OSHA Delays Crane Safety Rules for Another Year; Industry Can Comment
Cranes are one of the most visible and vital features of construction jobsites. When a crane overturns, collapses, or drops a load, the accident can be fatal for operators, other employees and bystanders.
The National Commission for the Certification of Crane Operators (NCCCO) reported an average of 22 crane-related fatalities per year in construction work from 1992 to 2006. In 2010, after a series of highly publicized crane accident fatalities across the country, and after years of drafting by an advisory committee made up of public and private stakeholders and experts, OSHA published a rule to impose heightened standards for the certification of crane operators and requiring employers to ensure that all crane operators are competent to operate a crane.
While it may seem counterintuitive, before 2010 there was no universal national requirement that crane operators be trained or certified in any particular manner.
The advisory committee that drafted the rule emphasized that operator error plays a role in a significant percentage of fatal and other serious crane accidents because operators were not familiar with the precautions needed to protect against hazards such as power line contact, crane overloading and collapse, or loss of control of the load.
That committee concluded that a verified testing process was essential for ensuring that crane operators have the knowledge and skills to safely perform their jobs. It recommended that requiring crane operators to successfully complete such a training and testing process would be an effective and efficient way to reduce crane-related accidents.
The rule was intended to address the safety problems that result if equipment operators lack the knowledge and skills necessary to perform their duties safely. It provides that every employer, prior to operating any cranes, must ensure that the operator is qualified or certified to operate the equipment.
The primary means of certification in the private sector has always been through a certification course and testing by an accredited crane operator testing organization, such as NCCCO.
The rule also states that an operator will be deemed qualified for a particular piece of equipment if he or she is certified for that type and capacity of crane, or for higher-capacity equipment of that type. If no accredited crane certification agency offers a certification examination for a particular type or capacity of equipment, the operator should be certified for the type/capacity that is most similar to that equipment. The operator's certificate must state the type/capacity of equipment for which the operator is certified.
While intended to help standardize the safety standards across the nation, the certification requirement has created confusion in the industry ever since. Nearly as soon as the rule was published, the industry expressed concerns that the rule was unclear whether operators needed to be certified by type and capacity, or just by type, and whether certification alone is sufficient to deem an operator qualified to operate a crane.
OSHA has delayed implementation of the rule twice while it attempted to work with stakeholders to clarify these questions.
Last month, just one day before the rule was scheduled to go into effect, OSHA extended the deadline for operator certification by an additional year. NCCCO and other industry groups supported the delay reluctantly, noting that while the changes to the rule are critical for the certification requirement to be effective, every delay puts workers at risk of death and injury from crane accidents.
Notably, according to all reports, OSHA had completed its proposed rule revision and was awaiting review and approval by the Office of Management and Budget in November 2016. That review was put on hold when the new presidential administration issued a directive suspending all regulatory actions and ordering federal agencies to re-review all pending regulations.
While OSHA is not allowed to release its new draft language until after the review process, the agency has indicated that it intends to clarify that operators only need to certify on the type of crane they will operate, not capacity.
As for the testing process and whether certification alone is sufficient to meet an employer's duty to ensure its operators are qualified, OSHA has indicated that it has removed much of the burdensome procedure required to enforce the qualification requirements. However, no one has had an opportunity to weigh in on whether the requirements that make it into the revised version of the rule will be sufficient to meet the safety goals while also being practical and effectively implemented by employers.
The one-year extension is intended to give OSHA time to complete the review process. However, once the proposed rule is reviewed, approved and published, there will be a required period for public comment. If the rule appears to require significant financial commitment by employers to implement, then it could require a fiscal impact study, and possibly a public hearing.
Given that the original rule spent years going through the regulatory approval process, anyone in the construction industry should reasonably question whether OSHA will actually be able to move the rule through this cumbersome process in less than a year. As it is, it has been eight years since the original rule was published, and more than 10 years since it was first drafted, and we still have no national standard to assure that crane operators are consistently trained to safely operate one of the most dangerous pieces of equipment on a construction site.
Over the next several months, anyone involved in crane operations should watch closely for the publication of the revised draft rule, and be prepared to provide written comments during the public comment period. This feedback mechanism is critical to assuring a rule that is consistent with best practices and that can be implemented successfully in the real daily world of construction work sites.
Column first appeared in the Daily Journal of Commerce on December 21, 2017.