for denying renewal.

§ 6.33. Initiating and terminating inactive status.

 Section 504(b) of the act allows an individual to apply for inactive status without fee. The act further provides for reinstatement of the license when the license has remained inactive for a period of 5 consecutive calendar years by requiring certification.

 In the Board's view, this means that if an individual who obtained a license without certification remains on inactive status for a period of 5 years or more, then that individual cannot reinstate the license. Rather, the individual shall become certified and apply for a new license under section 502 of the act. This is a regulation that is consistently followed by the licensed professions and occupations under the Bureau's jurisdiction.

 Based upon this principle, the Board makes this regulation explicit by providing that a license without certification has a maximum inactive term of 5 years less 1 day in § 6.33(b). A license without certification that has been revoked, which remains inactive for 5 years or more, or which has been suspended and not renewed for 5 years or more, would terminate and cease to exist. Re-entry to the licensed profession after one of these three events could only be accomplished by an initial application for licensure under section 502 of the act.

 With respect to licenses that are on inactive status when the biennial period expires, the Board interprets the act consistently with the other licensing statutes under the Bureau's jurisdiction. To reinstate a license that was inactive or suspended at the end of a biennial period, other boards require the licensee to have satisfied the continuing education and experience criteria that the licensee would have been required to complete if he had been active and renewed the license on time.

 The Board considered the problem of a person who hold a license without certification by experience whose license remains inactive for a period that extends beyond the biennial period when his current license becomes inactive. For purposes of illustration, the Board considered the following hypothetical example: An individual has a license without certification by experience that is issued on October 1, 2010, and is set to expire on October 1, 2012. The licensee applies for inactive status beginning on October 1, 2011, and ending on October 1, 2013.

 Under this hypothetical situation, on October 1, 2013, the licensee would need to apply to reactivate the license and also to renew. To renew, the licensee would need to submit documentation of 2,000 hours of experience. However, because the licensee was only lawfully permitted to operate a crane for a 1-year period from October 1, 2010, to September 30, 2011, it would be very difficult for the individual to satisfy the documented experience requirements for renewal. The individual would have had to accumulate 2,000 hours of experience within the span of a single year when the license was active.

 This hypothetical example illustrates that, as a practical matter, the Board expects that an individual who holds a license without certification by experience will find it increasingly difficult to reactivate the license as a period of inactivity lengthens. For all intents and purposes, it would be nearly impossible for a license without certification by experience to be reactivated after a period of inactivity exceeding 2 years. The individual would need to document experience of 4,000 hours (2,000 hours for the first biennial renewal period that was bypassed as a result of inactive status, plus an additional 2,000 hours for the second biennial renewal period). However, the individual in this case would be unable to acquire 4,000 hours of experience, at least in this Commonwealth, because they were not licensed to operate a crane in this Commonwealth. It would only be possible if the individual were able to lawfully operate a crane in another jurisdiction during the period when the license from the Commonwealth was inactive.

 The Board considered the type of problem previously outlined. One alternative solution would be to allow individuals who lacked experience to renew their license and operate a crane even after extended periods of inactivity or without documenting continued proficiency by experience. The Board examined the legislative history and did not find evidence to support that view as the legislative intent. The legislative record does not contain evidence that the General Assembly believed that 5 years of experience justifies granting a lifetime license to operate a crane without demonstration of continued proficiency and skill.

 On the contrary, for the same reasons discussed in regard to § 6.32 (relating to renewal of license), the Board determined that the General Assembly expressed a preference for crane operators to demonstrate their proficiency through certification. Licensure without certification is the legislative exception to the rule. However, the General Assembly found that exception to be justified because of a period of uninterrupted experience as a substitute for objectively tested proficiency.

 In the absence of documented experience, the legislative exception is no longer satisfied. Therefore, to advance legislative intent, the Board will require documented experience for each consecutive biennial period as a condition of renewal for that biennial period. Inactive status runs contrary to the need for continued, uninterrupted experience and obviates the rationale for the legislative exception. Accordingly, the Board has concluded that the license without certification by experience issued under § 6.23 is a license that must continue uninterrupted, but for brief periods of inactivity.

