NLBMDA Tells OSHA 2016 Letter of Interpretation Contradicts 2010 Crane Rule
NLBMDA met with OSHA’s Directorate of Construction to raise concerns about a 2016 Letter of Interpretation that addresses an aspect of the material delivery exemption to the OSHA crane rule. OSHA issued the crane rule, which includes the material delivery exemption, in 2010 after extensive consideration by the agency and input by stakeholders, including NLBMDA. The Letter of Interpretation, issued in June 2016 in response to a question posed by an equipment manufacturer in November 2010, 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 Letter of Interpretation, dealers followed the plain meaning of the rule’s exemption for material delivery. NLBMDA’s current position after its meeting with OSHA is that dealers should continue to follow the plain meaning of the exemption as discussed below.
The Material Delivery Exemption
The material delivery exemption was created by OSHA in direct response to the work of NLBMDA and others in the material delivery business 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 2010 rule.
The examples 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 material delivery exemption, while limited to a specific type of equipment and specific categories of material, is intended to cover the core function of material delivery by the truck-mounted articulating boom. Specifically, in crafting the exemption, OSHA limited it in three areas.
First, the truck-mounted boom must be equipped with a functioning overload protection device and a fork assembly fixed directly to the boom.
By imposing these equipment requirements OSHA agreed with NLBMDA at the time of the rulemaking, saying:
"OSHA is, to a large extent, adopting the commenter’s suggestion. The overloading and subsequent collapse of cranes is one of the primary hazards this final rule seeks to address. The trade association witness’s testimony shows that the potential for collapse is present when articulating/knuckle-boom cranes are used to deliver materials onto a structure. The industry has, however, addressed this hazard by equipping such cranes with automatic overload prevention devices. Therefore, OSHA is excluding articulating/knuckle-boom cranes used to deliver materials onto a structure from the final rule, but only when the cranes are equipped with properly functioning automatic overload prevention devices."
In addition to noting that overload protection addressed a key concern in the rulemaking, OSHA also noted that the boom loader with a fixed fork is able to safely handle the material commonly boomed to upper levels:
"These are typical building supply materials that pose a reduced risk of falling when being lifted by the truck crane because of their configuration and/or packaging, and because the truck crane was designed to safely handle this type of material."
It’s worth emphasizing that OSHA noted the safety features of both the overload protection and the ability of the fork assembly to safely handle the type of material commonly boomed to upper decks when crafting the exemption. These safety features have not changed since the rule and the material delivery exemption were issued.
The second limitation OSHA placed on the exemption addresses the common building materials that may be boomed to upper levels of a structure.
OSHA recognized two key categories for the exemption – sheet goods and packaged material – providing examples, but not limiting the exemption to “sheets of sheet rock, sheets of plywood, bags of cement, sheets or packages of roofing shingles, and rolls of roofing felt.”
The third limitation to the exemption is that the loader may not be used to “hold, support or stabilize material to facilitate a construction activity,” such as holding material in place to aid in its attachment to the structure.
Specific to this limitation, the material delivery exemption does not allow hoisting prefabricated building components, such as trusses, or steel structures. This activity falls
the exemption and therefore falls
the requirements of the crane rule. The line drawn by OSHA was between the delivery activities NLBMDA described during the 2010 rulemaking and use of the same equipment in a way that clearly aids the construction process, such as placing material in its final position or assisting the construction crew while attaching material to the structure.
Here is the applicable text of the exemption that include the first two limitations:
"Articulating/knuckle-boom truck cranes that deliver material to a construction site when the crane is used to transfer building supply sheet goods or building supply packaged materials from the truck crane onto a structure, using a fork/cradle at the end of the boom, but only when the truck crane is equipped with a properly functioning automatic overload prevention device. Such sheet goods or packaged materials include, but are not limited to: Sheets of sheet rock, sheets of plywood, bags of cement, sheets or packages of roofing shingles, and rolls of roofing felt."
Below is the specific language addressing the third limitation on facilitating construction and prefabricate components:
(iii) This exclusion does not apply when:
(A) The articulating/knuckle-boom crane is used to hold, support or stabilize the material to facilitate a construction activity, such as holding material in place while it is attached to the structure;
(B) The material being handled by the articulating/knuckle-boom crane is a prefabricated component. Such prefabricated components include, but are not limited to: Precast concrete members or panels, roof trusses (wooden, cold-formed metal, steel, or other material), prefabricated building sections such as, but not limited to: Floor panels, wall panels, roof panels, roof structures, or similar items;
(C) The material being handled by the crane is a structural steel member (for example, steel joists, beams, columns, steel decking (bundled or unbundled) or a component of a systems-engineered metal building.
The Letter of Interpretation
All was well until the issuance of the 2016 Letter of Interpretation 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 restates the question:
"I use an articulating knuckle-boom truck crane equipped with an automatic overload prevention device to hoist packaged building materials from the bed of a truck. The building materials are hoisted on pallets supported underneath by forks/a cradle that is attached to the boom of the truck crane. If I hold pallets of building materials, such as 2 X 4’s, plywood, shingles, or drywall, to be unloaded at elevations, like a floor (through an open window or doorway) or the roof of a structure under construction, is this activity covered by the cranes standard?"
