On February 10, 2014, the Occupational Safety & Health Administration (OSHA) published a proposed rule aimed at revising one of the more controversial provisions of its 2010 final rule governing operation of cranes and derricks in construction: operator certification. The final rule, issued on August 9, 2010, was developed through a negotiated rulemaking committee (C-DAC) that was comprised of most major construction associations and unions, plus safety and construction professionals and consultants. The provision at issue—which required employers to ensure that all crane operators were certified by November 10, 2014—was agreed to by the committee, but it was the interpretation of the rule that became contentious after the rulemaking was completed. In addition, lack of capacity to train all the crane operators who would require it, in the way that OSHA was requiring, was an additional concern.
The final rule was codified in 29 CFR subpart CC (the specific provision under review is in section 1926.1427). The version adopted closely followed C-DAC’s recommendations and required all crane operators to be certified by the deadline under at least one of four options:
- Certification by an independent testing organization accredited by a nationally recognized accrediting organization;
- Qualification by an employer’s independently audited program;
- Qualification by the U.S. military; or
- Compliance with qualifying state or local licensing requirements.
The third party certification option (#1) is the only certification that is “portable”—where the crane operator could move from one company to another and still be in compliance with the crane standard. This is also the only option available to all employers, and OSHA and C-DAC anticipated that this would be the option most selected for compliance. This is because OSHA still is not aware of any audited employer qualification program within the construction industry (#2), the military will only certify federal employees of the Department of Defense or the armed services (#3), and there are very few state or local governments who will certify crane operators.
Using Option #1, before an organization can issue operator certifications, it must be accredited by a national agency that determines the testing organization meets industry-recognized criteria for: written testing materials, practical examinations, test administration, grading, facilities and equipment, and personnel. The tests must be capable of accessing the operator’s knowledge and skills regarding specific subjects listed in the standard, provide different levels of certification based on equipment capacity and type, have procedures to retest applicants who fail, and have testing procedures for recertification.
The “capacity and type” provision is one of the key stumbling blocks because this was not clear to many employers when the rule was adopted, and some put their crane operators through training already, only to find that it did not pass muster under the specific language of the rule (the operator’s certification must be for the specific equipment they will be operating or a higher capacity equipment of that type). OSHA learned that two of the only four accredited crane testing organizations had been issuing certifications based only on “type” of crane, not including a “capacity” consideration.
While the rule envisioned a 4-year “phase in” for certification, many in the construction industry, crane rental companies, insurance companies, and certification organizations provided feedback that it would be impossible for full compliance in time. OSHA held a series of stakeholder meetings in 2013, and the issue was also addressed by the Advisory Committee on Construction Safety & Health (ACCSH). Some stakeholders asked that the capacity requirement be removed from the rule. Others argued that an operator’s certification did not mean that the operator was fully competent or experienced to operate a crane safely on a construction worksite. OSHA listened and found the concerns to be valid, which is why the rule is being reopened.
As a result, OSHA is proposing to revise 1926.1427(k)(1) to extend the deadline for operator certification by 3 years—until November 10, 2017—to provide additional time to consider rulemaking options. ACCSH has recommended continuing the existing employer duties during the extension period and granting an indefinite extension, which OSHA refuses to do. OSHA seeks comment on the duration of the proposed extension (3 years), the existing employer duties, and the alternative approaches that could be adopted for certification … and the safety impact of doing so. OSHA’s original rule had contemplated that 22 fatalities per year would be avoided by the new requirements.
The number of assessments needed, and the number of affected crane operators and employers, are difficult to estimate due to the fact that some operators work continuously for one employer and are already assessed and certified; some crane companies rent both a crane and an operator to an employer, in which case the rental company would be responsible for operator certification; and some new hires may be certified but on different types and capacities of cranes from those they would operate at the new job. In addition, after publishing the final rule, OSHA decided to exclude a significant percentage of digger-derrick equipment from the scope of the standard, which alters its original regulatory impact analysis. The agency projects that nearly 120,000 new operators, 60,000 “type only” certified operators, and 36,000 crane operators who are experienced but not certified would be affected. Whether the four certifying agencies can handle this swell of certification requirements in a short period of time remains a concern, as does certification of experienced (but not tested) crane operators who may not speak or read English.
OSHA found that the rule will materially reduce a significant risk of harm to workers and is feasible. Comments or requests for a public hearing are due by March 12, 2014, (unless extended, which is possible) and should be submitted electronically to OSHA via www.regulations.gov, and filed under Docket No. OSHA-2007-0066 and identified as relating to “Cranes and Derricks in Construction: Operator Certification.” ■
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Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, March 2014
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