 The problem of inactive status for a period of less than 5 years is not the same for a license without certification by practical examination issued under § 6.22. A licensee who goes on inactive status for a period in excess of 2 years but less than 5 years would still be required to take and pass the practical examination administered by NCCCO. Actual experience operating a crane is not a prerequisite to taking the practical examination. Therefore, a licensee returning from inactive status could take the practical examination and obtain a passing grade and have the license reinstated. The practical examination, therefore, is evidence of continued proficiency and justifies the exception to the legislative rule.

§ 6.34. Licensee's change of name and address; service of process and legal papers.

 Section 6.34 formalizes the act regarding the identification of the licensee and the record address at which service can be made. The Board anticipates that nonresidents may apply for licensure in this Commonwealth and therefore the Board wants licensees to have a clear understanding that they shall maintain an accurate address with the Board and that service of process will be attempted at the licensee's address of record.

Disciplinary Actions

§ 6.41. Unlicensed crane operation.

 To define the offense of unlicensed crane operation, the Board rephrased the statutory provision in section 501 of the act in terms of a prohibition in § 6.41(a).

 Section 6.41(b) then defines offering services or holding out as a crane operator. There are four general ways in which the Board defines ''offering services'' or ''holding out as'' a crane operator.

 First, express words or conduct offering services or holding out as a crane operator constitute a violation of this section. Second, a failure to disclose the lack of a license would, by itself, constitute a violation under circumstances that would require one.

 The third way in which the violation may occur is through words or conduct that would reasonably cause a third person to believe that the individual is a crane operator, holds a license as a crane operator or possesses the skill, knowledge, authority or expertise to operate a crane. The Board adapted the phrase ''. . . would cause a third person to reasonably believe . . .'' from the Restatement 2d, Torts. The Board concludes that this language is a familiar legal formula that effectively states an objective standard by which a fact finder could determine whether an utterance or conduct constitutes a material misrepresentation of fact.

 The Board considered an alternative phrase ''justifiably believe'' that is also used in the Restatement 2d, Torts. However, ''justifiable'' is used in the context of a misrepresentation that actually causes a person to change their position in reliance upon that misrepresentation. The Board does not think that proof of actual reliance should be a required element of proof for this violation. The inquiry should not lead to whether a person, in fact, relied upon the misrepresentation. The violation occurs when the misrepresentation occurs, even if no other person acted upon that misrepresentation. Therefore, the only inquiry should be whether a reasonable and prudent person would have believed the misrepresentation, and not whether someone actually believed the misrepresentation. This section intends to discipline misrepresentations, even if they had no measurable effect.

§ 6.42. Impaired operation of a crane and reportable conditions, incidents or events.

 The Board's proposed rulemaking attempts to comprehensively cover forms of impairment that may compromise safety on the worksite. The Board's primary regulation in § 6.42(a) is that an individual may not operate a crane with a physical or mental impairment that may reasonably be expected to affect the operation of a crane. By this section, the Board establishes the principle that it is not whether the licensee subjectively believes that he can safely operate a crane. Rather, the Board would apply an objective standard of whether a reasonable and prudent person, knowing the condition of the licensee, would believe that it would be unsafe for the licensee to operate a crane.

 In addition to this general rule, § 6.42(b) also requires that a crane operator disclose an impairment that would reasonably be expected to affect the safe operation of a crane. Plainly, the Board would prefer that an impaired individual refrain from operating a crane. However, in the event that an impaired licensee operated a crane, the individual would be subject to a second violation for failure to disclose the impairment.

 Section 6.42(c) applies to a crane operator who is self-employed or a principal of a crane company. When a crane operator is not an employee, the corollary to § 6.42(b) is that the principal, owner or self-employed individual be required to disclose an impairment to a property owner, prime contractor, project manager or project superintendent or another person who is in charge of the premises where the work is performed. These terms are well known and familiar in the crane industry.

