Faced with mounting pressure from the construction industry, the Occupational Safety and Health Administration (OSHA) appears to have acknowledged that there are significant compliance problems with the operator certification requirements contained in the standard governing cranes and derricks in construction, Subpart CC (29 C.F.R. 1926.1400, et al.).
On May 22, 2013, OSHA announced that the agency will propose to extend the compliance date for the crane operator certification and qualification requirements by three years to November 10, 2017. This announcement comes in the wake of concerns raised about how OSHA is interpreting the operator certification requirements.
In 2011, OSHA issued the Small Entity Compliance Guide on its new standard governing cranes and derricks in construction. In this guidance, OSHA addressed several questions pertaining to the requirements in the standard addressing the certification of crane operators. For example:
QUESTION 4: Does an operator’s certification mean that the operator is qualified to operate any type of equipment covered by the standard?
ANSWER 4: No. An operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type.
To further explain, OSHA gave the following example: An operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane.
This interpretation created considerable conflict between OSHA and the many interests involved in the use of cranes, including employers, unions, and firms that offer crane operator training. In November 2012, the International Union of Operating Engineers (IUOE) petitioned OSHA to reverse its interpretation and to amend the “capacity and type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1). In a letter to Jim Maddux, OSHA’s Director of the Directorate of Construction, IUOE made two primary arguments: First, OSHA’s interpretation is not supported by the evidence in the rulemaking record, and second, it is inconsistent with the intent of the Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC). The so-called C-DAC Committee consisted of a broad cross-section of construction industry representatives who prepared the initial recommendations for a proposed cranes standard.
The IUOE petition sets forth in detail its analysis of why OSHA’s interpretation on “type and capacity” for operator certification is incorrect.
In response to the pressure from the IUOE, as well as from other industry members, OSHA held three stakeholder meetings in April 2013 to gather more information. Approximately 44 stakeholders attended, along with 60 other industry representatives who observed but did not participate. During these stakeholder meetings many industry members argued that crane capacity should not be used as a factor for operator certification. This was the general consensus among those present. Some commented that the size of the crane does not matter, suggesting, for example, that operating a 25-ton friction rig is a lot more challenging than operating a 300-ton hydraulic crane or that it is the configuration of the crane that makes it complex not the capacity. Other commenters noted that the larger the crane, generally the shorter the boom so that the focus should be on type and characteristic, not capacity.
Currently, the effective date of the requirement for operator certification is November 10, 2014. The purpose of the initial delay in the effective date was to allow time for operators to (1) receive additional training, if necessary, (2) prepare for the written and practical certification examinations, (3) allow additional testing organizations to become accredited or employers to develop their own programs, and (4) provide employers time to determine which option is best for their employees. However, if the agency’s interpretation stands, the consequences for the industry are unclear, including for those employers who have already paid fees to organizations such as the National Commission for the Certification of Crane Operators (NCCCO) or Crane Institute of America (CIA) to certify crane operators.
OSHA will issue a proposed rule on the extension of the compliance date for crane operator certification and qualification and will accept public comments before issuing a final rule extending the deadline to November 10, 2017. If the proposed extension is implemented it would allow OSHA time to address the “type and capacity” issue in a separate rulemaking.
Tressi L. Cordaro is Of Counsel in the Washington, D.C. office of Ogletree Deakins.