ACCSH Transcripts: May 5, 2000

Occupational Safety & Health Administration

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ACCSH Transcripts: May 5, 2000

U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)

Rooms N-3437 B, C and D
Francis Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C.

Friday, May 5, 2000

MOFFITT REPORTING ASSOCIATES

(301) 390-5150

P R E S E N T

Advisory Council Members Present:

Michael Buchet
National Safety Council

Stephen J. Cloutier
Jones Construction Company
Charlotte, North Carolina

Stephen D. Cooper
Ironworkers

Felipe Devora
Fred's Construction Company, Safety Director
Houston, Texas

Larry Edington
International Union of Operating Engineers

Robert Masterson
The Ryan Group, Home Building

Harry Payne
Commissioner of Labor, North Carolina

William Rhoten
United Association of Plumbers and Pipefitters

Russell B. Swanson
Designated Federal Official

Marie Haring Sweeney
National Institutes of Occupational
Safety and Health

Jane F. Williams
Agency Safety Resources Consultant

A G E N D A

AGENDA ITEM: Call to Order: Michael Buchet	PAGE:
The Directorate of Construction Organizational Structure H. Berrien Zettler	6
Engineering Services Mohammad Ayub	17
Office of Construction Standards and Compliance Assistance Noah Connell	24
Remarks: Assistant Secretary of Labor for Occupational Safety and Health Charles N. Jeffress	31
The Directorate of Construction Construction Services Thomas Marple	53
ACCSH Business Michael Buchet	84

P R O C E E D I N G S

(9:06 a.m.)

Call to Order

CHAIRPERSON BUCHET: Good morning. We're reconvening the ACCSH Committee. I'm Michael Buchet from the National Safety Council, Mr. Beckhammer has asked that I chair the continuation of this meeting in his absence.

If you will look at the agenda, we will attempt to follow it relatively faithfully for the rest of the day.

Beginning shortly, and we're eating up some of their time, the Directorate of Construction will address us on various issues.

We expect Assistant Secretary Jeffress to speak to us at 9:45 and then for the ACCSH Committee members, we will have a photo opportunity, listed as an extended break, starting at 10:30.

At 11:00 we have time for public comments. If you would like to speak, please give me a note, a business card or something like that and then we will finish up with ACCSH business, picking our next two meetings for this year.

Without any further ado, Mr. Swanson.

MR. SWANSON: I thank you, Mr. Chairman, Acting though you be. I think it's great that everyone had the opportunity to check the agenda and there's such overwhelming interest in the organization of the Directorate of Construction that we still have an audience this morning. Although probably most of the people out there belong to the Directorate of Construction, this will be the first that some of them heard it. What do you mean, we're organized?

This is on the agenda because of overwhelming demand from the ACCSH Committee and I thank you for that overwhelming request, Larry.

Mr. Zettler is going to walk through DOC quickly, give you an idea of what the overall organization, all 30, 31 of us look like, and talk about a mission statement and then we will let each of the three team leaders deal with each of their shops in a little more detail.

Feel free to ask questions as we go along. With that, Mr. Zettler?

Directorate of Construction
Organizational Structure

MR. ZETTLER: Thank you, Mr. Swanson. As Mr. Swanson said, we are going to this morning spend a few minutes letting everybody know how the Directorate of Construction is organized.

The first thing I should tell you is that in 1995, December of 1995 the Directorate of Construction was established. Prior to that there were pieces of construction scattered around different parts of the Agency.

We had a Standards Section that wrote construction standards, that was a part of our Directorate of Safety Standards. We had a Compliance Assistance part, which essentially writes the interpretations that come to us from the field or from the public. That was in the Directorate of Compliance Programs.

We had an outreach function that was scattered among several places, among which was the Office of Federal and State Operations.

After considerable time spent, we finally, by December of 1995, established the Directorate of Construction. Mr. Swanson was the first director and is still the only director that the Directorate of Construction has had.

I have been the deputy since April of 1996, five months after the Directorate was established. I was previously the deputy in Compliance Programs.

The Directorate, once it was established, was made up of three groups. What we took was the preexisting staff on Construction Standards from the Safety Standards Directorate, we took the Compliance Assistance portion of the Directorate of Compliance Programs and moved it over into the Directorate of Construction and we gathered together the various outreach activities that the Agency was doing and put them into the Directorate of Construction as well.

The whole point of establishing a Directorate of Construction was so that there would be a single source to which the construction industry, both labor and management, could approach OSHA with and have attention paid, if you will, to the various needs of the construction industry.

You can see that the mission that we established was to serve as OSHA's principal source for standards, regulations, policy, programs, engineering and technical support for the OSHA field staff and assistance to the construction industry with respect to Occupational Safety and Health.

One thing I should say is the Directorate has an Office of Engineering Services. That Office of Engineering Services was really the core, the original office that made up what was earlier established as the Office of Construction and Engineering, but that was expanded, as I say, and this is now the statement of the mission.

One other thing that we do or we did is we also participated in the reorganization that was a primary concern and interest to the Administration, so we attempted, when this organization was set up, to fix the ratio of supervisors to staff and as a consequence of that, each one of our office directors was established as a team leader rather than as a supervisor and the Directorate of Construction has only two supervisors, Mr. Swanson and myself.

The other three office directors who will speak to you later are all, at this time at least, team leaders. What that essentially means is that they assign the work and evaluate the work that's done by the staff, but they do not do the supervisory part of that.

Now, the DOC functions, this just really follows pretty much from what we said about the mission. First of all, developing safety standards and regulations.

That is one of the primary functions of our Office of Construction Standards and Compliance Assistance. One of their primary missions is to work on the standards, develop construction standards and the first standard that we published as a Directorate, the first standard we published was the Scaffold Standard, which was published in 1996.

That office is also responsible for developing interpretations and applications. As you know, we have hundreds of requests each year, some of which are in writing and others which come over the phone, where we are asked to make application of the standards to specific work place conditions.

Sometimes those conditions are a little different from -- as you know, in construction there are always some peculiar situations that are arising because of the nature of the particular construction job and it is often necessary for the people who are working on those jobs to get some interpretation from OSHA as to how the standards might apply to that particular work place situation, so we do a lot of interpretations and a lot of applications.

The next thing that we have listed up there is Technical Services in Engineering, Safety, Industrial Hygiene and Statistical Analysis.

First of all, Engineering. We do have an Engineering staff, Mr. Mohammad Ayub is the team leader for that group. He will be speaking to you next.

What that essentially consists of is a response to field situations where a collapse takes place, either a trench collapse or a building collapse, some kind of structural failure. Usually the field will ask our people, our engineering staff to respond to those and we go out and do an engineering analysis and write a report then, which we hope eventually at least can get published for the benefit of the industry.

We also have an industrial hygienist on staff who, although we do not write the health standards, we do provide industrial hygiene applications when they are asked for, so that we do have a staff industrial hygienist, that person addresses concrete health questions that come up in the construction context.

Statistical analysis, we have a statistician, economist/statistician on our staff, the purpose of which is to provide any statistical information, any studies that we might want to do to see what kind of trends are taking place in the construction industry.

Finally, coordinate with FSO on training and education, consultation, cooperative programs and outreach. Most of our outreach and education work we do independently, we don't work with FSO on those because what we do is we have a lot of requests to review training programs, particularly these days when interactive CDs are being used to convey training to those who need training and we have been asked by a great many organizations to look over their training programs and to let them know whether or not we believe that the training would be effective.

We are very, very careful not to endorse any particular training program that comes in, but we will comment if we see any particular deficiencies in a training program, we will comment back to the authors of that program and let them know where we believe the deficiencies are. But we will not in any way advertise or support one program over another.

But we also have participated with a number of organizations, the laborers, the carpenters, the painters, the ironworkers on different training programs which those organizations have established and we have helped them, for example by supplying instructors, by giving introductions to those programs.

We also are doing a good bit of outreach these days. One of our primary focuses is to help in the development of partnerships and other cooperative programs which the industry comes to ask us for.

We've developed a number of programs in partnerships, one with the ABC, the open shop organization. We also have a number of AGC partnerships scattered around the country, the most important of which I think is the one in St. Louis, the PRIDE organization.

As far as partnerships are concerned, we do work very closely with FSO on those because FSO has the responsibility from the Assistant Secretary to be the coordinating organization for the establishment of partnerships.

