When OSHA finally published on October 9 a proposed rule to protect workers using cranes and derricks, I thought (maybe) we’d turned a page on at least one inexcusable rulemaking delay. But no. OSHA’s acting assistant secretary, Thomas M. Stohler, signed off last week to drag out this rulemaking even longer. In a Dec 2 Federal Register notice, the agency chief said that a “significant number of stakeholders have requested an extension” of time to submit their written comments. The new due date is January 22, 2009.
Who are these significant number of stakeholders? OSHA doesn’t name names in its Federal Register notice, but as I slog through the not-user-friendly Regs.gov site, it looks like the National Assoc. of Home Builders (NAHB) is behind it.
Not only did the NAHB send their own letter to OSHA asking for a 60-day extension, but it looks like they recruited some of the members to send in their own requests. NAHB’s claim that
“…the proposed Cranes and Derricks in construction standard will have a substantial impact on regulated employers and small businesses”
is nothing new, and it’s certainly not a legitimate reason to delay this rulemaking any further. Regulations, by their nature, may have an impact on regulated entities—and it might even be a POSITIVE impact in the long-run. Moreover, failing to address a well-know problem that kills nearly 100 workers in the U.S. a year has an enormous impact on families and communities—the heck with the (scare-quote) “substantial impact” on small businesses.
NAHM goes on with the assertion:
“The issues surrounding the Cranes and Derricks in construction standard are complex and required careful study, analysis and consideration.”
Sure it’s complex–that’s why representatives of home builders were part of the negotiated rulemaking committee that met for a full year and ‘studied, analyzed and considered’ all relevant issues for the proposed rule and drafted the regulatory text. To suggest that much more time is needed to chew on these issues is ridiculous. Hasn’t there been enough death and destruction from ill-sited, ill-constructed, ill-maintained and ill-operated cranes?
An average of 82 workers die in the U.S. each year from crane-related incidents, and the majority of these deaths could be prevented if more robust standards for hoisting operations at constructions sites were in place. That’s what this OSHA proposal is about—-a proposal that has been in the works since 2003. Moreover, it was developed through a negotiated rulemaking process that included 20 members who representated ALL the key interest groups potentially affected by the rule (list here), including employers involved in home building and suppliers of building materials.
Regrettably, but predicably, OSHA’s leadership has caved in to the calls for delay from NAHB and those that have followed this lobbying group’s lead, including Allied Building Products (their letter), Behlman Builders (their letter), Alberici Construction (their letter), and Nat. Lumber & Building Materials Dealers Association (their letter). OSHA’s leaders remain in the deep rut of endless process, avoiding decisions that will actually force them to take meaningful action. Adding 45 days to the comment period is not meaningful action—it is work avoidance.
The current OSHA rule on cranes and derricks dates back to 1971. The proposed rule would require employers to implement a number of important safeguards when using hoisting equipment at construction projects, such as
- ensuring that the ground can support the equipment
- ensuring adequate swing radius to avoid powerlines, equipment and workers,
- ensuring that the equipment is inspected
- ensuring that appropriate training is provided to the equipment operators.
Is that really too much to ask of an employer? Besides, the employers, suppliers and other stakeholders who developed the proposed rule through the negotiated rulemaking have urged and urged that the rulemaking get on track. Back in March, members of the reg neg committee sent a letter to Secretary Chao, expressing their “extreme dissapointment in the lack of progress” by OSHA on a crane safety rule (more here).
During the current request for public comments, responsible companies and suppliers, who see the value of and urgency about the rule have also weighed in. The “Safety Committee of the ADSC: The International Association of Foundation Drilling” wrote
It is our opinion that the Cranes & Derricks [Neg Reg] Advisory Committee did an outstanding job writing the proposed rule and the ADSC was privileged to be a participant at some of the meetings. …While reading the posted comments already submitted to-date, many of the submitters are requesting time extensions for the comment period. We think the new rule is already too late in coming and the new rule should be promulgated as soon as possible and the comment period should not be extended. [emphasis in original]
If I had more patience and time to slog a little longer on the Regs.gov site, I probably would find a few more letters from individuals and interest groups telling OSHA the same thing: PLEASE don’t extend the comment period. This rule is needed ASAP. But, the interest of workers’ safety has not been served by Secretary Chao’s OSHA for any of these 8 years, so I’m not surprised by this latest OSHA’s decision. If it’s something to advance protections for workers’ health and safety, it’s on the slowest road. If it’s something to screw workers—like Secretary Chao’s proposed rule on risk assessment —-it’s done with lightning speed. Think about it. This crane rule has been in the works since 2003, and they are still extending the comment period. In contrast, we didn’t learn about the Labor Department’s risk assessment proposal until July, they published the proposed rule in August, and gave the public a 30 days to comment. Period.
Egads! we still have 43 days with the Bush-Chao bunch. I’ll be holding my nose, but keeping my ears and eyes open.