The key part of OSHA’s answer states:
"Under this scenario, any workers who unpack/unload the pallets are doing so to facilitate the performance of a construction activity and are likely to be subjected to hazards typical to cranes and the roofs, upper decks, and balconies of structures that are undergoing construction. Subsequently, the workers must be protected from those hazards by the employer’s compliance with construction standards. Therefore, regardless of whether the construction employer operates an articulating knuckle-boom truck crane to hoist and hold the pallets, or that employer gets another employer (such as a delivery company) to do so, the use of the crane for this purpose is considered construction and covered by the cranes standard."
OSHA seems to be stating that handling the material at this last step in the delivery process constitutes “facilitating construction,” thus drawing an artificial line where none previously existed. This is in direct contradiction to OSHA’s own description of the material delivery exemption, down to the very example of booming packages of shingles up to a roof deck. In 2010 OSHA said (when describing what it means by “facilitating construction”):
"For example, while placing a package of shingles onto the roof of a structure would fall within the exemption, suspending the shingles in the air and moving them to follow the progress of the roofer would not. When the crane is being used to facilitate the construction activity, it has exceeded the “delivery” of goods and is therefore engaged in a process that is more complex than the scenarios addressed by the commenters who supported an exclusion for materials delivery."
NLBMDA argues that the Letter of Interpretation wrongly attempts to add a new, fourth limitation to the exemption
– that the material must be dropped onto the structure by the boom without being handled by dealer or contractor employees. In other words, the Letter of Interpretation would have the rule to say that material may not be removed from the fork (as in the case of sheet goods) or pallet (as in the case of palletized packaged material); instead, the boomed material must be dropped onto the structure by the loader. Put another way, the letter would make the exemption applicable only when the boom is able to lift material up to an upper level, place the entire load onto the structure, and either release the material or slide out from under the load or pallet.
The Letter of Interpretation is flawed on at least three key points.
, as a practical matter, this limitation would eviscerate 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.
, 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 rulemaking process or the rule’s promulgation in 2010 did OSHA raise this issue or attempt to address it. NLBMDA made clear with its testimony in 2010 that booming material up to upper levels involves handling material in the final step of the delivery process, showing pictures of boomed material in upper level openings.
, on a technical note, OSHA cannot use a Letter of Interpretation to rewrite a rule that has undergone the normal rulemaking process, including notice and comment opportunities and other well-developed policy development requirements, such as cost–benefit analyses. 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 rulemakings establish this “drop and go” requirement.
At the meeting with NLBMDA, OSHA attempted to limit the Letter of Interpretation. Without explaining what unique hazards exist when booming palletized material versus sheet goods, OSHA told NLBMDA that the Letter of Interpretation only addresses using the loader to lift palletized material. (True, the letter only addresses the question of hoisting a pallet supported underneath by a fork.) Even restricting the letter in this manner, the Letter of Interpretation is still flawed in its assumptions on how material is boomed to upper levels, it still contradicts the rule text and the very language OSHA used to describe the exemption when issued in 2010, and it still violates core principles of rulemaking.
In addition to these flaws with the Letter of Interpretation and OSHA’s explanation of it, this limited application of the letter would also violate a key principle found in the exemption. In its 2010 explanation of the material delivery exemption, OSHA noted a goal to avoid as much as possible instances where a dealer would “move in and out” of the exemption based on how the equipment is used to deliver common building materials to construction sites.
OSHA stated in its initial explanation of the exemption:
"Cranes are … commonly used to hoist building materials onto a structure for subsequent use. Although this is also a construction activity, OSHA determines that a limited exclusion for articulating/knuckle-boom truck cranes used for such work is appropriate to minimize having this equipment move in and out of coverage of this rule."
In explaining why it was limiting the exclusion to certain types of material, OSHA referenced this same principle:
"OSHA is limiting this exclusion to the delivery of sheet goods and packaged materials including, but not limited to: sheets of sheet rock, sheets of plywood, bags of cement, sheets or packages of roofing shingles, and rolls of roofing felt. The placement of other materials on a structure under construction is the type of core construction activity this rule seeks to address, and excluding the hoisting and movement of other types of materials, such as precast concrete members, prefabricated building sections, or structural steel members, would severely reduce the rule’s effectiveness. Moreover, equipment used to lift these types of materials on construction sites is rarely, if ever, used for non-construction activities on those sites and does not often present the problem of equipment moving in and out of coverage when used for different activities."
Even if OSHA limits the Letter of Interpretation only to booming palletized material, dealers will be in the very position OSHA sought to avoid – complying with the exemption in one instance (when booming drywall or plywood) but violating the exemption in another (when booming palletized material, including roofing material), thus making the exemption out of reach for most dealers.
NLBMDA Position Pending OSHA’s Reconsideration of Letter
OSHA is now revisiting the Letter of Interpretation without a specific fixed date for withdrawal or clarification. In the meantime, NLBMDA’s position is that the letter contradicts the text and clear meaning of 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.