Outreach, we do a good bit of outreach as well, both by way of giving speeches, that's probably our primary thing is going around -- when we're invited to do so, going around and giving speeches to various organizations, both labor and management.

Further functions that we have, reviewing proposed construction related program plans and so on, that's essentially things that are developed by other organizations in the National Office which have some relationship to construction, we also work on those.

We maintain liaison with stake holder groups, in fact we will be having stake holder meetings or we'll be participating in stake holder meetings in the near future with respect both to the Power Transmission Standard, which is coming up for stake holder meetings, as well as later in the year with the -- I believe it's Confined Space, I forget now exactly which one, Noah can tell you about that.

We also participate with OTI, we have supplied trainers to them in the past on different courses that OTI offers, particularly the crane courses and the scaffold courses.

And then we evaluate construction targeting programs that come in from the field. They are required to submit those to us for a review and then finally, we provide statistical and analytical support, both for the field and for our own use. And for the public's use, when they come in and ask.

As far as the construction, again as I mentioned to you, we have three organizations, each of which is headed by a team leader. First of all, we have Construction Standards and Compliance Assistance, which is headed up by Noah Connell. He'll be speaking to you I believe after Mohammad.

Then we have the -- the second group is Construction Services, which is primarily our training, education group. We also do field -- any field interactions that we have happens out of this group as well. He will be speaking I guess last.

Then the first speaker will be Engineering Services, which is Mohammad Ayub. He will tell you a little bit about what the Engineering Services Group does.

With that, I think I'll turn it over to Mohammad and let him tell you know about the -- well, first of all, are there any questions so far? Yes, Mr. Cooper.

MR. COOPER: You left out two things you do. One is you perform a very important liaison with the other governmental agencies and I would like to point out when I'm looking at this, a couple of years ago we had a problem with MSHA and we all know that construction includes MSHA, Maritime and other agencies other than -- other groups other than OSHA.

So I called Bruce Swanson, who is very knowledgeable about MSHA, having had some experience in that area, and Bruce hooked up the head people at MSHA and we had a little meeting, which was very necessary and we're still working in that area, to coordinate OSHA training and MSHA training, which is very restrictive, so we wouldn't have a duplication of training problem.

That small effort there probably saved our industry -- it's not completed yet -- much turmoil and a lot of money and it's not completed yet, but that function to us was one of the most important functions we've gotten out of the DOC, so thank you, Bruce.

MR. SWANSON: Thank you, Steve.

MR. ZETTLER: Any other questions?

(No response.)

MR. ZETTLER: Okay. Well, I will now turn it over to Mohammad.

Directorate of Construction
Engineering Services

MR. AYUB: Good morning. I would like to briefly present to you who we are and what we do. This is our fairly small office here in the Office of Engineering, the top person that you see is me and we have got three other people here.

Presently there is an opening for a structural engineer in my office. If you know of anyone who would like to apply here, let me know, please.

The Office of Engineering, as was said earlier, was a co-office earlier, it was first known as the Office of Construction and Engineering. Now it is a part of the entire Directorate of Construction here.

The mission of the office is number one, that we are kind of -- I'll say a resource center for all the structural and also geotechnical engineering here. Any issue, any concern, any topic that has to deal with structural engineering, that comes to us so that we can in fact advise them whether or not it meets the basic engineering principles and also whether or not it is in line with the standard structural engineering practices.

Number two, we also help the regional offices, area offices in those issues which they believe require some sort of structural engineering analysis. We are always asked to evaluate whether or not a certain scaffold or a crane boom or a tower, whether or not it has adequate factors of safety or not.

The third item is our major part of our work and the third item is any time there is a structural collapse of a frame, of a building, of a tower, of a trench, any structure, and if that needs engineering analysis, if it needs engineering analysis, then they will call us and we generally respond to the accident site within eight to twenty four hours.

Once we go to the accident site, then we try to help the area office conduct the investigation of that structural collapse.

In most parts of the construction accidents, they don't need any kind of structural analysis because in the case of a fall, in the case of a crane collapse, if crane load has exceeded the capacity, then they don't call us, but in some of the complex cases where there is a structural collapse and they don't know the cause of the collapse, it needs some structural analysis, then we are asked to come and to help them out.

In New Haven, Connecticut recently a structural collapse occurred, a structural frame failure and it killed two people and two other workers had been badly injured and that is just kind of an example that I want to present to you to show that there is a need for structural analysis to be done to find out what has actually happened.

When we do the structural investigation, our aim is not to find fault, our aim is not to blame the contractor, our aim is to find out what is the cause of the accident and also whether or not an OSHA standard has been violated or if there has been a violation of a standard industry practice.

After we do the investigation, we do write a report. I just brought three of the reports here, one of them that we did at Atlanta, a stadium collapse and the third report that I have brought is a 2,000-foot high communication tower that had failed and that had killed three people here.

Some of our investigations are fairly complex and we try to be objective in our structural analysis and after the case has been resolved, completed, then I believe that all these reports will be published and it will be available to you.

We also appear as an expert witness in the cases and the last but one that we would like to address the engineering community so that they can become much more aware of the construction safety issues here.

As you know, most of the communities in the field of engineering, they are mostly concerned with refining and fine tuning the code of design and not much attention has been given to the safety and one of our jobs is to address the engineering community so that they are more geared and they are more flagged so that they will take some action so that they make some improvements in the code so that it will also address some of the construction safety hazards.

Lastly, as I have said earlier, we hope that after the cases have been resolved, all our reports will be published and it becomes a public document. The idea, as was said earlier, is that once the people read our reports, they will make some changes in the way they do the work at the sites and we hope that accidents will not happen again of the same type.

This is all that I have to say. Questions, if you have any? Yes, please?

MR. SWANSON: You may or may not be aware that this committee is working on various things and one is the fatality investigation called Form 170.

In that data we have included the investigation of collapse as relates to -- of course, various reasons, but the one that this country has recently been inundated with counterfeit bolts, a large percentage are coming in from other countries which do not meet ASTM requirements, et cetera, et cetera.

So therefore, we have incorporated into the Form 170 an area in that form in which the compliance officer investigating fatalities that are due to collapse, to seek out the fasteners and if they are sheered, et cetera, if there appears that there is improper fasteners, that that individual would take it to the area office and have a metallurgist look at it.

Do you find any problem with that? In charge of engineering?

MR. AYUB: So far we have not come across any case in which there has been a failure of a frame, a connection bracing structural members due to inferior bolts. We had failures of the connection of the beams and the girders, but that was not as a result of the inferior bolts.

This was an issue which was much more relevant about ten years ago because some of the aircraft industry and some of the structural steel, they had experienced the high strength bolt that has come from the Far East, but I believe that it has improved a whole lot now and to my knowledge, I don't know if it is a live issue or not. I don't know.

MS. SWEENEY: One question. Thank you for your report, it's very interesting. The reports that you have right there, are they going to be mounted on the web so that there's more universal access?

MR. AYUB: Eventually.

MS. SWEENEY: Eventually?

MR. AYUB: Yes.

MS. SWEENEY: Great. Thank you.

MR. ZETTLER: One of the problems with publishing the reports, as you know, there are really two basic problems. One is that until the case is closed, which sometimes takes years, those documents cannot be published for public consumption.

The other difficult question that we often run into is that employers will claim trade secrets and if they claim trade secrets, then we have to go through quite a process to clear the documents and they become -- that also takes a huge amount of time.

We had a case which was not a construction case exactly, but it was a chemical case, chemical industry case which we spent more time going over the trade secret problems than we did developing the document and going through all of the rest. The case is closed, but we still have the trade secret issue.

Noah Connell, who is the director of the Office of Construction Standards and Compliance Assistance, will be the next speaker.

Directorate of Construction
Office of Construction Standards
and Compliance Assistance

MR. CONNELL: Thank you. Our office has two principal functions, one is writing new construction standards and two is issuing informal and written interpretations of our existing standards.

On the writing of new standards, right now we have seven major projects on our plate, the steel erection final rule, number one; number two, evaluating the rulemaking record on the Advance Notice of Proposed Rulemaking for Subpart M. We are preparing a Advanced Notice of Proposed Rulemaking on about half a dozen scaffold issues, we're preparing a Direct Final Rule on Highway Safety Zones, referred to as MUTCD.

We have ANPR for amending the Sanitation Hygiene Standard, working on a Proposed Rule for Confined Spaces in Construction and a Proposed Rule for Safety and Health Programs.

