United States of America
Department of Labor
Occupational Safety and Health Administration
Advisory Committee on Construction Saftey and Health
Thursday, June 10, 1999

Advisory Committee Members Present:

  • Stephen D. Cooper
  • Executive Director
  • International Association of Bridge, Structural
  • & Ornamental Iron Workers

  • Larry A. Edginton
  • Director of Safety and Health
  • International Union of Operating Engineers

  • William C. Rhoten
  • Director of Safety & Health Department
  • United Association of Journeymen & Apprentices of the
  • Plumbing & Pipe Fitting Industry of the United States and Canada

  • Mark Ayers
  • Director of Construction and Maintenance Dept.
  • International Brotherhood of Electrical Workers

  • Stewart Burkhammer
  • Vice President & Manager of Safety and Health Services
  • Bechtel Corporation

  • Stephen Cloutier
  • Vice President
  • Safety/Loss Prevention Manager
  • J.A. Jones Construction

  • Felipe Devora
  • Safety Director
  • Fretz Construction Company

  • Robert Masterson
  • Manager, Safety and Loss Control
  • The Ryland Group

  • Owen Smith
  • President
  • Anzalone & Associates

  • Jane F. Williams
  • Safety & Health Consultant

  • Michael Buchet
  • Construction Division Manager
  • National Safety Council

  • Linda Goldenhar

  • Harry Payne, Jr.
  • Commissioner
  • North Carolina Department of Labor

  • Danny Evans
  • Chief Administrative Officer
  • OSH Enforcement Division of Industrial Relations

  • Marie Haring Sweeney, Ph.D.
  • Chief, Document Development Branch
  • Education and Information Division
  • National Institute for Occupational Safety and Health


Staff Present:


  • H. Berrien Zettler
  • Bruce Swanson
  • Sarah Shortall
  • Susan Sherman
  • Robert J. Biersner




Welcome, Introductions
Stewart Burkhammer, Acting Chair

Open Discussion - International Construction
Safety and Health Conference
Stewart Burkhammer, Acting Chair

ACCSH Workgroup Reports
Multi-Employer Citation Policy
Felipe Devora, ACCSH member

Introduction of Multi-Employer Draft document.
Includes current policy, proposed draft and written comments.

ACCSH Responsibilities
Jane F. Williams, ACCSH member

ACCSH Workgroup Reports (Continued)
Musculoskeletal Disorders
Michael Buchet, ACCSH member

OSHA Form 170
Stephen D.Cooper, ACCSH member

Safety and Health Program Standard
Stephen Cloutier, ACCSH member

Jane F. Williams, ACCSH member

Special Presentations
National Commission for Certification of Crane Operators
Anthony Brown, Directorate of Construction

ACCSH Web Page
Camille Villanova, Directorate of Construction

Special Presentations (Continued)

MSHA/OSHA - Jurisdictional Issues
A Joint Presentation
Steve Turow, Solicitor's Office, Department of Labor,
the OSHA Division
Richard Feehan, Chief, Metal and Nonmetal
Mine Safety and Health,
Mine Safety and Health Administration
Mark Malecki, Solicitor's Office,
Division of Mine Safety and Health

Personal Protective Equipment
- Proposal Standard
Glen Gardner, Office of Fire Protection
Engineering, Directorate of Safety Standards Programs
Update on Voluntary Protection Programs
(VPP)/Short Term Construction Demonstration
Program Partnership Program Elements
Cathy Oliver

ACCSH Workgroup Reports: (Continued)

Data Collection/Targeting
Michael Buchet, ACCSH member

Stephen Cloutier, ACCSH member
Standards Update
Noah Connell, Director, Construction Standards and Compliance
Assistance Section, Directorate of Construction

Special Presentations: (Continued)

Directorate of Construction Report
- Partnership Programs in Construction
H. Berrien Zettler, Directorate of Construction


8:50 a.m.


Welcome, Introductions

CHAIRMAN BURKHAMMER: Welcome to the Advisory Committee on Construction Safety and Health. We would like to start by introducing a new member from labor, Mark Ayers, from the IBEW who has joined us on ACCSH.

Welcome, Mark.

We also have some absentees from the committee, Harry Payne and Danny Evans, neither one will be here due to previous commitments.

Marie Haring Sweeney also will not be present from NIOSH due to a previous NIOSH commitment.

And Linda Goldenhar is sitting in for Marie, but Marie's vote is passed to Michael Buchet because the only way you can vote is to be appointed by the Secretary of Labor and have a vote. So Linda will be sitting in for discussion and intervention. And Mike will be -- if we need it, have Marie's proxy to vote.

With that, Mr. Cooper, would you start with the introduction?

MR. COOPER: My name is Steve Cooper. And I am from the Ironworkers International Union.

MR. EDGINTON: Larry Edginton, the International Union of Operating Engineers.

MS. WILLIAMS: Jane Williams, Agency Safety and Resources, Arizona.

MR. AYERS: Mark Ayers, International Brotherhood of Electrical Workers.

MR. SWANSON: I'm Bruce Swanson of OSHA. I am not a committee member. I am the designated federal official.

CHAIRMAN BURKHAMMER: Stew Burkhammer, Acting Chairman, Bechtel.

MR. CLOUTIER: Stephen Cloutier, J.A. Jones Construction.

MS. GOLDENHAR: Linda Goldenhar from NIOSH, Cincinnati.

MR. SMITH: Owen Smith, a painting contractor from Los Angeles.

MR. MASTERSON: Bob Masterson, Safety and Health Manager for the Ryland Group.

MR. DEVORA: Felipe Devora, Fretz Construction Company, General Contractor, Houston, Texas.

MR. BUCHET: And I'm Marie Haring Sweeney from NIOSH.


MR. BUCHET: Michael Buchet with the National Safety Council.

CHAIRMAN BURKHAMMER: Richard, would you start in the back and stand and introduce yourself and tell us where you all are from?

(Whereupon, the audience introductions took place.)

CHAIRMAN BURKHAMMER: Right. Anybody else we missed that just came in in the back?

(Whereupon, further audience introductions took place.)


(Whereupon, further audience introductions took place.)


(Whereupon, further audience introductions took place.)

CHAIRMAN BURKHAMMER: Thank you, Jim. Okay.

Would you open your green folders to the agenda. We have made several adjustments in the agenda. So the last agenda you wall received, this has changed greatly from that.

So quickly scan the agenda.

We are locked into the 11:30 web page discussion. We are locked into the MSHA/OSHA joint presentation. And on page 2, we are locked in the Cathy Oliver VPP presentation.

And tomorrow, we are locked into the 9:45 Charles Jeffress discussion. We moved Noah Connell to 11:00 o'clock for a standards update. We slipped Tony Brown to 11:15 and public comment is moved to 11:30.

In your packet, you will find a document draft, work group document on Advisory Committee on Construction Safety and Health Committee Rules and Guidelines.

I would like to make sure that you scan this either today or tonight. And Jane will be discussing this tomorrow. So I would like you to come to prepared to discuss that document.


MR. SWANSON: Yes, Mr. Chairman. Thank you. Just a note of clarification for those old hands who have been following us for a long time. The use of the word "proxy" this morning was new.

Someone pointed out recently to us that 29 CFR 1912 in fact allows the use of proxy votes under certain circumstances. And after reading it, by golly, they are right. That's what it says. So proxies will be allowed.

No substitution for missing members are allowed, however, which is what brings about the strange circumstance this morning.

NIOSH is represented at the table and will participate with the committee in discussions in the person of Linda Goldenhar, but the vote on issues has been passed to another party representing the same interest.

In this case, Marie Haring Sweeney is a public member. And we have represented from the public Mike Buchet. And that's the way you're doing it, right?

VOICE: Right.

MR. SWANSON: Thank you.

CHAIRMAN BURKHAMMER: Also, as before, would the committee make sure they have a microphone when they -- prior to speaking so people taking the minutes can understand and hear you. Also, for the benefit of the minutes, state your name so she can get the right person saying the right thing. Okay.

MR. SWANSON: One other item, Mr. Chairman, I forgot. On other item, in case of fire, the fire exits are marked. You have a stairwell right across the corridor out here. You have another stairwell in the corridor almost across from the back door.

As I've said in the past, those of you who feel it's not too early to imbibe should use that stairwell because there are bars on that street. Those that go out this door, you can go over to the D.C. buildings and pay your traffic fines or whatever else moves you. Okay. Thank you.

CHAIRMAN BURKHAMMER: As most of you know, earlier this year, Jane Williams and Steve Cooper presented the Sanitation Workgroup Report to ACCSH. We voted to move forward with the Sanitation Workgroup Report and we passed it onto OSHA.

However, it did not make the OSHA regulatory agenda for this year. Bruce and I have discussed this. And Bruce has had further discussions.

And the Assistant Secretary has decided that the sanitation project will be included in the next agenda October of 1999.

So I think that's great. It shows the hard work of Steve and Jane and the work that group did and the recognition of that work group. So it will be on the agenda for the next regulatory period.

MS. WILLIAMS: Mr. Chairman.


MS. WILLIAMS: May I please have a copy of that letter?


MS. WILLIAMS: Thank you.


Open Discussion -
International Construction
Safety and Health Conference

CHAIRMAN BURKHAMMER: The first item on the agenda is a report by Michael and I on the informal workgroup report at the Sixth Annual International Safety and Health Conference. It was held in Hawaii earlier this year.

For those of you who were at the last committee meeting, there was some chiding at the end of the meeting about maybe having the ACCSH Committee go to Hawaii for the next meeting. And that's about all it was. It didn't get very far.

But several of us were going anyway. So the Assistant Secretary and I had a discussion. And he allowed us to have an informal workgroup session in Hawaii in conjunction with this conference.

And that National Safety Council through Michael was able to oblige us and get us a room. And it worked out really well. We had about 35 people present at the workgroup session.

And the thing that I was most impressed with was the fact that all 35 people were actual field safety and health professionals that actually worked on job sites that brought real life stuff to the committee.

And I don't think we get enough of that, not taking anything away having the meetings in Washington and all the government affairs people that choose to attend and participate in the workgroups, but every now and then, it's nice to get some real life blood pumped into the workgroups and hear what the real world is doing out there.

So we had that in Hawaii. And Jane Williams and Steve Cooper, Michael Buchet, and Marie Haring Sweeney, Bruce and I spent about three and a half hours with these folks.

We gave workgroup reports of all 18 current workgroups and where they stood and what the status was.

MSDS data collection and multi-employer drew the greatest discussion as I guess everyone would expect.

And several of the participants provided excellent suggestions and comments and inputs to the workgroup which was passed on to the chairmen of those workgroups.

And I think when you go out and listen to people that are out in trenches every day and seeing these things and working with these things and seeing and seeing musculoskeletal injuries and seeing the effects of the multi-employer rules, it's nice to have them come and tell us what they think, what they think is right and what they think is wrong. And that's what happened.

Michael, do you have anything to add?

MR. BUCHET: No, thank you, Mr. Chairman. That was succinct and to the point.

CHAIRMAN BURKHAMMER: Any other members who were in Hawaii that would like to say anything, Steve, Jane?

(No response.)


(No response.)

CHAIRMAN BURKHAMMER: I'm sure Marie would have some.

You were in Hawaii, Linda. Would you have any comments?


CHAIRMAN BURKHAMMER: Okay. The next item on the agenda is the Multi-Employer Citation Workgroup.



ACCSH Workgroup Reports

MR. DEVORA: Thank you, Mr. Chairman. As you alluded to, the multi-employer issues have been well attended. And the workgroups have been well attended. And they have been frequent, the last being May 5th here in Washington. It was also every well attended.

At this point, I would like to read some comments introducing the draft. The Advisory Committee on Construction Safety and Health formed a workgroup in 1998 to comment on proposed changes to the Field Instruction Reference Manual, the FIRM, regarding multi-employer work sites.

It should be noted that these proposed changes to the FIRM were designed to help compliance safety and health officers make a determination of whether or not to cite an employer under conditions outlined by this policy.

It was our hope that it would also help employers identify circumstances and situations in which they may be cited if an affirmative defense based on reasonable care cannot be established.

In the public comments of this workgroup, several stakeholders concerns regarding the agency's right to apply this administrative policy.

Some felt that nowhere in the Act did the agency have the legal right to cite one employer for the misconduct of another.

In our investigations of previous review commission findings and court cases involving this issue, we found several court cases supporting both sides of the issue and certainly several ongoing cases supporting both sides of this issue.

The workgroup decided that our expertise was not in interpreting case law and that our time would be better spent and served better discussing construction work place situations that my co-chair, Danny Evans, and I were more familiar with, not ever-day experiences.

The format for this session we hope will be useful in dealing with the dynamic and ever changing conditions of multi-employer work sites.

We have tried through definition, example, and analysis of the situation to give both the compliance officer and the employer a measure of action by which, A, the compliance officer could support a citation under certain circumstances or, B, an employer could present an affirmative defense to a citation which may have been wrongfully given.

Our workgroup observed that in construction, the employee-employer relationship is expanded beyond its normal definition just by the dynamics of the construction project in which many employers must work in a coordinated to ensure a safe and healthful work places.

Some believe that by identifying and citing the controlling employer or manager, OSHA is diluting the responsibility of each employer to their employees and safety is not served.

Where others believe that corrective action or improvement of work place safety is the responsibility of those charged with providing leadership in coordinating, supervising, or controlling the project.

Clearly, in this discussion, the duty to each employer to provide leadership and to emphasize safe work practices to each employee who receives a paycheck is much higher and should never be lost sight of before any consideration of citing any other entity.

To cite a controlling employer or manager because a subcontractor has received a citation should not be automatic and should not be the intent of this policy.

To hold that the OSHA Act requires compliance officers to cite more than one entity regardless of circumstances or whose employers are exposed is the narrow and unrealistic interpretation of the Act.

The issue of subcontractor rights under the control of an entity who holds their subcontract financially responsible not for their citations, but any other issues to the holder of their contract is an issue recognized by this workgroup as a threat to the team approach of work site safety.

The ill will created by this condition does not improve work place safety. And we should continue to work with the agency to seek a resolution to the problem of contractors passing citations issued to them down the line to avoid financial penalties.

It is our hope that this advice to the agency will facilitate the education of compliance officers in identifying and recognizing the various relationships between contractors which may exist on a multi-employer work site.

Other issues this workgroup would like to examine as a logical next step are the penalty structure for multi-employer citations.

If the agency accepts that the duty of reasonable care is greater between the actual employer and their employees, it is logical that the size of the penalties should flow in the same direction.

In addition, we must look at the risk of exposure to repeat violations under this policy to entities who indeed accept their responsibility to coordinate or control a safe work site.

These analyses and examples given by the workgroup are not intended to cover every work place or contract situation, as these situations change every day and are only limited by the imagination of those who create them.

However, regardless of any technicalities in contract language and the interpretation of the intent of the OSHA Act, at the end of the day we must ask ourselves, does OSHA's administrative policy to cite more than one employer on a construction work site improve work place safety in American construction work sites?

The conclusion of this workgroup is that when used and enforced after careful consideration of all the facts, this is a useful in helping to improve on construction sites.

However, the misuse of this citation power can also be just as destructive to the team work approach to safety as failing to correct a recognized hazard when issued with no regard to the fact of certain work place circumstances or situations.

These comments were not intended to codify new or existing standards, but only to advise the agency on its administrative procedures of issuing citations under this section of the FIRM.

Danny, I hope this information is helpful and useful and that you would approve our workgroup product be sent to OSHA for their consideration.

And finally, Danny, I would like to thank all the interested parties who participated in this effort. And we have included an appendix of written comments in this workgroup product for the agency's information or review.

Mr. Chairman, at this time, I would like to make a motion that the ACCSH Committee forward these, this workgroup produce to the agency.

VOICE: Second.

CHAIRMAN BURKHAMMER: Motion accepted. No second required. It's a standing workgroup.



MR. MASTERSON: Before we vote on it, I'd like to have a chance to read the document that Felipe gave us morning. I don't like to vote blindly on something that I haven't had the opportunity to read.

MR. DEVORA: Mr. Chairman, let me point out that the document that I handed is merely the draft that was faxed several weeks.

The only thing I included in there were there comments that I just read, a copy of the current policy which has been available for a long, long time, and the written comments as

I alluded to in my presentation that were added as an appendix, the written comments.

CHAIRMAN BURKHAMMER: Did all the committee members get Felipe's fax on the draft prior to the meeting?



MR. MASTERSON: Yes, I received it. And if that was the only thing being submitted, then I would agree to it. But I want to read through the comments and see what's there before all that goes to the agency.


MR. COOPER: Mr. Chairman, there is two people on this side who have the same problem, they want to read it, myself and -- that would like to look at it first.


MR. EDGINTON: Yes, I'd look at the comments which I have not.

MR. DEVORA: There is, Mr. Chairman, also yesterday in our workgroup, the National Safety Council handed me some additional comments. And they are not bound. So I just got them yesterday. They're in the back section.


MR. COOPER: In your letter, you talk about the citation policy a lot, but also when you talk about the subcontractor, the financial responsibility for the citation, you are really talking about the whole -- clauses.

MR. DEVORA: To some extent, yes, sir.

MR. COOPER: All right. Thank you.


CHAIRMAN BURKHAMMER: Further discussion or comment?

(No response.)

CHAIRMAN BURKHAMMER: The chair will accept the recommendation for delay of vote until tomorrow morning. Please review the documents tonight so we can vote on this, submit a motion tomorrow morning.

So we will table the motion. The motion will be brought back before this committee tomorrow for a vote.

Is there any objection to tabling the motion?

(No response.)

CHAIRMAN BURKHAMMER: The motion is tabled. All right.

In the same vein as this is the next topic. And that's Jane's Advisory Committee on Construction Safety and Health, Committee Rules and Guidelines.

So what I would like to ask Jane to do is to give a brief overview of this now. We'll accept the motion now, have discussion now which will be delayed vote until tomorrow, but go ahead and make your motion, Jane. And we table it like we did for Felipe.



ACCSH Responsibilities

MS. WILLIAMS: To offer an explanation prior to the motion, being a new member to the committee, there were several times and questions that came up by various people from miscommunications and misunderstandings.

As a result, it was determined it would be very appropriate to put our comments into a document that could be given to all participants as they come on-board to understand their roles, responsibilities, and the conduct for the proper decorum in the meeting.

And that basically is what we have done here, working with Stew who is a long-time member, Co-Chairman Mr. Cooper. And, of course, Bruce Swanson represented OSHA's input to it.

We reviewed 1912 which is attached for the members. So it gives you a complete document. We've tried to cover all the hurdles we've been through. It is here for your information and reading tonight.

