On Friday, May 30Â it was a crane collapse in NYC where Donald Leo, 30, and Ramadan Kurtaj, 27 were killed and Simeon Alexis, 32, was seriously injured.Â On Saturday, May 31 it wasÂ a crane collapse at the Wyoming Black Thunder mine which seriously injured ironworkers Andrew Milonis and Frederico Salinas.Â These incidents are in the wake of the mid-March New York collapse which killed six workers: Wayne Bleidner, 51; Brad Cohen, 54; Clifford Canzona, 45; Aaron Stephens, 45; Anthony Mazza, 39;Â Santino Gallone, 37;Â and Ms. Odin Torres, 28, a visitor from Miami.Â And there have been many other similiar “accidents.”
OSHA acknowledges that as many as 82 workers are killed each year in crane “accidents,” andÂ that the 1971-based crane safety standardÂ is outdated (here).Â Â Just a year ago, OSHA chief Edwin Foulke claimed his Agency was making significant progress on aÂ Cranes & Derrick rule (here).Â Â An OSHA spokeswoman says the AgencyÂ “believes its standards are sufficient”Â (according to ABC News report), however “the cranes and derricks rulemaking is a top priority.”Â Â Confused?Â Â
It’s business as usual at the nation’s top workplace safety agency, and now, an edict from the White House will further stall any progress on a new crane safety rule.
Way back in 2003, OSHA established a negotiated rulemaking committee with more than 20 members, including reprsentatives of manufacturers, suppliers, and usersÂ (list here).Â The assignment to the NegReg committee was to develop a consensus document containingÂ regulatory text which could serve asÂ the meat of a proposed OSHA safety standard.Â Oh, by the way, they had toÂ do all of this work within ONE year.
After hundreds of hours of deliberations, research and public meetings, the NegReg committee completed their assignment.Â On July 13, 2004,Â OSHA’s Asst. Secretary John HenshawÂ announced that theÂ committee had reached a consensusÂ and completed their work:
“This is a significant step forward in protecting the thousands of workers who operate and work around cranes.Â The members of this committee were tasked with a formidable challenge — to develop and reach consensus on a revised cranes and derricks standard in one year-and they achieved that ambitious task. We applaud their hard work and commitment to protecting workers and improving crane safety.”
It’s lovely to “applaud their hard work,” but what’s the point of having them do it in the first place if the Agency doesn’t follow through??
After the NegReg committee finished their task (draft 119 page regulatory text here),Â OSHA took nearly two yearsÂ to prepare a draft regulatory analysis and other documents needed for theÂ SBREFA process.*Â The SBREFA panel completed its report in October 2006 (276 page report here) and in December 2006, the Secretary of Labor’s Regulatory Agenda indicated that a proposed rule on crane and derrick safety would be publishedÂ by October 2007.Â But alas, that hasÂ happened, and it’s the same old story: OSHA is mortally constipatedÂ and can’t get a proposed rule out, even one that is already written for it.
As the OSHA spokeswoman tried to explain the “onerousness” of the rulemaking process:
“The Department of Labor is completing internal reviews of the proposed rule. We anticipate that these reviews will be completed soon. It will then be sent to the Office of Management and Budget for its review.Â Â OSHA is required by statute to explain the basis and purpose of the rule, conduct a regulatory flexibility analysis, a small business review, and a paperwork burden analysis — all of which must be integrated into the proposal.”
Poor OSHA.Â Writing these rules is hard.Â Can’t you just hear the violins playing?Â Â This might be funny if not for the church organs, bagpipes and violins that have been played at the funeralsÂ for victims of these crane collapses.Â Â
It’s a very sorry state of affairs for our national worker safety and health protection program when you have a representative committee of crane safety users and manufacturers who put together a CONSENSUS regulatory text to vastly improve protections for workers and the public, and the responsible agencyÂ can’t manuever itÂ through the bowels of the Department of Labor.Â This is reallyÂ pathetic.
A year passes by, more workers are killed or injured working on sites with cranes, and OSHA still fails to issue aÂ proposed rule.Â We all know the script:Â the Secretary’s December 2007 regulatory plan (here), she says there will be a proposed crane safety ruleÂ by January 2008, and her May 2008 plan says it will be August 2008 (here).Â If you don’t already believe the chances are slim of this proposal being issued in the G.W. Bush Administration, check out the May 9, 2008 edict from the President’s Chief of StaffÂ Joshua Bolton.Â In a nutshell, if a rule hasn’t been proposed by yesterday (June 1), you can pretty much forget about it coming out until after a new President is sworn in.Â Bolton’s memo warns:
“…as we sprint to the finish, [we must]Â resist the historical tendency of administrations to increase regulatory activity in their final months.Â We must recognize that the burden imposed by new regulations is cumulative and has a significant effect on all Americans.”
“Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.”
The only chance I can see of having a crane safety PROPOSAL issued this year, is for Secretary of Labor Chao to make the case herself that this is an extraordinary circumstance.Â
That would be extraordinary.Â
*SBREFA: Small Business Regulatory Enforcement Fairness Act.Â This law allows the representatives of small businesses (i.e., 500 or fewer employees) to review a proposed OSHAÂ standard (or EPA standard)Â before any other member of the public and to suggest changes to the rule or to the preliminary economic analysis.Â The comments, recommendations and resulting changes to the pre-proposed rule are documented in the so-called SBREFA report.