NLBMDA Escalates OSHA Crane Rule to Congress
Background on the Rule:
Over the past several years, NLBMDA has been working to address concerns with a 2016 letter of interpretation (LOI) issued by the Occupational Safety and Health Administration (OSHA) as a follow-up to their 2010 final rule titled Crane and Derricks in Construction.
OSHA issued the crane rule in 2010 after extensive consideration by the agency and input from stakeholders like NLBMDA. This final rule included the material delivery exemption, which was a result of the work of NLBMDA stating that certain functions of LBM dealers do not create the type of hazards that OSHA was attempting to address.
The examples and data shared with OSHA at the time of the 2010 rulemaking, 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 LOI 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.
The letter, issued in response to a question posed by an equipment manufacturer during the original rulemaking 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.
An Update:
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. While the letter attempts to create a new limitation to the exemption when booming palletized material, the 2010 rule makes no such distinction between booming sheet goods and palletized material, nor does it prohibit the necessary step of unloading the material. 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.
As a result of stalled progress on the letter’s withdrawal, NLBMDA has recently engaged Congress, specifically the House Education and Labor Committee, to brief them on the issue and explore options for congressional action. The committee was receptive to the concerns of the association and they made a commitment to work with the leadership at the agency towards a resolution.
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.
Questions?
Contact Kevin McKenney, NLBMDA Director of Government Affairs at
kevin@dealer.org
or 202-367-2480.