And with those comments, Mr. Chairman, I would move the consideration of the adoption of the Advisory Committee on Construction Safety and Health, Committee Rules and Guidelines.

CHAIRMAN BURKHAMMER: Motion accepted. No second required.



MR. DEVORA: Jane, could you kind of highlight some of the high points of what you think are --

MS. WILLIAMS: Yes, absolutely. The most important is this document is to be used in conjunction with 1912. There are paragraphs within 1912 that are really conduct for other various advisory committees.

So we extrapolated only those items that were pertinent to this advisory committee. The first item is the basic role of ACCSH members attending the meetings.

Conduct of proposed motions, I think that is something you should really look at. It gives the chair the right to accept motions without a second when in his opinion or her that motion is the intent of the body for consideration.

Presentation of workgroup reports. It emphasizes the fact that only a report developed at a workgroup meeting can in fact be presented, the proper decorum for consideration of a report, such as what we have been going through;

- a typical meeting, the things that should be accomplished by the chair;

- and an agenda order and the items that are supposed to be distributed to the members so they can actively participate;

- basic agenda format, all keeping in accord with Robert's rules newly revised.

Attendance by members, this is the new insert which allows the proxy to be given to a person representing those same interests.

Postponed meetings, we've all been there. The conduct on the Assistant Secretary is in fact the authority to postpone the meeting upon counsel by DFO and, of course, the chair.

And the workgroups in particular, items I think you would really be interested in:

- it clarifies that the workgroup chairs are the responsible persons for setting their meetings, coordinating the content of those meetings, and reporting back in the appropriate matter to the committee for considerations.

The basic criteria, who is allowed to vote in the workgroup meeting which has always been an item of discussion. It clarifies that it is only the ACCSH participates that have a voting responsibility;

The duties and responsibilities of the directorate of the office. There has always been confusion on our staff liaison office, how they get appointed, who are they assigned to, when we can utilize their expertise in assisting us to accomplish our tasks.

The introduction package, this is the list of all the things we learned the hard way that I think will certainly make it a lot easier for a lot of people.

I would like to say, Mr. Ayers, you came in a good time. This will be the first draft of this.

The DOC staff workgroup liaisons, again, who is putting out the notices of cancellation, how it's going to be provided to the general public and appropriate manner, timeframes to allow DFO support in getting rooms, accommodations, and acknowledgements of funding for those who need traveling.

And the process of the member travel, that again has been an issue for many of us who must travel in, what we have to do to support Public Affairs in getting this done and the proper manner in which we need to do it.

And how the Office of Public Affairs will work in conjunction with us so we have an open communication.

Again, if there are any items that you've experienced that we do not address, please feel free to bring those issues up for us so that we can make sure that that gets included in the document when we discuss it tomorrow.

MR. SMITH: Does that mean that we have to get to the meetings on time?



MS. WILLIAMS: And I'm not going to go there.

CHAIRMAN BURKHAMMER: No personal attacks.

MS. WILLIAMS: No personal attacks.


MS. WILLIAMS: You're welcome.

CHAIRMAN BURKHAMMER: Without objection, we'll table the motion until tomorrow and vote on that after the committee has had a chance to read the document tomorrow morning.

That gives us about a two hour and 15 minute gap in our agenda.


CHAIRMAN BURKHAMMER: So if you will take out your agendas, we will play with the --

Michael, could you be prepared today to talk about the data collection and targeting, if we could move that up from tomorrow?



ACCSH Workgroup Reports

Multi-Employer Citation Policy (Continued)

MR. SWANSON: Yes, Mr. Chairman. Because of prior commitments, I am not going to be able to be in attendance tomorrow. My deputy would be here.

Everybody on the committee, is my understanding, has received and has read Felipe's report. You tabled this because the accompanying comments had not been read. And so any votes you take will be tomorrow. I understand that. And that makes prefect sense.

But personally, I would appreciate if people have comments and a discussion on the report itself which apparently everyone has read, could we have that now? Or maybe, there is no need for a discussion.


CHAIRMAN BURKHAMMER: Assuming all members have read the body of the text without the comments attached. And I appreciate that Felipe did a great job of putting together the book and all the documentations.

But going into the actual FIRM which was what he e-mailed to us all or faxed to us all, does anybody on the committee wish to have discussion reopened so we can talk about the body of the firm itself?

MR. CLOUTIER: Mr. Chairman.


MR. CLOUTIER: I'll open up the discussion by noting that this document is going to help clarify some significant gray areas that out there, but it is not an end-all document.

It is going to fall back on the CSHOs to make good solid, sound decisions when they're making inspections. And that's where the problem is.

And what we have heard, pros and cons during the life of the committee of multi-employer sites and what is a site and what isn't a site, any major construction site has somebody in charge.

And I have said for many years that it is the owner because the buys the services. And he or she is responsible for what goes on in that project. And there is usually a CM or a GC or multiple CMs or multiple GCs or multiple contractors at various levels of subcontractors.


It goes down to who committed the violation, who created the hazard, and who should have corrected it?

And for a number of years, the agency has taken it upon themselves to have this carte blanche multi-employer citation policy.

It is not a standard. It is not a rule. It's just kind of an unwritten agenda that goes around. And we have heard a lot of squealing.

My company has been faced with it. I have not been happy with it.

I think it gets back to an employee-employer exposure and responsibility there. And we all seem to want to pass the buck. Well, I didn't create it, but my employees were exposed. And that's wrong.

But I think this is not an end-all document because we're going to have to have some training out there, whether it is a videotape that goes out to all the regions so that all the compliance officers know how to make the right decisions and make the tough calls.

And if we didn't have the violations in the first place, we wouldn't get into this multi-employer argument.

So I'll open that up to discussion, sir. Thank you.


MR. BUCHET: Michael Buchet, National Safety Council.

I'd like to add to that. And by way of doing that explain what was discovered to the workgroup yesterday afternoon.

These are not the comments of the National Safety Council. They are a compilation of comments from the National Safety Council Construction Division members.

So we are talking people in the field who were faxes a document and sent comments back to me.

In light of and following on here, one of the suggestions, actually it was echoed by a number of people that might help answer some of this problem is more example and analysis in the body of the document.

It would be interesting if ACCSH were willing to work with OSHA and come up with more examples, bringing these examples in from the field, bringing them down to succinct form, and analyzing them. This would help clarify some of the questionable areas.

CHAIRMAN BURKHAMMER: Thank you, Michael.


MR. CLOUTIER: In line with that, maybe an additional tool that needs to be identified is a check list that a compliance officer has to follow to determine yes or no, whether this ends up being a multi-employer citation.

If he goes down to a decision process through a decision tree, that ultimately it's going to be yes or no.

If he does that thoroughly from top to bottom, then it's justified. If he doesn't do it, then there is a weakness in the program. And it is carte blanche. We will just cite everybody up the line as wrong.


MR. DEVORA: That's exactly where the workgroup. One of our goals and one of the comments that we heard throughout every workgroup meeting that we had was this inconsistency throughout the regions of how this multi-employer policy is interpreted and how it is enforced and how they go about citing it.

Obviously, in some pats of the country, it's a big issue. And in other areas, we have had comments that it's not a problem.

So this is consistency in interpreting this policy maybe should be one of the goals of this workgroup. And we hope obviously to continue working with the agency on this.


MR. EDGINTON: Thank you, Mr. Chairman. As a general rule, my organization has been quite supportive of OSHA's policy. We recognize there are problems from time to time.

As I went through the draft -- and maybe this picks up on Mr. Buchet's comments or the comments or comments from one of his commenters with respect to needing more examples.

As I went through the document, what I struggled with was there is a line between purposes of illustration and purposes of definition.

And it struck me that by limiting the examples that we limit definition and people will only define it in that way. And I know that is not the intent, but my concern is that people will read the document in such a way.

And then, the other concern that I have, picking up perhaps on Steve's comments, which was you can have an excellent FIRM, but the manner and way in which it is transmitted to the field and both in terms of how does it get out there and what comes with it because what we get into is, well, that is what it says, but what does it really mean?

And obviously, you attempted through illustration, if you will, give some shape to what it means, but that's really where things are going to have to happen. And it's going to have to happen in an uniform way.


MR. MASTERSON: Bob Masterson.

There are several areas that I have some concerns. The first of which is some of the language being used. We don't have a page number, but responsibility to control work without contractual authority.

There is references there to authority to control and/or manage work between subcontractors is unclear. Before issuing the citation, the CSHO will consult the regional Solicitor's Office.

When you use a term like "unclear", what does that mean? What guidance are we giving a compliance officer? It may be very clear in his mind, but not valid.

Other issues right above that in the analysis, under analysis. "The result in this authority include the right to set schedules in construction sequencing, require contract specifications to be met, negotiate with trades."

I submit that all can be done remotely from an office and never set forth on construction sites. So how that would constitute control?

In my particular situation scheduling is done from an office that may oversee 25 different communities. The person that does the scheduling might not go on the site at all. That same person is the person that is negotiating with the contractors to setting contracts.

But again, that does not show any level of control on the job sites. So I don't see where those provisions have any merit here.

Further on, number four, reasonable care. Reasonable care and using a term like "reasonable care" to me is just asking for court cases. How would you define reasonable care?

If you can give me an A, B, C check list so that I can go down that list and say, yes, I have done this, yes, I have done this, and, yes, I have done this, that might be applicable.

But just to use the term "reasonable care" is going to cost a lot of employers a lot of money in legal fees. I don't think it's appropriate.



MR. SMITH: As a subcontractor, I am pleased with it. I think that it is an immense first step. And I can kind of agree with Larry there needs more examples so that the inspectors will know which way to go. And I'm sure that that's not a problem.

And I think that if OSHA trains its inspectors, we'll be a lot better off. But no matter how unclear the document might be, it's a hell of a lot better than what we have.

And I've got to tell you, I get pretty frosted when we get citations for something someone else does. I don't mind picking up the ticket for something that we've done, but I want nothing that has anything to do with anybody else.

I think this kind of gives OSHA another way to go. And I am certainly in favor of it. And I'll be sure to attend these other meetings to make sure that I have my input on the new document.



MR. BUCHET: Michael Buchet, National Safety Council.

Some of the comments that I received and brought with me echoed one point of what Mr. Masterson was discussing.

A number of people were puzzled by the use of reasonable care and said what does it mean? The reasonable standard has a long tradition in the American legal system. And it will not take very long to figure out what that is.

The comments that said we are not sure what reasonable care means generally said we very much like this work. We like where this is. We like where this is going. And this was a tweak item, not a major stumbling block.

CHAIRMAN BURKHAMMER: Thank you, Michael.


MR. DEVORA: I want to follow up on what Larry said earlier, his comments. Certainly, we kind -- let's see. How will I say it?

We kind of gravitated toward this format because this is what Danny and I know and what we basically talk about in terms of work place situations and analysis and examples.

I can't tell you the hundreds of analyses and examples that I was given and that I worked on. We worked on several, several scenarios. But at the risk of having a document that was going to be voluminous, we tried to get a cross section of some of the more important ones.

But you are absolutely correct and some of the other comments. If this document doesn't do anything else other than to point out the fact that there is an educational gap there, there needs to be some emphasis for our compliance officers to say, hey, let's step back a minute and let's take a look at this before we do cite under the multi-employer, I think we would have done our job to that extent.

Now, certainly, any other examples that OSHA, you know, assuming that this is passed onto OSHA, they tweak or take any of these examples out, I think that will be up to them. And we certainly want to have some impact on that.

In terms of the reasonable care, I know there is difficulty in using reasonable in any kind of government language, but we attempted to use the language of the day, the language that's being used.

And I think sometimes if you think about these terms and you don't make them anymore complicated than they really are, reasonable means reasonable.

And we did add at the end there a check list. Someone talked about a check list. We added a few items that kind of touch on examining, the possibility of examining reasonable care.

And these aren't ground breaking. We have not reinvented the wheel here. These are just normal things in the course of any managers' work that probably are already in place in most situations.

But what we're looking at now is emphasis on some other areas where there may be gaps and maybe provoke some thought in finding a way that Mr. Masterson with his homebuilder's remote sites can be brought into fold and say, okay, let's think about this. What can we do?

Let's not just say that we can't do it. Let's talk about ways that we can do it. And that's kind of what our thought process was with this document as the initial first step to opening those discussions.


MR. MASTERSON: Thank you. First off, I think that the workgroup has done a great job of putting together a document. There are some concerns in there that I think all of us have some concerns in particular, the use of some of the language.

Going back to that, Felipe just made reference to a check list for examining reasonable care. Item B, is there evidence of an effective safety and health program? That is very subjective.

Is there an indication of regular job site safety meetings? Again, an indication, that's very subjective. I mean, that's not something you can measure.

I think to give a compliance officer a tool, we have to be a little bit more black and white than that because as soon as you leave the black and white, there is a whole bunch of other issues that come up.

There is reference, her comments about indemnification or hold harmless clauses. I would submit that a general contractor would have anything to pass on if he didn't get cited for the subcontractor's violations.

I for one as general contractor have never passed a citation that we received as a result of a subcontractor. But if I hadn't been cited for somebody else's work, what need would I have to pass something on? So I think that is kind of a mooted issue as far as citations go.


MR. COOPER: I think the committee should understand that these workgroup final proposals are not standards.

The verbiage in here if it's accepted by OSHA to revise the policy will be gone over by way too many people, including the Solicitor's department and others.

These are just proposals that they want representatives of the industry to agree upon and advisals to please take a good long look at this and maybe we can help you.

These are not standards. So the reasonable care and things like that really don't bother me a lot, if they do see the light of the day.

But one thing that comes out on this committee time after time and you just mentioned it again is the difference in which compliance officers adhere to supposedly the regulations.

We have across the country on every regulation, on every issue, including we brought it up again this morning, we have it all over the ball park.

And I think, Mr. Chairman, the advisory committee in the future should probably really put some emphasis on getting a group together to make a proposal to OSHA to try and get everyone pulling on the same end of the rope and because we all know that that's not happening.


And we all know that, and I have to say this, the regional administrators have their own feifdoms. And they do things their own way.

And it would really be advantageous to the construction industry, not only members of this committee, but all the people in the construction industry if we just kind of standardized the standard which would probably have a little bit to do with the Training Institute in Chicago and other places. End of story.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

MR. COOPER: Thank you.

CHAIRMAN BURKHAMMER: One thing for the committee to note, what Felipe's workgroup did is not to develop a standard on multi-employer. It's revising and updating and providing input to the FIRM.

They are two distinct different things as the committee knows. So when you review in text tonight and see the comments of the various commenters that Felipe has attached to the back bear in mind you are looking at a revision to the FIRM. And your thinking has to be geared toward that, not looking at this as a standard.

Ms. Williams.

MS. WILLIAMS: Taking off on a few of the comments that I've heard, I would ask Mr. Swanson what is the commitment of your office to follow through on this document and getting this information to the CSHOs and what would be the anticipated time line for you in doing that, sir?

MR. SWANSON: Did I hear a sanitation standard in that?


MR. SWANSON: Any recommendations that this committee makes, Ms. Williams, are to the Assistant Secretary.

And to the extent he asks us to modify the FIRM in line with any of the recommendations that this committee makes, we will do so quickly, expeditiously. And we will ask for those other offices in OSHA, those other subject areas in OSHA, such as OTI in the 10 feifdoms out there that Mr. Cooper just referred to to work with us in trying to enhance the FIRM and the training that is called for, if any.

MS. WILLIAMS: Thank you.


CHAIRMAN BURKHAMMER: One thing to note there, in the past as Mr. Cooper has alluded to on numerous occasions, OSHA has been here and the advisory committee has been and never the twain shall meet I guess is the saying that used to be applied to this committee.

I think over the last seven to eight years, there has been a joining of OSHA and the advisory committee.

The workgroups are now -- and I think Felipe could comment on this particular workgroup. Noah Connell was a full participating member of the workgroup.

The ideas and comments back and forth from the workgroup through Noah and Noah back to the workgroup I think in some of the ones that I've sit in went a long way to enhancing this document.

It comes out of the workgroup as a living, breathing, somewhat joint document that was worked on by both parties.

So I think in that light, those kinds of documents that we produce have a much better opportunity to see the light of day than in the past.

So based on that and I think the other workgroups that are currently ongoing if not the same, close to the same working relationship with their OSHA liaison officer that sits in on the workgroup.

So based on that, I personally see a tremendous improvement in ACCSH's ability to influence how the documents go to OSHA and when they get there, we have some kind of a feel of what's going to happen to them where in the past we did not.

So I think Bruce's response about taking immediate and appropriate action as required is certainly in the best interest of everybody and it shows that ACCSH has a much more impact than it did in the past in this type of stuff.

Bob, you had a comment?

MR. MASTERSON: Yes. Again, I would like to say that I think the product has come out of the workgroup is much better than what we have had. I think that it is going in the right direction.

But as Felipe just said a few minutes ago, it's a good first step, but I think some additional steps need to be taken. And I think there is a lot more clarification needed and guidance for the compliance officer.

CHAIRMAN BURKHAMMER: Thank you. And I think those of us that were present in Felipe's workgroup session yesterday, a lot of the discussion was centered around future aspects that the workgroup could study.

And I think tomorrow when we vote on the tabled motion and when we bring the tabled motion back and further discussion and both and I think Felipe has a follow-up motion that addresses where his workgroup would like to go now and forward.

So, Michael.

MR. BUCHET: Two things, Mr. Chairman. One, I hope the record will reflect FIRM stands for something which I believe is Field Inspectors Resource Manual.

The second thing is to better help our thought process this evening in following up on what Ms. Williams and Mr. Masterson just talked about and the question for Mr. Swanson, for an adjustment to the FIRM of this size, what sort of training will OSHA do for the CSHOs? Or will they simply send them a memo saying, here?

And the second part of that, would it help if this committee suggested maybe there should be some training for the CSHOs delivered in a manner and at a certain time?

MR. SWANSON: Mike, depending on how much of an adjustment is made to the Field Information Resource Manual, that will dictate how much training is called for out there.

I personally concur with your at least implication that the sending out of a memo to all the compliance officers might not be sufficient. And we might have to do some exotic training. On the other hand, there are also resource implications. And we can't always do that which we assume would be the perfect way to handle it.

We will do what we can based on how big the assignment is when we get the final document here.

MR. BUCHET: Thank you.

MR. SWANSON: Thank you.


MR. COOPER: Bruce, let me help you out a little bit. I guess it's about my turn to do that. You've got a budget problem. To get compliance officers into training, it's a very, very large budget problem.

And we have been through this before just from an area office. If you're going to send four guys to Cocomo, it's going to cost you money. And it's going to be in the budget. And actually, those four compliance officers should be in Cocomo to take the training.

