We have been discussing the ongoing issues with a problematic letter of interpretation (LOI) applicable to the Crane and Derricks in Construction rule, but Congress has recently stepped up to the plate. Members sent a letter to Loren Sweatt, the head of OSHA, demanding the LOI be rescinded.
For a brief background, the material delivery exemption was created by OSHA in direct response to the work of NLBMDA and others who argued that the use of the truck-mounted articulating boom to lift common building materials such as sheet goods and packaged material to upper levels of structures under construction does not create the type of hazards that OSHA was attempting to address in the original crane rule.
The examples shared with OSHA at the time of the 2010 rule-making, both in written comments and at a public hearing, included booming sheet goods (such as drywall) and palletized material (such as joint compound or fasteners) to an upper level opening where the material is removed from the fork or pallet, or booming roofing material up to a roof deck where the material is distributed (for example, packages of shingles moved from the pallet onto the roof deck).
The industry was satisfied until the issuance of the 2016 letter in which OSHA seems to say that when material is boomed up to a structure, the delivery falls outside the material delivery exemption if anyone handles the material before it is placed by the boom onto the surface of the structure. The example in the letter involves a truck-mounted articulating boom, equipped with a functioning overload protection device and fixed fork, lifting pallets of building material.
OSHA’s letter is flawed on several points. First, as a practical matter, the letter eviscerates the material delivery exemption since material boomed up to an upper level opening cannot simply be dropped from the fork assembly, or in the case of a pallet, the boom cannot drop the pallet onto an upper level or roof deck—both because of the fact that the boom and fork assembly will not fit into many of the openings through which material is boomed, and because of weight distribution constraints.
Second, this limitation creates an arbitrary and unrealistic line between the process of delivering material and the construction process. At no time during the rule-making process or the rule’s promulgation in 2010 did OSHA raise this issue or attempt to address it.
Third, on a technical note, OSHA circumvented the federal rule-making process. The Administrative Procedure Act directs how agencies can promulgate regulations and they require the chance for the public and regulated communities to weigh in.
Dissatisfied with the lack of a response from OSHA representatives, NLBMDA began work with members of the House Education and Labor Committee on intervening. Rep. Ron Wright (R-TX) took the lead role in writing and distributing a letter for signatures and finally sent the letter to OSHA. The letter identifies the serious issues with the LOI and calls for OSHA to rescind the LOI immediately. We are optimistic that more senior individuals at OSHA will realize the error in issuing the letter and provide needed clarity to dealers moving forward. Stay tuned for additional updates.
Kevin McKenney is director of government affairs for NLBMDA in Washington, D.C. For more information, visit dealer.org.
