On March 17, OSHA will begin the public hearing phase of its rulemaking to improve workplace safety standards for cranes and derricks used in construction.   More than 30 individuals or organizations have notified OSHA of their intent to give testimony at the hearing, including several who also participated in the year-long negotiated rulemaking (NegReg) process used in 2003-2004 to develop the proposed rule.  The NegReg members’ participation at the public hearing may be a blessing, or it might make me wonder whether “consensus” is ever possible under the current OSH regulatory framework.

As part of the NegReg process, the 20+ person negotiated rulemaking committee (list here) developed and agreed to a set of ground rules, including the principle that once consensus was reached by the group, members would

“refrain from providing formal written negative comments on the consensus-based language [regulagory text] published in the Federal Register…”   

At least one of the NegReg participants, the National Association of Home Builders (NAHB),  seems to be ignoring that rule.  NAHB submitted 45-pages of comments to OSHA and plans to testify at the public hearing.  Their written submission is peppered phrases such as: “too complex,” “unduly onerous,” and “disproportionate burdens.”   These sound pretty negative to me.

NAHB’s comments present at least a dozen issues in which they disagree with the proposed rule.  They note, for example, that their representative on the NegReg committee disagreed with the provisions on “operator qualification and certification,” and add that the representative from the Associated General Contractors of America (AGC) dissented, too.   From where is this dissention coming if the NegReg Committee had consensus??

Back to the Committee’s ground rules, the Cranes-Derricks Advisory Committee (C-DAC):

“…will make every effort to reach unanimity on all issues related to the proposed regulatory text, meaning there is no dissent by any member.  However, if the facilitator determines that additional discussions are not likely to lead to unanimous consent, C-DAC will consider consensus to have been reached when there is no dissent by more than two non-federal C-DAC members.”

Obviously, the NAHB and the ACG were the two dissenters; even the dissenters, however, were obliged to comply with the ground rules.  AGC has requested 1 hour to present testimony at the public hearing.  I wonder how much of their 60 minutes will include negative comments?

I’ve not been through the entire set of comments to determine if other NegReg participants are also violating the ground rules.  Skimming the Int’l Union of Operating Engineers’ comments and request for 2 hours of speaking time, they seem to agree substantially with the proposal.  Other NegReg committee members who have asked for time at the public hearing are the Specialty Crane & Rigging Association, Associated Building Contractors, as well as Susan L. Podziba who served as the mediator/facilitator for the C-DAC (Link to her 319-page report) and wrote an op-ed that appeared last June in the NY Times urging the Bush Administration to act on the NegReg Committee’s proposal.  (It will be worth a trip to the Labor Department to hear Ms. Podziba’s assessment of Committee members’ compliance with the NegReg ground rules.)

One thing that is clear to me reading the written comments in this rulemaking docket, we must streamline the OSHA rulemaking process!   The SBREFA process*, for example, is redundant and unfair.   Under SBREFA, a select group of companies (not workers, just employers) is invited to review early the proposed rule and accompanying analyses, provide written comments to OSHA and participate in conference call discussions about OSHA’s proposed action.   Mr. Art Daniel, President, AR Daniel Construction Services Inc. was one of the SBREFA participants in 2006.  In addition to comments on the proposed rule itself, he writes: 

“It has come to my attention that OSHA seems to be putting heavy weight on industry reaching a consensus in favor of operator certification, and that this is continuing through the SBREFA process.  … I am assuming that this emphasis on consensus (if it does exist) comes from the C-DAC negotiated rule making process.”  

“May I remind OSHA that there were two negative employer votes against operator certification, votes cast by C-DAC members who were speaking for the organizations that nominated them.  A third C-DAC member asked that the record read that his nominating organization wanted him to vote against certification but he personally favored it.  His voted counted in the positive.  Although there may be some argument about how his vote was counted there is no doubt that there was not industry consensus on the issue.  There may have been consensus as defined by the C-DAC agreement but with two major organizations voting no and a third asking their representative to vote no, there clearly was not consensus.  In my opinion, the negotiated rulemaking process has been seriously harmed by the handling of this instance.”  (Full SBREFA report 276 pages; Mr. Daniel’s comments at p.99)

I think it is interesting that this SBREFA participant will be one of AGC’s witnesses at the public hearing.   My point? what benefit is gained by these extra rulemaking steps (e.g., hearing from the same witnesses over again) compared to the cost in workers’ lives and health caused by the delay in having a more protective safety standard on the books?

