Updated below ( 6/18/08 )

Earlier this month I wrote in “Crashing Cranes, Deaths and the White House’s Edict” about the inexcusable inaction by the US Department of Labor and OSHA to address the decades-old problem of crane-related deaths.  I am not alone in my disgust at this regulatory system, which yet again is failing to protect our nation’s workers.  I’m pleased to report that two parties familiar with an attempt at crane safety rulemaking have strongly expressed their own dissapointment with OSHA’s failure to act.  First are members of the negotiated rulemaking committee (NegReg) who prepared in 2003 a draft rule for OSHA.  Second is the independent facilitator who was hired by OSHA to bring this group of affected labor-, employer-, and manufacturer- groups together to prepare the consensus document.  

Members of the NegReg committee sent a letter in March 2008 to Secretary of Labor Elaine Chao expressing their “extreme dissapointment in the lack of progress” by OSHA on a crane safety rule.  I learned about this letter from a powerfully-blunt op-ed published in the New York Times by Susan Podziba who had been hired by OSHA to facilitate the NegReg process.

In their March 2008 letter to Secretary of Labor Chao, the industry group wrote:

Members of the Specialized Carriers & Rigging Association (SC&RA) 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.  We strongly urge you ensure this Standard and its publication receive the immediate attention it requires.” (emphasis added)

They also reminded Secretary Chao that OSHA’s own advisory committee on construction endorsed the NegReg group’s document. 

“On October 12, 2006, the Advisory Committee on Construction Safety and Health, by unanimous vote stated: “ACCSH supports the OSHA draft proposed cranes and derrick standard as currently written, and recommends to OSHA that the Agency move forward with all deliberate speed to issue the proposed standard.”

Sheesh.  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.  I’d also be annoyed thinking of the work that was set aside or sacrificed because I participated in this process.  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?  What happened to the idea of a NegReg rule taking less time than a standard rulemaking?

Their disappointment with the lack of progress on proposed rule is punctuated in their letter with this:

“This is unacceptable and not within the spririt of Negotiated Rulemaking.” 

In anyone can speak to the spirit of negotiated rulemaking it is Susan Podziba, an individual with decades of experience as a mediator, negotiator and consensus builder, having worked NegReg processes for numerous federal and state agencies.  Professional facilitators are known for their commitment to a fair and effective process, while avoiding personal judgement about the topic at hand.  Yet, her June 12 op-ed “Safety Starts at the Top” revealed Ms. Podziba’s frustration that the crane safety NegReg’s committee’s product seemed to be in perpetual limbo at the Department of Labor.  She wrote:     

“It’s still not clear what caused the two recent crane accidents in New York City, which killed nine people. Across the country, dozens die each year in similar accidents: 72 workers in 2006 alone, the most recent year for which federal figures are available. Yet OSHA has been sitting on crane-safety regulations that could prevent more deaths.  As I watched the news coverage of the second of the crane accidents last month, I felt sick to my stomach.” (emphasis added)

Podziba notes the benefits of NegReg:

“From the first day of deliberation the parties operated under this assumption: If this balanced group of stakeholders and the government could agree on a standard, then OSHA would publish it in the Federal Register as its proposed rule.  …Having conducted 15 negotiated rulemakings for five federal agencies, I expected OSHA to publish the rule in 2006.”

“For nearly four years, those of us involved in the negotiations have hoped that the power of an industry-union consensus and plain good sense would prevail, perhaps with some prodding.”

Well, there’s been prodding, plenty of prodding and more.  Holy smokes!  There has been a successful labor-industry NegReg, an endorsement by OSHA’s construction advisory committee, a SBREFA panel, and scores of preventable deaths.  By my estimate, 360 workers have died since the NegReg committee issued its consensus document. 

If OSHA can’t get a rule out given the magnitude of death, AND all these pluses on its side, we might as well scrap its rulemaking function and give this responsibility to someone else.

P.S. As of 11:00 am (EST), June 16, 2008, OMB/OIRA’s website does not indicate that it has received OSHA’s proposed crane safety rule for review.

Update (6/18/08): The OMB/OIRA’s website  says that the cranes and derricks proposed rule was submitted to ORIA on 6/17/08.  OMB typically allows itself 90 days to review a rule, but they can expedite or delay as they see fit.  

I also learned that the crane industry association, the national accrediting body for crane operators and others had a news conference on June 5 to urge action on OSHA’s crane safety rule.  Their news releases and statements are here, where they said:

“Today, you have before you the four leading organizations dedicated to crane safety and the advancement of best practices.  Collectively, we agree that a renewed commitment to professional training at all levels of the construction industry is vital.  Equally important is an enhanced effort on the part of government to update standards that can apply nationwide.” (emphasis added)

Celeste Monforton, MPH is a lecturer and research with the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington University.  She worked at OSHA from 1991-1995 and at MSHA from 1996-2001.