On the function of guidance on existing standards, basically we get about 700 telephone requests for informal guidance each year. We also handle -- we issue about 80 written interpretations of standards and we also occasionally will issue formal directives.

Just to say a word about the issuing of formal written interpretations, this is a fairly involved process. Usually these questions are fairly complex, they involve new issues or they will involve unique or difficult types of situations that employers have found that they are worried about and it's not clear to them how the standards apply, so they want guidance from us.

When we get those requests, we do quite a bit of research initially. We will research not just the standard, but the documents that backed up the standard, that led to the standard. We also research all the letters that we've issued in the past.

The staff develops a first draft, that first draft is reviewed within our office. We do quite a bit of review of the research and the draft itself. After that, after it clears the Directorate, then we go into the concurrence process.

We work with the Solicitor's Office, there are other offices within OSHA that we also usually have to get clearance from, so this is a fairly involved process.

Our goal, which we feel very strongly about, is that our letters first of all be written in plain language. We know that these letters are going to be posted on the internet, we know that the construction community is very interested in these answers and we want to make sure that everyone can understand what we are intending to say. We also try to make an effort to make the reasons for our answers fairly transparent.

One note on the standards that we do, I think it was mentioned before, we are the ones that are doing the safety standards for construction, the health standards are handled by other standards teams outside of the Directorate, but we have a member of our office sitting on each of those teams.

If there are any questions, I'd be happy to entertain them.

CHAIRPERSON BUCHET: Mr. Edington?

MR. EDINGTON: Thank you, Mike. With respect to the activities on the Direct Rule for adopting the -- I gather the Manual of Uniform Traffic Control Safety Devices, are you coordinating that with DOT's current activities to update that themselves? They have that out for review and comment now, is my recollection.

MR. CONNELL: Yes. We've been in close contact with DOT. DOT is in the process of revising their 1993 rule, however for us to be able to do a Direct Final Rule, which is a much faster, much, much, much faster process than any other rulemaking process --

MR. EDINGTON: In theory.

MR. CONNELL: We have to base it on a rule that's already in existence, basically. So while they are in the process of revising their rule, if we were to try to link to their revisions, there is no way that we could do this quickly.

So what we are planning on doing is basing our update on their 1993 rule and that will be a considerable improvement over our I think 1969 rule.

MR. EDINGTON: Obviously, you see where I'm going with my question. My concern is that we may end up in a situation were we are in any other number of areas, while I don't dispute with you that you'll be better off than you are now, but we may find ourselves still behind where they now are.

MR. CONNELL: Right. And we have taken a look, a close look at the amendments that they're working with and we don't think that they are so significant, from our perspective, that it's a mistake for us to link up with their '93 standard. We did take a close look at that.

MR. EDINGTON: Okay.

MR. SWANSON: We are trying to get what we can get, Larry, and if we get this process through with the Direct Final -- we're just going to grab what we can get now. We will be much better off with the '93 than we are with our present situation, if the process works.

This is also a test case for the entire process. If it works this time, we can get up to the year 2000 the year after next, a whole lot quicker.

MR. EDINGTON: Okay. Thank you.

CHAIRPERSON BUCHET: Mr. Masterson, then Mr. Cooper.

MR. MASTERSON: It was explained to us yesterday that the Agency's success with Direct Final Rules up to this point has only been two of them have gone through.

Realistically, what do you think the probability or the chance of going through with this on Direct Final Rule is?

MR. CONNELL: I think it looks very, very good. This looks like an outstanding candidate for a Direct Final Rule for a number of reasons, the main one is that we're linking up with a regulation that's already in place by another agency.

So I think -- it just looks like an excellent candidate for it. Of course, I have been wrong before.

CHAIRPERSON BUCHET: Mr. Cooper.

MR. COOPER: Noah, you knew darn well that I wasn't going to let you get away without asking you a question.

Unfortunately for you, the Solicitor's Department was in here for a lengthy time yesterday afternoon and went through all the ramifications of trying to get a standard out and I know you get heat from the front office and then it comes down to the DOC, but you are the poor whipping boy, it really comes down to you and I just wanted to -- I think the Committee knows that, that it all comes back down to you and you're the poor guy that got the job with all the heat.

So I appreciate working with you on the steel erection standard and other standards and thank you very much.

MR. CONNELL: Thank you, Steve.

CHAIRPERSON BUCHET: Any further questions?

(No response.)

CHAIRPERSON BUCHET: At this point we're going to interrupt the Directorate of Construction's presentation because we failed in self-introductions this morning to find some new faces in the back of the room and if you look back there, sitting quietly is Assistant Secretary Jeffress, who is next on the agenda.

So if we could have him come forward, and in case you didn't know, this is Harry Payne. Good morning, thank you again for sharing your time with us and welcome.

MR. JEFFRESS: I appreciate the opportunity.

CHAIRPERSON BUCHET: Do we have to read this into the record?

Special Remarks

MR. JEFFRESS: I just wanted folks to know I haven't forgotten my promises, that's all.

This morning I wanted to cover three kind of general areas and then respond to whatever questions you all may have. First, a little overview of what's going on with OSHA, not limited just to construction, but OSHA generally, one follow up on the standards, a comment on ergonomics and then some talk about partnerships that we're engaged in.

Just in terms of the overview for OSHA, this year we're on target with our activities, the consultations, the inspections, the training activities that we are engaged in, we just had a mid year review within my office and next week I get to have a mid review with my boss about where we are and what progress we're making and we're on target with the plan that we set out for ourselves for the year.

With respect to the strategic plan and the goals there, which is what we're tracking of course pretty closely, you will recall one of the goals was to over a five-year period assist 100,000 work places with a 20 percent reduction in injuries and illnesses in each of those work places.

We have had an evaluation of our interventions done by two professors, one from Clark University and one from University of Pittsburgh, looking at the places we have intervened and examining those companies' injury and illness logs.

They report that we're well on our way towards our goal. They report over 50,000 work places that we have worked with over the past three years have had at least a 20 percent reduction in injuries and illnesses. As you can imagine, that's a bigger reduction than average, so we feel like our interventions are helping to make a difference and we're on target with meeting our goal of 100,000 in five years.

Overall, of course, the injuries and illnesses are going down and two weeks ago the Bureau of Labor Statistics released a report on lost time injuries, where they broke them down by type of injury and what was occurring and they reported again that not only are overall injuries and illnesses down, but most serious ones, requiring days away from work, are down substantially, a 26 percent decline since 1992.

While that's good news, the rate of restricted work cases is going up, so while the overall rate is going down, there is some suggestion that cases which five years ago might have been lost time are now light duty cases as opposed to lost time cases. It's a phenomenon they'd like to do more research on and then we'll be seeking funds next year to look more closely at these restricted work cases which are going up so quickly, to look at what's happening with them.

The five industries that we targeted for assistance in trying to reduce injuries and illnesses, again the story I'll note is good. All five of the industries have reductions. As you all know, construction has had a substantial reduction in injuries and illnesses.

Shipyards, logging, nursing homes also show reductions, nursing homes not as much reduction as others, that's one area where we -- there's still some weakness, we need to do some more work.

We also targeted three hazards, silica, lead and amputations. Silica and lead exposures, as measured by the places we go and take samples, the silica and lead exposures are both down in double digits, significant declines in over exposures there, we're very pleased with that. Amputations are down somewhat, but still some weaknesses there.

The goal that I hope is of major concern to you all is that of construction fatalities and we're not making a lot of progress in construction fatalities. There continues to be a high rate of fatalities in construction, the numbers continue to be higher than any of us would like and we've got to continue to focus on what's causing the fatalities in construction.

It's odd that the injury and illness rate is coming down, controlling the minor stuff, but the big stuff apparently we're not making much progress on, so I think that's some concern for all of us.

I will say in that regard one of the partnerships we have is in Florida with the CARE Program that has been described to you all before. The first year's results in Florida showed a drop in fatalities, there were 66 the year before we started, there were 55 last year.

One year's data doesn't necessarily project a trend, so I don't want to read too much into that, but at least it's certainly a lot better than if they'd gone up. I think that's a good sign.

I hope that the significant attention and dramatic increase in our activity down there has had an impact and the group in Florida is going to focus particularly on falls and electrocutions for this coming year, since those two account for more than half of all the fatalities in construction in Florida.

