SC&RA members quiz OSHA over $1bn training requirement

The question of OSHA's interpretation of a requirement for operators to be certified for the type and capacity of crane they use was the focus of the public meetings of the SC&RA's safety and general committees. The US industry has, over more than a decade, developed a certification organisation, the NCCCO, and an OSHA rule.

The OSHA rule was first published in 2010. It requires certification of operators, across the US, saying 'An operator will be deemed qualified if he or she is certified for that type and capacity of crane'.

The federal rule has been mirrored by regulations at state level. Its certification requirements are due to take effect in 2014. However, the certification programme developed alongside the rule by the NCCCO, or National Commission on the Certification of Crane Operators, only issues certificates for different crane types, not capacity classes.

Industry members have now begun to question how OSHA will interpret the requirement that operators be certified for the capacity of crane they operate. With tens of thousands of operators already certified, many worry that existing certificates could be, essentially, worthless. With different approaches to capacity training available, attendees at a Small Business Administration meeting last week were told that some crane users now feel they cannot recommend any certification scheme.

That's not what we meant

Rob Weiss, of Cranes Inc, and the cranes and derricks advisory committee (CDAC) that developed the rule, says the CDAC experts never expected OSHA to insist on a certification requirement: When we wrote the cranes and derrick rule, our intention was [to certify by] type, but somehow capacity got in there. Now we all have to deal with it. There was no comment at the time of the public consultation on the inclusion in the rule of 'type and capacity'.

"In our heads, as an industry we realised that capacity was irrelevant: NCCCO and the IUOE [the US operators' union] were certifying to type, not capacity.

"When OSHA published their answers to frequently asked question, in their interpretation, they indicated that operators' certificates should have a capacity reference.

"The big worry for us now is disenfranchisement of operators certified under the existing programme. The original idea was to have four sub-types for mobile cranes; now with capacity included, there are an unlimited number of possible certificates. Even with three capacity bands, we are looking at twelve different certificates."

A billion-dollar impact

The uncertainty over the relevance of the NCCCO programme, and validity of current operator certificates, is compounded by concerns over the cost of having to train operators on the highest capacity machine they may work on. Currently, practical exams are carried out on a small machine, often at a test centre or union facility. If OSHA's interpretation is that operators of, say, 600t machines need to be tested on a machine that big, it will add substantially to costs, both in carrying out the test, and having one of these rare and expensive cranes available.

Billy Smith, of specialist insurers NBIS, attended the same SBA meeting as Weiss, and also worked on developing the cranes and derricks rule. He said, "The total industry cost when we first looked at this would be $50.7m to certify under our old interpretation; if we go to a different interpretation, with an unlimited range of capacity certificates needed, we reckon this could cost into the hundreds of millions." One member of the SBA's small business regulatory enforcement fairness group reportedly estimates this could reach into an industry impact of $1bn.

Over to you

Questioned about the interpretation, Jim Maddux, director of construction with OSHA, was hesitant to prescribe an approach to certification, saying, "The preamble to the final [cranes and derrick] rule, makes it clear we think capacity is a safety issue. I am not convinced someone certified to work on a very small crane, is qualified to work on bigger crane.

"I don't think anybody really did think through the long term consequences of the language in the rule. The language in the final rule matters, and language is very clear. Of the four relevant certification bodies, two have already agreed with [OSHA's interpretation]. I haven't heard anyone come screaming that the costs will break their organisations. I don't think it will cost anything like a billion dollars. In the previous rule, the language was that the "employer shall ensure operator is qualified to operate crane". That language was removed by CDAC, and replaced with certification. I think that puts a real pressure point on certification.

"The idea is this has just popped up. Everyone has been reading this rule for a long time. The language on capacity was very clear.

"My thinking on this right now, is that this is a discussion that needs to take place between certification agencies and accreditation bodies. it doesn't mean you need to test on type and model. One option is certify for the exact crane to be used, that is what some people do. Some small businesses [where operators always work on the same crane] do this. One accreditation body certifies on the capacity of machine on which the person took the examination: that size or smaller.

"There is also an option for some sort of bands, maybe small, medium and big. The way rule is written, if a person is certified for a particular type of crane, it is OK to work on smaller cranes. Another option is to use a modeling exercise, so different elements of the test satisfy the accreditation body that the test shows the person is capable of operating a bigger crane: say, using a smaller crane with a longer boom test.

"The primary thing is to work this out with the accreditation body. We at OSHA are a regulator, we are certainly not experts at certification and testing."

Ready to (re-)certify?

Graham Brent, executive director of the NCCCO, at least, was reassured by Maddux's take that the interpretation will allow certification bodies will be able to develop programmes with accreditation agencies, but has concerns over how OSHA will rely on certification: "As a certifcation body, we're more encouraged after last Wednesday's meeting (with the SBA). In talks with OSHA over last two years, we began to be worried. Not worried about whether it can be done, it can be, but as an organisation that is close to CDAC, we started to get alarmed that the intent of the CDAC group was not being reflected in what we were hearing from OSHA.

"In this room [during the SC&RA general committee meeting], we know, you can never test an operator on everything they are meant to know. It will change for every job site. We have always said you should get operators certified as a component in your toolbox; but you still want to check the operator on the machine: Has he run a jib, a luffing jib, this type of machine? We never promoted the certification concept in the way that OSHA is.

"We might find a way around type and capacity. We are seeing some light through the clouds on the testing and certification disconnect. The question now is if certification is a be all and end all. That puts a lot of liability on us as a certification body. As a tool and instrument, it can't be the only thing you use.

"Our other concern is recertification: What does that look like? We've asked for [an OSHA position on] that for about a year: some certification bodies require a practical test, some don't. What does OSHA want? We have tens of thousands operators certified, we need to know what we are doing in 2014, we can't stand by and let those guys get disenfranchised."

Brent proposed that once accreditation agencies have agreed a way for NCCCO to meet the requirement for certification by capacity, recertification could be used as a way to bring this to operators certified under its existing programme.

Maddux however was wary of any hint of grandfathering, saying, "We put the requirement very far out, four year's away (we consider that a very long time), so the rule itself did not grandfather people. But, especially if we don't get this figured out, if someone gets their card in Jan 2014 without this requirement, we are not going to want it running five years to recertification in 2019."