I. Background of the Rule
The following is an update to a November 2008 GT Alert that described the Occupational Safety and Health Administration¡¦s (OSHA) proposed rule for cranes and derricks in construction. On August 9, OSHA published its ¡§Cranes and Derricks in Construction: Final Rule,¡¨ which can be viewed in its entirety at: http://www.osha.gov/FedReg_osha_pdf/FED20100809.pdf.
In light of the publication of the Final Rule, we are circulating this update, which again summarizes the larger points of the Final Rule, and includes a section setting forth a summary of employer obligations addressed by the Final Rule.
For attorneys whose clients may be subject to OSHA¡¦s Cranes and Derricks in Construction: Final Rule, the Final Rule should be reviewed in its entirety before advising clients as to its content. OSHA has confirmed in a recent Engineering News- Record Article that it will begin enforcing the standard on November 8, 2010.
The cranes and derricks proposed rule would apply to the estimated 96,000 construction cranes in the U.S., including 2,000 tower cranes. The proposed standard addresses key safety issues associated with cranes, including:
- ground conditions;
- the assembly and disassembly of cranes;
- the operation of cranes near power lines;
- the certification and training of crane operators;
- the use of safety devices and signals; and
- inspections of cranes.
The proposed rule significantly updates existing tower crane requirements and more comprehensively addresses tower crane safety, with respect to both erecting and dismantling, and for crane operations.
The proposed standard would establish four options for the qualification or certification of crane operators:
- certification through an accredited third-party testing organization;
- qualification through an audited employer testing program;
- qualification issued by the U.S. military; or
- qualification by a state or local licensing authority.
Standard testing requirements or certifications for crane operators will go into effect four years from the date of implementation of the Final Rule.
The Final Rule also addresses employer responsibility for crane operation and handling. Employers are required to determine whether the ground is sufficient to support the anticipated weight of hoisting equipment and associated loads. Further, employers are obligated to assess hazards within the work zone that would affect the operation of hoisting equipment, such as power lines and objects, or personnel that fall within a work zone or swing radius of hoisting equipment. The employer is also required to ensure that the equipment is in safe operating condition by completing required inspections, while employees in the work zone are required to complete training that equips them with the knowledge and skills to recognize hazards associated with the use of the equipment and any related duties that they are assigned to perform.
Again, attorneys should reference OSHA¡¦s Final Rule in its entirety prior to advising clients on issues addressed therein.
II. Other Regulation of Cranes and Derricks in Construction
The State of Washington, a state-plan state, which administers its own OSHA program, adopted its own rules for crane safety. The state legislature had passed a statute in 2007 in response to a catastrophic tower crane accident in Bellevue, Washington in 2006. Washington followed its state rule-making procedures and published a draft and solicited comments before finalizing the rule.
In response to crane accidents, several municipalities around the nation have also enacted their own crane safety guidelines. Typically, these ordinances have not been subjected to the same type of public comment procedure used by federal and state OSHA.
Miami Dade County¡¦s crane safety ordinance went into effect on March 28, 2008. The enforcement of the ordinance was enjoined shortly thereafter in a suit brought by a coalition of contractors¡¦ groups, including the Associated Builders and Contractors and Associated General Contractors. As of November 14, 2008, the temporary injunction was still in place, both parties had filed Motions for Summary Judgment, but no hearing date had been set.
Orlando adopted a crane ordinance on October 6, 2008. The new ordinance requires, among other things, that permit applicants submit additional documents related to the operation of a crane to the Building Official, that there is clear radio communication between cranes when more than one crane is one site, and that operators comply with the hurricane and high winds preparedness standards set forth in the ordinance. These regulations will only apply to new construction of buildings greater than three stories in height.
III. Recommendations to Clients
Local guidelines, if less restrictive than OSHA¡¦s proposed rule, will be preempted by these federal regulations. Accordingly, those clients affected by local crane and derrick regulations should be warned of local regulations that may have been recently enacted and the ramifications of such regulations upon their projects.