In Texas we're also doing a significantly stepped up enforcement role in construction, also complimenting that training and seminars and Texas has had a similar increase, as Florida has had, in fatalities in construction. I hope emphasizing our activities in construction in those areas where construction is really booming that we'll have an impact on bringing the fatalities down.

A little bit more on the overview of OSHA, the education emphasis that I talked about once before with you all in preparing last year's budget, the budget came through to support that emphasis, we are increasing it. There are 44 full time compliance assistance specialist positions out there authorized right now, next year's budget will fill out, every area office will have one, if next year's budget is passed as the President has proposed it and we will have a significant increase in what we're doing in terms of education and training.

If you really look at the last four years, what OSHA has done in this area, we've put the expert advisors and the technical advisors on an internet page, we've hired the compliance assistance folks, we have started an effort at OSHA Training Institute to provide distance learning through satellite linkages and networks.

We have put more material on our web in terms of educational materials than ever before. There's significant emphasis by OSHA in the last four years in education and training. I think that's a useful thing to do, I think that will help save lives and I hope to see that grow.

The biggest part of the President's budget for next year is another significant investment in education and training. He has proposed an 11.6 percent increase, I think I mentioned some of this in Chicago.

I'm pleased with the increase that's been proposed by the President, but the budget resolution that has been adopted by Congress denies any of that increase and actually projects a cut in OSHA's budget.

The budget resolution as it now stands has a 12 percent cut from what the President proposed for OSHA, that takes us down below this year's level for funding.

It will -- if that happens, we can kiss our educational emphasis goodbye, we'll actually have to cut back on some of the stuff we're currently doing and I'll be very disappointed if that occurs.

But the House and the Senate will be marking up the appropriations bill for the Labor Department next week, the Senate will vote before Memorial Day on the appropriations bill, the House will vote in early June and they expect to get a final bill to the President before the 4th of July.

They've said things like that in the past and they've always made good on it, but this year they are sticking to that schedule so far, they seem determined to keep to that schedule and certainly the prognosis at this point for the Labor Department budget overall is a 12 percent cut for OSHA, which would do substantial damage to what we're currently doing.

So although I think we're making progress in terms of safety and health, the progress OSHA has made is good, I'm concerned about the threat of a cut back if the budget is treated the budget resolution proposes.

That's an overview of some of things I thought you would be interested in. On the standards, I have a question for you all, I would appreciate your advice to me.

In doing the Ergonomics Rule, we talked with this group about following the general industry standard for ergonomics, with construction immediately afterwards. We are still on target to complete our ergonomic standard for general industry by the end of this year.

We will be doing a new regulatory agenda for next year and we do that this fall and the question I have for you all is is it appropriate to list on the regulatory agenda for OSHA for next year an ergonomics standard for construction?

I realize this is a very divisive issue, it's a very difficult issue for folks to talk about, but we made a commitment to this group and to the construction industry that we would look at construction next and before I do something like putting that on the regulatory agenda for next year, I'd like you all to think about that and think is that what you believe is appropriate to do.

We will have substantial work on standards still to do in other areas, but we made a commitment and I'd like your advice on whether we should proceed with that kind of announcement.

The final area I wanted to talk about is partnerships, OSHA's activity in terms of addressing safety and health issues. We have enhanced a lot I think the last five years by forming partnerships with different groups. We probably have more in construction than we do in any other area.

They are getting I think better and more comprehensive and better thought through, the PRIDE partnership that we signed in St. Louis last year was probably the break through example of a really well thought through, comprehensive partnership that required substantial effort by owners, by contractors, by employees and I'm real pleased with that.

The model partnership that we signed with ABC is the similar kinds of principles that we have with PRIDE, which hopefully will serve as a national model that other local OSHA area offices and ABC chapters might endorse and go forward with. I think that will help us separate those that are doing a good job from those that haven't yet invested in safety and health or aren't paying as much attention as they should and help us get more directly and spend more time with those who haven't spent the time they need to.

We welcome others. I think this is a good model to work with, having these kinds of partnerships and I would encourage you all to go back to the folks you represent and encourage them to pursue this kind of partnership with OSHA.

Those were the three general areas that I wanted to cover and I would be happy to respond to questions that you all may have.

CHAIRPERSON BUCHET: Mr. Cooper.

MR. COOPER: The ergo in construction is, of course, a very, very serious and important matter, but we thought we could probably get real interested in that right after you promulgate the Sanitation Standard.

MR. JEFFRESS: Well, the Sanitation Standard of course is on the agenda for this year.

MR. COOPER: As you know, in our last meeting in Chicago this Committee, a large group from this Committee went over to the Institute and I just wanted to remind you that many of us feel that you should do everything you can to insure that the budget for the Institute helps the Institute be in a position to do outreach training from the Institute to the area offices.

Many of us feel that is extremely important. I know you've got a lot on your plate and always will have here, but to me, that is a very, very important issue to us.

MR. JEFFRESS: I appreciate you saying that. Almost 10 percent of the budget increase proposed for next year is to support the kinds of training that we do through the Institute, so I believe in that, too, and I believe it's an important thing to do.

MR. COOPER: That's great. That's good news. Thank you.

CHAIRPERSON BUCHET: Ms. Williams.

MS. WILLIAMS: Good morning, Charles.

MR. JEFFRESS: Good morning, Jane.

MS. WILLIAMS: Needless to say, you know what I'm going to talk about and I appreciate your remembrance there.

We do thank you as a committee to see that sanitation went from long term action to the pre-rule stage and I really appreciate that.

Yesterday we had a very interesting presentation by the Solicitor's Office, going through the rulemaking process for us and I found it most interesting, but it also raised some questions in my mind.

Being this issue has been discussed by prior ACCSH and because it was again a recommendation by this Committee in October '98, work has been done, continues to be done, would this not be a candidate to pass the Advance Notice stage and go right into the Notice of Proposed Rulemaking? Could that be a consideration for you?

MR. JEFFRESS: We certainly can do that. We have done that with other rules. If we have a proposal ready to go, we could do that. Having a proposal requires that we have not only the rule itself, but also the feasibility issues addressed, the economic and technical feasibility issues, as well as the health effects and the risk assessment.

One of the ways that we collect the information to produce the health effects and risk assessment is through an ANPR. While I think we've got some good ideas on the rule itself, publishing a Proposed Rule would not be difficult, whether we have all of the health underpinnings and feasibility underpinnings that we need to propose a rule, I'm not certain of.

It's certainly something that I can talk with the construction staff about, but if we feel like we don't have enough of that underpinnings, an ANPR would help us gather that information.

MS. WILLIAMS: Thank you. So you will consider it, though?

MR. JEFFRESS: Yes, ma'am, I will.

MS. WILLIAMS: Thank you.

CHAIRPERSON BUCHET: Mr. Edington.

MR. EDINGTON: Good morning, Charles.

MR. JEFFRESS: Good morning.

MR. EDINGTON: You know, I know in a job like yours there are lots of people who want to you about when you do something wrong, at least from their perspective, or doing things that make they very unhappy and I think that at least on occasion some of us are remiss in thanking you for doing something right.

On behalf of my own organization, and I said this yesterday and I'll say it again today, how pleased we are to see the Workers' Page. We think that's really an important first step on the part of the Agency towards empowering American workers, to better know and understand what their rights are under the Act and it's certainly I think a big step towards safer and healthier work places and you've really done the right thing there.

The next thing I'd like to ask you about is when we were last together in Chicago, I thought that you had raised a very good question with this group and that is you had asked us to think about -- and I don't know that we have yet done this -- about what the Agency's resource allocations are with respect to standards.

MR. JEFFRESS: Yes.

MR. EDINGTON: Clearly, once again this morning we're talking a fair amount about standards, we've talked about where the budget currently is and I'm wondering if there's been any additional thinking on your part in regards to that and I know we still owe you an answer.

MR. JEFFRESS: The same conversation I had with you all about OSHA only putting less than 5 percent of our resources into standards I've had with some other organizations.

People generally have been shocked that there's so few resources going into standard setting. At the same time, I haven't found anybody who believes that it's likely that Congress would support a great increase in money for OSHA regulatory processes. I haven't found folks suggesting that we should reduce our enforcement presence in order to shift resources into standard setting, the two ways that we could give more attention to standards.

Absent getting resources either from shifting it from enforcement or new resources from Congress, it's a pretty tough problem and I don't have a great solution.

