For four days last month, the staff working on OSHA’s cranes and derricksÂ rule listened to testimony and exchanged information withÂ witnesses during the agency’s public hearing on theÂ proposed safety standard.Â Â The hearing concluded on March 20, yet anotherÂ step in the now five-year processÂ by OSHA to update itsÂ crane standards.Â The standards on the booksÂ date back to 1971.Â Â Troubling to me is theÂ post-hearing noticeÂ issued byÂ DOL’s Solicitor’s Office.Â Â SOLÂ (for its client OSHA)Â announced that the hearing record would remain open for another 90 days to allow participants to submit additional information to theÂ rulemaking record.Â Â Ninety days?Â 90 days???Â Â
Does anyone else think that 90 MORE days isÂ anÂ extremely generous, but unnessary length of timeÂ for aÂ rulemakingÂ that has already dragged on for almost five years AND for regulatory text that was developed through aÂ formal negotiated consensus process involving keyÂ representatives from the affected industries,Â manufacturers and workers?Â Â Â Is there such a thing as “public input” overkill?Â
It’s hard for me to believe thatÂ anyÂ interest groupÂ withÂ informationÂ they believe is vitally important for the record,Â can’t get it toÂ OSHA ASAP.Â Â If it’s that vital, surely the group would find a way to meet a 30-day deadline.Â Â I’d even consider 45 days, but 90 days?Â Who decided 90 days was needed?
The regulations guiding OSHA’s public hearing process, give the presiding officer (an administrative law judge (ALJ)) the
“discretion to keep the record open for a reasonable, stated time” (1911.16(g)).Â
The regulations do not dictateÂ 90 days, or 60 days, or any # of days.Â Â Â In fact, given the nature ofÂ particular workplace hazards and the need to protect workers from them,Â I imagine that a proactiveÂ OSHA leader could make the case that a 14-day post-hearing comment period would be appropriate in certain instances.Â Â Regrettably, there is noÂ proactive new chief of OSHA yet,Â and so it seems thatÂ we’re stuck withÂ a familiar script forÂ OSHA rulemaking:Â no sense of urgency.Â Â Â Â
So how did the ALJ decideÂ that 90 days were needed?Â Â Â I doubt he pulled this number out of his hat.Â I suspect that OSHA and Solicitor’s Office teamed up to make a recommendation to the judge, and knowing OSHA’s history, I’d bet their recommendation was in the 75-90 day range.Â Â
We know the ALJ’s role isÂ guiding the hearing process, andÂ s/he isÂ likely defer to the agency’s recommendation on procedural matters, such asÂ something so seemingly mundane asÂ the number of days for a comment period.Â Â Â The ALJ at the OSHA hearing may haveÂ asked participantsÂ for their input on the time needed to submit additional material to the record.Â Â [TheÂ hearingÂ transcripts areÂ not yet available on-line;Â I’ve not able to determine if this was a topic discussed on-the-record.]Â Â
Regardless, it isÂ up to OSHAÂ leaders to clamourÂ and make the case forÂ fair, but swift comment periods—and to remind the public that thereÂ was already a 15-week comment period on this proposed rule (October 9 until January 22.)Â Now with theÂ post-hearing notice issued last week, another 13 weeks will pass by waiting for the record to close.Â Â Will there be that much difference in the type and quality of information submitted to OSHA after 13 weeks compared to 4 weeks or 6 weeks?Â I doubt it.Â
The lack of urgencyÂ in OSHA’s HQÂ is endemic,Â andÂ it is exactly why workers and their families needs ASAPÂ a progressive OSHA chief.Â Â It really does make a difference in workers’ lives and health if a more protective rule is issued sooner rather than later.Â OSHA itselfÂ estimates that at least 80 crane-related fatalities occur every year.Â By my calculation, hundreds of workers have died from crane-related fatal injuries in just the years since OSHA’s negotiated rulemaking process on cranes commenced.Â
