LICENSED TO LIFT: UNDERSTANDING OPERATOR TRAINING CERTIFICATION AND EVALUATION

Requirements of OSHA's 2018 Final Rule on
Cranes and Derricks in Construction

Affected employers and industry stakeholders are likely aware that a new rule on Cranes and Derricks in Construction is now in effect.  The rule’s implementation began in December 2018; however, the employer evaluation and documentation requirements contained within Section 1427 of Subpart CC in the Construction Industry Code of Federal Regulations (29 CFR §1926) did not go into effect until February 7th, 2019.  This article discusses the variation of rules which govern what is required by the employer as it relates to operator training, certification, and evaluation.

Background
The Occupational Safety and Health Administration’s (OSHA) initial standard on crane and derrick operations was originally published in 1979, and it was based on existing consensus standards.  Over the years, minor changes and revisions were considered and implemented.  However, by the late nineties, incidents involving cranes continued to be a significant cause of injuries and fatalities in the construction industry, prompting industry stakeholders to encourage OSHA to consider overhauling the rules currently in effect.  

In 1998, OSHA established a work group tasked with reviewing these various concerns, and by 2003 the work group had concluded that the current regulations were largely ineffective and proposed that OSHA revise the current regulations through a rule-making process involving these stakeholders.  

In 2003, OSHA established the “Cranes and Derricks Negotiated Rulemaking Advisory Committee”, which is commonly referred to as “C-DAC”.  This committee, which consisted of government regulators, industry professionals and representatives, and safety professionals, was tasked with developing a new proposed rule for the use of cranes in the construction industry.  C-DAC members met between 2003 and 2008, at which time they published its proposed rule, bringing with it, many public comments.  The proposed rule ultimately became law in 2010, with significant changes to the original standards, most notably that operators were to be certified by “type and capacity,” and the employer’s duty to evaluate their operators’ competence, were effectively replaced by the requirement to ensure certification by third-party providers.  

However, following implementation of the 2010 rule, there still seemed to be a lack of agreement among organizations as to the effectiveness and appropriateness of the new rule.  At least two accredited testing/certification organizations questioned the necessity to certify by capacity, arguing that capacity was “not a meaningful component of operator certification testing”.  Industry stakeholders began to realize that the rule could likely create costly circumstances by which an operator might be required to operate cranes of the exact same type and configuration, but where the sole difference between the two is the individual crane’s rated capacity. Further, whether or not a testing organization utilizes a test developed for multiple capacities of cranes of the same type could also contribute to repetitive costs and lost work time, even while overall safety performance increased, was questionable.  For example, in the publication of the 2018 Final Rule, OSHA discusses the concerns raised by some commenters following the 2010 rule, declaring, “One of these commenters stated that they paid for their operator to be certified, but the operator only passed the test for cranes up to a capacity of 21 tons and was forced to also take an entirely different exam for cranes up to 75 tons in order to operate a crane of 23 tons, just over the capacity limit of the lower test.”

In light of these concerns, OSHA decided to again initiate a rulemaking process in consideration of revising the 2010 rule, ultimately resulting in the 2018 Final Rule. The major requirements and changes between the 2010 and 2018 revised standards, specifically those related to operator training, certification, and evaluation, are outlined below.  

Operator Training
Under the 2010 revised standard, the operator training requirements were confusingly dispersed across two sections: 

1. Section 1430 (Training) of Subpart CC discussed what roles and tasks related to the bevy of operations covered by the crane standard required training, and
    
2. Section 1427 (Operator training, certification, and evaluation) in paragraph (f) outlined the specific conditions which must be adhered to in order to allow an operator-in-training to safely operate equipment prior to being certified.  

