Many are aware of the ongoing issues with OSHA’s Crane Rule, specifically the material delivery exemption. NLBMDA met with OSHA’s Directorate of Construction in April to raise concerns about a 2016 letter of interpretation that addresses an aspect of the material delivery exemption to the crane rule. OSHA issued the crane rule, which includes the material delivery exemption, in 2010 after extensive consideration by the agency and input from stakeholders like NLBMDA. The letter, issued in June 2016 in response to a question posed by an equipment manufacturer during the original rule-making process, has created confusion for dealers and contractors alike regarding the final stage of the delivery process when material is boomed up to the upper level of a structure under construction. Prior to the 2016 letter, dealers followed the plain meaning of the rule’s exemption for material delivery.
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 material 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 given 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. It is as if OSHA wants to apply the concept of dropping material on the ground to booming material to an upper level. 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. NLBMDA was clear in testimony during the 2010 rule-making that booming material up to upper levels involves handling material in the final step of the delivery process, even providing visuals.
Third, on a technical note, OSHA cannot use a letter of interpretation to rewrite a rule that has undergone the normal rule-making process, including notice and comment opportunities and other well-developed policy development requirements, such as cost–benefit analyses. The Administrative Procedure Act directs how agencies can promulgate regulations and they require the chance for the public and regulated communities to weigh in. In the case of the material delivery exemption, OSHA went to extensive lengths back in 2010 to limit the exemption as outlined above and did not then or in subsequent rule-makings establish this “drop and go” requirement.
OSHA is now revisiting the Letter of Interpretation per NLBMDA’s formal request, in person and in writing, to withdraw it. There is currently no specific date for withdrawal or clarification. In the meantime, NLBMDA’s position is that the letter contradicts the material delivery exemption and therefore should not be used as current guidance. Placing material for subsequent use is a clear part of the delivery process, one that OSHA understood when it crafted the 2010 rule, and should be easily distinguished from engaging in activity such as holding, supporting or stabilizing material that clearly facilitates construction and therefore exceeds the exemption. The plain meaning of the exemption makes clear that dealers must be able to complete the delivery of material up to upper levels of structures under construction and this cannot be done without unloading the material from the fork or pallet.
NLBMDA is continuing to work with OSHA on addressing the issue and is confident that OSHA will give a good-faith examination of the errors in the letter. We will have more information in the coming months regarding a resolution.