Tipping point

Industry weighs potential impact of new cranes and derricks standard

Nearly six years after an advisory committee reached consensus on regulatory language, OSHA appears ready to issue an updated version of its 1971 standard for cranes and derricks in construction.

Industry stakeholders have been pushing for the new rule – slated for release in July – for more than a decade. “The old OSHA standard is just not up to snuff. It’s not protecting people the way that it should,” said Kira Henschel, technical and safety services manager for the Milwaukee-based Association of Equipment Manufacturers.

She noted crane technology and work processes have changed significantly in the past 40 years. Machines today are larger with more lift-enhancing attachments, and they have electronic controls and computers as operator aids. And while the federal rule has remained relatively stagnant, other organizations – both domestic and abroad – have updated their crane standards. “Having the revised rule in place will help level the playing field for manufacturers and users – one national standard, rather than a patchwork quilt of rules and regulations – and ensure a consistent system of training for operators across the country,” Henschel said.

Deadly accidents

OSHA estimates an average of 89 construction workers die each year in crane-related accidents. Recently, the Silver Spring, MD-based Center for Construction Research and Training, affiliated with the AFL-CIO, released crane fatality figures that were lower but no less concerning. From 1992 to 2006, an average of 42 workers a year died in incidents involving construction cranes, according to CCRT’s analysis of data from the Bureau of Labor Statistics. The top cause of death was electrocution from overhead power lines, which accounted for 157, or about 25 percent, of the 632 fatalities. Next came struck by crane loads (21 percent) or crane or crane parts (20 percent), followed by crane collapses (14 percent) and falls (9 percent).

Stakeholders from OSHA’s Cranes and Derricks Negotiated Rulemaking Advisory Committee say the updated rule they developed has the potential to save lives – if OSHA gets it over the finish line. “It has been sitting on their shelf for so long; I would view it as a real large shortcoming by the federal government if they didn’t have it out by [July],” said C-DAC member Dave Ritchie, a crane and rigging consultant in Bastrop, TX.

Joe Collins, a heavy-lift consultant in San Antonio who also served on C-DAC, agreed. He called OSHA’s failure to quickly implement the rule “one of the biggest disappointments of my career.” “Our industry desperately needs this standard,” Collins said. “I would be so pleased to see it in July, but I can’t say I’m even optimistic. I’m just hopeful.”

Reaching consensus

OSHA began the process of revising the cranes and derricks portion of subpart N (29 CFR 1926.550) in the late ’90s. The agency’s Advisory Committee for Construction Safety and Health formed a cranes workgroup, which developed recommendations on some issues and suggested OSHA use negotiated rulemaking to update the rule. Negotiated rulemaking is a process by which stakeholders draft a regulation through deliberations to reach consensus, defined in this case as no more than two nonfederal dissenters on an issue. The 23 members of C-DAC represent a variety of interests, including manufacturers, general contractors, construction companies, unions and trade associations such as AEM. “It wasn’t just safety people or regulatory people deciding what was going to be in the standard,” Ritchie said. “It was an equal balance from all sides of the table.”

C-DAC first met in July 2003 and reached consensus one year later. Yet OSHA did not issue the proposed rule until Oct. 9, 2008. In the year leading up to the proposed rule, a rash of deadly crane accidents occurred, including two crane collapses in New York City that killed eight workers and one bystander, another in Kansas City that killed a worker, and a crane tipover in Iowa that killed the operator. In response, then-Sen. Hillary Rodham Clinton (D-NY) wrote a letter pushing for an updated crane standard and questioning why OSHA had yet to act on the C-DAC proposal. C-DAC facilitator Susan Podziba also aired her dissatisfaction with the lack of a new rule in an op-ed that appeared in The New York Times.

Graham Brent, executive director of the National Commission for the Certification of Crane Operators in Fairfax, VA, said he does not think OSHA deliberately delayed the rule. “I do know that it has been a continuous process. At least my understanding is it’s not like it just sat there and nothing happened,” he said.

Prior to publication, the proposed rule went through a regulatory flexibility analysis, small business review, paperwork burden analysis, the writing of a lengthy explanatory preamble and the Office of Management and Budget review, among other steps. OSHA also extended the public comment period after releasing the document and held a public hearing in March 2009. “At every turn that it passes a hurdle there seems to be another one at play,” Brent said. “On top of that, there has been just an extraordinarily transparent process for the hearings, and the opportunity to make comments and to make comments on the comments.”

OSHA currently is reviewing all public comments, hearing testimony and other issues to develop the final rule, according to an agency spokesperson. Noah Connell, the OSHA official who shepherded the regulation through much of the process, left the agency in mid-January, but his departure does not appear to have changed the timeline for the final rule.