I just ran across some in St. Louis in steel erection. We are doing some training with OSHA for christmas treeing multiple lifts, a brand new thing, very difficult to get compliance officers there.

And we didn't get enough. I think we had 50 in all. And that included a lot of them were not compliance officers.

However, Mr. Buchet, as relates to what you brought up, we need, this committee needs to look further than just the training of compliance officers.

And we should get a group together to evaluate a subject which has long ben dear to my heart which is a construction specialist compliance officer.

And the agency is not really for this. But instead, a general duty compliance officer that inspects meat packing and Silicon Valley people. We need a construction specialist. We need that badly.

We do have a separation with the IHs and the compliance officer, but we represent construction. And we need construction specialists period. And that should be an obligation of this committee to look into that.

Whether it is right or not, well, you know, I am always right.

But I am saying that we should take a long look at all the training all the way through, instead of just a few issues.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper. For those of that have been around awhile, that has been a discussion item of ACCSH for several years in the past decade. And it never seems to go anywhere.

I think the compliance officers have certainly gotten better knowledge anyway of what a construction site is compared to they had in the past.

However, we still occasionally see the pickers, packers, and pluckers show up. And we have to teach them a little bit when they get there.

But other than that, I think when you look at the CSHOs in general, there has been an upgrade of knowledge in a lot of them anyway on what a construction job is.

And that has certainly helped when they come out because we don't get as many training people where he used to where the contractor has not only to train their employees, but train the compliance officers at the same time. I think there is a big improvement.


MR. BUCHET: I think it has been said that the CSHOs are building more knowledge of the construction industry on a firm foundation which is almost as good as your pickers, packers, and pluckers.



MR. COOPER: We do on the advisory committee do a lot of badgering of the Construction Directorate whether they deserve it or not. And most of the time they deserve it.


MR. COOPER: But we spend a lot of time in this committee trying to do things with the directorate, but it's not all at the directorate.

And we get in here and we spend a lot of -- sometimes writing standards, but it's not all standards.

We are talking now about policy matters this morning which are very important and educational matters.

But I would like, Mr. Chairman, to see this committee move away from some of the standard-making or advising proposals, excuse me, Bruce, and look in those areas which we have brought up this morning.

The big thing to me is qualified compliance people. Have we ever really done anything other than promote a theory that they should be construction specialists? No, we haven't.

We have spent a lot of time directing the Directorate of Construction which was only started in 1988, right, Bruce? I think that is when it was originated.

MR. SWANSON: The DOC -- started in 1986.

MR. COOPER: And one-stop shopping was 1995 I believe. I'm just saying the committee should look farther than some of the agenda items which we have before us normally and start badgering someone else for a change.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

I think now is a great time to introduce two guests that have come to join us. Davis Layne, Deputy Assistant Secretary of Labor for OSHA has joined us. And his assistant Bill Brook has joined us.

And I think with Mr. Cooper's remarks, you can see that we are a little broader than just construction.

MR. LANE: Well, I have to tell you, I look forward to working closely with the advisory committee in my capacity as the Assistant Secretary. And your feeling that OSHA in the last several years seems to be trying to work closer together and move forward to improve worker safety and health. And you have my assistance to continue with that to even bring us closer together and work in greater harmony.

CHAIRMAN BURKHAMMER: Great. Thank you very much.

MR. BROOK: I would like to say that before Bruce trained, I used to work out in the construction industry itself. So you've got someone in Davis' office that actually has field construction experience. So when it comes, I will give you some assistance. And I try to keep Bruce straight also.

CHAIRMAN BURKHAMMER: Well, it's great to have the real deal in the shop for a change. So we're glad to have you. Thank you very much.

MR. SWANSON: You will notice, when I ran him off, I ran him upstairs.

CHAIRMAN BURKHAMMER: A lot of times in industry when people move upstairs, they're promoting mediocracy. So I hope that is not the case here.


CHAIRMAN BURKHAMMER: Comments or questions on this?


MR. DEVORA: One more.

CHAIRMAN BURKHAMMER: Why don't we close with Felipe's --

MR. DEVORA: One more comment that you touched on. And I would be remiss in not mentioning Noah's participation as our project officer on this particular workgroup project.

He was a valuable resource and always available and a phone call away. So we did appreciate his efforts.

VOICE: Ditto.

CHAIRMAN BURKHAMMER: Great. Thank you very much. Okay.

Let's move on. And as I said, the motion is tabled until tomorrow. Please come prepared tomorrow for a final discussion and vote on Felipe's motion on passing the proposed revitalization of the FIRM document.

What we would like to do now is get the workgroup reports out of the way if we can. So if you will go along on your agenda to OSHA Form 170.

Mr. Cooper, are you prepared?

MR. COOPER: No, I am not.

CHAIRMAN BURKHAMMER: That's not an acceptable response.


CHAIRMAN BURKHAMMER: Face it, pal. We've got us some time here.

MR. COOPER: I'm the only honest guy on this committee. You changed your agenda which changed my agenda which changed the agenda of the person that was going to give me the document to make the report.

Therefore, the creator is you. And I'm not ready to make that report, but I will if it will make you happy.

MR. BUCHET: Mr. Chairman.


MR. BUCHET: Since I am also one of the people that helped the change the agenda for the person who is typing your work because I was using her computer to finish mine, and it's typed, why don't I do MSD or take your pick.

MR. COOPER: What a guy.


CHAIRMAN BURKHAMMER: And we'll come back to Mr. Cooper.

Why don't we go to musculoskeletal disorders with Mr. Buchet?


ACCSH Workgroup Reports (Continued)

Musculoskeletal Disorders

MR. BUCHET: The person that we are all talking about is Camille. And she has been working hard as the directorate's contact for a number of workgroups. And unfortunately, her computer is being used as a work station by a number of us. So sort of take a number and do the best you can.

The Musculoskeletal Disorder Workgroup met yesterday afternoon. And as you heard, my co-chair Marie Haring Sweeney of NIOSH is not able to attend. And the meeting progressed pretty well in spite of her absence and in spite of her comments.

The purpose of what we did yesterday was to go over several items and then to go back over some of the material that was collected in March. And we did not achieve everything we set out to do.

And instead of reading through every line what I have handed out which is the report here, I will sort of hit some high points.

One of the discussion topics was to broaden the ability of the workgroup to capture. And we argued about what we were capturing. Some people suggested we not use the term "best practices". Other people suggested possibly that we use the term like successful intervention.

So why are we trying to capture whatever those things are? The idea is to create a document, a pamphlet, a web site, a useful outreach tool which pulls together successful attempts at improving the musculoskeletal disorders on any given work site in the construction industry.

So we agreed we would discuss what we would call them, but for yesterday's meeting, we called them successful interventions.

We also decided that we would broaden the collection out to include unsuccessful attempts. And my take on that was that it is a great idea to say here is where to go, but it is also a good idea to say we tried this and you are on your own if you want to try it, but it really didn't work.

And the type of information we wanted to collect on these interventions was some sort of measurement or marker of their success, something to do with the cost of implementing them, and something to do with the cost effect, the successful ones. The cost went down if they were unsuccessful. And the cost either stayed the same or went up.

We got into a large discussion on the type of data we were trying to collect. And I'll go into that a little bit later. What we ended up saying is that this will be anecdotal. And as the document is built, the fact that these are anecdotal will be stated clearly.

This is anecdotal information. We are not saying that these are scientific valid data, interventions. We are saying that reasonable people have tried them in reasonable work places in the field and they work reasonably well.

And we were not looking at terribly sophisticated interventions. For example, Owen Smith volunteered some information that his painters have devised a number of fairly simple time-saving techniques which also have musculoskeletal disorder benefits, riding a -- what do you call them, Owen, boom? No, no, no, zoom-boom?

MR. SMITH: Zoom-boom.

MR. BUCHET: Aerial work platforms. Riding a zoom-boom up the side of a building and then moving along the side of the building saves countless lifting, pulling, pushing activities for the people who might erect the scaffold that would have to be put up, taken down, and moved to accomplish the same task.

And if we captured that and passed it on, there may be people out in the industry who will say that's not a bad idea. Somebody else is doing it. It's cost effective. I'll try it.

We also talked again about painting. Owen said instead of rollers up over the top of your head, you put an extension pole on the roller and you can roll. Instead of using paint brushes, you use sprayers. There is a whole series of things.

And we agreed that we would go around and try to collect that sort of information.

We also agreed that we might to try to find more sophisticated model interventions where there was considerably more data which somebody would propose and say, listen, we tried this. Here is the documentation. And we think it is modelable, transferable, and we are willing to share that with you.

We left that. We are going to attempt to do that as we move on down the road.

The discussion also spent a lot of time. And it kept going back to some central fears. One, if the workgroup proposes a pamphlet and the pamphlet gets created by OSHA and has a big OSHA seal on it, that becomes a quasi-standard.

And there were a number of answers to that. That is quite possible. There is the possibility that that document could be used in 5A1 citations.

That is not to say there aren't 5A1 citations being used now with the existing knowledge of ergonomics or musculoskeletal disorder interventions in the construction industry.

The flip side of that was in collecting the document and putting it together is we put some very useful practices in the field which might actually look better when an OSHA compliance officer comes to the work site if you are following them.

The fear went on. And as you see when we briefly talked about the material from the 8th of March, there is a suggestion of how to make a musculoskeletal disorders program. And there are several steps in that program.

And one complaint was that we should remove that completely because including that in a document would make it certainly look like a check list for a compliance officer.

The same rebuttal was offered. Maybe, a check list for a compliance officer is also a check list for an employer who wants to take the time to improve their work site.

We went further and had some, I'm trying to be thoughtful here, persistent prodding. There we go. Persistent prodding from members of the industry saying what are you actually doing with this document? Who are targeting? We don't know who we are targeting.

We answered that question by saying we were targeting the construction industry. And then, we started to think, well, maybe we are not targeting suppliers or materials to the construction industry because at this point we may not be advocating making sheet rock smaller than it is and we may not be advocating that cement comes in smaller bags or that paint come in smaller buckets, but we certainly talked about that. And that may be a further step.

So we are left the puzzle of what this vehicle that we are creating will be used to do and who we are going to aim it at. And that is a good question. And I think we need to do some more work on that. And we will bring that up again at the next meeting.

The discussion then moved on. And I apologize to the members of the public. If you haven't got the March 8th document in front of you, for everybody it is here. It is in the back.

And we started to work through that. We did not get very far. But one of the things that we did talk about was number one -- well, there is two things that we talked about.

What are musculoskeletal disorders? And that may need some examples or some definitional work so that we are inclusive as we want to be and exclude things that we don't to.

And the second part of that is the great description of trade-specific problems. One of the tangents that the earlier workgroup meetings went on was how to collect all this data and how to arrange it.

And trade specific seems to be a fairly logical way to do it. If you're in a certain trade, go to that trade. You will be able do it. If you are running jobs with five trades on them, you will look for the suggestions that are tailored after those trades.

And we will try and collect that data. And I believe that some members of the workgroup who were not present have already collected a good deal of that.

We talked about statistics. And that was a rehash again of what data is necessary and how much data is good enough data. And we had some comments there about a data matrix which had several good points and probably should several points.

And then, if you look at number seven, you will see the elements of a musculoskeletal disorder prevention program.

And I just recommend that if you look at that, it seems to be a very familiar matrix.

At that point, we decided that we would talk about what the workgroup was going to do in the future.

We are going to finish reviewing the March 8th materials, try to arrange those materials in a better fashion for inclusion in whatever this vehicle is, whether it is a pamphlet, a training material.


And then, I suggested that we might be able to rearrange it in such a way that they become the index, but that is a personal opinion.

We need to decide what the format of this vehicle is. Is it simply an informational packet targeted like a shotgun at the industry?

Is it going to be a training material or is it a training-friendly material that you could give to a front-line supervisor, the tool box talks from? Is it something that will be aimed only at employees jointly or management committees?

We don't know what we are aiming it at. And we need to figure that out and figure the format of the project.

A number of people commented that once we get the format arranged, it will provide the logic for how we go out and collect the information to plug into the document.

We also need to figure out in the workgroup who is actually going to help write the thing.

And I invite anybody here, a member of ACCSH, and the public to come to the workgroup and hold up your hand and to volunteer to take a section and say I will provide draft language. And bring it back and let the workgroup work on it.

That is my report, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Mr. Buchet.

Any discussion?

Mr. Cooper.

MR. COOPER: I am ready for my report. I have been just sitting here, itching to give it.


CHAIRMAN BURKHAMMER: That's your discussion.

MR. COOPER: Well, after that long lengthy portrayal of the Musculoskeletal Disorders Workgroup, I thought that there probably would not be any discussion.

MR. BUCHET: You didn't give me the hurry-up signal. I was buying you time.

CHAIRMAN BURKHAMMER: Prior to Mr. Cooper's workgroup presentation, is there any discussion on Mr. Buchet's --

MR. SMITH: Not so much discussion, but I would like to make a couple of comments. As a contractor and the guy who's got the right for checks and at the bottom of the food chain, this ergonomics or musculoskeletal disorder type thing really drives us up a wall because we don't know where it's going.

And we want work processes that are not going to hurt anyone. And generally speaking, our guys will find whatever works the easiest and what is easiest is probably the best. And we want that.

But what frightens us, I think frightens all the contractors and probably all the contractors and probably every business person is that OSHA or someone is going to come up and change a lot of the work processes without giving us something better. And it is going to drive up the cost. And we are going to have people out of work.

And so far, it seems that whenever one of these things come up, one of the first things we have is another competent person which is another overhead.

And we envision maybe inspectors walking around and looking at word processing and saying this guy can't do this or he can't do that and writing citations, and say, well, maybe the guy can only work five hours at best.

If that happens, then what's going to happen is we are going to change the work day. There is not going to be any eight hours days because if you say the guy can only hammer nails for five hours, then five hours is going to be it.

We are not in the position to take people that we have and move them around because our work site changes. I mean, we are doing things today. And tomorrow, we are doing something else.

And we are for whatever that will work and if someone can come to us and show us how these will work for us and we can still get the job done.

We know one thing for sure that the public is only willing to pay so much.

So I know everybody talks about safety and says it's not the money, but let me tell you, it is the money. It's always the money. When they say it's not the money, it's the money.


MR. SMITH: And I don't want to downplay it because for my operation, my guys will come up with all these great labor saving devices and they get the work done better and they are not so tired and it works. And I am sure that those kinds of things are there.

And when I spoke to Marie, she said that a lot of these things were engineering things that can be done.

And perhaps, there should be, you know. Maybe, we need to talk to the manufacturers about different kinds of packaging. And maybe, we need to look at the way we schedule our work even.

But in doing these things and talking about these ergonomics and these other kinds of disorders, bear in mind if you put a limit on what a person can do without giving us something better, you certainly have affected that work day because we will change those hours.

CHAIRMAN BURKHAMMER: I think those are excellent comments. One of the things that Michael's workgroup looked at yesterday was a pamphlet from California that had been developed out there in their ergonomics program.

It had just simple photos. And it showed before and after, bad and good, or crummy and right. I mean, and if you don't say anything, the picture explains the difference in itself.

And if the pamphlet that the group has been chartered to develop comes up with some simplistic thing whether you call it interventions or best practices or what have you, the pictures might say it all. And you wouldn't need a lot of text. So think about that.


MR. DEVORA: Stew, one quick comment on the discussion I heard in the meeting yesterday. I think we have a situation here where ergonomics, we are looking at a great opportunity for education and approaching this from educational standpoint with the pamphlet and maybe some other creative ways that the agency can do that and us as a committee can help them facilitate that.

But I think the danger if we immediately go into the standard phase and the citation phase of ergonomics, I think that is where the big road block gets thrown up.

And I think everyone is always open to best practices and new ways of doing things. We are not talking about reinventing the wheel, but the minute that we put that citation road block up there, we are going to really stifle any progress that we have made with moving forward with ergonomics.



MR. BUCHET: Part of the discussion that we had around Owen's points is that the industry may at one time had thought that labor was an endless resource.

And the picture that is painted of the industry now is that it is a scarce resource.

So it is not necessarily so much that OSHA is going to be stopping people from working. If they are worn out, they don't work. And how do you replace them?

And I think as Owen said, his guys come up with labor saving devices on plan work. It's not just the old vision of labor saving which was to save time, save money. It is actually saving the labor resource, the worker.

And I think the workgroup is committed to trying to produce a document that will help use that bigger sense of labor saving.



MS. GOLDENHAR: Well, I agree wit your idea of not necessarily using the word "best practices" given that it's not gone -- the activities have not gone through scientific rigor.

However, I give a lot of credence to anecdotal types of data, particularly from people out in the field who are doing the work.

I would recommend that using the word "intervention" even though I believe in interventions because I think that has kind of a negative connotation as well.

But in terms of having it in an OSHA document, it seems like potentially -- and Marie is on this committee.

So having it at NIOSH, there is an example of an educational document that came out of an ACCSH that NIOSH prepared.

And I think it's possible then to even go out and evaluate its effectiveness in the fields. And then, it is not OSHA policy, but it acts more as an educational increased awareness type of document.

But you have to be clear about what your goals are. Is it just to educate, increase awareness, change behaviors? And I think that will help you decide how to develop this piece.


When you talk about changes in musculoskeletal disorders, no matter what is produced by whom, there is a change because we are promoting a different way of doing business, a different way of working, a different way for an individual's body structure to move in regard to the lifting, pushing, pulling, and climbing, etcetera.

But part of that is a culture influence factor where the culture has done business a certain way for a lot of years.

And labor has done tasks a certain way for a lot of years. And when you go on a job site and it's obvious in the construction industry that the populous is getting older.

We are working with a much older classification of workers. There is not a great influx of youth into the building trades.

So you are working with a work force that has pretty well worn itself out over the past 20, 25, 30 years.

So the way to preserve this aging work force is through the term "intervention" or as Linda said which may be a negative connotation "best practices" or changes in behavior that affect how they do their work.

And even if we come out with a document and even if we provide a lot of training or promote a lot of training or OSHA puts resources into a lot of training, it's still got to be a cultural mind set shift.

And that is going to take probably not in my lifetime. I am giving away my age, but that is probably not going to occur in my lifetime.

But I would like to see some semblance of a shift toward improving the plight, so to speak, of the American worker. So we can, one, preserve the workers we currently have as long as we can.

And two, maybe when the youth see that we are changing the type of work that construction is perceived as being, we might get some people in the industry.

Mr. Cooper, 170.

MR. COOPER: Well, now that you've told me off on 170, I just want to continue with the discussion on my proposal, if you will.


MR. COOPER: What you just said is very important, Mr. Chairman, and another issue that this committee should probably look at.

