LEGALLY SPEAKING OSHA Moves to Eliminate Capacity Requirement for Third-Party Crane Operator Certification 2. Employers believed that a third-party certification was the equivalent of a learner’s permit and did not prove that an operator had the competence or experience to actually operate a crane for construction work. Congress created the Occupational Safety and Health Administration (OSHA) to “assure safe and healthful working conditions for working men and women” (Occupational Safety and Health Act of 1970). Few would question that OSHA takes its mandate seriously, but, as the saw goes, the road to hell is paved with good intentions. Such is the case with OSHA’s current regulation for crane and derrick operator certifications. In 2010, OSHA implemented the current regulation governing the qualifi- cation and certification of crane and derrick operators for construction work (29 C.F.R. § 1926.1427). Based on years of study and negotiation with industry, the regulation requires that operators certified by an accredited crane operator testing organi- zation be certified by crane type and capacity. Unlike the other qualification types allowed under the current rule, third- party certifications are portable, meaning that the operator can take the certification from one employer to the next. The type- and-capacity requirement was instituted with the idea that if an employer were to rely on a third-party certification, it had to know precisely what skills the operator possessed. Although OSHA sought comments on the rule before its implementation, the agency received no objection to the capacity certification requirement. However, shortly after the rule went into effect, the construc- tion industry realized the full implications of the rule. While the rule instituted the new third-party certification requirements, it also phased out employers’ duties to ensure that their crane operators were competent to safely operate the machinery, or to train the operators as required to become competent. The problem was twofold: 1. Accredited crane operator testing organizations were not prepared to make the significant changes to their certification programs needed to meet the new capacity requirement. Industry pushback proved so overwhelming that OSHA ultimately delayed the effective date of both the requirement for third-party type-and-capacity certifi-cations and the phase-out of the employer duties to ensure competence until November 10, 2018. In May 2018, OSHA finally published a notice of proposed rulemaking to overhaul the still-suspended type-and-capacity certification requirements, and to reinstitute and make permanent an employer’s duty to determine and ensure crane operator com- petency (83 Fed. Reg. 23534, May 21, 2018). Barring any obstacles, the new regulation will go into effect on November 10, 2018. For practical purposes, the new version of the regulation looks very much like what is currently in effect. As OSHA noted in its summary of the proposed change, the certi- fication and licensing requirement is “largely unchanged” except that the requirement for capacity certifications from third-party organizations has been eliminated. Under the new standard, primary responsibility for training, certification/ licensing and evaluation of competency falls on the employer. An “employer must ensure that each operator is trained, certified/ licensed and evaluated…before operating any equipment” covered by OSHA’s regulations on cranes and derricks in construction (83 Fed. Reg. 23566). For operators who have not been certified or licensed, an employer can satisfy its training duties by providing a combination of formal and practical training “to ensure that the operator-in-training develops the skills, knowledge and judgment necessary to operate the equipment safely for assigned work” (83 Fed. Reg. 23566). Further, an employer must ensure that every crane Jacob W. Scott, Of Counsel, and Brian S. Wood, Partner, Smith, Currie and Hancock operator is licensed, where required by state or local laws, or, where no license is required, certified either by an accredited crane oper- ator testing organization or by the employer if it has an approved certification program. Certification is at the employer’s expense. The new regulation eliminates the need for licensing and certification to be provided for type and capacity. Operators only need be licensed or certified by equipment type. Employers must also document their evaluation of an operator’s skills, know- ledge and judgment needed to safely operate the equipment. Although operators don’t need to be licensed or certified by crane capacity, an employer’s evaluation must cover lifting capacity, boom length, attach- ments, luffing jib and counterweight set-up for the equipment. So, while operators need not be certified by capacity, they must still demonstrate competency in skills, knowledge and judgment related to crane capacity. OSHA’s efforts appear to be well-guided this time around. The proposed regulation strikes a balance between the needs of various construction industry sectors with OSHA’s mandate to keep American workers safe on the job. OSHA expects the new regulation to result in a one-time savings of more than $25 million by eliminating the need for more than 71,000 crane operators to obtain additional capacity certifications. OSHA estimates overall annualized cost savings between $2.9 million and $3.6 million over 10 years. DEEP FOUNDATIONS • SEPT/OCT 2018 • 121
