Eight years after it began the process of finalizing a rule to govern the certification of crane and derrick operators in the construction industry, the Occupational Safety and Health Administration (OSHA) has finally issued a notice of proposed rulemaking that could just possibly be adopted as a final-final—they really mean it—final rule in 2019.
In August 2010 OSHA issued the final cranes and derricks in construction standard, that called for crane operators to be either certified or qualified, depending on the option elected by an employer, by November 2014. However, in February 2014, the agency proposed another three-year extension to the operator certification deadline and requested public comment. That deadline eventually was delayed again until November 2017.
Last November, the agency issued its “final” standard, which asserted OSHA’s long-held position that an operator is qualified to operate a particular piece of equipment only if the operator is certified for that type and capacity of equipment, or is certified for higher-capacity equipment of that same type. For example, an operator certified to operate a 100-ton hydraulic crane also would be able to operate a 50-ton hydraulic crane—but not a 200-ton hydraulic crane.
Over the years this interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training, notes Tressi L. Cordaro, an attorney with the law firm of Jackson Lewis. OSHA now proposes to eliminate any requirement that operator certification be based on the capacity of the crane.
OSHA also stressed that it is unaware of any direct evidence establishing a safety benefit for requiring certification by capacity, and that employee certification by capacity of crane should merely be an option for those employers who wish to use it.
The new proposed rule also seeks to clarify and permanently extend an employer’s ongoing duty to evaluate potential operators in regard to their ability to safely operate assigned equipment covered and to require that employers document the evaluation.
Not everyone is happy about this portion of the proposed rule. “Some have become concerned in particular at the implications of the employer evaluation portion of the proposed rule, a new section developed by OSHA to address industry concerns that certification, though valuable, is insufficient by itself to ensure an operator is qualified,” observes the National Commission for the Certification of Crane Operators.
“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,” according to Cordaro. “The proposed standard is written in performance-oriented language and does not establish what specific skills must be assessed. As drafted, it is possible this requirement to evaluate an operator could change from job to job.”
OSHA explained that the proposed standard would “also require employers to evaluate the operator’s judgement,” not just his or her skills. This means that the employer would have to assess not only the operator’s ability to apply knowledge and skills to the everyday requirements of the job, but also the operator’s “ability to recognize risky or unusual conditions.”
Of course, even the request for comments accompanying release of the latest rulemaking proceeding could not pass without experiencing yet another delay. On June 19, OSHA announced that it extended the period for public comments on its rule proposal from the originally announced deadline of June 20 to July 5.