In the final cranes and derricks in construction standard, 1926 – Subpart CC, which was issued August 9, 2010, crane operators were required to either be certified or qualified (depending on the option elected by an employer) by November 10, 2014. 29 C.F.R. § 1926.1427(k).  On February 10, 2014, OSHA proposed a three-year extension to the operator certification deadline and requested public comment on or before March 12, 2014. 

This extension is due, in part; to issues pertaining to the requirements in the standard addressing crane operator certification that arose shortly after OSHA issued the final rule.   After the final standard was issued, OSHA took the position that an operator is qualified to operate a particular piece of equipment if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type.  Therefore, an operator certified to operate a 100-ton hydraulic crane may operate a 50-ton hydraulic crane but not a 200-ton hydraulic crane. 

This interpretation created significant concern for many industry representatives, including employers and unions, and firms that offer crane operator training.  In November 2012, International Union of Operating Engineers (“IUOE”) petitioned OSHA to reverse its interpretation and to amend the “Capacity and Type” language in 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1).

Many in the regulated community have argued that certification for the specific “capacity” of crane was never an issue during the negotiated rulemaking hearings and specifically that at the time of the negotiated rulemaking, separate certification for different capacities was not available.  Stakeholders generally assert that certification should be limited to the type of crane, not the capacity because it is the configuration of the crane that makes it complex not the capacity.

In response to these industry concerns, OSHA held three stakeholder meetings in April 2013 to gather more information.  During these meetings the possibility of an extension to the operator certification deadline was discussed and the issue was presented to the Advisory Committee on Construction Safety and Health (ACCSH) in May 2013.  During its May 2013 meeting, ACCSH recommended to OSHA that the Agency delay implementation of the operator certification deadline until OSHA reopened the record seeking clarification on third party certification and employer qualification requirement.

Acting on ACCSH’s recommendation, OSHA issued a Notice of Proposed Rulemaking on February 10, 2014 seeking comments on a proposed three-year extension for operator certification from November 10, 2014 to November 10, 2017.  During this three-year time period, OSHA will consider other rulemaking options and determine how to address the type and capacity issue.  OSHA is seeking comments on the proposed extension timeframe, as well, as the alternative approach of an indefinite extension on the certification requirements until OSHA has completed rulemaking on the type and capacity issue.
Comments to this proposed rule are due by March 12, 2014.  The Notice of Proposed Rulemaking can be found online here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.