In the revised standard, these sections have largely been condensed into paragraph (b) of Section 1427, and now, the 2018 revised Section 1430 requires that the employer train each operator in accordance with 1427(a) and (b).  While paragraph (b) of Section 1427 contains the overwhelming majority of requirements which must be included with the operator’s training, there are a few specific elements which have not been removed from Section 1430, including: 

1. The requirement to determine whether or not the boom hoist needs to be adjusted on friction equipment,
    
2. The crane manufacturer’s emergency procedures for halting unintended equipment movement, 
    
3. The roles and responsibilities of competent and qualified persons involved with the crane’s operation,
    
4. A requirement to train each person who works with the crane and its equipment about associated crush and pinch point hazards, and 
    
5. Any tag-out procedures associated with the equipment. 

In considering why OSHA may have left out these particular training elements from Section 1430, it’s also worth noting that employers must ensure that operators of derricks, sideboom cranes, and equipment with a manufacturer’s maximum rated lifting capacity of 2,000 pounds or less, which are exempted from the certification and evaluation requirements, are still trained in the safe operation of the equipment they operate, which includes the elements listed above located in paragraph (c) of Section 1430.  It may be that OSHA determined that separating these specific training requirements for the equipment excepted from the operator certification and evaluation requirements, would reduce any confusion about whether or not the operators of such equipment must comply with the training requirements contained in paragraph (b) of Section 1427.  

Speculation aside, perhaps the most notable change to the training requirements is that OSHA now allows employers to train non-certified operators, deeming them “operators-in-training” under the conditions specified in Section 1427(b).  Under the 2010 standards, non-certified operators-in-training must have been trained in conformance with Section 1427(f), which required the operator’s trainer be certified as well, or at least have passed the written portion of the certification test.  The new Section 1427(b) does not explicitly require the trainer be certified, but rather that he or she, “has the knowledge, training, and experience necessary to direct the operator-in-training on the equipment in use.”

Operator Certification and Licensing
The new 2018 standard does not nullify previously held certifications or licenses, provided that the certifications are in conformance with the requirements of Section 1427.  For non-military operators and operators not holding a license issued by a state or local government authority, this means that your operators’ certifications must have come from an Accredited Crane Operator Testing Organization (ACOTO), or your own audited employer program. 

No significant change is made to the regulations related to state and local government licensing.  Where a state or local government requires a license issued by their respective jurisdiction, OSHA still requires employers to abide by their local rules.  Further, a license issued by a state or local government may be utilized in lieu of the certification options discussed below, only within the jurisdiction by which it applies.  Interestingly, Section 1427 does require that licenses are issued by a state or local government authority meeting minimum requirements which are similar to the certification requirements for third-party or audited employer programs; these minimum requirements for state and federal licensing programs have become commonly known as the “federal floor.”  While no easily accessible information seems to be present regarding whether any state or local licensing programs, which do not meet the federal floor minimum requirements exist, it certainly might be a unique question of law regarding whether or not an employer may be cited by OSHA in the potential situation where an employer has properly licensed and employed an operator within a jurisdiction whose licensing requirements do not meet the federal floor.  

Some employers may believe the requirement to have all operators certified and evaluated is financially burdensome, time consuming, or both.  In consideration that the standard explicitly requires the employer to cover the expenses for any costs associated with the licensing or certification requirements for its current operators and the licensing/certification must occur minimally every five years regardless of the option chosen, clearly some costs are associated with implementation of this new rule.  Many certification organizations provide both training and certification services; it could be that for some, this may be contributing to the confusion about what the associated costs are directly with the certification requirement.  To further clarify this potential misunderstanding as it relates to third-party involvement, OSHA is not requiring employers to have their operators trained by a third-party or ACOTO, but rather simply demonstrate they have passed the certification test provided by an ACOTO or an audited employer program.  Employers may still opt to train their employees themselves as long as they cover the various topics contained in Sections 1427 and 1430, discussed above.  

