After my post yesterday “More Delays on OSHA’s Overdue Crane Rule,”  I thought more about why OSHA’s decision to extend the comment period really perturbs me.  

Some might say “we’re in the middle of the Bush-to-Obama Transition.  It’s not like an additional 45 days will make that much difference.”  Here’s why it does make a difference:

If OSHA had stuck to its original Dec 8 due date for public comments, the work reviewing and reconciling the public input would now be underway.   Over the next six weeks before Mr. Obama is sworn in, the OSHA staff could have assembled a list of any  substantive issues raised by commenters and developed potential ways to address those issues.  Under this proactive scenario, the new OSHA chief would have the opportunity on her or his Day 1, to be briefed on this critically important safety standard, and to give concrete direction and a deadline for completing the final rule.  If the original Dec 8 due date for public comments had remained in place, we’d be laying the groundwork now for ensuring these crane and derrick safeguards and improvements are finally put in place.

Instead of proactive, we’re in limbo-land.  Those parties who asked for the unnecessary extension of time, will now wait until exactly January 22, 2009 (I suspect) to send their comments to OSHA.  (Among those who asked for the extension and were granted their wish are the Nat. Assoc. of Home Builders (NAHB’s letter), the American Society of Safety Engineers (ASSE’s letter) and Associated General Contractos (AGC’s letter.))  

Their submissions on January 22 will be hefty in pages (I suspect) and may even include some “new critically important analyses.”   (We know this old playbook, don’t we?)   For OSHA staff, instead of being finished reviewing the public comments by mid-January, they will just be beginning the task.   More importantly, the long-standing problems associated with the siting, operation and maintenance of cranes and derrick just continue to drag on and on.

Now let’s throw another delay in the mix.  The NAHB also asked for a public hearing on the proposed rule.  Under Section 6(b)(3) of the OSH Act, any interested party may file written objections to the proposed rule and request a public hearing on such objections.  NAHB is exercising their rights under the statute.   (I’m not pleased, but they’re  entitled.)  In NAHB’s letter requesing the public hearing they write:

“As an interested stakeholder in this major regulatory activity, NAHB is concerned that the requirements of the proposed Cranes and Derricks in Construction rule will have a substantial impact on regulated employers and small businesses, including the home builders and specialty trade contractors in the residential construction industry.  It is the intent of NAHB to have a representative present testimony at the public hearing on the effects of the proposed rule for Cranes and Derricks in Construction on the home building industry.  The issues surrounding the proposed Cranes and Derricks in Construction standard are complex and require careful analysis, as well as thorough input, from the regulated community.  For these reasons, we believe a public hearing on OSHA’s proposal is necessary.”

We knew didn’t we,  that NAHB or another group was going to request a public hearing on the proposal?  Certainly OSHA knew that.  But why give opponents of the rule a longer comment period AND a public hearing?  

Believe me, I think the public process on rulemaking is valuable.  But I strongly object to how the system has been hijacked and gamed so that protective standards for workers are forever delayed.  Even under the best case scenario, the public hearing step will add another 60 days to the process.  OSHA senior officials and staff knew that a request for a pubilc hearing was a given—ever heard of an OSHA rulemaking without a public hearing??   That fact itself would have been a solid reason for OSHA NOT to extend the comment period.  Surely, anything that the NAHB or others want to share or object to about the rule could be presented at the public hearing. 

But of course, I have to remind myself that the good H&S souls at OSHA, who care about protecting the lives and health of workers, probably didn’t have much say in acting OSHA chief, Thomas M. Stohler’s decision to extend the comment period by another 45 days.  The OSHA staff may have argued using some of these exact issues, (I hope) but with Secretary Chao and her compatriots, providing workers with the protection offered by OSHA standards have been scoffed at since 2001. Why should I expect something different now?

I hope the new crew at DOL/OSHA, who will take the reins on January 20, understands how to manage the dual responsibility of obtaining public input AND ensuring that protective and feasible standards are put in place promptly.   The lives of workers depends on it.

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