There is a lot of people that do not want to get into the construction industry. And everybody in this room knows why, because of the working conditions.

Now, Jane and I and this committee worked on the sanitation at least as far as regulations go. And that is a problem. It is a dirty, nasty job.

It is beyond the economics of high-paying construction workers or benefit plans. It is into a work site that is not a good place to be.

And I can say, I will say that most construction work sites are not a good place to be. And we cannot find good, young people to come into our industry. And it is an aging industry.

And you are absolutely correct. That is a big problem across the country. Work practices which was being proposed a moment ago and just conditions have to improve for us to get people, especially in the good economy like we are in now.

But there is no place across this country where you have got an abundance of construction workers as you've got a shortage.

And I am afraid since it is much easier to punch a PC than to lift a sack of cement, we are going to be in a big problem, this industry. And fortunately, I will probably be with Stew and we will be one.

For my report, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

ACCSH Workgroup Reports


OSHA Form 170

MR. COOPER: OSHA 170 is a form. It is a form that was to be used by compliance officer originally for fatalities, but now has included on our committee which we met yesterday for the first time to be used for accidents in particular cases.

The problem with trying to establish standards or get into the ergo area or any other area is that you don't have data.

I've looked at the data which was -- which this workgroup on ergo let's call it which is a big, big workgroup and a massive area to look into.

And you're asking questions here about strategies by part or body or trade. Well, who knows that?

You are asking risk factors by part of body. And, you know, who knows that because we don't have data? And the whole issue rests around if there is a problem, there is a problem.

With muscular disorders in construction, what are they? Show me. Prove it to me, etcetera, which brings us back to the Form 170.

We met yesterday in this building. There were five advisory committee members in attendance that get to vote.

And Bruce was there also. He had provided his staff. And I must say, John Franklin and Camille working with us really is handy. And they are doing a good job. And in fact, Camille just did this report I'm reading.

The workgroup does recognize that OSHA cannot target areas for inspection. They can't develop special emphasis programs. And technically, it should not develop standards without information on what is happening out there.

And that is a difficult problem because most of the stuff is not accurate. Now, you may say do the insurance companies have it? Yes, you can say that, but could you get it and could you condense it?

You could -- one issue though and I thought of just a minute ago was on the OSHA 200s, I know those are reflected in some warehouse somewhere in the archives, but there is a lot of data that is somewhat accurate provided by companies on this issue which is on ergo.

But we have to -- our committee on the OSHA Form 170 which will be utilized by compliance officer has to be able to provide and collect this information across the board.

So probably one decade later -- should I use that term? Quite awhile later, we will have adequate information on the construction industry as it relates to particulars, namely, fatalities and accidents, some accidents.

We are going to continue with our committee. We've just started yesterday. We've also discussed how we can computerize the data so you can just bring up fields of particular areas of construction whether it's carpentry, etcetera, etcetera, and to do that.

But we also realize that the compliance officer again has to get the right information on that form before it is submitted to the computer. And we want to make it easy for them to do so.

And if it is realistic and practical, the compliance officer normally will give us the right information. If it's lengthy, wordy which this old form was, we won't get the right information.

e even changed the title of the form which is not a big deal, but the old title was wrong.

But we're looking at the fields of those categories to expand them in the 13 construction trades the normal 13 or so type of trades.

We are also talking about the locating the project cost and the contract cost which are two different areas, the exact type of construction which I just mentioned, and more important the work tasks being performed when the accidents occurred which is very important.

We are just getting started. We will probably have four or five meetings on this before we have a report back to the committee. And we will keep you informed, Mr. Chairman. And it's going to take a little work, but we'll get the form back to the committee.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

Comments or questions on Steve's report?

(No response.)

CHAIRMAN BURKHAMMER: Mr. Cloutier, Safety and Health Programs.

ACCSH Workgroup Reports


Safety and Health Program Standard


MR. CLOUTIER: Mr. Chairman, members of committee, the general public here, the Safety and Health Programs Workgroup met earlier this week.

We did have three members of the ACCSH Committee in attendance. We had OSHA staff present. The Directorate of Construction was there. And we reviewed a number of pieces of information, looked at the general industry draft, had copious amounts of discussion.


This committee has met on three different occasions and brings forth the following recommendations to ACCSH which I will provide the members momentarily.

First of all, the workgroup felt that the Safety and Health Program that it must be written. It must be a written policy.

And in this policy, if it is a similar matrix that we see throughout many of the things that we do, but it must define management's responsibility as well as employee participation.

Programs should means and methods for hazardous identification, hazardous assessment, and address corrective measures.

Programs should address training, what kind of trainings are going to take place and how information is going to be passed out to employees.

There must be a tool or method for program evaluation, recordkeeping, and any measurements that take place.

The Safety and Health Program should address emergency preparedness including first aid and that site evaluations should say site evacuations, and finally that the program should be company specific.

We felt that it was company specific, if everybody, every construction company had a program that was going to impact the safety and health across the board for workers, for employers, for people working at sites.

And I'm going to make this a recommendation to the full committee and ask for a table for the vote tomorrow morning, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cloutier. The workgroup report and motion accepted. No second needed.


(No response.)


MR. EDGINTON: Thank you, Mr. Chairman.

Steve, I'm wondering if the workgroup looked at the previous product produced by ACCSH in terms of a proposed standard which was submitted to the directorate.

Now, I know there were some outstanding issues on which ACCSH members could not reach a consensus. But I'm sort of wondering what the status is of that document.

Am I to interpret this as to mean the workgroup has decided to nix continued work on that document and simply forward to the agency areas of consensus that should be included in a standard?

MR. CLOUTIER: The previous workgroup's report that was made to the committee and passed along to the agency is included in the workgroup's packet. So it's out there. It's been aware of.

MR. EDGINTON: It sort of is what we were talking about here.

MR. CLOUTIER: And what we could come to consensus was is the list that is in front of you and where we go forward.


MR. BUCHET: Could I have an explanation of the term "first aid"? I certainly hope it includes CPR, cardiopulmonary resuscitation as well?

MR. CLOUTIER: Well, I think if we take the two words previous to that "emergency preparedness", it would include first aid, CPR, and across the board, yes, sir.

CHAIRMAN BURKHAMMER: Further discussion?


MS. GOLDENHAR: I guess I'm -- I'm new here, but you are recommending that these aspects, core elements of the Safety and Health Program go to OSHA. Is there anything else expanding this?

I mean, you said something about a packet. I'm not sure what you're talking about. Can you expand on what you mean by measurements and other things like that.


MR. CLOUTIER: The committee felt that we didn't get all the way down to the specifics of the program, that if we address the key elements that it gave every employer an opportunity to correct those key elements and move forward. And if we get down to the line item, word for word, line for line, it's got to be addressed.

We felt we were going to muddy that water and if the contractors and employers had the ability and would take the time to address these key elements.

And it was up to the compliance officer as he or she were making their inspections to see if they did have a written program, yes or no, and did that program address these key elements?



MS. WILLIAMS: Steve, in reference to the document that Larry is referring to from the previous ACCSH, did we not agree that that document and its interpretations could be non-mandatory guidelines to give an employer some guidance into the issues that go into this core?

MR. CLOUTIER: Yes, we did. It was going to be a task with a package as general information going on to the agency to assist them with their requirements for the Safety and Health Program.


MR. DEVORA: A question, Steve. Anywhere in these core elements, and it may be enumerate somewhere else, but was there any measurement for effectiveness for these safety and health programs as an elements, some way to measure their effectiveness?

MR. CLOUTIER: I think it goes back to the program management and what you end up, whether you have incidents or you don't have incidents.

And each contractor or employer was going to have to address what their specific evaluation process was going to be to look at the merits of their safety and health program. They would set their own benchmarks, do their own evaluations.


MR. BUCHET: To follow on what Jane Williams mentioned a minute ago and what we were talking about earlier when we were discussing the FIRM, can we provide examples and analyses or a model or several model programs that people could simply slap their company name on and use?

MR. CLOUTIER: I'm going to defer that over to Mr. Swanson.

MR. SWANSON: I'm sorry. Once again, Michael? You want --

MR. BUCHET: Examples --

MR. SWANSON: You want examples in here with not just listing of core elements?

MR. BUCHET: Yes, or a model program.

MR. SWANSON: I guess the only way I can answer that is to broaden this discussion a little bit. Everybody in the room is aware that OSHA is and has been working on its standard for the safety and health program in the construction industry. We continue to do so.

The last constituted the ACCSH body. It spent several years putting together a draft and shared with us at the end of the time. Some outside organizations have also shared example draft standards.

What Steve is reporting on here is the present work product of a new safety and health workgroup within ACCSH.

It lists -- it's very short, simple, sweet, to the point, it lists core elements that I don't think anyone here is going to argue with that these four elements belong in a safety and health program.

Should there be more in an OSHA standard when it comes out as a proposal? Yes, and almost assuredly will. That doesn't mean that this is not a welcomed addition to the ongoing work product.

If the committee wishes to suggest to OSHA that whenever we come out with something that it would be great if we had examples in it, we would welcome that comment, too.



MR. EDGINTON: Let me ask a threshold question for the workgroup. It was my understanding, and tell me quickly if you think I'm wrong, that the reason that this workgroup was reconstituted was that the Assistant Secretary had requested that ACCSH take a second look, if you will, at what it had previously proposed to the agency.

And as I understood that, there were sort of two elements to this taking a second look. The first of which is what I would characterize as the threshold question. And that is, should there be a separate and distinct safety and health program standard for the construction industry?

And then, the second part if you answer that question in the affirmative, it would be, what should it look like ultimately if the agency's current work product with respect to general industry, one which could also fit construction?

It was my understanding that that was the charge for the workgroup.

CHAIRMAN BURKHAMMER: Yes and no. I -- the Assistant Secretary pretty well made a determination to us that he was a proponent of a separate standard for construction that we had been proposing for a long time.

The first workgroup provided a product that was more of an in-depth draft of a proposed program which is true.

The second part of your comment is correct. We were asked to take an in-depth look at the original's workgroup proposal that ACCSH passed onto OSHA that is now sitting in Bruce's shop.

And I'm not sure looking at the document that the workgroup is proposing actually answers that question.

So I've got to think about what I want to do with this. So do we give it back to the workgroup and ask them to go back and with OSHA and take another look at the original workgroup document which I know they did in their deliberation?

Or do we accept this for what it is, the key core elements that could be passed onto OSHA?

But I'm not sure if we do that, it's going to add any meaning to what they already have.

So I think what I'm going to do is give this back to the workgroup, Mr. Cloutier, and ask if you would take one more look at the original ACCSH proposal that went to OSHA and using this document that you presented today make sure that the key elements that you are asking for as noted here, that your workgroup has noted are contained in the original report. And at the next meeting, be prepared to come back with a report on that issue.

MR. CLOUTIER: I'll take that under advisement.


MS. WILLIAMS: Mr. Swanson, you stated that you were continuing -- were working and continuing to work on a proposed safety and health program.

Would that document in draft form be permitted to be seen by ACCSH in that workgroup or by the committee that we would be able to offer comment on that direction?

MR. SWANSON: A Stew Burkhammer answer here, yes and no, or in this case, no and yes. We will under the -- under our statutory mandate when we have a proposal that we -- we being the Labor Department has signed on off and ready and willing and able to go to the street with, this committee must see that before we go out with it. And we will share that proposal with you.

On interim drafts and day-to-day work products what we are doing, the Administrative Procedures Act gets in the way of us sharing with people who are not government employees and participating in the project.

MS. WILLIAMS: Thank you.


Any further discussion on Mr. Cloutier's Safety and Health Standard Workgroup report?

(No response.)

CHAIRMAN BURKHAMMER: With that, I would like to take a 15-minute break. Please be prepared to return at 10 of.

(Whereupon, at 10:38 a.m., the meeting was recessed.)



11:00 a.m.

CHAIRMAN BURKHAMMER: Let's get started. Would you please take your seats?

Prior to the next presentation which would be the one on page 3 of your agenda, Tony Brown and the National Commission for Certification of Crane Operators, I want to get one thing out of the way, one workgroup report, Tony, if you don't mind.

And I'd like Jane Williams to do the HAZWIC Report. That workgroup was put to bed after the sanitation report. And Jane and I have had some discussions on what she would like to do next.

So, Jane.

ACCSH Workgroup Reports



MS. WILLIAMS: Thank you, Mr. Chairman. The HAZWIC Report was an accomplished document which focused on women's issues within the construction industry.

The report identified such issues as training, properly fitted personal protective equipment, job security, reproductive hazards, and sanitation. As a result of that report, the Sanitation Workgroup was in fact culminated.

The workgroup met on several occasions, as I understand it, developed a very specific detailed report which was adopted by ACCSH, and forwarded onto OSHA.

There have been several items completed within the document. However, a review of the report reflects some items that were accomplished had questions regarding them. Others require action and/or work and response.

And in reviewing it, what we also saw was that it was not necessarily women's issues, it is more of a diversified work force issue.

In reviewing it, it is very intensive. In meeting with staff and having conversations with Ms. Goldenhar who worked very intensely on that document as well as OSHA staff, we really thought that there could be additional work efforts maintained on the document.

In reviewing the Safety and Health Women in Construction Report submitted to the ACCSH Committee in March of 1997 that was referred onto OSHA by ACCSH, there are recommendations in the report that have been completed. Others require additional attention, work, and/or action.

Therefore, I propose the following motion to the ACCSH Committee. Mr. Chairman, I move the workgroup be renamed to Diversified Construction Workforce Initiatives.

The proposed workgroup scope is to address open items in the in the HAZWIC Report and address issues relating to a diversified workforce in total. It is recommended that Jane Williams and Larry Edginton co-chair this workgroup with an anticipated duration of nine months.


A motion has been made to reconstitute a workgroup. Since it is a complete change in the sense of the workgroup, we would need a second to the motion.


CHAIRMAN BURKHAMMER: The motion is seconded.



MR. DEVORA: Jane, could you expand a little bit on diversified workforce besides -- I understand the --

MS. WILLIAMS: Absolutely.

MR. DEVORA: I understand the male and female issues, but are there others?

MS. WILLIAMS: I'll give a brief example. Personal protective equipment which was highlighted in the report regarding the proper fit for women. If you look at that issue, it is not necessarily just a woman's issue that is a concern, but just as much a concern is a harness fitting a man properly regardless of whether he is 5' 2" or 10".

We felt that it was more of an employer awareness of those issues that would affect all workers, certainly placing emphasis on women's issues where we need those, but also making sure that we just don't focus solely those issues and look at all issues that would be relevant to the workforce.

MR. DEVORA: I understand.

CHAIRMAN BURKHAMMER: Further discussion?


MS. GOLDENHAR: I have two questions. One would be, what would be the goal of this workgroup in terms of product or reports. In terms of issues of diverse workforce, it is difficult to collect data on that and whether or not that would be that would be the goal.

So I just think about what is the goal as a mandate to the workgroup. I think it is a good idea, but thinking about that.

And whether or not nine months, I'm not sure where the nine months comes from, given how long it took to put the HAZWIC Report together.

MS. WILLIAMS: The goal would be to promote these issues as an awareness document to employers so that they can in effect be addressed.

In reading the report and having conversations, we are convinced that many employers are recognizing the conditions of various things, such as personal protective equipment, an easy one to identify.

As far as the nine months, we didn't know whether we were looking at a year. The intent is the workgroup would met first. We would identify the items that we truly believe need to be addressed, make an agenda for the workgroup, and then proceed with workgroup meetings after that would be accomplished on the first meeting.

I think we would have a much more realistic timeframe. So we put nine months just to maintain it within a year's scope.

CHAIRMAN BURKHAMMER: Further discussion?

MR. DEVORA: Mr. Chairman.


MR. DEVORA: Jane, in your workgroup, would culture diversity in terms of language barriers be included in this workforce initiative?

MS. WILLIAMS: There is a strong possibility because that is certainly an issue. And it certainly is not just a particular issue.


MS. WILLIAMS: So, yes, as I said, I think we need to look at the report and the open items, identify the questions to be responded to that report.

And then, while we are at, we could look at the other issues working with Larry to see were these personnel or persons involved that we could truly come up with a knowledgeable awareness document possibly for an employer to be sure he looked at those issues.

MR. DEVORA: Yes. My follow-up in terms I was just trying to think of other issues that weren't just male-female issues, but cultural issues are certainly diverse.

MS. WILLIAMS: Absolutely.

MR. DEVORA: Expand on the diversity of our workgroups.

MS. WILLIAMS: Absolutely.

Larry, do you have a comment?

MR. EDGINTON: Well, I guess the only comment I have is to convey a message to ACCSH that our female members conveyed to me which is very loudly and very clearly they say, stop talking about us as women and start talking about it as members. We don't ask to be treated any differently than any other member, but what we are saying is that there situations and needs in some instances which are unique to women and we seek to have those interests represented equally as the interest of any other union member.

And it is sort of that frame of reference that I bring to work with Jane on this is that there are many issues that transcend gender that need to be dealt with.

And at the same time, there may be issues or instances or situations which are unique to women entering the workforce or staying in the workforce. And we certainly need to address those as well.




MS. GOLDENHAR: I just would recommend that the workgroup -- this document came out of the ACCSH HAZWIC work report. One of the recommendations that we had made was that an educational document be made to address the issues targeted to employers.

NIOSH took on that role and over the past year developed this document, the title of which is "Issues and Ideas for Health and Safety to Protect a Diverse Construction Workforce".

So I know oftentimes when we develop documents, we will reinvent it over and over again. So I would recommend taking a look at this document to see how it can help.

And maybe if it's tweaking it or changing it, including data. I mean, I think what would really be important is to include data. That's why the nine month question because this is based on data collected from women.

So in terms of cohort diversity, in terms of other aspects, I would say even though it is anecdotal, it is important to collect the data to include what might be phase two of this document or whatever to expand the issues.

CHAIRMAN BURKHAMMER: Thank you, Linda. This is a pretty impressive document. It's the first time I've seen it.



MS. GOLDENHAR: Thank you.

CHAIRMAN BURKHAMMER: We have a motion and a second and we've had discussion. All right.

I would add, Jane, if you and Larry would use this document as somewhat the basis for your considerations.


CHAIRMAN BURKHAMMER: Okay. We have a motion. The motion again is that we constitute a workgroup, have a Diversified Construction Workforce Initiatives chaired by Jane and Larry.

The workgroup's scope is to address all open items in the original HAZWIC Report and to address issues relating to a diversified workforce.

And in the discussion stage, Jane indicated that one of the scope items was to produce an awareness document which Linda and NIOSH have already done. So maybe, if they could build upon that document, that might be included.

So we will call for the vote. All in favor of constituting the workforce motion, signify by saying aye.



