Risk Management: OSHA set to delay crane operator certification

OSHA has announced that it will propose to extend the compliance date for crane operator certification by three years, to November 10, 2017. The extension hardly comes as a surprise to anyone that’s been following the issue. Back in May, OSHA announced that it would seek to extend the deadline in order to partially reopen the Crane Standard to address two primary concerns raised by a number of industry representatives:

Whether or not certification is the only component of qualification that an employer has to meet, or if an employer must make additional determinations to achieve qualification.

OSHA’s interpretation of the C-DAC recommendation to issue certification by “type and capacity.” (OSHA has stated that it is considering addressing these concerns through a later, separate rulemaking.)

According to OSHA, the proposal would also extend, to the same date, the existing phase-in requirement that employers ensure their operators are qualified to operate their equipment.

OSHA originally issued a final standard on requirements for cranes and derricks in construction work on August 9, 2010. The standard requires crane operators on construction sites to meet one of four qualification/certification options by November 10, 2014. But obviously, with so many issues and concerns brought up by industry stakeholders, it seems that virtually everyone is reticent to comply – and even if people wanted to, there’s simply too much confusion for anyone to know how.

To shed some light on where we’ve been, where we are, and where we’re hoping to go, I sat down with Billy Smith, executive vice president, claim and risk management, NBIS. As a former crane operator, OSHA employee and industry champion, Smith has been heavily involved in issues surrounding the new rule from the onset.

Give us your thoughts on the issues the industry presented to OSHA that caused the rule to be partially reopened.

A little more than a year ago, OSHA informed the industry about two issues in the rule the C-DAC committee never contemplated. First was the words “type and capacity,” and second was that certification was not meant to mean qualification. OSHA states they had no choice but to deem certified operators as qualified because of the way the rule was written. But that’s ridiculous to me because both of those items needed to be fixed.

Was it just you that was thinking that, though? Did anyone else think those items needed to be fixed?

Listen – everyone on the committee I spoke to agreed that the “type and capacity” issue was overlooked and an unintentional mistake was made by the committee. In the C-DAC document, the word “capacity” was only mentioned in the first option of certification for third-party accredited testing entities, but it was left out of the other three options of certification. If it was truly that important and valuable, it would have been listed with “type” in the other three options, and not just in that one place. It was clearly an oversight.

The second – and just as important an issue – was that certification was always intended to be a fundamental foundation for entering the crane operator world. I liken it to getting your driver’s license when you turn 16. It was never meant to be the only qualifier, but one of many qualifiers.

Because of the complexity of different manufactured cranes, unlimited configurations, and environmental and jobsite conditions, the employer must always be able to make the final decision in determining an operator’s qualifications. It can’t solely be a paper certification.

What do you think about OSHA’s extension to the compliance date?

In general, all of us in the industry believed that the rule as it pertained to operator certification needed to be fixed in the two areas I mentioned. If an extension was the only way OSHA could fix it, then many of us were in support.

So who wasn’t in support?

All the certification entities are on the same page and believe that the rule needs to be changed and that’s great. But here’s the rub. I just learned from a high-ranking official at OSHA – I’m choosing not to say his name – but I learned that even though all four certifying entities have made a “step in the right direction,” as he put it, with agreeing that capacity may have been stated in error, there is a bigger problem with “certification verses qualification.” And he also stated, and I’m paraphrasing this but it’s pretty close to his exact words, that, “… we (meaning OSHA) will work hard to try and get it done within the three year extension.”

What’s wrong with that?

Well, to me and many other people in this industry, it’s totally unacceptable. It’s already been 11 years since the C-DAC committee sent the language to OSHA, and to think that OSHA will take three or more years to fix the issue of operator qualification is unbelievable. I mean, come on, to me taking 14-plus years is borderline illicit. The lack of a national rule requiring all crane operators to be certified is putting many employees and the public in danger. The Province of Ontario study has proven that training and certification of crane operators saved many lives. This same high level OSHA official that I mentioned earlier also said to me that “they have devoted many hours of staff time to this rule and there are many other important issues that they could be working on.” Really? Other important issues? For us, this is a hugely important issue. This tells me that if we leave it in OSHA’s hands, three-plus years are what we will get – if we get anything at all. With all the time, voluntary effort of the industry, and support in changing a 44-year-old regulation, it’s shameful that we can’t get this fixed sooner.

it seems that the industry is sort of stuck where it is right now. What are the standards a crane company should have in place and what can companies do to ensure a safe work environment?

Without the certification issue being settled, companies must still ensure that employees operating equipment, such as cranes, are qualified and competent to do so. The old 1926.550 rule was replaced by 1926.1400, except for the 4-year extension of certification. Without a vertical standard in place, employers have to fall back on the OSHA definition of “qualified person” and training requirements of 1926.20 and 1926.21. By OSHA’s own definition, “qualified” means: “One who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.” One way to work towards compliance is to continue to certify your operators by accredited certifying entities, even if the rule is not final. Certification is one of many steps for an employer to verify that training, testing and qualifications are being met.

How can companies comply early and avoid citations?

It’s ironic to me that even though the rule is not final, many OSHA compliance officers ask for an operator’s certification during an inspection. Typically, OSHA will give an employer leeway if there is a pending rule that is in the federal register with a future enactment date and the employer is showing good faith in being proactive in following the rule.

At the end of the day, the industry should not stop moving forward with doing the right thing – even if it seems that OSHA is. As part of your Risk Management plan, verify and update certifications and training required for all qualified company employees.