Aimed at preserving life and limb for those who use lifting equipment, OSHA’s new Final Rule governing the use of “Cranes and Derricks in Construction,” as you most likely know, was released late last year. If you use lifting equipment, your copy of the new rule is probably dog-eared by now, so if you need another copy, or if you haven’t yet read it (we won’t tell—this time), you can download it. The actual rule, Subpart CC of 29 CFR Part 1926, begins on page 48135 of the Federal Register document, but skimming the 200 or so pages of preamble is interesting if you have some time.
The 40-plus pages of regulations (1926.1400 through 1926.1442) replace the dozen or so pages of the former rule (1926.550) published in 1971. The sections most expanded in the new rule address activities having the greatest potential for mishap if improperly performed, such as working around power lines, erecting and dismantling cranes, rigging, signaling and operator training. Strict adherence to Subpart CC, says OSHA, will avoid an estimated 22 fatalities and 175 non-fatal injuries annually.
The new regulations resulted from “negotiated rulemaking.” In 2002, OSHA assembled a 23-member panel—the Cranes and Derricks Negotiated Rulemaking Advisory Committee, or C-DAC—which included contractors, manufacturers, rigging suppliers, organized labor, safety trainers, insurance companies and governmental representatives. C-DAC’s goal was to develop regulations that met with the group’s consensus, with “consensus” defined as “when not more than two non-Federal members dissented on an issue.”
C-DAC’s proposed rule was published for review in 2008, then finalized Aug. 9, 2010. Except for operator certification, which is mandated in November 2014, the provisions of Subpart CC became effective Nov. 8, 2010. So, within just a 90-day window, lifting-equipment owners were expected to comply. Many, probably most, are still working to do so, but generally have a positive attitude about their task.
“Everybody has questions about interpretation,” says Marsha Rinehart, executive vice president of Kokosing Construction, headquartered in Frederickstown, Ohio, “but it’s good for the industry. Cranes can be dangerous, and rigging and signaling are critical aspects. Truth of the matter is that the new rule is long overdue.”
Immediate concerns—signal persons
For most crane-using companies working to comply with Subpart CC, their most pressing needs are to first “qualify” riggers and signal persons, and to then begin implementing the kind of operator training and evaluation that—at least by some interpretations—the new rule seems to mandate.
“This [rigging and signaling provisions of the new rule] sort of caught us off guard,” says Rinehart. “We thought the rigging portion of the rule would apply only to assembly/disassembly, and that we would have more time on the signaling portion. We had to work hard to get this up to speed.”
Section 1926.1428 (c) details the qualifications for signal persons and places responsibility on the employer to ensure that the candidate complies with the requirements, including a “basic understanding of equipment operation and limitations, including the crane dynamics involved in swinging and stopping loads and boom deflection from hoisting loads.”
The signal person must be evaluated by either a third-party qualified evaluator or by an employer’s qualified evaluator, and in either instance, must successfully complete both a written or oral examination and a practical test. Documentation must be provided that states the type of signaling for which the qualification was given (hand, voice or electronic), and the documentation must be available at the work site. If evaluated by the employer, then the documentation is not portable, that is, the signal person can’t use it to verify qualifications with another employer.
According to Thad Pirtle, vice president/equipment manager for Traylor Bros. Construction, headquartered in Evansville, Ind., the company has always trained its signal persons and riggers internally, but didn’t have the process as formalized as the law now requires.
“We’ve been under the gun to get this done,” says Pirtle, “because employers weren’t given much time to comply. Since we have work scattered all over North America, we decided to have an accredited trainer conduct classes for our equipment personnel and other lead people, and then have them certified through NCCCO [National Commission for the Certification of Crane Operators]. These people, in turn, will be capable of assessing others to be qualified per OSHA. We don’t take these positions lightly and want to make certain we have the right people—trained people—in the proper positions.”
Mike Drew, assistant coordinator for the Operating Engineers Apprenticeship and Skill Improvement Program (ASIP) at Local 150’s training facility in Wilmington, Ill., says that the local recognizes that many crane users are struggling to comply with 1926.1428 and has opened up signal-person training to other trades.
“We’re trying to make this as easy for the contractor as possible,” says Drew, “so we offer this training to any other union apprenticeships wanting to send qualified instructors. We’ve opened the doors to carpenters, laborers, ironworkers, boilermakers, electricians, plumbers, pipefitters and insulators—more than 160 individuals so far. They leave with a disc that allows them to conduct the same training for their members. We give the person who completes our course a card, but the card doesn’t say ‘qualified’—that’s the employer’s responsibility.”
