Virtually any time there’s a change to a rule, there’s some sort of opposition to it. Sometimes the oppostion is way off base — perhaps it’s motivated by money or power — but other times, the opposition makes a valid point. Such is the case with the International Union of Operating Engineer’s challenges to OSHA’s Final Rule on the Cranes and Derricks Standard — specifically, 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(2).
On November 28, 2012, the IUOE sent a letter to OSHA Directorate of Construction, James G. Maddux, urging him to correct the "capacity and type" language in the aforementioned sections of the rule. The IUOE points out that the way the language currently reads, not only do crane operators have to be certified on a specific type of crane, but in a number of different capacities as well.
The IUOE based its challenges on two main points. It states that a separate certification for higher capacities of the same crane type:
- is not supported by any evidence in the record that such a requirement would reduce the number of crane accidents or otherwise improve safety; and
- fails to effectuate the intent of the Cranes and Derricks Negotiated Rulemaking Advisory Committee. (C-DAC)
It’s relatively easy to see where the IUOE is coming from. Having to get certified for both cranes and their different capacities could mean an extremely large number of certifications. And taking into account the cost of each of those certifications, it would seem that crane companies and/or their operators would be spending an enormous amount of money to comply with the rule.
Ultimately, the IUOE wants OSHA to issue a direct final rule to clarify that an operator that is certified on a type of crane may operate on all cranes of that type regardless of capacity. A brief synopsis of the reasons it cites is as follows:
- Separate certification of the same crane type was unavailable at the time of the hearing in March 2009 and is unnecessary.
- The regulatory language "based on" is ambiguous.
- In light of the ambiguity, OSHA should consider C-DAC’s intent.
- It is cost prohibitive and not feasible.
- The capacity of a crane has no relevance to the practical test.
- OSHA’s current interpretation is inconsistent.
- OSHA did not properly assess the costs and it is not "economically or technologically" feasible.
- OSHA did not seek commentary on this issue.
- OSHA did not site this issue as a need for the four-year phase in period.
Clearly, the IUOE did its homework and has come up with a variety of challenges to the current rule that seem to be grounded in a number of quite practical reasons. To date, OSHA has not yet responded to the IUOE’s letter, but it will be interesting to see if it sides with the industry on these issues.