(No response.)


I will pass this on. And this workgroup will be official. Schedule your meeting. And we will move on from there. Thank you.

Mr. Brown.


Special Presentations
National Commission for Certification
of Crane Operators

MR. BROWN: Mr. Chairman, my name is Anthony Brown. I work for the Directorate of Construction.

CHAIRMAN BURKHAMMER: For those of you who wonder where we are in the agenda, we are at the 11:00 o'clock spot on Friday. We are really move fast here.


CHAIRMAN BURKHAMMER: The National Commission for Certification of Crane Operators, Tony Brown.

MR. BROWN: Thank you. An agreement was signed in February of this year between the National Commission for Certification of Crane Operators and OSHA to recognize their certification program.

This whole process really began back in 1990 when OSHA initiated a review of crane accidents and the standard that relate to cranes, that this was in response to the tower crane accident I believe it was 1989 in San Francisco.

Congressional inquiries soon reached our office. And we were asked to look at the accident. In preparing the report, the committee report was to address crane operator certification, crane certification, and rigger certification.

Due to, as always happens, other priorities, the NPRM, the Notice for Proposed Rulemaking was never really pursued. We received a few comments. And most of the comments addressed the crane operator certification.

Along the same lines, along the same timeframe, the Specialized Carriers and Riggers Association initiated a workgroup to address these concerns.

Over several years, criteria was developed for operation qualifications. From that and from the Specialized Carriers and Riggers Association, a separate organization was developed called the National Commission for the Certification of Crane Operators.

This group developed testing criteria both written and practical, qualification criteria for crane operators.

The group, the committee was composed of the operating engineers, many crane manufacturers, Grove, Mantua, Linkfeld, training companies, construction companies. J.A. Jones was one of them, Branack Construction, and crane rental houses.

With this broad base, it was pretty evident that the criteria or the crane operator qualifications would be quite stringent.

To validate the certification process and the criteria for certification, the commission, NCCCO was asked for accreditation -- applied for accreditation by a certification agency. And they received that.

Upon receiving this accreditation which validated their process, OSHA reviewed the process and agreed that it would meet the requirements of B550 -- 1926.550 and B30.5.

Now, these requirements addressed crane operator qualifications. The crane operator must pass a written test, a practical test, be familiar with the standards, and a medical exam.

With all this done, OSHA agreed that this certification, we would recognize it not as a requirement, but does recognize that it does those requirements as set forth in ANSI.

I have a video of a signing ceremony that was conducted in February. And the video itself does answer a lot of the questions.

Mr. Jeffress is quite supportive of this. And the reception by the industry has been quite positive.

If there are any questions before we show the video. If no, then we can look at that. And then, we can entertain some questions.

CHAIRMAN BURKHAMMER: Why don't we do the video before questions.

MR. BROWN: All right.

(Whereupon, at 11:15 a.m., the meeting went off the record to present a video presentation, and was resumed back on the record at 11:35 a.m.)

CHAIRMAN BURKHAMMER: I think we get the drift of the signing ceremony.

Tony, any --

MR. BROWN: Well, just to follow up, again this is a partnership, a voluntary agreement. It is not a requirement by OSHA for certification. And I just want to make sure that is clear.


MS. WILLIAMS: Tony, I understand the test classrooms are 25 people. I had heard that there is a process being evaluated where they could have on-site computer testing where one or two could be tested at a time other than a classroom setting of 25. Do you know whether they are progressing in this area?

MR. BROWN: Well, that is being discussed. That is still in the written phase.


MR. BROWN: They are working with training facilities. And hopefully, that will be available. But again, I don't foresee that for at least a year.

MS. WILLIAMS: Thank you.

CHAIRMAN BURKHAMMER: How long do you see, and, Larry, maybe you could share your thoughts with this, before we could call a hall and ask for certified crane operators and to have enough to give us.

MR. EDGINTON: In some areas of the country, I could probably give you all you need right now. I mean, that is who well it has been received.

In other areas, it is a little slower both due to just market forces as well as our own organization to provide sufficient levels of training and schedule exams.

One of the situations we have bought into is the very point that Jane raised is sometimes it is hard to get 25 people for a single day for a single setting to conduct a classroom portion of it. That has limited us in some extent, but in general it is very well received.

And we are also pleased to report that one of the things the process has done for us is we always believed that we have some of the best crane operators in the world. Now, we can prove it.


Any other comments or questions for Tony?


MR. AYERS: Just one question. What is the definition of a mobile crane?

MR. BROWN: Mobile crane is either hydraulic or lattice boom. It has a carriage, carriage body that is moved or can move tracks or wheels. It is not stationary. It is not a tower crane or an overhead pedestal crane.

MR. AYERS: Okay. Thank you.


MR. COOPER: Steve Cooper.

I was on this committee years ago. And they keep saying -- years ago. And they keep emphasizing how long all this took and how important it was. And they finally reached agreement on it.

I was wanted to, for those who knew about the accomplishments, the certification accomplishments by many, many people that I'm sitting next to Larry Edginton who is the Safety Director for the Operating Engineers. That was three safety directors ago.


MR. BROWN: That is true.

MR. COOPER: Ben Hill was involved in this way back, and then Bill Smith, and now Larry.

MR. BROWN: Lots of great help.

MR. COOPER: And I just -- that is kind of business we are all in in working on committees for a length of time.


MR. COOPER: And you also, Tony. And it takes a long time to do something good.

MR. BROWN: Thank you.


MR. BROWN: Thank you.

CHAIRMAN BURKHAMMER: Moving along on your agenda, if you will turn back to page 1, the 11:30 ACCSH Web Page presentation, Bob Curtis and Camille or Camille and Camille.


CHAIRMAN BURKHAMMER: The reason Mr. Curtis is not with us is he is at an AIAH conference in Toronto, Canada. And when we moved this meeting, it caused all kinds of people some problems. So we are going to try to something new here. We are going to try having Bob call.

Can he call in instead of dial tone?

MS. VILLANOVA: He can only call in. We can't call out. Okay.

Special Presentations


ACCSH Web Page

MS. VILLANOVA: Thank you, Mr. Chairman. I am Camille Villanova. I work in the Directorate of Construction, Office of Construction Services. And this is a brief summary of the two electronic media requests that we asked the ACCSH members to review.

In March, we asked you to review a Technical Data Center test page where all of the docket office products were available.

And then, in April, Mr. Burkhammer's office sent you a test site to test the construction pages and the ACCSH page.

What your handout is today is the construction page with some of the topics that are available on the construction page and the ACCSH page. None of these are public information yet.

If you have any other comments that you would like to submit besides the comments that were submitted either on the docket office or on the ACCSH or the construction pages, we will be -- I am more than willing to still accept them because again they are not yet public. We expect both of them to be public soon.

And just as a summary, the docket office site will have all the information related to all the standards eventually, not all of the standards going all the way back, not all that information is available yet.

It will also have the hearings, the exhibits from the hearing, and all the advisory committee transcripts and documents.

The Technical Data Center docket office page will be available only as scanned documents. And if you want to review those documents and do like a word search, you would have to have your own OCR reader software on your computer. Okay.

That's the Technical Data Center Summary.

The construction of the construction page and the ACCSH page is going to be a whole lot more simple because it's in front of you.

We are hoping eventually to get permission so that there is a singular button when you get to the OSHA home page that says construction. Right now, you have to find construction under outreach materials.

The button that will just say construction will take you to the front page of your handout today. And what I did was just take a few of the tabs from the left-hand side of these pages and show you what we have done.

The whole purpose of the construction page and the ACCSH page was to find and gather documents in one place that are related to construction just so that the search for construction materials would be easier for the construction community.

As you can see, I just chose compliance information. And under compliance information, as the second page in your handout, it doesn't include absolutely everything, but it does include some of the compliance topics of interest.

You can see the next page says construction topic pages. Now, some of these are amalgamation. For instance, if you hit scaffolds, because of the way the OSHA network is set up, you will get scaffolds.

And right now, the scaffolding areas do have general industry, maritime, and compliance scaffold pieces in them. We are working to order the URLs by industry topics.

So again, right now, even though it says construction topic pages, they are not dedicated just to construction. You will get mixed information when this up.

The next just says construction general. And construction general which is the fourth page of your handout is closer to what we hope the rest of the pages to look like eventually.

You will see that there are topic lines. And under the topic lines there are some specific things. For instance, it says "compliance OSHA directives". And then, right there is STD 3.1 which is the interim fall protection. Okay.

Any comments you have, like I said these are still under construction, so to speak, and we are willing to accept any comments.

Yes, Mike.

MR. BUCHET: Any news on progress to getting the interpretive and quips and interpretive letters?

MS. VILLANOVA: No. They have been promising the quips for a long time. And I will find out for you. And I will let you know shortly.

The next page in your handout is the advisory committee page. Now, we can change any of the tabs on the left-hand side.

The tabs at the top, we can't change. That is the instructions that our Salt Lake City people had.

Bob Curtis and his group are the people that have been working very hard to put this together for us. So that is why Bob is invited to call in this morning.

I did -- we did have a problem. He is in Canada. And his cell phone was not working last night. So there may be a high-tech problem here this morning. But Bob's group has spent a lot of time trying to gather the URLs and put links in.

And basically, everything that you see on the construction page is already on the OSHA Internet. We just tried to gather it together for you.

The ACCSH information is not on the Internet at all anywhere. All right. And this will be your page. And these the topics we thought you would like.

So every single tab on the left-hand side is one of the pages in your handout. The first one was background and history. The next one was current membership.

And you will see that these lists were not updated, but they were updated to the date that's at the bottom to the list. So if there are -- we already know that there are corrections that need to be made.

We do want to know -- we would like your input on whether or not you do want your phone number and fax number and e-mail or not. That's the question that we would like to know.

Go ahead, Mike.

MR. BUCHET: On the tabs on the left of that page, some of us have talked about this function or ability. Would it be possible to put a member's only or committee, ACCSH committee members chat room so that we could do -- things we might be doing by conference call we could put a blurb up there? It wouldn't be available to the public because it wasn't the committee's opinion, but it would be something that we worked on.

MS. VILLANOVA: Yes. We were actually working on that independently, but, sure. We didn't think of it being a tab. We were just going to -- that was going to be a separate space that would be assigned to you guys, but, sure.

Yes, Ms. Goldenhar.

MS. GOLDENHAR: I don't know what the rules are in terms of putting ACCSH products on there and what point they can go on there, but I think that's a great idea.

Right now, I think what you have are the current working groups from ACCSH?


MS. GOLDENHAR: To keep things going since ACCSH has been around for awhile, there have been some workgroups that have done their work and moved on with products that have been developed.

I wonder if to keep it continuing, sort of a whole construction mission to have past ACCSH groups and their topics and products and things like that to include.

MS. VILLANOVA: Okay. At the moment, we were trying to get all the current information. And neither -- right now, neither Salt Lake City nor the directorate, what we have to do, all the documents from the past ACCSH except for the transcripts and minutes -- well, even some of the minutes, the past documents would all have to be scanned, edited, and converted to HTML.


MS. VILLANOVA: And actually, I'm sure Mr. Swanson will consider that in the budget, but that was not a consideration for this year's budget actually, but we can certainly consider it.

But that's -- part of the process is that most of the old ACCSH documents are not available electronically. And that is the same with the minutes.

That is why you will probably see in the future many more transcripts than minutes because again, we would either have to find a contractor, we have to scan and then edit those particular documents ourselves.

MS. GOLDENHAR: If they are in -- I don't know the -- if they are in WordPerfect or whatever, those can be converted into HTML?

MS. VILLANOVA: Oh, absolutely.

MS. GOLDENHAR: Okay. So some of them probably are in electronic format.

MS. VILLANOVA: Right. Our contract with different transcription agencies through the Department of Labor and OSHA only just recently started to request electronic formats.



CHAIRMAN BURKHAMMER: Camille, maybe we could add a block on the left. We could put the charter, the committee charter as one of the tabs.


MS. SHORTALL: Or put it on just as a hot link under background or history.


MS. SHORTALL: In that way, one area has all your legal documents.

CHAIRMAN BURKHAMMER: On the last one, the ACCSH products, I appreciate that the only products you can put in there are voted items by the full committee that move on. We can't put workgroup working documents.

MR. DEVORA: Stew, that was my question. There won't be any, how do you say it, any in progress products on there? It would just be final products, right?

CHAIRMAN BURKHAMMER: Unless Michael's suggestion of a chat room comes to be.


CHAIRMAN BURKHAMMER: Where we could keep it among the committee.


CHAIRMAN BURKHAMMER: But any finished products that ACCSH votes and sends onto OSHA can go in the ACCSH products, but no working documents.


MR. EDGINTON: I guess the question I would have is that it appears that the agency has decided to devote resources to developing this.

But from my own experience in our own web site in my own organization and using that of others, where organizations seem to have trouble is maintaining these things once they are developed.

So I guess my question is there also a commitment to provide ongoing resources to maintain it because that is really the value to this is keeping the information current and up to date?

MS. VILLANOVA: Yes. And it would be between someone from the Office of Construction Services, right now I am designated, and Bob Curtis. That is why the two of us were going to attempt to do a joint presentation for you.

It will be us and them from your input. Okay. We are not going to invent stuff and put your work products on there for you.

Whatever you guys would like to appear, we can make appear. It depends on the length of the document and if we get it in the electronic format or even if it is available in HTML format. All that stuff shortens the time from the time we receive it to the time we can put it up.

CHAIRMAN BURKHAMMER: That is great. I think this is going to be a great tool for all of us. It would be really nice. Thank you, Camille.

MS. VILLANOVA: All right.

CHAIRMAN BURKHAMMER: It's 10 to 12. We will break for lunch. Please be back at five to one because we have a 1:00 o'clock presentation on the MSHA/OSHA Interface Jurisdictional Issues.

(Whereupon, at 11:50 a.m., the meeting was recessed for lunch.)


1:00 p.m.

CHAIRMAN BURKHAMMER: Let's reconvene the ACCSH Committee. If you would take your seats, please.

Well, we are back on time for the agenda. We are at the 1:00 o'clock session on the first day which is the MSHA/OSHA Jurisdictional Issues.

So with that, the distinguished panel.

Special Presentations


MSHA/OSHA - Jurisdictional Issues
A Joint Presentation

MR. TUROW: Good afternoon. And thank you for inviting us to speak at the ACCSH meeting today. My name is Stephen Turow. I am with the Solicitor's Office of the Department of Labor, the OSHA Division.

MR. FEEHAN: I am Richard Feehan. I am Chief of Metal and Nonmetal Mine Safety and Health. And I am with the Mine Safety and Health Administration.

MR. MALECKI: My name is Mark Malecki. I am with the Division -- Solicitor's Office, Division of Mine Safety and Health, with Mr. Feehan. Thank you.

MR. TUROW: It is our understanding that the committee was interested in discussing or exploring jurisdictional issues regarding OSHA and MSHA where MSHA jurisdiction left off and OSHA where jurisdiction begins.

What I am going to do is provide sort of a legal overview. And then, Mr. Feehan will speak more specifically regarding specific types of mining, general industry activities in which the two agencies interface in which there are mining activities that are an integral part of general industry.

I think the place we want to start is by talking about the jurisdictional issue in a larger contest. The OSHA Act, of course, passed in 1970 was designed to assure healthy and safe working conditions for men and women throughout the country.

In doing so, Congress delegated authority to OSHA to develop regulations that would provide a minimum standard of protection for employees at a variety of work places throughout the country.

However, Congress explicitly limited OSHA's authority to enforce health and safety regulations in situations in which, "other federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational health and safety".

That is Section 4(b)(1), of course, of the Occupational Safety and Health Act. Thus, Congress has prescribed to some extent OSHA's ability to enforce and establish health and safety regulations.

This occurs in a number of situations in which OSHA shares or is preempted from exercising authority. The FAA is one example. And, of course, the mining world is another prime example where this happens.

The Mine Act that we have which is presently enforced is the Mine Safety and Health Act of 1977. And it, too, was passed to protect workers, the safety and health of workers, although it is specific to miners who work throughout the nation.

In passing the Mine Act, Congress provided a very broad definition of a mine. And a mine includes the area of land from which minerals are extracted, as well as, and I think this is the important addition, all facilities, equipment, structures, roads, slopes, tunnels, etcetera, that are used in or to be used in the work of extracting minerals.

And Congress explicitly included in this definition that is used for coal preparation as well as mineral mining. In defining MSHA's jurisdiction, Congress MSHA gave MSHA jurisdiction over mine operators.

And it defined that term very broadly to include who operates, controls, or supervises a mine.

And I think for the purposes of this committee, it's important to recognize that Congress explicitly included in that definition independent contractors performing services or construction at mine sites.

Finally, Congress defined a miner broadly as any person who works in a coal or other mine. And that is Section 3(g) of the Mine Act. It is the Section 3(d) of the Mine Act in which Congress defines the mine operator. And Section 3(h)(1) of the Mine Act in which Congress defines a mine itself.

In developing the legislative history of the Mine Act, Congress explicitly stated that the term "mine", "mine operator", and "miner" were intended to provide, "sweeping coverage".

And it instructed that the terms must be construed broadly to extend the coverage of the Mine Act to the greatest reasonable extent.

So the problem, of course, or the issue of jurisdiction between the two agencies exists in situations in which entities perform work in which they are components of mining activity on one hand and general industry activity on the other hand.

And, of course, the general industry activity can include manufacturing, construction, or other services. It obviously poses an issue for employers who must determine which statute applies to them and to their employees.

It also is an issue for the Department of Labor which also must determine which statute to enforce at a specific work site.

And I think we see examples of this overlap between mining activity and general industry activity in such areas as highway construction, coal preparation activities at power plants, and certain construction activities on mine sites.

Let me suggest that I think the initial way in resolving or looking at this issue of jurisdiction is to start by looking at the statute.

The Secretary of Labor's authority to enforce the Mine Act and the Occupational Safety and Health Act are, of course, derived from Congress' grant of authority to the Department of Labor.

So in looking at the OSHA Act, we obviously start with the concept that if activity is regulated by MSHA, OSHA is preempted statutorily from enforcing its safety and health standards at the sites.

It is not a discretionary issue for the Secretary of Labor. That is clearly and explicitly stated by Congress in the Occupational Safety and Health Act.

And I guess in thinking about this, I am sort of reminded of the movie Silverado in which case there is a scene in which a cowboy breaks his buddies out of the local jail and the sheriff forms a posse and they ride out into the wilderness after the outlaws.

And they approach these low-lying hills. The cowboys are waiting for them with their long guns. The first shot hits right below the sheriff's horse. The second shot knocks the sheriff's cap off his head. The sheriff gets off his horse and looks at an imaginary line down in the sand and says my jurisdiction ends here.