Members of the Specialized Carriers & Rigging Association (SC&RA), who wereÂ part of theÂ year-long negotiated rulemaking process are also perturbed at how this has dragged on.Â InÂ March 2008 they wrote toÂ Secretary of Labor ChaoÂ saying:
“[we] were significant stakeholders in the efforts expended to complete the consensus document within the timeframe alloted of 12 months.Â Over 3 years have passed since consensus was reached on this document and turned over to the Department of Labor for their review.Â Â â¦The lack of progress on this important safety and health standard remains a disservice to the entire industry affected by this Standard.”Â (emphasis added)
As I’ve written before,Â Iâd be pissed offÂ too if Iâd spent hundreds of hours attending meetings, reading documents, traveling toÂ site-visits,Â and related NegReg activities, to have the product of that investment languish in the bureaucracy.Â Â Was I schnookered into believing that my time and experience on a NegReg would result in prompt protections for workers who operate or work near cranes and derricks?Â
The expert facilitator hired by OSHA to manage the negotiated rulemaking process is also disappointedÂ at the snail’s pace of getting improved crane safety rules on the books for workers.Â Â Susan Podziba noted:Â
âHaving conducted 15 negotiated rulemakings for five federal agencies, I expected OSHA to publish the rule in 2006.â
When Susan Podziba says “published the rule in 2006,” she mean the FINAL rule.Â Here we are in April 2009 and OSHA’s still tinkering with the proposed rule.Â And now, the process drones on for another 13 weeks while this post-hearing comment period goes on.
Why do I get so worked up about 90 more days?Â Â It’s because of Steven Lillicrap, 21, and other workers who have been killed in crane-related incidents.Â Â Steven LillicrapÂ was killed just a few weeks ago on February 3.Â Â The young man was employed as an apprentice with Ben Hur Construction, aÂ subcontractorÂ to McCarthy Construction on theÂ Edward Jones building project inÂ Maryland Heights, Missouri.Â News accounts report that theÂ Lillicrap was disassembling a crane whenÂ his safety harnessÂ got caught in the cables; he suffered crushing injuries to his upperÂ body andÂ died later at the hospital.Â
Steven Lillicrap is one of theÂ 300 or so workers killed in crane-related incidents since the negotiated rulemaking committeeÂ issued its consensus document.Â If OSHA’s leaders hadÂ had a sense of urgency about preventing these deaths,Â perhapsÂ a new rule would already be on the books.Â Granted,Â Labor Secretary Chao andÂ Asst. Secretary Foulke there was no sense ofÂ urgency forÂ issuing worker-protective regs.Â Â But, it’sÂ a new dayÂ at DOL and we need leaders ASAP atÂ OSHA who understand that 90 days here and 90 days there can be the difference between life and death.Â Just ask Steven Lillicrap’s family.Â (View a memorial photo of Steven at www.usmwf.org)
Previous posts on TPH about OSHA’sÂ crane rule include:
- Gearing up for OSHA’s crane hearingÂ (3/10/09)
- And another thing about OSHA’s overdue crane rule (12/10/08)Â
- More delays in OSHA’s overdue crane rule, (12/9/08)
- OSHA’s proposal on crane safetyÂ Â (10/20/08)Â
- Crane industry pushes OMB for OSHA ruleÂ (8/4/08)
- Â Four dead, seven injured in Houston crane collapseÂ (7/19/08)
- Â Who met with OMB on cranes last week (7/1/08)
- Â Crane industry disgusted with OSHA’s delayÂ (6/16/08)
- Crashing cranes, deaths and the White House edict (6/2/08)
Celeste Monforton, MPH, DrPH is an asst. research professor at the George Washington University School of Public Health.Â She worked at OSHA (1991-1995) and MSHA (1996-2001).
One thought on “STILL more delays on OSHA’s overdue crane rule”
The delay is quite odd. Maybe the new head of SOL is catching up and doesn’t want to see old Bush rules getting out.
Solis seems to be more concerned with Diacetyl right now.