Employers concerned about the costs associated with the certification requirements of the new rule might consider choosing the audited employer program over third-party certification.   However, it’s worth noting that, when choosing to develop and rely upon the audited employer program option, the employer must utilize tests developed by an ACOTO, or the auditor tasked with administering the audited employer program must develop the tests used for certification and must also be certified to evaluate such tests by an ACOTO.  Equally important, regardless of which option the employer chooses under the audited employer program as it relates to who develops the certification tests, the 2018 standard requires that the employer’s program is audited every three years, and the auditor may not be an employee of the employer.  So, while an employer choosing this option may not have to pay for the costs associated with each and every operator’s test the employer requires, it will still ultimately have to pay for any costs associated with the services the auditor provided, which depending on the availability, logistics, and pricing associated with the contracted auditor, may very well wind up being much more than the costs associated with third-party certification testing required every five years.  It’s questionable whether or not a smaller employer requiring only 1 or 2 certified operators will see any significant financial benefit in developing its own audited certification program. Conversely, an audited employer program may, indeed, be an excellent solution for a larger employer utilizing several certified operators carrying out lifts of varying difficulties, where that employer may desire to have testing and certification requirements which are more rigorous than that which third-party testing organizations may currently have developed.  

Employers who may be experiencing problems retaining the employment of skilled professionals, such as certified crane operators, may find one other aspect of the audited employer program option to be more favorable than third-party certification, which is that, as opposed to the third-party option, certification under the audited employer program is not portable to other employers, which would tend to mitigate the frustrating circumstance which might arise when an operator decides to seek employment elsewhere after having achieved certification.  

Based on the discussions detailed within the Final Rule publication of both the 2010 and 2018 standards, OSHA has, and continues to expect, that third-party ACOTOs will likely be the most commonly used option by employers for ensuring operator certification.  Third-party ACOTOs must have their accreditation reviewed by a nationally recognized accrediting agency every three years, and certifications provided by these entities must ascertain that the certified operator has successfully passed both written and practical tests to assure the operator possesses a minimum amount of knowledge and skills, including the criteria detailed in paragraph (j) of Section 1427.  Further, certifications from these third-party entities must be based on either equipment type, or equipment type and capacity; this is another major change from the 2010 standards which have been a topic of much conversation amongst crane industry professionals and safety professionals.

In gathering facts and opinions from these professionals and the various organizations they may be associated with while carrying out its rule-making process for the 2018 revised standards, OSHA ultimately concluded in majority agreement with the comments provided that an equipment’s capacity limitations are just one of many factors which the employer must consider in evaluating his or her operator’s competence to safely operate equipment, whereas equipment type is a “critical” element of determining whether or not an operator possesses the knowledge and skills required in order to safely operate the equipment.  As stated in its publication of the 2018 Final Rule, OSHA stated, “The majority of comments responding to this request did not know of any safety benefits related to certification by capacity.” Therefore, OSHA decided that “type and capacity” be removed from the third-party certification requirements as many “types” of cranes may have varying capacities associated with them, and the actual hazards associated with crane operations generally do not tend to vary greatly as it relates solely to equipment capacity limitations.  Audited employer programs, state licensing programs, and ACOTOs may choose to provide certification by “type and capacity”, but a certification by “type” alone will now satisfy the certification requirements contained in the new standards.  

For employers planning on, or currently utilizing, operators with a certification from an audited employer program, state licensing authority, or ACOTO, one key thing to remember is that the new standard is specifically written to clarify the certification/licensing requirement is separate and apart from the employer’s evaluation requirement; which is to say, even though the employer has a certified operator, the employer is still required to train and evaluate the operator’s retention of that training as well as his or her competence with the safe operation of the employer’s equipment.  As one crane manufacturer listed in its comments detailed within the publication of the Final Rule of the 2018 standards, “Certification is a foundation, but should not be a substitute for an employer competency evaluation.”  The potential exists for this to also be an area of misunderstanding for anyone who has been closely following the 2010 revisions as, had OSHA decided not to move forward with the 2018 revision, the 2010 revised standards would have resulted in operator certification being the only requirement placed upon the employer related to ensuring operator competence (although, the Construction Standard’s Safety Training and Education standard as well as the General Duty Clause would still technically apply).  The employer’s new evaluation requirements are discussed below.  