 The Board also considered other circumstances in which a licensee has a duty to disclose the existence of an impairment that may reasonably be expected to affect the licensee's ability to safely operate a crane. When an individual files a claim for benefits because of a disability, it may be inconsistent to also enjoy a privilege of holding a valid license to operate a crane. For example, a claim for Social Security disability benefits requires the claimant to assert total disability. Under those circumstances, the licensee should contemporaneously request inactive status. If the licensee does not apply to be placed on inactive status, the Board believes it is necessary to have the authority to suspend the individual's license.

 When the individual has not claimed total disability, the licensee should not be in the position of making a self-determination of whether the disability would safely affect the operation of a crane. For that reason, when the licensee asserts claim for benefits or compensation for a personal injury, § 6.42(d) requires the licensee to notify the Board so that an independent evaluation can be conducted to determine whether the licensee can safely continue to operate a crane with the alleged impairment. This will require a case-by-case evaluation of reported conditions in order to determine the licensee's continued fitness.

 For the same reasons stated with respect to § 6.42(d), the Board also requires in § 6.42(e) that a licensee report a medical diagnosis of a condition that may reasonably be expected to affect the safe operation of a crane. As with § 6.42(d), when a licensee has been diagnosed with a condition that impairs the ability to safely operate a crane, the proper action is to request inactive status while the condition persists. However, where the crane operator has not taken inactive status, the Board should be authorized to take disciplinary action for the failure to disclose an impairment.

 The Board also requires that a licensee report the institution of criminal proceedings in § 6.42(f). Not every criminal complaint or information will result in disciplinary action. However, the Board concludes that requiring the reporting of this information will allow the matter to be evaluated on a case-by-case basis to determine whether disciplinary action should be taken, particularly under section 705 of the act (63 P. S. § 2400.705), authorizing temporary and automatic suspensions.

 When a trainee has criminal proceedings pending, that individual shall obtain permission from the Board to act as a trainee under § 6.42(g). As with § 6.42(f), the Board will not refuse permission in every case, but the reporting requirement will allow the Board to evaluate the matter on a case-by-case basis to determine whether the nature of the alleged offenses warrant a restriction on the trainee.

§ 6.43. Aiding and abetting unlicensed crane operation.

 Section 501(b) of the act provides that an individual, corporation, partnership, firm or other entity may not employ an individual to operate a crane or allow or direct an individual to operate a crane unless the individual is licensed. For this proposed rulemaking, the Board has taken the statutory prohibition and enumerated three specific prohibited acts in § 6.43(a).

 First, using the statutory language, this section prohibits a business entity from using its employee as an unlicensed crane operator. Second, this section uses the statutory language prohibiting a business entity from passively permitting an unlicensed individual to operate a crane, or to order or instruct an unlicensed individual to operate a crane.

 The Board interpreted this second statutory prohibition to include the situation when a business entity uses a relationship other than the master-servant or employer-employee relationship. The intent behind this broader language was to prohibit attempts to circumvent the prohibition on unlicensed crane operation by using independent contractors. To make its interpretation more explicit, the Board added the third prohibitory clause regarding retention or hiring of an unlicensed crane operator as an independent contractor. This third clause is not redundant, though. Section 6.43(a)(2) is broader than the independent contractor language. In the Board's view, to ''allow or direct'' an unlicensed individual to operate a crane would also include circumstances in which a business entity uses a third party or intermediary to engage the services of an unlicensed individual, but never enters into a direct relationship with the unlicensed person as an employee or as an independent contractor.

 Because business entities are not licensed, the Board foresees a problem of enforcement of unlicensed crane operation against business entities. An unlicensed individual who operates a crane may be subject not only to civil penalties, but the Board may also issue an administrative cease and desist order against an individual to enjoin that person from operating a crane. However, since business entities are not licensed, the Board would not be able to issue cease and desist orders to a business entity to remove the business entity from the crane industry.