MR. TUROW: And I likewise think that is the case in some ways for OSHA where MSHA jurisdiction begins and OSHA jurisdiction by again explicit of Congress ends.

So if you have an activity that involves mining or mining activity, MSHA will likely exercise jurisdiction over that work site given broad definition of mine in the Mine Act and Congress' explicitly statement to construe mining activity broadly to provide effective protection to people working in mines.

I mentioned there are, of course, situations in which an industry will have activities that have attributes for both mining and industry.

Congress obviously could not list each kind of industry and each kind of activity in the United States. So they have given these broad definitions and have given the Secretary of Labor general instructions and power to act upon that authority.

The first key I think in determining OSHA versus MSHA jurisdiction when there is a question is to turn to the Interagency Agreement that the Secretary developed.

I have left copies of the Interagency Agreement which is dated March 29, 1979 in the hall on the table with some of the other material.

The Interagency Agreement is an attempt to assign jurisdiction between the two agencies in which there are elements of mining and general industry practices. It is an attempt to provide some definition for employers as well as some definition for the two agencies as they attempt to enforce the respective acts.

The Interagency Agreement, if you haven't seen it or haven't read a copy of it, I think is very instructive because it goes into some very specific and explicit detail regarding specific industries and activities and draws lines and does help to clarify jurisdictional issues.

So I would recommend that to anyone who hasn't seen it. Again, copies are available in the hall.

The agreement is based upon an interpretation of the two statutes and relies upon the Secretary's authority to delegate facets of milling operations to one of the two agencies depending upon administrative convenience.

I'm not going to go through all parts of the agreement, but I will say that the agreement does in a general sense recognize -- thank you.

See, I should have passed it out, but thank you for doing that.

The agreement does recognize generally MSHA's jurisdiction over mining activities and then attempts to draw the line.

Usually, the agreement will draw the line at the point in which mineral extraction ends and the milling of the minerals that have been mined is completed.

So you have mineral milling and mill extraction generally under MSHA's authority and jurisdiction. But once that milling process is done and the mineral is ready for use in manufacturing or in construction, OSHA takes over at that point.

So generally, a stock pile of finished material for use in construction or use in manufacturing becomes OSHA's jurisdiction as OSHA enforces the Occupational Safety and Health Act at a construction site or a manufacturing facility.

And Richard will speak more specifically to those issues. And I know he's going to address highly construction as well. And obviously, there is some question in grinding. I say some. There is a great deal of question in grinding associated with those activities. And I will leave that to Richard.

In addition, the agreement also provides that OSHA regulations may apply to activities on mine property for which there are no OSHA regulations.

One example that comes to mind is clinics or other health care facilities that might be on a mine site for the benefit of miners.

Those are not directly related to the developments or the extraction of the mineral and that those may be OSHA jurisdiction.

OSHA jurisdiction will also extend to cases in which an employee at a mine site is not considered to be a miner or mine operator under the Mine Act.

Remember, miner is broadly construed. A mine operator is broadly construed under the Mine Act, but people who have casual or incidental contact with mines are not considered to be miners or mine operators.

One of the classic examples is the delivery person who brings the Coca-Cola and fills up the machines at the canteen at a mine site. That person who may be working at a mine or delivering to a mine is not considered a miner, but yet that employer would have to comply with the Occupational Safety and Health Act.


MR. BUCHET: Can we take questions as we go? Or should we hold them?

CHAIRMAN BURKHAMMER: Why don't we save questions until the end.

MR. TUROW: Okay. I think in practice when you look at both the two statutes and then you apply the Interagency Agreement which helps to specify and looks at specific industries and assigns jurisdiction, I think in many cases, indeed in most all cases, that will definitively resolve the question of where jurisdiction lies.

However, if there is still a question regarding the application or the jurisdiction between the two agencies, the agreement leaves it up to the OSHA regional administrator in the area and the MSHA district manager to resolve the issue.

If the regional administrator and the district manager cannot do so, then the agreement provides that the issue will ultimately go to the national offices of OSHA and MSHA and may eventually resolved by the Secretary of Labor.

I think I say though in passing if an employer or an operator has any questions regarding their statutory obligations or whether or not their operations fall under the OSHA or the MSHA Act that those questions are best referred to the relevant OSHA regional administrator or MSHA district manager for resolution.

At times, it can be a very factually-based and intensive inquiry to make that determination because you have to look specifically to what is going on at a site and then apply those specific facts to the two statutes.

I think in almost all cases it becomes pretty clear when you look at the statute and the agreement. However, there may be situations in which an operator and an employer may want to ask of the two agencies and get a resolution.

Of course, the identities, addresses, and phone numbers of regional administrators and district managers is listed in the agencies' respective Internet web sites.

Well, the Department of Labor and employers attempt to divide jurisdiction in a way that works practically and is consistent with Congress' mandate.

The ultimate arbiter of jurisdictional questions remains with the federal courts which are assigned the task of interpreting of both statutes.

Of course, only the thorniest and or most difficult jurisdictional questions reach the federal courts, but if you look at the handful cases in which the federal courts have considered jurisdictional challenges between OSHA and MSHA, you will see that the federal courts do wrestle with what they themselves acknowledge to be a difficult issue. And that is trying to determine where Congress wanted jurisdiction to lie in a particular case given the intrinsities and details of the operation.

So it is a very fact specific exercise that the courts go through when they are called upon to determine whether jurisdiction should rest with OSHA or MSHA.

I thank you for your attention. And at this point, I will turn the program over to Richard Feehan who is the Safety Division Chief for MSHA's Metal and Nonmetal Division and let him speak a little bit more specifically about different processes.


Special Presentations
Jurisdictional Issues
A Joint Presentation

MR. FEEHAN: Yes. I am Chief of Metal and Nonmetal Safety. And my remarks today when I'm referring to MSHA, I am really talking about metal and nonmetal. When I talk about the number of fatalities or the types of fatalities that we are having, I am referring to the ones that are in the Metal and Nonmetal Section of the agency.

For your general information, for enforcement purposes we are divided between coal and metal and nonmetal. That is the major bifurcation there.

I thought I would tell you a little bit about myself. I was a contract miner in an underground copper mine in Arizona before joining the agency. I also worked in heavy and highway construction.

I worked my way through school as a member of Local 7 of the labor's union. And I have a brother that's in the union. And I also have a brother-in-law who works as a carpenter and through the hall.

I am particularly glad to be here because with my experience, I can tell you that I have seen firsthand the many similarities between construction and mining and especially in the heavy and highway sectors.

The construction of a $360 million of a gold roasting facility in Nevada is very, very similar to any $360 million industrial construction site.

Our depths are very similar. The hazards that our people are exposed to are very similar to what they are in construction.

In 1998, slips and fall injuries were the second leading cause of death in metal and nonmetal mining.

So I think that we can relate very well to one another's circumstances.

I thought also that I should tell you a bit about MSHA. Metal and nonmetal has six districts located around the country. We cover about 11,000 mining operations. We have about 225,000 employees that are in our jurisdiction. We issued about 50,000 violations, actually over 50,000 violations in 1998 at those 11,000 mines.

To give you a little sense of perspective on what those operations are like, 5,300 of those are fewer than five employees.

So I mean, we go from a one-person operation all the way up to a 3,000, 4,000 operation copper mine in Arizona. We cover quite a bit of territory.

The first federal mine safety law was passed in 1891 and it covered territories of the United States and it dealt with the ventilation for coal mining and for restrictions on allowing children to work.

The Bureau of Mines was created in 1910. In 1941, Congress powered the bureau to reduce coal deaths and to enter mines and to conduct inspections at that time.

So we have not had the same warrant problem that OSHA inspectors have. We have a right of entry to the properties.

In 1952, annual inspections were begun at coal operations. And there was limited enforcement. We were able to withdraw people through imminent danger orders. And we were also able, empowered to assess fines for those violations.

In essence, as a practical matter, the question of jurisdiction between MSHA and OSHA is really the question of where does the process of mining stop and where does the processes of manufacturing or providing of the service begin.

We have over 20 memorandums of understanding concerning jurisdiction. We have jurisdiction agreements with the Coast Guard, with the Department of Energy.

We inspect explosive magazines for the Bureau of Alcohol, Tobacco and Firearms that are on mine property.

We have numerous numbers of issues about jurisdiction that we deal with, most of them I would agree with Steve. Very few of them create problems for us. There are rarely raised, rarely is an issue raised.

The MSHA/OSHA MOU, the Memorandum of Understanding, is essentially between OSHA and metal and nonmetal mining.

There is almost no questions about coal mining jurisdiction that needed to be resolved apparently because all of the elements that were conducted, all of the parts that were figured into the Memorandum of Understanding really had to deal with my sector of the agency.

It does three things. The agreement lays out a guideline lays out a guiding principle, a general principle for how jurisdiction is determined.

It gives procedures to resolve disputes which Steven mentioned between the district managers out in the field and regional administrators. And it also has specific assignments which are included as part of an appendix at the end of the Memorandum of Understanding.

The question about jurisdiction though is from our point of view very simple. And we think that is why we have had very few disputes to resolve. And that is, if you are on a mine, you are subject to the Mine Act and to Title XXX.

The Mine Act defines a mine as a piece of land, an area of land. And virtually all of the references to mining have to do with property.

So we intended to end up in a very specific locale. And once you get into that location, you are basically buying into our jurisdiction. That is sort of how the -- in a broad use of the brush, that is how it breaks out.

The types of construction that we see on mining property are typically highway construction or road construction for haulage or access to the mines. We see impoundments, dam construction. And we also see building and industrial construction on the sites.

We have had highways that run -- we have had a 52 -- here is one distinction that -- of where we have a breakdown on our jurisdiction. There is a lead zinc operation about 200 miles north of the Arctic Circle, north of Kasabu, Alaska.

That has a 52-mile road that connects the mining operation and the milling operation to a port facility where the material is stockpiled. They can only -- it is on the Chuckisee. And they only get the ice out for about two months of the year.

So they stockpile material. They use this road to stockpile material at the site so once the boats come in to start the loading, they are able to load it as expeditiously as possible.

During the construction of that road which is all on Indian land incidentally, the Alaska Department of Occupational Safety and Health had jurisdiction for the road construction.

But once they went off, the actual, it looked to me like the shoulder of the road and would create a pit in order to get material for the base of the road, then it went into MSHA's jurisdiction. And that is how that broke out. Okay.

And that principle pretty much holds true for any of the road construction. If you are on mining property, you are in our jurisdiction.

If you are in a highway project, if it's done by the state highway department that has nothing to do with mining really, as long as your crushing facility is on the right of way of that project, you are within OSHA jurisdiction. That is our policy on that.

But the --


MR. FEEHAN: If you are in the right of way, if you are in -- if you are building -- if you are making a cut in a highway and you are having to take out rock through this cut, and incidental to the construction of the road you decide to crush that to a size that you can use it for the base material for your road, then that crushing operation will belong to OSHA.

CHAIRMAN BURKHAMMER: The digging operation belongs to MSHA.

MR. FEEHAN: The digging operation belongs to OSHA as long as it's in the right of way. Now, that is along an interstate or a state road. Okay.

If you come into a mining property and the mine needs to have a road constructed, you are going to be within our jurisdiction the whole time.

Now, the problem, the interacting, it's not really a problem. It's a matter of understanding of how our different agencies work and what our different calls are.

We have jurisdiction for the production of aggregates provided that the aggregates are not produced in the middle of a right of way in the road. In that case, it is OSHA's jurisdiction.

So at some point, once you are off the right of way, you're ours. Okay. That means that basically, you create crushing stone in order to be able to sell it bring it onto a highway project and put it in as a base material. We can talk about that a bit more later.

Building construction, MSHA's jurisdiction is related to the extraction or milling process. So if you're doing building construction on a mine site, it is -- it falls under the general classification of whether this thing is to be used in the extraction or milling process.

Concrete and asphalt plans are specifically given to OSHA. MSHA jurisdiction ends at the crushing facility stockpile.

So there are a number of operations that we share jurisdiction with OSHA. We will have the quarry, the screening and crushing operation.

We will have the stockpiling operations, but once the stockpile is created at the end of our process, then OSHA jurisdiction begins for the batch plant and asphalt operations. Okay.

And as Steve mentioned, the stockpile is mentioned throughout the memorandum. And it is kind of a common theme for where to make the division on the jurisdiction.

If you are contracting, if your business is contracting and you work in MSHA jurisdiction, most of the construction would be that way. You are likely to be covered in Part 45, Independent Contractors which is a part of Title XXX.

This describes what the specific requirements are for people to be independent contractors. The -- it does not, that section does not describe the safety and health regulations that you are required to.

It's primarily an administrative sector. You are still subject to Part 56, Part 57, Part 48 requirements for safety and health.

Some of our internal studies have shown that something like 65 percent of all mining injuries have to do with construction, maintenance, and repair work done on mining property.

So I think that that tends to reemphasize the kind of common ground that we have in looking at what is happening here.

Something like 33 percent of all our fatalities last year involved contractors. And their work hours, we don't have a very good way of tracking that, but we know that their work hours did not account for 33 percent of all the hours of exposure on mine properties.

So it is our sense that there is a disproportionate amount of fatalities for contractors for mining property.

And we do work to try to make people aware once they come onto a mining property that they are subject to our regulations and what is involved, what their responsibilities with respect to the Mine Act and our regulations.

Now, I've brought for you a card that we hand out to the independent contractors. You may be interested in looking at. And I also brought our policy concerning the MSHA/OSHA MOU. Okay. So these will be available to you.

The other question that I think you might be asking yourself is can you expect once you come into an MSHA property, once you come into an MSHA jurisdiction.

Number one, the miner's rights are specified in the Mine Act. And they spell out the walk-around rights. The actual rights tend to be a lot more specific and a lot stronger because they are spelled out in the legislation.

We have warrantless mandated inspections. We conduct four inspections a year at every underground mine. And we conduct two inspections a year at every surface facility.

So if you are -- have a mine property, you are likely to see an MSHA inspector. We are there with some frequency.

If you are an independent contractor, you are going to be subject to Part 48 training. Construction requirements for training have not been promulgated.

Part 48 requires 40 hours of training for underground miners and 24 hours of training for surface operations. We are currently in the process of promulgating new regulations.

We just had a proposed rule come out in April. And we had public hearings on the proposed rule in May. And we are working under a guidance from Congress to have a final for training.

This is for a very specific section of our industry, typically the aggregates industry, the simplified. Let's call it the aggregates industry. Okay.

They are exempt from our training requirements. Part 46 is going to create training regulations that these people will be required to meet.

Our standards, we believe made a formal determination early in the 1970s in our process as an agency to have or to be particularly interested in performance standards.

Our standards tend to be not nearly so specific as OSHA's. Of course, we have a lot more presence at mine sites. We have a lot more presence on the properties where we have jurisdiction.

So our inspectors get to I think apply the standards a lot more for the facts that are surrounding any particular violation or any particular set of circumstances.

There are six considerations. Once a violation is issued, it is what the history of the operation? What kind of compliance history has this company had? What is the size of business? What kinds of negligence is involved in allowing the condition exists?

What sort of severity is envisioned in the occurrence of an injury or if the violation were to go unabated, the good faith in the correction of the violation and the ability of the business to continue, so just an economic issue?

Fatal or serious accidents, we go to what we call is a special assessment. We set aside the normal formula that violations go to. And we work directly with the facts concerning that particular fatality. That's our typical application of special assessment.

We refer to serious violations as S&S, significant and substantial violations. And there is a long history of what that means that I won't bore you with this afternoon. Okay.

We can issue orders of withdrawals for imminent dangers, for the failure to correct the violation in the time allowed, and to secure an area during an accident investigation.

In the event of a mine disaster or mine emergency, we do have the authority to direct operations at the property which is quite a significant amount of authority under the circumstances.

We issue unwarrantable failures for what can be broadly characterized as inexcusable violations.

We have a pattern of violations for consistent -- also, written in our statute for consistent violations of a type, there are discrimination protections for the employees and criminal penalties for certain types of violations.

Now, that just about covers everything that I have to say on jurisdiction unless you have some questions which we would be glad to respond to.

Special Presentations
Jurisdictional Issues
A Joint Presentation

MR. MALECKI: I just have one or two comments to just add to my colleagues' statements. When Mr Feehan talks about Part 48 or Part 46, he is talking about regulations found in the volume 30, CFR.

I would like to emphasize that jurisdictional decisions are very fact specific. And while we can guidance on what is the general rule that we would look very hard at all of the facts in a specific given case before making a decision on whether or not some specific facility was within OSHA or MSHA jurisdiction.

I would also like to just add that in the summary of law that was given to you earlier that sometimes jurisdiction can conclude certain activities that have occurred after extraction has stopped at a mining site.

And such an example might be certain reclamation activities, leading up to and including the changing of the land back to its original contour.

So be aware that there might be some activities relating to demolition and reclamation that might also be included within MSHA jurisdiction.

CHAIRMAN BURKHAMMER: Thank you. This is a fascinating discussion. I asked for it to be on the agenda because my company has ran into problem after problem of the jurisdictional issues between MSHA and OSHA and especially on power.

MR. TUROW: Excuse me.

CHAIRMAN BURKHAMMER: Power plants, co-generated, co-operated. And the issues are -- I would like to give you some examples if I might and maybe get your response.

You have the mine mouth and the conveyor system runs from the mine mouth to the crusher. And you have a split conveyor system. And one side of the conveyor goes to the stockpile. And the other side goes to the crusher.

They can regulate where the coal is going, if it wants to feed director, if it wants to go to stockpile.

We have a crane. We are constructing the conveyor system. We have a crane set up. For all intents and purposes, here is the crusher. So the crane would be set up right, even, or parallel with the crusher. And that operates one side picking up structures to set for the conveyor from the mine mouth to the stockpile or mine mouth to the conveyor.

They also operate moving as boom over to the other side and do other work on the other side of the crusher.

We had a situation where an OSHA compliance officer and an MSHA compliance officer happened to show up at the same time on the same day. Maybe, that is just dumb luck for me, but that's what happened.


CHAIRMAN BURKHAMMER: So one is doing his thing over here. And one is his thing over here. And all of a sudden, they meet at the crusher.


CHAIRMAN BURKHAMMER: Dumb luck for me again for me, right?

And they get into a discussion of who should be there and who has the authority on which side of the crusher. And then, they get into a discussion of the crane and the crane operator and which jurisdiction they fell under because they were servicing both sides of the crusher.

So the question is simple I guess in some ways. And we will break it out into parts. Are the construction workers working on the mine side of the crusher fall under MSHA?

MR. TUROW: On the mine side of the crusher?