MR. EDINGTON: Thank you.

CHAIRPERSON BUCHET: Mr. Devora.

MR. DEVORA: Thank you, Mr. Chairman. Happy Cinco de Mayo, Mr. Jeffress. With a thought on the Workers' Page on that subject, I think it an important first step in addressing a section of the work force in construction, but as you well know, that section is more and more every day becoming more diverse and I think it's important that this first step be carried on to another step where we include all workers, all the diversity of workers that can have access to this and not only the section of computer literate, English speaking folks that have the ability to get on that web page, so I think that effort is a good first effort, but I think it needs to be carried beyond that and hopefully, it will be.

Secondly, with a comment on ergonomics very quickly, I think we've seen in this Committee and all the hard work that the workgroup has done that there's still a lot of issues out there, there's still a lot of discussions to be had and certainly we're in that phase of the discussion and certainly we're looking very closely at what's happening in the general industry.

I think our commitment to follow up the one for general industry for the construction industry was going to be predicated on what happened with the general industry one and I would caution on my side, the folks that I represent, before we run to promulgate another standard for construction is that we use this general industry standard as an advantage and use it and see how it shakes out and see what the problems are, see what we can address and use that to our advantage instead of confusing the issue, I think perhaps, in some areas.

It's very important to workers and that's not to be misconstrued that some folks don't care about musculoskeletal in construction, but I think sometimes in our rush to promulgate something we may perhaps be muddying the water more than we're clearing it up sometimes.

That's my only caution and concern, to rush and right away, immediately, before we see the results and some of the ramifications of the general industry ergonomic standard in place. Thank you, Mr. Chairman.

CHAIRPERSON BUCHET: Marie Sweeney.

MS. SWEENEY: Good morning. I have to second Felipe's notation. I think the Workers' Page is very good and needs to be in at least Spanish and probably other languages for it to be more effective -- most effective.

With regards to ergonomics, you know where my heart is and it's been there for a long time and we have discussed many, many issues. Perhaps one step that OSHA might take before putting an ANPR out or maybe in tandem with that is developing partnerships with the variety of construction companies and trades and developing interventions and testing interventions and solutions.

One of the comments that we keep getting is that there's not enough data. Well, I think there's probably plenty of data, but what we really need to do is show some hard and fast ways of changing the work environment so that workers don't get hurt, but that increases productivity, reduces the bottom line when it comes to Workers' Comp so that we can show that it's a win/win situation when we do have a standard and that we can help both the employer and the employee.

MR. EDINGTON: Anybody else? I have a follow on to this discussion of asking ACCSH to consider whether advising OSHA or not to put ergonomics on the regulatory agenda.

It's a happenstance, by sheer coincidence, we invited Larry Livertor to address the Musculoskeletal Disorders Workgroup about the research that the MACOSH Committee and NIOSH and the employer/labor members of MACOSH have undertaken and we have invited or we have talked to Larry, we haven't formally invited MACOSH, but we have asked them to come address us at our next meeting, which will probably be in September.

Some of us are talking about the possibility of doing something similar through ACCSH. One of the stumbling blocks that that group had to overcome was how they funded the research and apparently they found funding sources outside of OSHA.

In this case, maybe we could -- certainly after the bleak news about the budget, we probably can't find --

MR. JEFFRESS: Don't ask me about funding yet.

MR. EDINGTON: But at least in helping us to find ways of possibly funding a similar short term study through ACCSH, with the help of NIOSH and employers and workers in the field and again try to generate a useful picture and data that everybody has faith in because I think there's tons of data, some people have faith in some of it and other people have faith in others and we just stack it up on opposing walls and throw snowballs at each other.

But that's great minds thinking alike. I'm going to ask that we put this discussion of suggesting that you put it on the regulatory agenda in the September meeting, which may be a little late, but we will discuss it.

MR. JEFFRESS: All right. And going back to what you and Marie both said, the NIOSH work with MACOSH and the maritime industry I think is going to produce useful data that people will all acknowledge as being relevant and appropriate.

It is a two-year study, so when we say "short term," let's understand that first it took a while to get the agreement on what the study would be and then it's a two-year study and then we'll analyze the results, so it's not a short term -- it may be short term the way OSHA does rules, but it's probably not short term the way most of us think about short term.

I think there is some value in that approach, but we need to understand that collecting data is not necessarily a quick thing to do.

CHAIRPERSON BUCHET: Mr. Payne.

MR. PAYNE: From a State's perspective, our experience has been when you leave groups out of a solution, that the problem is not so neatly defined and it doesn't have those crisp edges and if we wait a long time to follow with a construction solution, I think it's less about the problem and more about issues that should not be a part of the discussion.

We promulgated a standard, an ergo standard in North Carolina that doesn't exempt anyone by trade or occupation or which place they happen to go to work in the morning.

Hopefully, by the end of the year we will have completed our efforts and it will involve a court case, but I hope our experience and Washington State's experience will be of some laboratory use to the Department of Labor in seeing how little negative impact and high a positive impact addressing this problem does have.

I would encourage OSHA not to allow the difficulty, the hurdles that they've been having to cross, to in any way push them off the course of helping those folks who happen to go to work in construction every day.

CHAIRPERSON BUCHET: Anybody else?

(No response.)

CHAIRPERSON BUCHET: Thank you very much. We look forward to appearing in your office in droves for a photo opportunity.

MR. JEFFRESS: When you all take your break, come downstairs and I'll be happy to do that.

CHAIRPERSON BUCHET: We will do that. We're scheduled for 10:30 and if we can finish up with the Directorate of Construction and keep Mr. Marple short, we'll be there on time.

MR. JEFFRESS: With that admonishment, I'm sure you will.

CHAIRPERSON BUCHET: Thank you. Mr. Marple.

Directorate of Construction
Construction Services

MR. MARPLE: I'll take the opportunity to sit as well, if I may. I don't know whether I can see as well standing up and trying to put this paper out in advance.

Good morning and thank you for the opportunity. One of the advantages or disadvantages or going last is many people steal your thunder as you're sitting back there looking at your notes and people are talking about many of the things we're trying to do in construction, so I'll try to skip over many of those parts and indeed, we will keep this short.

The mission of the Office of Construction Services is to provide construction safety assistance to all Agency components and plan and manage a program working with the construction industry to enhance safety awareness and reduce construction accidents.

Then there are about three pages of things that we do that follow that, if you look at our mission statement on the web site, and in going through that, I found about another three pages of things that we actually do beyond that, so we're kind of a catchall organization, because we handle all of those things that don't fit specifically under Construction Engineering or under the Construction Standards and Compliance Assistance.

I have a staff of six safety and health professionals, four of whom come from a safety background, two from a health background. I have one data analyst and I have one administrative support staff and then myself and my background, of course, is safety.

Many of you are familiar with my staff because my staff is the primary group that coordinates our activities with ACCSH and a number of my staff provide the support to your various workgroups and I want to say to Mr. Edington that we really appreciate the work in particular, myself, of the work that deals with the data analysis in the 170 Workgroup because that's one of our main challenges, to try to identify in construction where and what is causing the fatalities and what are the commonalities and how can we use that information to better target our limited resources of effect that in the field.

That's one of our main functions, coordinating with ACCSH and taking the information that ACCSH brings back to us on some of these issues and trying to put that into a working format for our field offices.

We also maintain the technical liaison with the other agencies and again Mr. Cooper mentioned earlier about the problem with MSHA, that was before my time, but we maintain the coordination with agencies such as MSHA, NIOSH, APA, Corps of Engineers and others on issues of construction safety and health.

We also help to assure that the client groups that are effected by OSHA activities are given sufficient notice of OSHA plans and activities in their area.

Recently we helped to identify parties from the construction industry that might be interested in a small business conference we were having here in Washington and one of the results of our efforts was that almost everybody at that conference who wasn't related to another government agency came from the construction industry, so we make a sincere effort to get to our stake holders and let them know what's going on so we can have their input.

We provide review and input to OSHA's grant programs effecting the construction industry. Last year the Susan Harwood Grant Program announced they had $600,000 allocated to fund research in the construction industry. The Office of Construction Standards participated in that review, provided input and as a part of our participation, we actually wound up with $150,000 more than was originally allocated in the grants for the construction industry.

The construction stake holders received a total of $750,000 last year and it went to six different stake holder organizations to help provide training materials in construction safety and health.