The “qualified” rigger
The new OSHA rule requires a “qualified rigger” to be used during the assembly and disassembly of cranes, and when workers are “hooking, unhooking or guiding the load” in the “fall zone,” which section 1926.1401 defines as “the area (including, but not limited to, the area directly beneath the load) in which it is reasonably foreseeable that partially or completely suspended materials could fall in the event of an accident.”
One OSHA spokesman described the fall zone simply as “anywhere the load can reach if it comes loose.” The somewhat vague definition of the “fall zone” leaves many crane users thinking they’d be smart to have a “qualified rigger” hooking every load.
“One of the biggest questions out there,” says Graham Brent, executive director of NCCCO, “is ‘what is a qualified rigger?’ The word ‘qualified’ is too much of a general term and open to interpretation. Some employers are saying, ‘You don’t want to get caught in a debate with OSHA about the definition of “qualified,” so let’s just get them certified [verification of skills by a recognized third-party evaluator].’”
A “qualified person” by OSHA’s definition is a person who “by possession of a recognized degree, certificate or professional standing, or who by extensive knowledge, training and experience, successfully demonstrated the ability to solve/resolve problems relating to the subject matter, work or project.”
“The requirement for qualified riggers is a very stringent regulation,” says Robert Andrade, CEM, vice president equipment/asset management for Energy Maintenance Services Group (EMS), an international pipeline-maintenance company based in Houston, Texas. “OSHA’s definition has the potential to require you to document the rigger’s proficiency, but few employers can do that, because a lot of riggers out there are just winging it—without material-handling training. So if the regulation is asking the employer for proof of the rigger’s skills, I think that means certification by the employer.”
Kokosing’s Rinehart points out that the burden on the employer (usually the general contractor on the job) to make sure riggers are qualified is complicated by the practical reality that all sorts of people might be rigging loads—ironworkers, carpenters, laborers—most any trade.
“When the new rule came out,” says Rinehart, “we immediately put about 200 of our long-term employees through a rigging course, tested them, and ran them through practical illustrations. We also went to the trade unions and told them that anyone they send us has to be a qualified rigger—and needs to be certified by next November, or they can’t work for us in that capacity. Many unions are capable of training and testing, and we’ve found them very responsive.”
Operating Engineers Local 150 sees the new rigger-qualification requirement as long overdue.
“The new law takes a lot of the legality of the responsibility [for properly rigged loads] off the crane operator, where it’s been unfairly placed for 40 years,” says Drew. “Now the onus is on the person doing the rigging, as it should be. The new rule will have more effect on the other trades, but we’re still going to be proactive with rigging training.”
According to Drew, even though fewer than probably 5 percent of Local 150 members working with cranes actually hook loads, unless in assembly and disassembly situations, the local’s extensive crane training has always included rigging. Given the qualified-rigger requirement in the new rule, however, which Drew admits is a gray area, the local’s training staff has developed a specifically focused, three-day rigging course that involves both written and practical tests and requires the prerequisite of signal-person qualification.
Whether it helps explain or further confuses the qualified-rigger issue, a recent OSHA Fact Sheet (publications that highlight programs, policies and standards) has these comments: “The person designated as the ‘qualified rigger’ must have the ability to properly rig a load for a particular job. It does not mean that a rigger must be qualified to do every type of rigging job….In essence, employers must make sure the person can do the rigging work needed for the exact types of loads and lifts for a particular job with the equipment and rigging that will be used for that job.”
“You watch how people perform on the job,” says Rinehart. “If you see someone using angles that are too wide, for example, you have to take them aside and see if they understand. If not, you have to disqualify them and ask them to retrain.”
Type and capacity
By Nov. 10, 2014, all lifting-equipment operators are required to have formal verification of qualifications. Documentation of qualifications can be secured through one of four means: 1) certification by an accredited testing organization; 2) qualification by an audited employer program; 3) qualification by the military; or 4) licensing by a governmental agency, such as the state or local jurisdiction. The provisions governing verification of operator competence are in section 1926.1427, “Operator qualification and certification.”
Non-military, governmental-agency licensing programs must comply with all provisions of OSHA’s Subpart CC, and are permitted to keep and enforce provisions in their programs that are more stringent, such as physical exams and drug testing. At this point, the consensus is that most employers will opt to have operators certified by “an accredited crane-operator testing organization,” which is “Option 1” in the OSHA rule. Although “Option 2” allows employers to establish their own audited programs, some in the industry are thinking that the logistics and expense of doing so would be prohibitive.
