For four days last month, the staff working on OSHA’s cranes and derricks rule listened to testimony and exchanged information with witnesses during the agency’s public hearing on the proposed safety standard.   The hearing concluded on March 20, yet another step in the now five-year process by OSHA to update its crane standards.  The standards on the books date back to 1971.  Troubling to me is the post-hearing notice issued by DOL’s Solicitor’s Office.   SOL (for its client OSHA) announced that the hearing record would remain open for another 90 days to allow participants to submit additional information to the rulemaking record.  Ninety days?  90 days???  

Does anyone else think that 90 MORE days is an extremely generous, but unnessary length of time for a rulemaking that has already dragged on for almost five years AND for regulatory text that was developed through a formal negotiated consensus process involving key representatives from the affected industries, manufacturers and workers?    Is there such a thing as “public input” overkill? 

It’s hard for me to believe that any interest group with information they believe is vitally important for the record, can’t get it to OSHA ASAP.  If it’s that vital, surely the group would find a way to meet a 30-day deadline.   I’d even consider 45 days, but 90 days?  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)). 

The regulations do not dictate 90 days, or 60 days, or any # of days.   In fact, given the nature of particular workplace hazards and the need to protect workers from them, I imagine that a proactive OSHA leader could make the case that a 14-day post-hearing comment period would be appropriate in certain instances.  Regrettably, there is no proactive new chief of OSHA yet, and so it seems that we’re stuck with a familiar script for OSHA rulemaking:  no sense of urgency.     

So how did the ALJ decide that 90 days were needed?   I doubt he pulled this number out of his hat.  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.  

We know the ALJ’s role is guiding the hearing process, and s/he is likely defer to the agency’s recommendation on procedural matters, such as something so seemingly mundane as the number of days for a comment period.   The ALJ at the OSHA hearing may have asked participants for their input on the time needed to submit additional material to the record.  [The hearing transcripts are not yet available on-line; I’ve not able to determine if this was a topic discussed on-the-record.]  

Regardless, it is up to OSHA leaders to clamour and make the case for fair, but swift comment periods—and to remind the public that there was already a 15-week comment period on this proposed rule (October 9 until January 22.)  Now with the post-hearing notice issued last week, another 13 weeks will pass by waiting for the record to close.   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?  I doubt it. 

The lack of urgency in OSHA’s HQ is endemic, and it is exactly why workers and their families needs ASAP a progressive OSHA chief.   It really does make a difference in workers’ lives and health if a more protective rule is issued sooner rather than later.  OSHA itself estimates that at least 80 crane-related fatalities occur every year.  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. 

Members of the Specialized Carriers & Rigging Association (SC&RA), who were part of the year-long negotiated rulemaking process are also perturbed at how this has dragged on.  In March 2008 they wrote to Secretary of Labor Chao saying:

“[we] were significant stakeholders in the efforts expended to complete the consensus document within the timeframe alloted of 12 months.  Over 3 years have passed since consensus was reached on this document and turned over to the Department of Labor for their review.   …The lack of progress on this important safety and health standard remains a disservice to the entire industry affected by this Standard.”  (emphasis added)

As I’ve written before, I’d be pissed off too if I’d spent hundreds of hours attending meetings, reading documents, traveling to site-visits, and related NegReg activities, to have the product of that investment languish in the bureaucracy.  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? 

The expert facilitator hired by OSHA to manage the negotiated rulemaking process is also disappointed at the snail’s pace of getting improved crane safety rules on the books for workers.   Susan Podziba noted: 

“Having conducted 15 negotiated rulemakings for five federal agencies, I expected OSHA to publish the rule in 2006.”

When Susan Podziba says “published the rule in 2006,” she mean the FINAL rule.  Here we are in April 2009 and OSHA’s still tinkering with the proposed rule.  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?  It’s because of Steven Lillicrap, 21, and other workers who have been killed in crane-related incidents.   Steven Lillicrap was killed just a few weeks ago on February 3.   The young man was employed as an apprentice with Ben Hur Construction, a subcontractor to McCarthy Construction on the Edward Jones building project in Maryland Heights, Missouri.  News accounts report that the Lillicrap was disassembling a crane when his safety harness got caught in the cables; he suffered crushing injuries to his upper body and died later at the hospital. 

Steven Lillicrap is one of the 300 or so workers killed in crane-related incidents since the negotiated rulemaking committee issued its consensus document.  If OSHA’s leaders had had a sense of urgency about preventing these deaths, perhaps a new rule would already be on the books.  Granted, Labor Secretary Chao and Asst. Secretary Foulke there was no sense of  urgency for issuing worker-protective regs.  But, it’s a new day at DOL and we need leaders ASAP at OSHA who understand that 90 days here and 90 days there can be the difference between life and death.  Just ask Steven Lillicrap’s family.  (View a memorial photo of Steven at www.usmwf.org)

Previous posts on TPH about OSHA’s crane rule include:

• Gearing up for OSHA’s crane hearing (3/10/09)
• And another thing about OSHA’s overdue crane rule (12/10/08) 
• More delays in OSHA’s overdue crane rule, (12/9/08)
• OSHA’s proposal on crane safety  (10/20/08) 
• Crane industry pushes OMB for OSHA rule (8/4/08)
•  Four dead, seven injured in Houston crane collapse (7/19/08)
•  Who met with OMB on cranes last week (7/1/08)
•  Crane industry disgusted with OSHA’s delay  (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.  She worked at OSHA (1991-1995) and MSHA (1996-2001).