"We wholeheartedly agree that meaningful steps must be taken to protect construction employees working near operating streets and highways," commented David L. Potts, NECA's director for safety and insurance. "However, as compared with the usual OSHA rulemaking process, there has been very little time for affected construction employers and employees to become aware of the compliance details associated with these proposed standards."
OSHA has proposed adoption of the Federal Highway Administration's Manual of Uniform Traffic Control Devices (MUTCD) with an accelerated effective date of August 31, 2002. The 982-page manual has customarily been applied to road and highway constructors, but typically not to other companies - including electrical/communications contractors, utility/sewer contractors, and equipment suppliers - which conduct other operations near roads and highways. Enforcement has been almost exclusively the responsibility of state highway departments, rather than federal OSHA.
Extending MUTCD rules to cover these additional operations, without adequate public notice and phase-in period, could cause the following problems, according to NECA:
·Unintended Consequences. Equipment suppliers may now need additional traffic control devices and flaggers simply to offload construction materials on a city street.
·Inadequate Notice. The one-month effective date after final rule adoption doesn't give construction industry associations enough time to inform affected companies of their new responsibilities under MUTCD, or for the companies to meet them.
·Preparation Needed. Rapid application of the rule won't give employers sufficient time to obtain required equipment (which may suddenly be in short supply as companies scramble to meet the August 31 deadline) or to train workers and supervisory personnel in traffic zone safety requirements.
·Instant Non-Compliance. Construction projects have long time frames. Immediate implementation of the new rules would have serious compliance and financial effects on projects underway now, and those scheduled to start soon for which MUTCD compliance wasn't planned or budgeted.
To help solve these problems, and improve long-term worker safety while avoiding unfair short-term burdens on construction employers, NECA recommended either of two approaches:
1. A normal rulemaking process that would provide greater opportunities for learning the benefits, impact, and compliance costs to the construction industry, or 2. At the minimum, a compliance date twelve months after adoption of the new rules to assure proper implementation.
"A final rule with the planned August 13, 2002 effective date could possibly be perceived as rulemaking by decree," observed Potts. "It would be better for OSHA to gather needed input from all affected stakeholders and then devise a compliance plan that will allow reasonable time for employers to meet requirements, and employees to be trained."