 In response to this problem, the Board incorporated a regulation restricting individual licensees from working for repeat offender business entities in § 6.43(b). This three strikes rule applies to a business entity that has been found in violation of unlicensed crane operation three times in the space of 4 years. Individual licensees would be barred from operating a crane for these adjudicated chronic violators.

 A business entity that cannot employ licensed crane operators would be effectively barred from lawful participation in the crane industry in this Commonwealth for a period of at least 1 year. However, that stiff penalty is reserved for serious offenders. The standard is not three offenses committed in a 4-year period, but three separate findings by the Board in the course of 4 consecutive years. In other words, under this provision a strike is called on the date of an adjudication, and not on the date of an offense.

 Given the length of time that disciplinary actions take to investigate and prosecute, in practical terms, the recidivist conduct that would be penalized by this provision would likely involve the commission of three offenses in less than 36 consecutive months. In light of this type of obstinate and flagrant repetitious misconduct, the Board believes that this type of sanction is appropriate as a means of protecting the public from willful disregard for safe and legal standards of crane operation and to effectively police and enforce the act.

 The Board also provided for a procedure and standards for removing the sanction in § 6.43(d) and (e). After 1 year, a business entity may petition for the removal of the sanction and as a protective measure the Board may place restrictions on individual licensees working for the business entity, or require the business entity to post a bond, other security or impose other restrictions on the business entity's activities as a condition of permitting licensees to work for the business entity.

§ 6.44. Standards of conduct, disciplinary action, suspension and revocation.

 With respect to standards of conduct, the Board begins by restating its statutory authority to levy a civil penalty upon a licensee and impose a range of sanctions upon licensees under its jurisdiction.

 Subsection (b) enumerates certain acts, errors, conditions or omissions that may provide the basis for disciplinary action. These include negligence and the inability to use reasonable skill due to mental or physical illness or condition.

 The Board also distinguishes between two types of impairment due to substance use or abuse. Subsection (b)(3) is intended to cover operation of a crane while actually impaired. Subsection (b)(4) would not necessarily require proof of actual impairment during the operation of a crane, but can be proved by evidence that the individual was dependent or engaged in a pattern of substance abuse during the period of time when he operated a crane.

 In subsection (b)(4), the Board tracked the language of the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) criteria for substance abuse. Subsection (b)(4)(i) fits the DSM-IV definition for ''substance abuse'' which requires evidence that the individual has had recurrent substance use resulting in a failure to fulfill major role obligations at work, school or home; recurrent use in situations in which it is physically hazardous; recurrent substance-related legal problems; or continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.

 Subsection (b)(4)(iii) requires the Commonwealth to present evidence of dependence. Applying the DSM-IV criteria, the evidence would include a diagnosis by an qualified health care practitioner or three or more of the following occurring any time in the same 12-month period: (1) tolerance; (2) withdrawal; (3) the substance is often taken in larger amounts or over a longer period than intended; (4) a persistent desire or unsuccessful efforts to cut down or control substance use; (5) a great deal of time is spent to obtain the substance, use the substance or recover from its effects; (6) important social, occupational or recreational activities are given up or reduced because of substance use; or (7) the substance use is continued despite knowledge of having a persistent physical or psychological problem that is likely to have been caused or exacerbated by the substance.

 Under the DSM-IV, ''full remission'' can be early or sustained. Early full remission means that for at least 1 month, but for less than 12 months, criteria for dependence or abuse have not been met. Sustained full remission describes remission of 12 months or longer. Under the final clause of § 6.44(b)(4)(ii), therefore, if an individual has become dependent on a substance, that licensee should immediately refrain from operation of a crane and not return to crane operation until he has been in full remission for at least 1 month.

 Licensees would also be subject to disciplinary action for violations of the act, the Board's regulations, fraud or deceit regarding licensure or crane operation, or conviction for a felony or crime of moral turpitude.

 Insofar as the Controlled Substances, Drug, Device and Cosmetic Act is concerned, § 6.44(b)(8) provides that a licensee could also be disciplined for a violation that falls short of a conviction. This would include dispositions such as probation without verdict under Commonwealth law or similar provisions of other states.

