OSHA's New Crane Rule – Does it Apply to Your Company?

by Rod Smith, Pat Miller and Matt Morrison

On August 9, 2010, OSHA published its long-awaited final rule on Crane and Derricks in Construction ("the Rule"). Most provisions of the Rule will go into effect November 6, 2010, with the remaining to follow in 1-4 years. All employers who are engaged in any aspect of construction are urged to familiarize themselves with the new Rule and to determine, as a first step, what provisions apply to their operations and equipment. This Update discusses the scope of the new Rule.

OSHA's new crane Rule is a blockbuster by any measure. The Rule and accompanying comments comprise 271 pages of fine print. Employers should not assume the Rule only applies to crane contractors or specialized cranes used in construction. To the contrary, the new Rule applies to a wide range of employers, including some property owners, and a wide range of equipment.

The Rule sets up comprehensive new requirements for assembly/disassembly, assessment of ground conditions, certification and qualification of crane operators and working near power lines, to name a few. OSHA estimates that the Rule will cover 267,000 workplaces and 4.8 million workers. Understanding and implementing these new requirements in 90 days will be no small task, especially for employers unfamiliar with crane operations.

By its terms, the new Rule applies to: " . . . power-operated equipment, when used in construction, that can hoist, lower and horizontally move a suspended load." Because the new Rule only applies to equipment used in construction, it does not apply to cranes or crane operations in general industry. General industry crane and derrick operations are governed by a separate set of rules found at 29 C.F.R. §1910, Subpart N. "Construction work" is defined in OSHA's existing regulations as work " . . . for construction, alteration and/or repair, including painting and decorating."

Despite the broad definition, the Rule does not apply to all equipment that can "hoist, lower and horizontally move a suspended load." The Rule contains numerous exemptions for equipment such as excavators and backhoes. However, many of those exemptions contain important qualifications. For example, forklifts are exempt from coverage except when they are configured with a boom to move a suspended load with a winch or hook. As another example, the use of articulating/knuckle boom truck cranes to deliver materials to a construction site is exempt when the materials are transferred to the ground, but is not exempt when the same boom truck is used to put the materials in a particular sequence to be hoisted, when the materials are supported or stabilized by the boom truck during construction, or when the boom truck delivers prefabricated components such as roof trusses. The Rule provides many more examples of exempt and covered equipment.

As mentioned above, the new Rule also applies not only to users, operators and manufacturers of cranes but also to other employers. In one of the more controversial provisions, the new Rule now specifies the duties and responsibilities of the "controlling entity," defined as: " . . . the employer that is a prime contractor, general contractor, construction manager or any other legal entity which has the overall responsibility for the construction of the project - its planning, quality and completion." (Emphasis added.) Other "legal entities" could include property owners that assume the responsibility for construction of the project.

The specified duties for "controlling entities" are not insignificant. They include:

• Ensuring that ground conditions to support the crane equipment are sufficient, as defined in the rule (1926.1402(c)(1));
• Informing users and operators of the crane of any hazards beneath the setup area (such as tanks or utilities) either known or identified in documents in the possession of controlling entity (1926.1402 (c)(2)); and
• Implementing a system to coordinate multiple cranes where the working radius of one crane is within the working radius of others (1926.1424(b)).

However, the duties and responsibilities of a "controlling entity" may actually be much broader than those specified above. In the Rule, and in comments that accompanied the proposed rule, OSHA makes it clear that the "controlling entity" duties specified in the Rule only supplement, but do not displace, the responsibilities of "controlling contractors" under OSHA's multi-employer citation policy. As a result, in addition to the specified duties in the new Rule, OSHA may attempt to hold general contractors, homebuilders and other "controlling contractors,"(now referred to as "controlling entities") responsible for using reasonable care in detecting and correcting other crane hazards. Application of the multi-employer policy could make matters more difficult for employers who lack the expertise to evaluate crane safety. Please click here for the OSHA alert on Controlling Contractors.

More information on the new crane Rule is available on OSHA's website, www.osha.gov, by searching under "cranes." Various industry groups and safety organizations are expected to provide guidance and training seminars before the Rule goes into effect.

Please click here for a copy of the Rule.

Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group.