CHAIRMAN BURKHAMMER: Right. That are between the crusher and the mine mouth.

MR. TUROW: I think the Mine Act is pretty specific.


MR. TUROW: That is a yes.

CHAIRMAN BURKHAMMER: Okay. And that's right. Then, you've got the people working between the crusher and the power plant.

MR. TUROW: And just as a little bit of background, at least three or four United States courts of appeals, different circuits throughout the country have wrestled with this issue of whether work in which you are preparing coal or removing coal to a stockpile at a power plant, whether that comes under MSHA or OSHA jurisdiction. And there is some split between the circuits, the 3rd and the 4th, as well as the 8th Circuit which recently came out with the Associated Electric Coop decision. And I'll mention, in the 8th Circuit, even the panel was split.

So I think you have -- you do have some very fact specific issues. And it comes down to what did Congress intend. And there is not always an easy answer to that once you get off what is traditionally considered to be mine property.

But I agree with you that on mine property, the question is pretty straightforward. And the answer is construction. And there, it falls under the Mine Act for all intents and purposes.

CHAIRMAN BURKHAMMER: Okay. Accepting that notion, those people were classified under the Mine Act and the others were classified under the Construction Act.

Appreciating the fact that these people are working back and forth all the time from one side to the other, does the steel-toed shoe issue that is a mine requirement on mine property and not a requirement on construction apply to the workers who happen to be working on the mine side of the crusher at the time of the inspection, but most of the day they were on the other side of the crusher? And they don't have steel-toed shoes on.

MR. TUROW: Well, again, I'm going to look to the Mine Act and give you Steve Turow's answer to that question which may not be exactly the most authoritative version.

But remember, the term "miner" is broadly defined in the Mine Act as one who works or is involved with mining activities.

So I think to the extent that those people are working for some percentage of that time on a mine site, they are considered miners under the Mine Act and covered by the Mine Act.

Again, miners is "any person who works in a coal or other mines". And Congress has made it clear that that should be broadly construed to give those people the protection of the Mine Act.

CHAIRMAN BURKHAMMER: But -- and I am not asking for a personal opinion, but isn't that somewhat silly when you have construction workers going from one side to the other side? They've got to wear steel-toed shoes for an hour while they are one side and don't have to wear them for the seven hours they're on the other.

MR. TUROW: I think I will grant you that given the number of variations there are and the activities of mining and production in the United States, you do find situations like this where there are these unusual lines.

My answer though has to be that you have to go back to Congress who intended miners to have protection under the Mine Act and other employees under the Occupational Safety and Health Act.

And I think in Congress' due, I would say it is almost impossible to give such specificity given the variations there are in industry.

Now, then the question becomes what can the Department of Labor do to make those kinds of specific issues clearer for employers and in your situation clearer for the two inspectors who were there to inspect?


MR. TUROW: I would hope that the Interagency Agreement gets you somewhere. But in questions like yours where I do think you have -- and this is one of those thorny, very difficult issues.

CHAIRMAN BURKHAMMER: I've got lots more.

MR. TUROW: Okay. Well, let me suggest that I do think that the agreement does provide for a situation in which you need to get the regional -- the area director and the regional administrator to consider that kind of issue.

I don't see a way around that because I do not think you will ever get a definition that is specific enough to include all the different variations that you will find.

And if you did so, it would be in a volume. The definition itself would be about the size of the Federal Register as it currently is now.

CHAIRMAN BURKHAMMER: But while you are waiting for this discussion with the district mine inspector and the area director, you've got a withdrawal notice hung on the side of your conveyor and you're not working. What do you do?

MR. TUROW: Well, okay --

CHAIRMAN BURKHAMMER: I'm not going to violate the withdrawal notice or my rear end will be downtown real quick. The discussion between the area director and the district mine director could take months.

MR. TUROW: One remedy I guess at least under the Mine Act -- the withdrawal was issued under the Mine Act, I presume?


MR. TUROW: There is an expedited hearing procedure which I think would get you in front of a judge very quickly within a couple of days is what it is designed to do.

But what I would also hope, you know -- and I appreciate the chuckling to that because I realize that a couple of days is a long time for people who are trying to run an operation.

But OSHA and MSHA are regularly available, you know. In terms of an accident, you can have MSHA out on your property immediately. And I think that this kind of a situation might be rectified at least in most cases by discussion with the two agencies.

And I'll let Richard speak further to that.


CHAIRMAN BURKHAMMER: I mean, I'm not trying to put you on the spot here. I know it's probably a stupid idea, but it happened. I mean, these are real life issues that happened on jobs.

MR. TUROW: I would say that we can't advise on a specific facility here obviously, but I would hope that members of the industry would feel comfortable trying to resolve these matters before the inspectors are on the scene or before an accident happens.

Maybe, when the plant is in the planning stage even, they could go to the district offices and began discussing what activities occur where and working on these mattes ahead of time, rather than going to court and waiting for withdrawal and things of that sort.

CHAIRMAN BURKHAMMER: And let me give you another one. And I won't read my whole list of about 30. I will give you one more example to kind of give you the feel for what --

MR. TUROW: I will tell you, eight and ten on your list are MSHA jurisdiction. Fourteen, 17, and 19 are OSHA, if that helps you.

CHAIRMAN BURKHAMMER: Thank you. I can live with that.


CHAIRMAN BURKHAMMER: Modular construction, a lot of mines are being built modularly especially in remote locations.

And we build modular parts at a docking area or a facility away from the mine site. We ship the modules up to the mine and we put them together at the mine site.

It is absolutely a given that once we get to the mine site, there is no question about that. And that is not an issue.

The issue is that the port facility when we are putting the modules together and the MSHA inspector comes down there and says that because these are going to be operated on mine property, the building of the modules at the port facility falls under MSHA. Is that true?

In reading this one, it says to be used. And that's the words he used.


CHAIRMAN BURKHAMMER: To be used in the operation of a mine.

MR. FEEHAN: I don't actually know the answer to that question, but I can find out. I will find out because I know that we had that port facility on the Chuckisee. Now, when I got out there, it was all constructed and the road was done already.

CHAIRMAN BURKHAMMER: Oh, you missed all the fun.

MR. FEEHAN: Was that yours?

CHAIRMAN BURKHAMMER: I'm not saying. I'm just throwing it out for discussion.

MR. FEEHAN: Okay. I am actually not sure. I would have to look into who. I want to give you the right answer. I don't want to just waste your time speculating about something that there is a right answer to.

CHAIRMAN BURKHAMMER: Okay. I appreciate that.

MR. MALECKI: And if there is a situation which you are building those facilities at the port facility or you are putting them together, is it an independent port facility or does it belong to the mining company or the mine --

CHAIRMAN BURKHAMMER: No, the modules are shipped by barge up to the docking area. And there is land leased. It does not belong to the mine. The contractor has leased the land. They unload the modules off the barges, work on them, putting some pipes and stuff like that in them there. And then, they are shipped by trucks X miles up to the mine site.

The issue is the working of them once they are unloaded off the barge onto the leased land, doing the construction work of those modules on the leased property. It has nothing to do with the mine owner, except that it is his equipment that we are getting ready to take and install in his mine.


MR. COOPER: I was waiting for them to give you the answer that you didn't want. It was probably poor planning on your part.


MR. COOPER: The issue of training, and, Richard, I think you and I have met before I believe. And Bruce Swanson helped us with a problem with the MSHA/OSHA jurisdiction. It has to do with training.

And I am sure you have gone there. When you work in construction under OSHA and you have, and the training programs are geared to 10, 30, 40 hour OSHA training, and I think -- and I have some -- and I think I was fortunate with MSHA.

And we reached an understanding with them. A lot of our contractors who are construction contractors who will bid contract work on surface mines down in Florida in particular.


MR. COOPER: And we ran into the problem. And I want to make sure that I am correct on this. But if you have, at that time, I believe it was 40 hours of training requirement, I know you said 24 for surface.

But regardless of the fact, when you change mine sites, you have to go through that again, do you not, because it includes a tour of the mine site?

MR. FEEHAN: You have to go through some part of it. You need to be -- people -- you need to receive training specific to that mine site.

You need to -- people who come on the site, workers who come on the site who have been trained as new -- who have received the 24 hours training, when they go to another mine, then they have to be informed about what the hazards are there and they have to shown them. There is a walk-around that is a part of that.

But we have a provision in Part 48 that is called Newly Employed Experienced Miner Training, a catchy title.

It's -- but what it says is that you will only need to do training and there is no hourly requirement on this particular training. It is whatever training is appropriate to the new mine.

And the training plan is submitted to be that way. So if you come -- if you go to one operation and if you are out in an Alcoa operation and you are doing all sorts of big work and there are thousands of people and all kinds of different types of exposures and your people are trained and they finish that job and they go another, let's say, a five-man sand and gravel operation in order to get the other end of the spectrum, then they only have to be trained in what there is peculiar to that small operation. Okay.

Now, if your people are working and have received training on a five-person sand and gravel operation and you suddenly you go to a 2,000-person underground copper mine in Arizona, then your new training is going to be expanded to be appropriate.

MR. COOPER: Oh, I got the --

MR. FEEHAN: But that is the operator's responsibility.

MR. COOPER: I got the picture.


MR. COOPER: But you are saying site-specific training?


MR. COOPER: Our problem was -- and I guess this is because you and I both know what it was, but for the committee's standpoint.

We had contractors who were bidding work on surface mines and were bidding construction work. And we had a problem of duplication of the training that people in the Association of Mine Owners.

We had put a program together and was a 40-hour program, if you recall, but it was not accepted by MSHA because it did not have specifics in it. And I think at that time, we had reached an agreement.

And I'm just trying to point out that it does work, Stew. We reached an agreement with them on the manner in which this training would not be duplicated because a lot of the contractors were saying I don't need to bid work on that and do 24 hours. I thought it was 24 hours.

MR. FEEHAN: It was at an underground operation.

MR. COOPER: It was at a surface.

MR. FEEHAN: It was a surface.

MR. COOPER: It wasn't a surface, was it?

MR. FEEHAN: If we are talking about the same



MR. FEEHAN: I'm thinking about the --

MR. COOPER: But what was happening is the same worker would need 40 hours of paid training. Someone is paying for it. And then, I'm going to have you over here for two weeks. And then, we are going to go down the road. And then, we have this problem coming up again.

Anyhow, we did reach an agreement with MSHA. It did work. And it was a training issue. And it was an economic issue. And it worked out good. And thank you very much.


MR. EDGINTON: Richard, I'm not sure it's proper to ask you this question at this time, but I will anyhow. Under the proposed Part 46, if memory serves me correct, there is language in the proposed rule which would allow operators to recognize certain types of training performed pursuant to other OSHA or state statutory requirements to be recognized as equivalent training and allow an operator to recognize them as equivalent training.

And for a lot of us, there is some merit to that conceptually getting to Mr. Cooper's point in terms of redundancy of training.

Has the agency given any thought to what types of training it might recognize as equivalent? Or are you just waiting for comments to come in on that? Or are you in discussions with OSHA to get a handle on that? Or what is happening?

MR. FEEHAN: I will be honest. I don't know, you know. I have read the preamble to the proposed rule, but right off hand, I don't know how that applies to -- I'm not sure how it's going to be worked out.

And I'm not on that committee. And I'm not -- I know that there is discussion going on about it. I also know that we have worked with in the past to get OSHA training acceptable to MSHA and to fit into our categories.


MR. FEEHAN: To basically get the vocabulary similar enough so that if the hazard is being communicated to a person, then that is really what it is about. And I know that we do accept OSHA training for some parts of it.

Now, the difficulty is that so much of the training is site-specific to mine that it becomes difficult to say what is going to be appropriate and particularly in the -- I was trying to get across the idea of the scale of the things that we deal with. Yo do the same thing in OSHA.

A one-person or a two-person operation is going to be very different from a 2,000-person underground copper mine. And, you know, how you juggle titles and how simple that operation is or how complex the operation is going to play a big part in what is understood.

Now, it seems to me that really it's a question of getting the vocabulary, getting the description so that it is in a common vocabulary and you can understand what it is that people are being trained to avoid and to correct.

MR. EDGINTON: Is there any kind of -- sort of following up if I may. Do you have any kind of matrix or decision tree in terms of criteria that you would use to determine what constitutes equivalent?

MR. FEEHAN: No, I am not aware of any.


MR. BUCHET: Thank you. And I have 1 through 20. So --

CHAIRMAN BURKHAMMER: Well, he has already given me number 8.


MR. BUCHET: Well, that knocks off the -- but one of the discussions that we have been having here this week is what happens on the multi-employer.

Now, I was wondering if you could shed some light on the relationships between the owners or employers or sub-employers when it comes to citing one or two or three of them under MSHA?


MR. TUROW: MSHA has a general policy that -- well, let me take a step back. And that is that MSHA pursuant to the Mine Act has the authority, the right.

It is clearly part of the Mine Act to give the agency the authority to cite the operator as well as the independent contractor on the site. And that right, that authority has been held up, has been upheld judicially on a number of occasions.

MSHA is a much more strict liability Act. So the operators are always responsible if there is a violation of the Act. The penalty will be determined by the operator's knowledge.

Similarly, the independent contractor would also be responsible for any violations it creates. So legally, the agency could cite both.

Now, the agency has taken and it has formalized in its program policy manual an approach that is somewhat different from its legal right. It has stepped back a little bit from the legal right.

And that is the agency will normally cite the independent contractor for a violation for the Mine Act which is created by the independent contractor. We will look first to the independent contractor.

However, there are exceptions to that rule. And generally, those exceptions are cases in which the mine operators and employees are also exposed.

In that case, you might cite both situation in which the mine operator has control of whatever is necessary to abate or correct that violation. In that case, you might cite both.

Or a situation in which case the mine operator by omission or by action has helped to create that violation. Then, you could cite both.

And finally, the policy manual also gives the inspector discretion in other cases in which he or she deems it appropriate.

I think Richard may have numbers on that if it would help.

MR. FEEHAN: Yes. I have some maximum numbers. I know that out of our 53,000 violations, at an absolute most, we do not have -- let me qualify this again. We don't have a way to track which violations were issued for the same conditions. Okay.

But we -- I did do a look at how many of the violations were issued to both the contractor and an operator on the same day at the same time of the same violation.

And this is an absolute maximum. Of the 53,000 violations, I think we had 380 some where we were citing both operator and contractor. Okay.

So that is around 1.5 percent, something like that of all violations.

MR. TUROW: And as a footnote to that, I will note that MSHA within the last year has taken some steps to try to get operators and independent contractors to work effectively together, not necessarily under the threat of enforcement sanctions, but to work cooperatively with MSHA because MSHA has found that the number of injuries and fatalities among independent contractor employees is disproportionate high when you look at the accident and injury rate for mine operator employees.


MR. BUCHET: A marvelous segeway because one of my other numbers --


MR. BUCHET: Is the injury data that you've managed to collect and would it be possible -- another one of our topics over here is musculoskeletal disorder injuries and practices that will lessen those occurrences.

And I was wondering if you could share any information that you might have specifically for construction activities that fall under MSHA where you can identify musculoskeletal disorder injuries that led to a citation that you are capturing in your data system, unless you have some other way of capturing it?

MR. FEEHAN: We have every injury and illness. Every injury has to be reported to MSHA. So we do have a significant collection of data about injuries.

And how we separate it out by construction, there are ways that it could be done by occupation. We could say a welder. We could say a carpenter, you know. We could ask for that kind of information.

And we have a selected -- I think there was a 1986 -- it is being updated by NIOSH actually, but I think there was a 1986 demographics study of the mining industry that can tell us what percentage of the work force is a carpenter or is a front-end loader operator.

And so we would be glad to make that information -- I am sure we would be glad to make that information available to you. And I'll see you that you get my business card, okay, at the end of this. And we would be glad to help any way we can.

MR. BUCHET: Thank you That would be great.


(No response.)


MR. MASTERSON: Yes. And it sounds -- and you can hear the pride in what you all do coming out.

But what I'm hearing is a sand box, no pun intended. And MSHA has its sand box and OSHA has its sand box. And right now, the employer and the American workforce are being caught between them.

And asking the questions that are being asked of you all today, some you are having a hard time answering.

How do you expect the American workforce, the employer or the employee to be able to answer these questions if you can't?

MR. TUROW: I guess let me say that you -- I appreciate your concern. And I think that that is recognized in the Department of Labor and evidenced in part by the Interagency Agreement. So it is not something that the Department of Labor is not attuned to.

And the other thing I would say as an introductory response is that I believe that although we can come up with a number of situations in which we do have jurisdictional issues, that when you looked at the hundreds of thousands of work places throughout the country, that we are looking at a slim, slim number of those in which you would walk away saying this has enough facets of the mining industry and enough facets of construction or other general industry that it is difficult to make that call.

So I would hope that while we do have problems, they are discrete in terms of the percentage of operations are out there and that you have a limited number of situations where there is a question.

I don't know the answer to that. I think it may be something that the Department of Labor has to give additional consideration to.

But again, I remind you that it is going to be complicated by the fact that we are driven by Congress' general instruction to inspect mine sites for MSHA and OSHA if it's not a mine site.

And given Congress' understandable inability to chisel out sort of a perfect definition that gets each of these varied work places, I think it is almost inevitable that we are going to have some of these gray areas.

And I will conclude by saying that perhaps the way to respond to this is for an employer to be proactive and say, I am not quite sure where this is going to fall. Let me get an MSHA/OSHA opinion here beforehand so I will know what statutory obligations I have.

And besides saying that is something that maybe the Department of Labor has to consider further, that is the best I can do.

MR. MASTERSON: I would submit to you that as an employer if I went to MSHA and asked that question and I would be told I will fall under MSHA. If I go to OSHA, I would be told I would fall under OSHA.

MR. TUROW: But the agreement does require the two agencies to come to a resolution on that. Okay. And I appreciate what you're saying. I mean, obviously this is perhaps that has been the traditional way in which agencies operate.


MR. TUROW: But this agreement does require there to be a resolution of that kind of question and does give you some sort of definitive answer.

MR. MASTERSON: Not denying that that resolution can be reached, but with your experience around government agencies and the length of time it takes to get something accomplished, pardon me, but I would be retired before it would be resolved.

How long did the fall protection take, Stew, 12 years?


MR. MASTERSON: The date that you quoted was from 1986. That is 14 years ago. I don't know about your industry. In the last 14 years, my industry has changed tremendously. I don't know that I would be real comfortable in relying on data from 1986 for my injury and loss trends for 1999.

MR. TUROW: That is a notice and comment rulemaking issue. And I would hope that some of the complexities involved there wouldn't occur here.