Subsequently, causing the most heartburn for some crane users are a couple of statements under Option (1). In section 1926-1427 (b) (1) (ii) (B) we read that examinations administered by the testing organization must “provide different levels of certification based on equipment capacity and type.” Section (b) (2) reads similarly: “The operator’s certificate must state the type/capacity of equipment for which the operator is certified.” Those who give “type and capacity” a somewhat broad interpretation generally refer to language placed between the cited references:
“If no accredited testing agency offers certification examinations for a particular type and/or capacity of equipment, an operator will be deemed qualified to operate that equipment if the operator has been certified for the type/capacity that is most similar to that equipment and for which certification examination is available.”
Accredited testing organizations vary in how crane types are identified and in how capacities are classified. For example, James Headley, liaison for The Crane Institute of America Certification (CIC), says that the firm’s operator-certification programs for telescopic-boom units are based on three capacity ranges: small (21 tons or less); medium (21 to 75 tons); and large (75 tons or more). In addition, lattice-boom certification is divided into “carrier” and “crawler.”
But, says Headley: “Certification means only that the operator has met the minimum requirements. Ultimately, it’s up to the employer to determine if the operator is qualified to run a particular crane.”
That’s the precise view of some conscientious cranes users who are taking the “type and capacity” statements at face value and assuming that operator qualification must be machine specific, that is, the certification must state the exact type and exact capacity to fulfill the letter of the new OSHA law.
Having determined that the narrow interpretation is, indeed, the correct interpretation, some crane owners already are developing their own machine-specific evaluations. For example, Theresa F. Anderson, CEM, corporate equipment manager for the Fleet Equipment Division of EMS, is developing training and testing procedures around the company’s fleet, and Kokosing’s Rinehart is carefully reviewing the machine-specific evaluation process that the company has had in place for 20 years.
“As an employer,” says Anderson, “I have no choice but to give the OSHA rule its most stringent interpretation. I have to make sure than an operator is qualified to run a particular crane. The operator’s certification card is just a foot in the door.”
Andrade, Anderson’s associate at EMS, makes the observation that the new rule forces the contractor to do the next level of training to comply with the type/capacity requirement. In the past, he says, the company was hesitant to issue its operators a card from the company regarding qualifications, because of the potential liability involved. But now, he says, the new law seems almost to force the company into doing so.
At present Anderson is developing both written and practical tests that will encompass specific models in EMS’s present fleet, as well as those models she knows the firm will be procuring in the near future. Also, she says, the company will take a hard line on crane rentals in order to cover its potential liability.
“In the future,” says Anderson, “before a rental crane comes onto our site, it must be inspected and the operator’s qualifications checked. If the operator can’t produce documentation that he’s qualified to run the exact type and exact capacity of the crane he arrived with, then he won’t be allowed to work. We intend to tell rental companies not to send us a crane unless the operator is specifically trained on that particular model, because we’re liable. We don’t intend to spend our money to train rental operators, unless the rental company wants to pay us—and we’ll establish pre-qualifications before subcontracting the work.”
At Kokosing, says Rinehart,“Even if a new operator or a rental operator has a certification card, he still might not be the guy you want in the seat. We insist that the certified operator have a signal card, then he must go through our training, which involves a written test that checks knowledge about rigging and load charts. Then a trained operator accompanies the new operator to review all the policies and procedures on a printed checklist that’s several pages long.”
As a final check of operator competence, says Rinehart, the instructing operator puts the new operator through a practical evaluation in the crane he will be running. If the instructing operator doesn’t feel comfortable leaving the crane in the hands of his student, then the new operator doesn’t work. The same rigorous process is applied even when an experienced operator moves to a different crane.
“Even if one of our competent operators moves from a 50-ton to a 30-ton,” says Rinehart, “it doesn’t matter—he still gets checked out.”
One final observation is that the new OSHA rule’s insistence on verified credentials might have have the effect of weeding out the field of operators.
“In the future, there will probably be fewer crane operators in certain market segments,” says NCCCO’s Brent. “In industries where small cranes are considered tools of the trade—and everyone uses them—employers might consider the training and certification process too expensive for these large groups. And maybe that’s a good thing; some of these people probably shouldn’t be operating in the first place.”