The biggest piece of thunder that was stolen from me this morning is our work in the partnerships. It's my shop that does most of the coordination, not only with the stake holders, but with the regions, with the other agencies here in the National Office regarding partnerships and partnerships are certainly a very important part of trying to address the issues in construction that are impacting the high fatality rates.

We have a limited number of resources in OSHA to conduct inspections, last year we conducted less than -- inspections of less than 2 percent of the work sites that were active during the last calendar year.

If we're going to reach people and to improve safety and health, we've got to find a way to give employers and employee groups incentives to work with us to address that.

The two biggest partnerships that we're very proud of any you've heard about then, the PRIDE and the ABC, I won't go into any detail on either of them, but the one thing I want to say about the ABC partnership that I believe is important is we started negotiating that as a national partnership, but when we came down to determining how that would be implemented, we determined that it was important for the local offices to actually negotiate with their local construction groups to negotiate the partnership, so we developed a template that contained the things that a partnership should have, the things that are required by our Agency Policies and Procedures and we did the clearance at the National level to see that that partnership document met the requirements for OSHA Policy.

CHAIRPERSON BUCHET: Excuse me. After admonishing you to be short, now I'm going to give you an excuse to be long. Could you spend some time and explain to us how you go about developing or negotiating a partnership, because I for one don't know and it would be nice to know that these things are extremely well thought out. We suppose they're well thought out.

MR. MARPLE: Well, they take long enough that they must be extremely well thought out. We have a guidance document in OSHA, I don't remember what the number of it is, but we have a guidance document that's available on the web that tells what partnerships must include and what they may include.

The way we approach partnerships varies because it depends on how we actually get into partnership negotiations with somebody. Many partnerships are negotiated without us ever being involved at the National level, there are partnerships that are decided upon at a local level and negotiated there.

In some cases a particular group may approach us about a partnership and that begins the initiation of a partnership, in some cases we may identify a group that we believe should have a partnership with us because it's an area that we really feel we need to have an impact in.

I was just handed the name of that partnership directive, the number, so if anybody is trying to look it up on the web, it's TED 8.02.

Partnerships begin with two people or two groups sitting down to talk about what their interest is, what do you want to accomplish from the partnership.

We certainly have an interest in creating an environment in which safety and health becomes a very primary consideration. We have an interest in forwarding the issue of safety and health programs, getting employers to develop effective safety and health programs.

Most of our partnership agreements contain requirements for an employer to have already an effective safety and health program, as demonstrated by lost work day incident rates which typically are below the average for their particular industry.

The industry wants certain incentives from OSHA and so they negotiate with us what they think they would have to have for their members to be willing to sign on.

Partnerships are not easy. They're not easily formed because there's a lot of requirements that people have to meet.

CHAIRPERSON BUCHET: How much latitude do you allow the different negotiators in the area of incentives? Because I think that is troublesome to a lot of people.

MR. MARPLE: It is troublesome and I think the incentives are relatively limited. If you look at the OSHA instruction on that, there's a very limited amount of incentives that are permitted at this point.

One of the incentives that is not spelled out in the partnership directive but it's been my experience in talking with people who have been in partnership with us and it's been my experience when I was an area director in the field with people that we were in partnership with, one of the greatest benefits of partnership is the improved communication between the partners.

I have to tell you that from what I've seen in the partnerships that I've worked with, that improved communication, that improved relationship is more important than any of the other incentives that we could offer.

Employers and employee groups who come into partnership with us see us in a different light because they work closely with us and they see what our responsibilities are, and I think my boss has a comment.

CHAIRPERSON BUCHET: Mr. Swanson.

MR. SWANSON: Yes. Let me interject here and I don't mean to interrupt you, Tom, but in answer to Mike's question about what latitude we allow the various negotiators and that gives an image of a far more horizontal organization than we have.

This is a very vertical tree and each of the partnerships takes the same path. We get constructive criticism from FSO and the Solicitor's Office on what we can do and what we can't do under the Act when we talk about what incentives we can give to employers.

So it is no accident that the incentives tend to have the same -- partnerships have the same incentives built into them and that's fairly standard by now.

One other comment that I'd like to make, Tom is absolutely correct in that we have on occasion, like CARE, noted a particular problem that we then went to the construction community and talked about solutions other than the hammer that we had been using.

But in the other significant ones that the Assistant Secretary mentioned, the ABC, the PRIDE agreement out of St. Louis and way back roofing agreement, which really started this ball rolling a few years ago in Chicago, in each of those situations it was that community that came to us with an idea and a draft package and we sat down and hammered things out from that.

Those who would like to partner with us, please don't wait for us to come to you.

CHAIRPERSON BUCHET: That brings up my last question on partnerships and I apologize for interrupting your presentation. If you had any suggestions for ACCSH to assist in helping to find areas of the country or the industry or individual groups that would benefit from entering into partnerships, please give us some suggestions.

MR. MARPLE: I don't have any specifically, but I would encourage you to look at that because we certainly would appreciate any input that would help us in that area. With that, I'll --

CHAIRPERSON BUCHET: I'm sorry, we have --

MR. RHOTEN: I've just got one question of sorts. On these partnerships, it would seem like -- I would imagine that all of them are basically with general contractors and/or owners, right?

MR. MARPLE: Generally general contractors and owners would be the largest group, but there are some subcontractors. For instance, the roofing partnership that Bruce mentioned is specifically.

MR. COOPER: Associations. Sort of like with our Mechanical Contractors Association, a partnership with them could be entered into that would have the same conditions that these other partnerships have.

MR. MARPLE: Yes.

MR. RHOTEN: But then if they were working on a site, for instance, that didn't have a partnership agreement and the site was inspected, then --

MR. SWANSON: Well, that gets us into one of the specific wrinkles, but a someone has already mentioned, that's what we had with the roofing partnership in Chicago, where roofers are more often than not not the general contractor and so we can have an agreement with a sub that is on the job, although the job is inspected because it's there under the general's name. The benefits of the partnership still accrue to the subcontractor.

MR. RHOTEN: So if the Mechanical Contractors Association, for instance, as a group put together this package and they individually signed on to it, the conditions would apply then?

MR. SWANSON: Please bring them in and let's talk.

MR. RHOTEN: We're setting that up right now, Bruce. In fact, a week from Tuesday.

MR. MARPLE: With that, I'll leave the partnerships, but we're certainly interested -- is one of the things that we're very greatly interested in and we would take the opportunity, if offered again, to talk about partnerships with this group and to work with this group in any way.

We work with the Office of Training and Education, as mentioned earlier, we provide oftentimes trainers for some of the construction courses.

We also support and have lobbied very heavily for an increase in the use of distance training and in the use of computer-based interactive training. We know how important that is to particularly the construction industry, with such wide spread activities and crews all over the country, so we think that that's an excellent way to reach people and we continue to work with people who are developing interactive training, review those programs and comment on them.

We also review OSHA training materials to try to assure that they're consistent with the most recent standards and most recent OSHA policies.

We provide assistance for on site inspections in our field offices, when they have a need for a particular expertise, not including the expertise provided by the Engineering Services staff, but sometimes just for expertise in a particular area, like we provided a staff member to assist with the Miller Park crane collapse.

That staff member has since gone to work for private industry, but we at one point had the construction expert for OSHA, construction crane expert for OSHA within our staff.

In order to assure fair and consistent enforcement throughout OSHA, my staff serves as a clearing house for review of all of the significant enforcement actions in the construction industry.

At construction enforcement actions where there is a penalty proposed greater than $100,000 or where penalties are proposed on an instance-by-instance basis, what we call egregious, all of those are reviewed by my staff to determine if appropriate policies and standards are being applied.

In the past six months, you may be interested to know that we have reviewed citations proposed for 53 construction employers on 36 construction work sites that were considered significant enforcement actions, a total of 430 violations with penalties over $6.5 million resulted from those inspections.

To give you an idea of where we're focusing on the significant cases, eight of those cases involved excavation hazards, thirteen involved fall protection issues, including seven that concerned scaffolds, four were based on asbestos and five contained violations of the Construction Lead Standards, so our significant cases tend to fall in those areas where we are focusing on trying to reduce injuries and illnesses and in reducing the fatalities.

The other cases kind of covered a number of different areas, so we won't talk about all of them.

MR. PAYNE: Mr. Chairman, could I ask a question?