 Disciplinary action also could be based upon failure to adhere to applicable ASME standards, other accepted standards in the industry or with knowledge of conditions or circumstances that operation of the crane posed an unreasonable risk of harm. Normally, a prosecution for a violation of any of these three provisions would require the testimony of an expert to demonstrate the standard to be applied, or if an ASME standard or other industry standard were not applicable to the specific situation in question, expert testimony would be needed to establish why the conditions or circumstances made crane operation unsafe.

 A licensee would also be subject to discipline for violation of a lawful order of the Board, or for failure to properly supervise a trainee as covered by the provisions of § 6.13.

 Another ground for disciplinary action would be the failure to report an incident, condition or event as defined by § 6.42. The Board would also consider disciplinary sanctions for the failure to follow an OSHA safety standard or other applicable safety standard, regardless of whether the violation involved crane operation. Because crane operators also perform other jobs, including engineering work, construction supervision and operation of other heavy equipment, the possibility exists that a licensee may exhibit unsafe or reckless conduct outside of crane operation that may warrant disciplinary action.

 Section 6.44(b)(16) regards convictions or violations for drunk driving and § 6.44(b)(17) regards to convictions or violations for criminal conduct that exhibits intentional or reckless conduct that poses a threat of bodily harm to others. In the Board's view, a person who has a history of unsafe behavior should be accountable for such conduct as a condition for the license to operate a crane.

 The Board would also provide for the discipline of licensees for retaliatory conduct against others in § 6.44(b)(18). The language of this paragraph was modeled on Federal motor safety antiretaliation provisions for commercial truck drivers and on the Whistleblower Law (43 P. S. §§ 1421—1428). In addition, the Board notes that it believes that the Whistleblower Law would apply independently to persons who report violations of the act or the Board's regulations.

 The Board's licensees may not retaliate against another person for four reasons. First, the Board wishes to protect its own licensees who refuse to operate a crane in violation of applicable standards. This provision would apply, for example, when a project superintendent or foreman is also a licensed crane operator and orders another licensed crane operator to violate applicable crane standards. Second, the Board would prohibit retaliatory conduct committed by one of its licensees against another licensee who files a complaint or report of a safety violation, or who is a witness in a proceeding for a crane safety violation. Third, the Board would prohibit its licensees from retaliating against persons who are not licensed crane operators, but who work in some other integral role in the operation of cranes, such as a rigger, signalperson, inspector or related jobs. Fourth, the Board would sanction its licensees who retaliate against another person who performs a duty assigned or directed by a licensed crane operator, but who does so under duress or under protest. For this fourth violation to be found, the Board would need to make a determination that an individual performed a job as assigned or directed by a licensed crane operator, that the person had a bona fide belief that the operation was unsafe and that the individual sought corrective or remedial measures from the lift director but the request was denied.

 Finally, the Board expressly recognizes affirmative defenses in several enumerated cases. When a licensee is charged with negligence, violation of ASME or industry standards, or general unsafe operations under § 6.44(b)(1), (9), (10) or (11), a licensee may plead and prove as an affirmative defense justifiable reliance upon the professional advice of a lift director or a site supervisor. The Board recognizes that a licensed crane operator shall exercise sound, independent judgment in the operation of a crane. However, both ASME standards and OSHA regulations recognize a hierarchy of responsibility in the field. The crane operator may rely upon the professional expertise of another person who holds a higher position in the hierarchy of responsibility, namely the lift director or the site supervisor.

 The Board also recognizes that a crane operator may justifiably rely upon the advice of a licensed health care practitioner in determining one's fitness to work and operate a crane. The Board believes that the recognition of these two affirmative defenses will encourage licensees to consult with professionals and fully disclose their concerns about crane operations or their personal health issues to protect themselves against future disciplinary action. Furthermore, the Board believes that encouraging early disclosure and communication about potential problems will promote safety and resolve problems at an early stage.

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