In any rulemaking, whether it takes OSHA two years or 15, the ultimate goal is not consensus.  OSHA’s statutory obligation is to promulgate standards to “assure safe and healthful working conditions.”   In setting safety standards, such as this crane and derrick rule, the burden for OSHA is determining whether the proposed action will:

• substantially reduce a signficant risk of material impairment of harm; and
• employ the most cost-effective means of achieving that goal.

Through the NegReg process, a majority of key interest groups reached consensus on OSHA’s proposed regulatory text.  That’s a good thing.  Now, it will be OSHA’s challenge to hear from a larger constituency and determine whether and how the proposal should be amended.  Among those who did not participate in the NegReg but are planning to testify at the public hearing are:

• Building Commissioner of New York City
• Int’l Safety Equipment Association
• Association of American Railroads
• Int’l Sign Association
• Specialty Building Material Distributors
• Nations Builders Insurance
• National Electric Contractors  Association
• Int’l Association of Foundation Drilling
• American Wind Energy Association
• National Lumber & Building Material Dealers Assoc
• Int’l Brotherhood of Electrical Workers
• American Society of Safety Engineers

The comments from Edison Electric Institute were the most entertaining to read.  Perhaps because the group is fresh on my mind from the unfavorable decision handed down to them on OSHA’s Cr(VI) rule.  In that case, EEI argued (unsuccessfully) that they didn’t have a clue that the Cr(VI) was going to apply to their members.  In the case of cranes and derricks, EEI is at the ready.  They acknowledge the crane rule will apply to them but worry that another OSHA proposal on Subpart V (Electric Power Transmission and Distribution; Electrical Protective Equipment (RIN 1218-AB67) will create regulatory pandamonium.  EEI writes:

“Given the chaotic regulatory tangle that the two pending proposals create, EEI needs a substantial time to present its testimony, and to question OSHA to try to ascertain, on the record, what OSHA is ultimately proposing about how to regulate critical work in the electric utility industry.”

“For these reasons, this is not the typical situation in which an industry affect by a proposal may address its concerns in a short presentation, and rely on being granted a brief period, on an ad hoc basis, to ask of OSHA at the hearing.  EEI appreciates that other affected parties may desire to be heard at some length on this important proposal. That is why this request is submitted well before the hearing, so that OSHA, the presiding Administration Law Judge, and other parties may consider these requests.”

Reading EEI’s request, I wondered if there was a participant in the year-long NegReg process that might have been able to represent the electric utility industry’s concerns.  One member, the American Public Power Association, represents 2,000 community-based electric utilities, and I see that APPA and EEI have previously coordinated on important policy matters  of importance to them (here, here, here).    It seems though that EEI isn’t satisfied that their concerns were addressed in the NegReg.  I’m sure EEI will be granted a substantial amount of time to air their views and receive clarification from OSHA.   

During the public hearing next week, I hope that Secretary of Labor Hilda Solis pays a visit to the Labor Department auditorium to witness for herself the OSHA proceedings.   It will not take long for her to recognize the effort, energy, time and resources invested in this proposed OSHA safety standard.   Wouldn’t it be something if the final rule was issued finally in 2009, exactly 10 years after the federal advisory committee on construction safety and health recommended that OSHA undertake a NegReg to improve the safety standards on cranes and derricks?       

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*SBREFA: Small Business Regulatory Enforcement Fairness Act.  This law allows the representatives of small businesses (i.e., 500 or fewer employees) to review a proposed OSHA standard (or EPA standard) before any other member of the public and to suggest changes to the rule or to the preliminary economic analysis.  The comments, recommendations and resulting changes to the pre-proposed rule are documented in the so-called SBREFA report.