CHAIRPERSON BUCHET: Mr. Payne.

MR. PAYNE: How much additional time in the review process before the citation is issued does that heightened review and discussion require? If you would process that, I'm interested.

MR. MARPLE: Actually, that's fairly easy to answer, not more than three weeks, because we seldom get them earlier than three weeks from the expiration of the statute of limitations. So certainly it doesn't take more than three weeks for us to do that, but it depends on the case and the information provided to us.

MR. SWANSON: Mr. Payne, there is an OSHA guideline out there for the regional administrators, that they must get it in at least three weeks before the expiration of the statute and "at least" is always read by a bureaucrat as that's the time limit.

MR. MARPLE: And in about four of these cases they missed that time limit, so our review was even significantly less.

However, that review is thorough, to assure that what we're doing is in accordance with our policies and to assure that we are maintaining consistency in our application of those policies and of the standards.

MR. PAYNE: thank you.

MR. MARPLE: Some of the other internal support functions that we perform, I have a statistician/economist on my staff, we provide data to our field offices on construction inspection activity, fatality activity, standards.

We also provide information to our stake holders, we get a number of requests from different stake holders and associations for data related to the construction industry for different projects that they may be working on.

MR. SWANSON: I think you're keeping these people from their photo opt.

CHAIRPERSON BUCHET: There's brutal.

MR. MARPLE: I timed that just right, didn't I? Wasn't it supposed to end at 10:30?

CHAIRPERSON BUCHET: You timed it perfectly. We took time from you, gave it back to you and it's time for our break and we thank you and Mr. Ayub and Mr. Connell, who have gone already. Do you want to add something?

MR. SWANSON: They went back to work, which is what they should do.

CHAIRPERSON BUCHET: Are you singling Mr. Marple out as not having to?

MR. SWANSON: He's just waiting for the boss to finish. But let me add, if I may, these guys did not touch upon their own personal backgrounds much.

Mr. Ayub was here, as you heard, when we set up the Directorate of Construction, he pre-dated me in the Construction and Engineering Office. But Mr. Marple and Mr. Connell are selections based on where I've had the most trouble.

I sometimes have difficulty communicating successfully with the OSHA field, so not being a fool, I went out and stole a person who has been in OSHA since it was created and was one of the best area directors alive out there at the moment and that is Mr. Marple.

He has a strong background both in egregious citations and a belief in the idea that OSHA has room to change and should be reinvented, the pattern we've been using for the last 29 years is maybe not the best pattern. Those are the reasons that Mr. Marple now sits as Director of Construction.

I also have had problems in the past with the Solicitor's Office and getting them to see reason, with a nod to the Solicitor in the back of the room.

That's the reason that we have Mr. Noah Connell on the staff. I went out and stole one of the best that they had and we now communicate on a much more even footing with the Solicitor's Office.

Thank you for allowing me the time for those additions.

CHAIRPERSON BUCHET: We've got to keep this brief. Mr. Cooper and then who else? Ms. Williams.

MR. COOPER: My question will probably be shorter than your decision on who is going to speak next. Bruce, how many people do you have in your department?

MR. SWANSON: We have a compliment of 31 at the moment and I think we have three vacancies -- four vacancies I'm told from the back of the room.

MR. COOPER: Thank you, sir. Thank you, Mr. Chairman.

CHAIRPERSON BUCHET: You're welcome. Ms. Williams.

MS. WILLIAMS: Tom, I would like to say that I might want to have some discussions with you regarding your fatality data, to see if we can extrapolate some information from you when we go into our event logic that we're looking at for 170.

MR. MARPLE: I'm available at your request.

MS. WILLIAMS: Thank you.

CHAIRPERSON BUCHET: With that, thank you very much, thank you Berrien. Apparently the procedure is to follow Mr. Boom to where we're having our photos taken.

MR. BOOM: If you want to take a break, we'll break.

CHAIRPERSON BUCHET: We need a break break and where do we meet you?

MR. BOOM: Meet me right here at the elevators in about five minutes and we'll all walk downstairs.

(A recess was taken at 10:34 a.m.)

(Back on the record at 11:05 a.m.)

CHAIRPERSON BUCHET: We haven't received any requests for public comment and we have received a request that we extend the Directorate of Construction's presentation or discussion a little bit longer. Mr. Edington, I believe you have some questions.

MR. EDINGTON: Thank you, Mr. Chairman. I suppose, like many others in the construction safety and health community last week, when the NIOSH report came out on the Communication Tower fatalities, I was both shocked and concerned I guess is the best way I could put it.

I could not help but think about the presentation that this group had received within the past year or so with respect to the understanding that the Agency had entered into with the industry with respect to insuring safety and health in the erection of these towers.

I'm wondering what is happening. Are there any steps being taken to do an analysis with respect to is there anything about the understanding that was reached that directly or indirectly has a factor on what's happening with these fatalities?

Is it something that -- that understanding should remain in place in spite of these fatalities? What's going on there.

MR. SWANSON: He keeps looking at you, I don't know what for. Are you prompting him there?

MS. SWEENEY: No, no. It was totally unsolicited.

MR. SWANSON: I also saw that NIOSH report and the NIOSH report itself, if my recollection is correct, referred to the agreement and NIOSH participated in the negotiations that we've been doing with this group, NATE, over the last few years.

The tragedy, the family tragedy that was referred to in that NIOSH article where a father, son and mother was holding the rope or the cable, was that in North Carolina?

MS. SWEENEY: It was in North Carolina.

MR. SWANSON: That was a situation, it's my understanding anyhow, had the agreement that we had with NATE been followed for access, we would not have had that tragedy.

What you have of course in this industry, as in many other industries, but the towers might be even worse because it's so difficult to keep track of where these thousands of towers are being erected and the erection time is not lengthy by most standards, they're in, they're out.

If we had made an inspection or in this case of North Carolina had made an inspection, I'm sure the procedures that were being used in that tower erection would have been stopped.

It was backyard type construction activity that was going on there and with terrible, terrible results.

We have the agreement on tower access, it is our belief that to the extent that tower erectors comply with that agreement, that we are not seeing similar tragedies. Those that don't follow it, you have the potential of problems like you had here.

We still have some other steps to negotiate with this group and that is the gin pole activity and exactly what that's going to look like and work on that is proceeding. Not as quickly as some of us would like and there are pole lights and we use on the OSHA committee that is doing the negotiating, most of those are OSHA field people and my office coordinates it and I provide staff to the meeting, but we're drawing OSHA personnel from all over the country.

We're using Mohammad's shop, you heard from him this morning, and a couple of guys out of Region 5 that are more familiar than most of the OSHA field personnel, an area director from Cleveland is the active or the working chair of this committee.

All I can tell you in conclusion I guess is to go back and say that to the extent that the agreement that we worked out is being complied with, there are no problems. It's like a standard, had we had the time, the luxury of the years to promulgate a standard rather than an agreement that we ask people to work within, there's no assurance that standards are followed by everyone either in our industry.

Roofing and home building, where they get out and away and the job is quick are two examples that come to mind.

CHAIRPERSON BUCHET: Ms. Haring Sweeney.

MS. SWEENEY: Larry, one of the issues -- and I have to commend OSHA, they've really moved as fast as they possibly could, NATE is made up of really the larger companies, Motorola, some of the other telecommunications, Bell South, some of the other telecommunications companies and they subcontract to put the communication towers up.

What I think it misses is that we are not getting the message to the smaller contractors and again, it's been my issue for a number of years, we've got to get the information down to the two guys in a truck kind of thing.

Is there any way, Bruce, that you could be working with your IT folks, as well as the OSHA, whatever they do to disseminate the information, work with NATE to get names of subs and other people like that, to get some of those directives down to the smaller contractors and the subs? I know it's not an easy job.

MR. SWANSON: No, and we are working with NATE and their contacts to get the work out, but what NATE tells us and having seen it elsewhere in life, I have to believe it, it's not a matter of getting the directives in the hands of people who are only lacking information.

There are people out there that unless you have a compliance stick available, they're just not going to do it.

MS. SWEENEY: Can you just do it under general duty? You've got the guidelines, can you say this is --

MR. SWANSON: There is a mixed opinion on that with the Solicitors. We got into this several years ago because there was not -- the 5(a)(1) general duty clause says issue the citation when someone is not operating in a manner that is the industry standard.

