October 3, 2012

The Honorable Charles Boustany, Jr.
800 Lafayette Street
Suite 1400
Lafayette, LA 70601

Dear Congressman Boustany:

Thank you for your July 26, 2012 letter to the U.S. Department of Labor in which you request assistance with your constituent's concerns regarding the Cranes and Derricks in Construction standard. You forwarded a letter from your constituent, Mr. Glen Ashy, in which he described dragline activities performed by his company and asserted that this work should not be covered by the certification requirements of the cranes and derricks standard. Furthermore, Mr. Ashy expressed his concern that approximately 90 percent of his equipment operators who perform this type of work have problems with reading and math and may not pass the required certification test.

The Cranes and Derricks in Construction standard applies to construction equipment that can "hoist, lower, and horizontally move a suspended load," and includes such construction equipment with dragline attachments (29 CFR 1926.1400(a),(b)). As OSHA noted in the preamble to the final rule, most of the operational characteristics and hazards of the crane remain the same if a dragline attachment is in use, and OSHA wanted to avoid situations where the equipment moves in and out of the standard's scope depending on the equipment attachments (75 FR 47906, 47923 (Aug. 9, 2010)). Effective November 10, 2014, OSHA requires the certification of operators to ensure that they have the knowledge and skills to recognize and address hazards that include: contact with power lines; insufficient ground conditions beneath the equipment; overloading of the equipment; loss of control of the load; operation of the equipment with inoperable safety devices and operational aids; and the hoisting of the load over or around employees. OSHA decided to require such certification based on the recommendation of a negotiated rulemaking committee comprised of representatives of employers, labor organizations, and other cranes users. This knowledge and the associated skill set are critical to an operator's ability to make determinations at the worksite regarding the safe use of the equipment.

During the rulemaking process, OSHA received and considered comments suggesting that repetitive duty cycle work, such as dragline excavation, be exempted from the certification/qualification requirements of the cranes and derricks standard. In its decision not to include such an exemption, OSHA noted that ground and weather conditions can change during operation, thus altering previously repetitious work in an unexpected way (see 75 FR 47906, 48016). In addition, duty cycle operation is not immune to the other hazards outlined in the above paragraph (Id.). Therefore, OSHA concluded that the safety concerns necessitating operator knowledge and skill sufficient to operate the equipment were still present during duty cycle operations.

OSHA, recognizing that operators may need different knowledge and skills to operate different types and capacities of cranes, provides flexibility to ensure that operators have the appropriate knowledge and skill to operate the cranes they will use while avoiding the need for the operators to know how to operate more complex equipment (75 FR 47906, 48017). Therefore, if Mr. Ashy's company only operates friction cranes of a particular capacity, he only needs his operators to be certified for that particular type and capacity of equipment. In addition, the standard does not require that Mr. Ashy's operators be tested on particular crane attachments, such as the headache balls and pile drivers he mentioned in his letter.

Though Mr. Ashy's crane operators are required to be certified, OSHA's cranes standard addresses Mr. Ashy's concerns about the literacy of his employees by allowing certification candidates to take the written test orally. Oral testing is permitted so long as the candidate passes a sufficient demonstration of literacy relevant to the work, and demonstrates the ability to use the type of written manufacturer procedures applicable to the type of equipment for which the candidate is seeking qualification (29 CFR 1926.1427(h)). The written procedures that the candidate must generally be able to understand include the operator's manual and load charts. The written materials also need not be in English to satisfy this requirement (29 CFR 1926.1427(h)(2); 75 FR 47906, 48025).

Finally, it is possible that some or all of Mr. Ashy's company's activity falls into an existing exemption to the Cranes and Derricks in Construction standard and/or is not construction activity. The standard specifically excludes "anchor handling or dredge-related operations with a vessel or barge using an affixed A-frame," which could potentially include Mr. Ashy's equipment and operations (29 CFR 1926.1400(c)(14)). It is also unclear from Mr. Ashy's description whether his company is engaged in construction activities when using the dragline. If not engaged in construction, his company need not follow the new Cranes and Derricks in Construction standard, but must instead follow rules applicable to general industry. The general industry rules do not require operator certification (see 29 CFR 1910.180). If Mr. Ashy wishes to provide me with additional information, I would be happy to assist with further information on whether the standard applies.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Further inquiries from your staff can be directed to Laura de la Torre in the Office of Congressional and Intergovernmental Affairs at (202) 693-4600.

OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,

James Maddux, Director
Directorate of Construction

cc: Congressman Boustany, Washington, DC Office