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OSHA Issues Notice of Proposed Rulemaking for Crane Operator Certification – Shifting the Original Intent of the Negotiated Rulemaking Committee

In August 2010 OSHA issued the final cranes and derricks in construction standard, 1926 – Subpart CC. As part of that standard, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k).  On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline until November 10, 2017 and requested public comment.

The extension was due, in part; to issues pertaining to the requirements in the standard addressing crane operator certification that arose shortly after OSHA issued the final rule.   After the final standard was issued, OSHA took the position that 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.  Therefore, 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 significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training. In November 2012, 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 response to these industry concerns and ACCSH’s recommendation that the Agency delay implementation of the operator certification deadline OSHA issued a three-year extension for operator certification from November 10, 2014 to November 10, 2017, which was further delayed by a year in August 2017 to November 10, 2018 while the agency gathered additional public input on the issue.

After more than four years, OSHA has finally issued a Notice of Proposed Rulemaking (NRPM) to update the cranes and derricks in construction standard. The NPRM was released on May 21, 2018 and seeks to revise the operator certification requirements in several major respects.

OSHA proposes to amend 29 CFR 1926 subpart CC by revising sections that address crane operator training, certification/licensing, and competency. The purpose of the amendments are to clarify training requirements for operators; to remove certification-by-capacity from certification requirements; to clarify and permanently extend an employer’s duty to evaluate potential operators for their ability to safely operate assigned equipment covered by subpart CC; and to require that employers document the evaluation.

Evaluation of Operators

In some respects the proposed rule undermines the intention of the initial negotiated rulemaking committee, C-DAC. It was C-DAC’s intention that certification was a definitive means of ensuring that operators were properly trained and competent to safely operate equipment covered by the standard.  If revised, the standard would make certification akin to a driver’s learner permit requiring employers to still evaluate an operator’s skill and competency to operate equipment safely.  The proposed standard is written in performance oriented language and does not establish what specific skills must be assessed and as drafted it is possible this requirement to evaluate an operator could change from job to job.  According to OSHA the proposed standard would “also require employers to evaluate the operator’s judgement.” Meaning an employer would have to assess the operators ability to ably his knowledge and skills but also the operators “ability to recognize risky or unusual conditions.”

Certification by Capacity of Crane

The proposed rule does seek to address the initial industry concerns regarding certification based on the capacity of the crane. OSHA proposes to eliminate any requirement that operator certification be based on the capacity of the crane.

OSHA is unaware of any direct evidence establishing a safety benefit for requiring certification by capacity. For these reasons, OSHA has preliminarily determined that, if the employer duty [to evaluate operators] becomes permanent requirement, employee certification by capacity of crane should no longer be required, rather, it should merely be an option for those employers who wish to use it.

Public comments or requests for an informal public hearing must be submitted to OSHA by June 20, 2018. A copy of the proposed rule can be found online.

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 143

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About this Author

Tressi Cordaro, Occupational safety health attorney, Jackson Lewis, enforcement agency lawyer, labor litigation legal counsel
Principal

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested...

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