There was no industry standard. Now, could we use our own agreement with a segment of the industry to argue that that now has become the industry standard? Most say no, that's bootstrapping it up, there are those that are willing to try that.

CHAIRPERSON BUCHET: Is there a possibility of some sort of partnership with the umbrella association which gives them incentives to out and monitor the work of their subcontractors and require the subcontractors --

MR. SWANSON: I think we've had great cooperation from NATE.

CHAIRPERSON BUCHET: Isn't there a way to get to the owners?

MS. SWEENEY: The owners are NATE.

MR. SWANSON: Yes, but the owners are those who purchase the tower. NATE is an association of tower erectors and so --

MS. SWEENEY: Well, yes. It's a fine line.

MR. SWANSON: And getting to owners is the same problem that we have elsewhere in the construction industry, the informed owner that can see a benefit to running a safe project and not having the legal difficulties and the bad press and the whatever.

But the OSHA standards do not apply to the owners, it's the way the Act was written. You have to be engaged in construction.

CHAIRPERSON BUCHET: Are some of the NATE members who are erectors also owners in the end or are they affiliated with the owners?

MR. SWANSON: I can't answer that. I don't know.

CHAIRPERSON BUCHET: Mr. Cooper.

MR. COOPER: Most of the NATE members that I know own their own companies or subcontractors. But to jump into this discussion, I know various organizations, for instance the Pre-Stress Concrete Institute and other organizations have established their own erectors manuals, which is the manual in which you shall erect in if you're behaving and doing things right.

I wonder if NATE has an erectors manual on the proper manner in which to erect a tower that has got a NATE mark on it. Do they have anything like that?

MR. SWANSON: Again, Steve, I can't answer that specifically. It's my belief that they do. In the umpteen meetings that we've had with them and looking at their magazine, et cetera, they speak at length about what they are trying to do for their membership, to educate these folks

And they were the ones that -- I say this only in indicating that I believe that they are -- I don't want to sound naive, but I believe their hearts are in the right place.

They came to us in the midst of the SENRAC meeting several years ago and said we have a problem, we don't believe Subpart R is going to work with us, you people have decided yourselves that Subpart M does not apply to us, we need standards to apply to our industry, you take ten years to put out standards, we are putting these towers up tens of thousands a year and what we need is some guidance, leadership from the government to tell us what standards to behave up to and we're willing to do it, we just need a target to shoot at and you people haven't put up the target.

That's when we sat down and started generating this procedural manual. Again, I can't answer the specifics on some of these questions, a ten-minute check with staff and we could.

CHAIRPERSON BUCHET: Well, instead of checking with staff, do you want to discuss it at the next meeting, Mr. Cooper?

MR. COOPER: You asked a question and I was not ready for your question, would you ask it again?

CHAIRPERSON BUCHET: Well, I'm getting nods that if we want a more thorough presentation and discussion and it takes checking with staff, that we could do it at the next ACCSH meeting.

MR. COOPER: Why don't I just offer that we will give a briefing on the whole tower erection question at the next meeting?

CHAIRPERSON BUCHET: And we accept that offer. Thank you very much. Mr. Cooper.

MR. COOPER: Mr. Chairman, if I may, something just crossed my mind. Bruce, you talked about using some of your experts, field experts with NATE evaluating this problem.

I guess this request is not from the Advisory Committee but from the 170 Workgroup committee. We have proposed that the very important 170 document should really be reviewed by a couple field OSHOs and get their viewpoint to advise us in any manner they may want to and we're talking about field CSHOs, I'm not really talking about compliance officers that would be in your department, for instance, but daily field CSHOs, a couple of those people to give us an evaluation of that form, because they are the ones that are going to have fill it out.

I'd appreciate it if you would consider this, whether we send the form out to some area office or somewhere else, as long as it's in the field. I'm very familiar with the Region 8 people where I'm originally from and I have been discussing this issue on 170 with various compliance officers around the nation as I see them, construction compliance officers.

I think it would really be helpful if you would assist us in whatever manner you can to get a review, once we get a pretty rough draft or a final draft done and just get their comments. It doesn't mean we're going to take them.

We're kind of like OSHA, it doesn't mean our committee will take their advice, but that would really be helpful because the end result -- the amount of work that's going into 170 really needs that so we can end up with a quality form.

MR. SWANSON: I'm sure that we could get cooperation from the field to make that happen, Steve. Those clearly are not my people out there, but they'd cooperate, I'm sure.

CHAIRPERSON BUCHET: If I might add, I think in the presentation or the participation and I don't remember the person's name, Kathy, I don't remember her last name, from OMDS, she said that part of their process was to interview users of the form.

I think we probably should figure out how to integrate our efforts with their efforts so that all the information gets to the people doing the actual change work. That's a good suggestion.

Any more questions for Mr. Swanson?

(No response.)

CHAIRPERSON BUCHET: Since we're still in the public comment time slot, have we got any more public comment? If we haven't, we'll move on to ACCSH business.

(No response.)

CHAIRPERSON BUCHET: Seeing no requests for public comment, we will move on to ACCSH business.

ACCSH Business

CHAIRPERSON BUCHET: One of the burdens that we were left with from yesterday was discussion and action on the Advisory Committee on Construction Safety and Health Committee Rules and Guidelines.

Before I go any further, I would like to thank the principal author, Jane Williams, for doing -- I don't know, double, triple duty, putting this together, with a mild thank you for Mr. Cooper for being on the committee and also --

(Laughter)

CHAIRPERSON BUCHET: And Mr. Swanson and Mr. Burkhammer. That pause was only for emphasis.

After discussing with Mr. Cooper and Ms. Williams and I guess in a rather circuitous route, Mr. Swanson and I understand Mr. Burkhammer and probably Mr. Zettler, a number of people anyway have felt that we need more time to submit comments.

Ms. Williams and I have discussed having comments submitted to her in writing, followed by a conference call to be scheduled between now and our next ACCSH meeting and I would like Mr. Boom to put this subject in the agenda for the next ACCSH meeting and we will postpone discussion at this point of these guidelines until we can do it at the next meeting.

MS. SWEENEY: Mr. Chairman?

CHAIRPERSON BUCHET: Yes.

MS. SWEENEY: Might I request that we have a copy of the revised version to us prior to the meeting so that we can have some time to review it and then be able to make our comments at the meeting, when scheduled.

CHAIRPERSON BUCHET: I neglected to mention that Ms. Williams said she would take the written -- when do you want them by, because --

MS. WILLIAMS: I'd like to have them within three or four weeks, four weeks max.

CHAIRPERSON BUCHET: All right. Written comments to Ms. Williams in three weeks and she will return a corrected draft to us. Thank you. Good suggestion.

The last order of business is to pick the date for the next two ACCSH meetings and we have some suggestions. Unless anybody has a major complaint, please look at the week of September 11. Mr. Burkhammer indicated that he could do it, Mr. Cloutier indicated that he could do it. Does anybody have any problems?

MR. COOPER: One day?

CHAIRPERSON BUCHET: The week of September 11. I didn't say that loud enough? Sorry. And the design there would be for those of us from out of town to travel here on Monday, workgroup meetings Tuesday the 12th, Wednesday the 13th, then ACCSH to meet on Thursday, September 14 and finish up on Friday, September 15.

For December, if everybody has their calendars ready, both Mr. Burkhammer and Mr. Cloutier have openings the week of the 4th of December and the week of the 11th of December and we've heard at least one suggestion that the week of the 4th is probably better.

MR. RHOTEN: The earlier the better in December. We've got things going on.

CHAIRPERSON BUCHET: The 4th. We agree the next two ACCSH meetings will be the week of September 11 and the week of December 4.

MR. COOPER: That's in Washington, D.C.?

CHAIRPERSON BUCHET: Both in Washington, D.C. Well, we can be more specific than that, both here at the Department of Labor. Any last minute comments or questions?

(No response.)

CHAIRPERSON BUCHET: Do we have a motion to adjourn?

MS. SWEENEY: I motion to adjourn.

CHAIRPERSON BUCHET: Not needing a second, adjourned.

(Whereupon, at 11:24 a.m. the meeting was adjourned.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting before the Occupational Safety and Health Administration Advisory Committee on Construction Safety and Health (ACCSH), held on May 5, 2000, were transcribed as herein appears and that this is the original transcript thereof.

_______________________
Melinda J. Metcalf
Transcriber

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