Evaluations
When the new standard takes effect, paragraph (a) of Section 1427 ensures the basic requirements placed on employers relating to which regulatory elements must be in place prior to allowing an operator to operate the equipment on their own, much easier to read and understand. The new regulation states, “The employer must ensure that each operator is trained, certified/licensed, and evaluated in accordance with this section before operating any equipment covered under Subpart CC, except for the equipment listed in paragraph (a)(2) of this section”, (where, again, the exception from certification / licensing for operators of derricks, sideboom cranes, and equipment with a manufacturer’s listed capacity of 2,000 pounds or less is being retained).  The employer’s evaluation must ensure the operator “is qualified by a demonstration of the skills and knowledge, as well as the ability to recognize and avert risk, necessary to operate the equipment safely, including those specific to the safety devices, operational aids, software, and the size and configuration of the equipment.” Where, “size and configuration includes, but is not limited to, lifting capacity, boom length, attachments, luffing jib, and counterweight set-up”.  The entirety of requirements detailing what must be included with an employer’s evaluation of its operator will now be located at paragraph (f) of Section 1427, including how the evaluation must be documented.
 
In addition to the means by which it has been re-written to facilitate greater comprehension of the actual standards, another favorable element of the new standard contained within paragraph (f) is that employers who have already made assessments of their operators’ skills and abilities may rely on those assessments as opposed to conducting new evaluations.  In the publication of its Final Rule on the 2018 Crane Standards, OSHA stated, “For operators already employed by an employer, paragraph (f)(2) allows that employer to rely on its ‘previous assessments of the operator in lieu of conducting a new evaluation’ of that operator.  OSHA's final rule does not require employers to make each existing operator re-sit for formal re-evaluations on all applicable equipment and perform different tasks when the employer has already previously assessed that operator prior to the effective date of the rule and determined that he or she is qualified to safely operate such equipment for certain tasks”.   However, it is still important to ensure that operators who are being “grandfathered” under the new rule still have, in fact, been evaluated by their employer, and that evaluation is documented in accordance with paragraph (f).  Operators employed and evaluated prior to December 10th, 2018, may take advantage of this “grandfather” clause of the standard.  Any new operator employed after that date, or any operator not evaluated on any equipment he or she is expected to operate, must have an evaluation conducted in accordance with paragraph (f) of Section 1427. 

Summary
Following the publication of the 2010 rule on Cranes and Derricks in Construction, the first paragraph of Section 1427 governing “operator training, certification, and evaluation” was poorly written, and required the reader to navigate a labyrinth of sub paragraphs before they had a basic understanding of what the standard required.  Paragraph (a) previously stated, “The employer must ensure that, prior to operating any equipment covered under Subpart CC, the person is operating the equipment during a training period in accordance with paragraph (f) of this section, or the operator is qualified or certified to operate the equipment in accordance with the following:…”, and then directed the reader to the various sub paragraphs which might apply.  The new paragraph (a) simply states, “The employer must ensure that each operator is trained, certified/licensed, and evaluated in accordance with this section before operating any equipment covered under Subpart CC, except for the equipment listed in paragraph (a)(2) of this section”. This verbiage makes it very clear to the reader that all three elements must be met prior to allowing an operator to use the equipment on his or her own.  The remaining portions of the standard are also much easier to read than the 2010 rule.  

The standard also now makes clear that the employer has a permanent and continuing duty to ensure operators have been evaluated on their competence to safely use all types of equipment they may be expected to use, and in the variation of situations they may encounter.  This evaluation is separate and apart from the licensing and certification requirements, as well as the training requirements, which are also critical towards compliance with the standard.  

In publishing its 2018 Final Rule on Cranes and Derricks in Construction, OSHA seeks to further reduce the crane related fatalities and other crane related incidences it has been tracking over its ongoing mission.  It further believes the removal of the certification by capacity requirement could potentially create a “one-time cost savings of $25,678,000”, as well as, an “annual cost savings of $426,000” for the industry.  

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