Details of the rule

The proposed rule fills up more than 200 pages in the Federal Register and includes new and enhanced requirements for operator certification, inspections, fall protection, operational aids, minimum clearance from power lines, qualifications for signal people, and supervision of crane assembly and disassembly. Unlike the current rule, which references other industry standards, the C-DAC proposal is comprehensive and self-contained so employers do not have to consult additional publications, Collins said. According to OSHA, full compliance would prevent 53 fatalities and 155 injuries a year. Achieving compliance would cost employers approximately $123 million annually with monetized benefits of $406 million – a payoff of $283 million.

Emmett Russell, C-DAC member and director of safety and health for the Washington-based International Union of Operating Engineers, said the rule contains a number of significant elements. “I think clearly the rule gives pretty good direction in terms of setting up the crane, making sure that ground conditions are proper,” he said. “The rule also is pretty detailed in terms of safely operating the crane around power lines and also assembly, disassembly – that’s where a number of accidents actually happen.” Ritchie considers the rule a win-win for labor and management. “It’s fair and it’s not hard to comply with because of all the employer input,” he said.

Industry split on operator requirement

By far, the most controversial part of the rule is the requirement for crane operator qualification, an outgrowth of committee members’ belief that incorrect operation was a factor in many accidents. Under the proposed rule, operators must be certified by an accredited crane/derrick operator testing organization, qualified by an audited employer program or the U.S. military, or licensed by a government entity. Reflecting the larger disagreement in the industry, this was the one issue on which two panel members dissented. One was Brian Murphy, representing the Arlington, VA-based Associated General Contractors of America. In his dissent, Murphy called the requirement “too restrictive” and raised concerns about the availability of certification organizations, associated costs and the testing of operators who do not speak English. Presently, only a handful of nationally recognized accrediting organizations exist, including the National Commission for the Certification of Crane Operators.

Brent said requiring certification by an organization such as his is the most effective way to ensure operators have the proper knowledge. He cited a study by California’s Division of Occupational Safety and Health that found fatalities in the state dropped from 10 in the three-year period before an operator certification requirement took effect in 2005 to two in the three years afterward. Collins also insisted the industry needs a consistent method for measuring operator skills. In response to concerns about non-English-speaking workers, he said crane operators need to be able to read and write in English and perform basic math to understand manuals and load charts. He also shot down cost arguments. “If you’ve got $100,000 to buy a crane, I think that you can afford $300 or $400 to certify your operators. I’m sorry, I’m just not accepting that as a legitimate reason not to,” he said. AGC has moved past its initial disagreement with the requirement, according to Kevin Cannon, director of health and safety services for the organization.

“Right now, I think our focus is on not what we like or don’t like as far as the language in the proposed rule, but focusing more on what we as AGC can do to help our members comply with the final [rule] when it becomes effective,” Cannon said. The proposed rule gives operators four years to meet the qualification requirement.

Moving ahead of OSHA

State and local governments are not waiting on OSHA. According to the National Commission for the Certification of Crane Operators, 18 states and six cities already have licensing requirements for crane operators.

States that administer their own OSHA plan have been especially proactive. For example, North Carolina adopted a modified version of the federal proposed rule last year. And Washington state began implementing a series of crane safety laws after a 2006 crane collapse in Bellevue killed one person. As of this year, the state requires all cranes to undergo inspection and operators must receive certification and training.

Hector Castro, spokesperson for the Washington State Department of Labor & Industries, said response to the rule has been generally positive, although some employers balked at the certification requirement. Given that State Plan states must have rules at least as effective as federal ones, Castro said department officials are watching OSHA to see if they need to modify their laws. “We won’t know specifically what we need to do until theirs are finalized,” he said.

Jurisdictions that fall under OSHA also are waiting to see how the final rule will impact their crane rules. An OSHA spokesperson said each state and local regulation must be evaluated to determine whether the statutory requirement for pre-emption is met. Last year, officials in New York City asked OSHA to modify the proposed rule to explicitly allow state and local governments to enforce crane policies that do not interfere with OSHA objectives. They said it was a matter of protecting the public as well as policing the industry. The public safety argument did not work, however, in Miami-Dade County, where a judge blocked parts of a local crane ordinance on the grounds that federal law took precedence.

Whatever the outcome, it is clear the industry is talking about crane safety. In Brent’s view, local efforts to improve crane safety prove the C-DAC proposal has made an impact despite not yet being official. “It’s really already working if you think about it that way,” he said.