I mean, I can't argue with you. This is an answer that industry would need promptly and definitively. And that is something that the two agencies need to be able to provide. And if there is a problem specifically in any particular situation, I think we have to look at that.


MR. COOPER: Robert, I have been involved in this thing quite awhile. The thing that the common person has got to understand is that MSHA is mandated to do particular things by their Act. And OSHA is mandated to do particular things by their Act.

They cannot arbitrarily say, well, let's make an agreement and maybe we won't do what's in the Act. It's very difficult for them to come arbitration and say, well, I'll give up some of mine. Well, they can't do it.

So it needs to change in the Act. That's the simple answer I believe to solve the problems.

Now, the interagency, you can make some agreements back and forth, but you can't change much of what you are mandated by Congress to do. You'd better be looking for another job.

I have had success in working between the two agencies when the problem arises. And if you are planning work on a mine site, you better plan ahead.

But I -- MSHA cannot just say, okay, we will do this. They are mandated by the Act period, period.

MR. BUCHET: I thought I was going away with useful and concrete information. The more I hear, the more confused I get. So if I could revisit.

Could you go over the logic stream of deciding where the line falls because I'm hearing something that sounds like geographic location and something about the activity that is supposed to take place in that location and then maybe the identity of the population of the people we are talking about working in the location?

MR. TUROW: The Department of Labor has really looked more toward a functional analysis in determining what, where jurisdiction for MSHA lies and where OSHA lies.

And most of the courts that have looked at have certainly recognized our functional analysis. And many have applied that.

So the line really is where does the extraction and the preparation or milling of that material end such that the material that has been extracted and milled is now ready for consumption either in a construction site, a manufacturing site, or a power plant.

Once that finished material has been provided to the plants, MSHA is finished. And OSHA is going to --

MR. BUCHET: And that basically includes every person that is inside whatever that area ends up being described with some exceptions?

MR. TUROW: Well --

MR. BUCHET: You leave it in that envelope in your end.

MR. FEEHAN: Basically, yes.

MR. BUCHET: Unless you are delivering sodas?

MR. FEEHAN: Basically.

MR. TUROW: I think so. And I think I was trying to answer Mr. Burkhammer's question. I think about an individual who was working on what would classically be considered a mining site and then part of the day worked in what was off that mine property more in the power plant area.

And my suggestion was that given Congress' statement that that person is going to be considered a miner. And if they are steel-toed shoe or boot requirements under miner, that person is going to have to be provided with that equipment or wear that equipment because he or she is a miner.

MR. BUCHET: When you answered that question, that person is a miner, does that then make your jurisdiction go outside the envelope for the mining activity?

MR. TUROW: In essence, once that person leaves the mine property --

MR. BUCHET: They are not a miner. Because then you have confusion with what we just heard with Stew's people. When they walk outside of it, they are not a miner?

MR. TUROW: Well, I think you have two issues there. First, what regulations apply to what they do. And then, the second question from their perspective is what kind of protections and rights do they have because they are somewhat different between the Mine Act and the OSHA Act.

MR. FEEHAN: We do have employees particularly at the batch plants and asphalt plants. They tend to be smaller operations.

Typically, you are looking at a 12-person, 15-person operation. And if somebody doesn't show up for work, quite often someone from the batch plant, a laborer who has been cleaning up in the batch plant may end up over in the crushing section.

MR. BUCHET: Well, when you have a loader operator --

MR. FEEHAN: You have a loader operator.

MR. BUCHET: And he goes in and he's delivering to the stockpile.

MR. FEEHAN: That's right. But those are fairly limited applications.


MR. FEEHAN: And there really isn't -- well, to me, those are fairly limited operations. I mean, we are looking at 20,000, 30,000 inspections a year, you know.

That doesn't amount to a significant percentage for us. Although for the person that is there, who having put up it with, I am sure it is significant.

MR. TUROW: And that is a question I would like to provide an answer back to the committee on because I am sure -- I think there is an answer to that question. And I would like to provide that.


MR. BUCHET: Thank you very much.

CHAIRMAN BURKHAMMER: The last question, Bob.

MR. MASTERSON: In all fairness, you have an impressive record. And I do want to compliment the agency on that.

One of the things that seems particularly focused to what we've been talking about today is the fact that you have had such a successful track record not having to utilize a multi-employer type provision to a great deal. How do you explain that?

MR. MALECKI: MSHA is in certain circumstances enforcing citations that theoretically could have been issued against one contractor to the entities that we feel are actually in control of the mine now.

And that has been something that the agency has been doing as a matter of policy for the past nine or so years. A number of these cases are on appeal and various enforcement tracks.

So we do oftentimes look at more than the specific employer to see whether or not other employers are playing a role in that violation or whether or not they have control of the mining operations.

MR. MASTERSON: I specifically remember 1 or 1.5 percent being mentioned.

MR. FEEHAN: Of all the violations.

MR. MASTERSON: Of all the violations.

MR. FEEHAN: That is the maximum outside number. I think it was closer to 10 percent accounted for the violations against contractors only.

MR. MASTERSON: Say that --

MR. FEEHAN: It was around 393 I think. And I think there were 3,600 violations issued to contractors in 1998. I didn't even get into that when I was talking of that. In the overall, numbers of citations issued, it amounted to about 1.5 percent.

MR. MASTERSON: Of all the contractor --

MR. FEEHAN: They are both the contractor and the operator were cited. And that is the maximum outside number.

MR. MASTERSON: Okay. So what you are saying is that 97.5 percent cases, you did not have to issue citations to?

MR. FEEHAN: In at least 98.5 percent of the cases.

MR. MASTERSON: Okay. And again, you've got a very, very strong track record and injury reduction and have not had to resort to citing general contractors and owners in order to achieve that. How have you done that and can you share that with OSHA?

MR. TUROW: You know, you may have some philosophical differences between the two agencies as to how best to create health and safety on a mine site versus a general industry site.

The one thing I would say that may give MSHA an advantage is the fact that they do inspect underground mines four times a year and surface facilities twice a year.

So the OSHA -- MSHA inspectors are more regularly at the sites. And that gives them some leverage that obviously OSHA doesn't have.

CHAIRMAN BURKHAMMER: Well, I think it's real simple. It's called fear of a withdrawal notice and shutting down the mine. And that has a powerful impact on that industry. If you shut down a mine today, you -- that guy is in his pocket quick.


CHAIRMAN BURKHAMMER: So that fear of that MSHA compliance officer waving that red withdrawal notice and hanging it on his mainframe is a big incentive to keep his act together.

With that, thank you very much. We appreciate your time and answers to our questions and putting up with our unique ideas.


MR. TUROW: Thank you, all. We enjoyed meeting with you.

MR. FEEHAN: Thanks for having us


MR. FEEHAN: Thank you.

CHAIRMAN BURKHAMMER: Next on the agenda is Personal Protective Equipment.

Glen Gardner, welcome.

Special Presentations (Continued)


Personal Protective Equipment -
Proposal Standard

MR. GARDNER: Thank you very much. I am Glen Gardner. I am with the Office of Fire Protection Engineering which is under the Directorate of Safety Standards Programs.

I will give you a little background about the proposal. As you probably realize, many OSHA standards require employers to provide their employees with PPE when it is necessary to protect the employees from injuries, illnesses, and fatalities.

However, some of the provisions do not specify that the employer is to pay for the PPE. OSHA attempted to clarify the issue of payment for the PPE back in a 1984 memorandum to its field staff.

The memorandum stated that it was the employer's obligation to provide and pay for PPE except in limited situations.

The memorandum indicated that where PPE is very personal in nature and usable off the job, such as is often the case with safety-toe protective footwear, that the issue of payment may be left to labor-management negotiations.

However, in the Occupational Safety and Health Review Commission case, the Commission decline to accept the interpretation contained in the 1994 memorandum because they believed that the requirement was vague. And it was also inconsistent with some earlier letters of interpretations of OSHA.

So the agency decided to publish a proposed revision to its PPE standards by adding a new PPE requirement that would actually clarify who was to pay for what kinds of PPE.

In developing the proposal, we provided ACCSH some draft language for review. The draft language required employers to pay for all PPE except for safety-toe protective footwear and prescription safety eyewear.

This draft language was discussed at the ACCSH meeting in April of last year. This draft language is a little different than the final language of the proposal, by the way. And I will explain that in just a few minutes.

So ACCSH members expressed some concerns about the draft language. And as a result of discussions and points made at the meeting, the draft provision was revised. And other changes to the document was made to reflect the comments of the ACCSH members.

One example was some members described a situation where prescription glasses are sometimes mounted inside respirator face pieces and would be impractical for employees to wear off the job site.

And therefore, they asked why shouldn't the employer pay for this type of arrangement. Well, the regulatory text of the proposal now reflects this type of situation.

There are three conditions, that I will explain a little bit later, that are necessary before safety-toe footwear or prescription safety eyewear are excepted from the employer-paid requirement.

One of these conditions is that the footwear or eyewear is not designed for special use on the job. Now, in the case of mounting prescription glasses in the face piece, of course, that would be a design for special use on the job and the employer would be obligated to pay for this type of arrangement.

Another concern of ACCSH members was that some employers were already paying for safety-toe footwear through collective bargaining agreements.

This issue is addressed in the preamble to the proposal where it is discussed. This proposed rulemaking is not intended in any way to affect collective bargaining agreements for safety-toe footwear or prescription safety eyewear.

The proposal itself, the proposal was published in the Federal Register on March 31st. Specifically, OSHA is proposing that with only a few exceptions for specific types of PPE, it is the employer's obligation to pay for the PPE provided.

And once again, the specific types of PPE that OSHA is proposing to except from this requirement are safety-toe footwear and prescription safety eyewear and also the logging boots that are required by the logging standard.

Safety-toe footwear and prescription safety eyewear are being excepted from the proposed requirement if all three of the following conditions are met: one, that the employer permits the footwear or eyewear to be worn off the job site; two, the footwear or eyewear is not used at work in a manner that renders it unsafe for use off the job site; and three, the footwear or eyewear is not designed for special use on the job. This is the condition I just mentioned a few minutes ago.

In this proposal, there is a section that contains several issues. We would certainly like to have comment and information on these issues. It would help us in making decisions about the final rule.

Some of these issues are related to the prescription industry. And we would really like to receive your comments from the construction industry.

For instance, one of the issues relates to the frequent turnover in the construction industry where employees frequently move from job site to job site. We would like to know what impact that turnover has on the purchase of PPE.

We would also like to have comment on whether the proposed exceptions for safety-toe footwear and prescription safety eyewear are really appropriate for the construction industry.

And just recently, another issue has come up. It has come up in the maritime industry. This is the impact that the proposal might have on the use of leathers used to protect employees while welding.

We would like to have some comment from the construction industry as to whether or not leathers are even used in the construction industry, if so, to what extent, what situations they are used in, and, of course, who pays for the leathers.

In case your are not quite familiar with leathers, they are basically like long sleeves and the protective coveralls and so forth made out of leather to protect the employee maybe from slag if they are welding underneath something or something of this nature.

The proposal is scheduled in an informal public hearing that was to begin on June 22nd. However, due to a scheduling conflict, the hearing has now been rescheduled to August the 10th.

We published a Federal Register notice on May 24th announcing this rescheduling. And we also extended the comment period to July 23rd.

Notices of intentions to appear at the hearing must be submitted to the Docket Office by July 16th.

One last thing, as discussed in the preamble of the proposal, a nationwide telephone survey was conducted to obtain more accurate on current patterns of PPE payment and usage.

The survey has now been completed. We are now in the process of finalizing the results to get it ready to be placed in the rulemaking record.

When it is placed in the record, we are going to publish another Federal Register notice announcing its availability and inviting comments on the survey.

So basically, that is where the PPE payment proposal stands at the present moment.

CHAIRMAN BURKHAMMER: Thank you, Glen. Are you asking ACCSH to review the document in its current proposed form and answer the questions you put forth?




MR. MASTERSON: I just had one question. What consideration has been given to whether or not -- or the number of replacements that the agency is going to recommend for an individual in the form of personal protective equipment? How many hard hats do I have to give one individual before I stop having to buy them? How many pair of safety glasses?

MR. GARDNER: That is certainly an issue that has been asked and we wrestled with. The way the proposal stands right now, the employer is expected to provide initially the PPE that is required and when replacement PPE when it is necessary because of normal wear and tear.

Again, I am sure that there are many companies that have their own policy as far as continuing damage to the equipment or not being worn or being lost or something of this nature.

And this shouldn't interfere with that type of disciplinary action, if you will, or company policy.

But there is any set specific number of times, we don't have anything like that now.

MR. MASTERSON: So what I just heard you say, and correct me if I'm wrong, is that the employer when necessary through normal wear and tear should replace it at no charge to the employee?

MR. GARDNER: That is correct.

MR. MASTERSON: Okay. I would submit that in most cases, I don't know of many employers that I work with that wouldn't be more than happy to replace it under normal wear and tear.

What is one of the major objections in the industry is that if an employee were to go home and forget his hard hat or safety glasses and he had to buy a new pair or give him a new pair to get the job done the next day.

And the replacement of personal protective equipment as it has been used and worn out through the normal course of the job, most of the people who I have talked to have no problem with that.


MR. MASTERSON: It's just the indiscriminate and careless mishandling of equipment.

MR. GARDNER: Yes. I can understand.


What about Felipe first and you next?

MR. DEVORA: Mr. Cooper is on first.

MR. COOPER: Any company of any size has their own policy on lost or stolen or extra PPE except as -- and he gave the right answer, except that replacing PPE is the responsibility of the employer. I think that is pretty well a given.

But those employees who left their hard hat at home or gave it to their brother or something else, every company, and I have worked for small companies also, has a policy.

When the employees come to work at Ryland and he doesn't have his hard hat, you may have send him home or have him buy a new hard hat or borrow someone else's, but we can't micromanage those types of issues here at the advisory committee.

MR. GARDNER: I might add --

MR. COOPER: It is a policy statement, union and nonunion, whatever that company says. And you gave the right answer. That's what you said.

MR. GARDNER: I might add that if companies would be willing to provide their company policy as far as replacement, that would certainly be helpful to us also.


MR. DEVORA: I see an opportunity here to link this language of we're talking about the employee and employer relationship. And I assume you are talking about the plumber and his employees that he gives the paycheck to provide PPE for that plumber.

However, we get into this multi-employer issue again, that that link needs to be in this proposed standard.

This link needs to be, the importance of it needs to be made very clear that that's the first line of defense, the employer and employee relationship so that we don't get into this interpretation, well, if that subcontractor doesn't have it, we are going to defer this to the controlling contractor, the general contractor.

So I think this is an excellent comment that could be put in the preamble and say that it is a heightened responsibility of the employee and employer relationship to provide this PPE or pay for this PPE. And all other, the controlling issues are secondary to this relationship.

MR. GARDNER: That is a good suggestion.

CHAIRMAN BURKHAMMER: And that would be nice for the workgroup to recommend back.

MR. SMITH: Stew, I have a question.


MR. SMITH: I have a couple actually. I wasn't on that workgroup, but was there a workgroup for this personal protection equipment?


MR. SMITH: I've got another question. What are the components of it? You mentioned glasses and shoes of that nature, but what else is in there?

MR. GARDNER: As far as --

MR. SMITH: Personal equipment, yes, hard hats and --

MR. GARDNER: Basically, the proposal. And it's just a proposal requires that the employer pays for all PPE.

MR. SMITH: For instance?

MR. GARDNER: Except for those two things?

MR. SMITH: For instance?

MR. GARDNER: All required PPE.

MR. SMITH: How about respirators?

MR. GARDNER: They are already required to pay for respirators.

MR. SMITH: And this is also one where you have to take the test first, the medical that I was objecting to before?

MR. GARDNER: That's a different standard.


MS. SHERMAN: Susan Sherman.

I believe though that the proposal would also cover protective clothing where it is required in answer to your question, and gloves.

MR. SMITH: Well, the reason I raise it, and maybe this isn't the time or the place to even talk about it on this personal equipment and respirators and all that other stuff, I had mentioned that some guys had made the determination that they were going to terminate so they wouldn't have to go through that 100 question, whatever those questions before the test which is happened.

And when he hired back about 30 percent of his people were unable to come back on. He wouldn't hire them back because they didn't have a certificate.

And a couple of weeks ago I was speaking to a guy out of Texas that works from Texas up to the Canadian border. And he's got about 50 employees. And he said he called his guys together and explained it to them.

So they decided that they would answer the questions, however it was necessary so that they wouldn't have to take the test because they were fearful if they did they wouldn't be able to pass it, all of them. And then, they wouldn't have a job.

It's a problem. I think everybody wants to provide everything that they need to do, but somewhere along the line as far as respirators and painters, I don't know how the hell anybody could ever be in compliance.

In southern California, the way we do it, we try to -- the employers is supposed to pay for these things and have the records. And these guys are moving back and forth.

And so since I signed the check for the industry, we are spending 50 grand a year. And we never get anything paid for because every year, it comes up again.

And I had a conversation with one of my labor guys. And we were trying to figure out how we are going to handle the rest of it. And the guy said, you know, I kind of wonder, those guys back in Washington, who do they represent?

Because what's happened, what we are finding is our people who are between, say, 30 and 50 are having one heck of a problem because they take the test and they say they got to go to the doctor, then it's a problem because who wants to hire them at that point because they figure something might happen.

And I have a personal thing. I set up another company with one of my foremen, my estimator, and superintendent. Look, you guys, go do the thing. I'll sign the contracts. And you do the work.

I had an employee work for me for 15 years. He had alopecia. And the first thing they did was lay this guy off because they said, look, this guy has a problem and we don't want him.

And so the guy came by my house and said, gee, I worked for you for a long time. And I don't know what those guys are doing.

So I called them. I said, you know, look, this is a good guy. He's always worked really good. Why don't you guys take another look at that?

They put him back to work. He worked. And one day, he didn't take his pills. He had an accident. He collapsed because he didn't -- he then rolled down some steps. So now, it is an industrial accident.

And these guys came back to me and said, Smithy, but for you, we wouldn't have had that guy back on the job.

Now, I can tell you right now that he probably is never going to work again because of this test. And if such a thing, I'm concerned about the people we are losing.

Today, we heard about the older worker. And when you are young, you don't have any problems passing anything. Those guys don't want health and welfare and pensions. They put all the money on the check.

They get to be about 50, I get these calls all the time to see whether the union has a problem. They say call Smithy. And my phone rings all night long for all of their problems. And I'm supposed to make them right.

And so I am in a difficult position. And this personal equipment thing, you know, it works, but I don't know. We want to pay what we need to pay for.

And we want to be fair. And I don't want to lose a lot of my people, especially people that I've known for a long time. And I don't know how we are going to come to grips with this.

But I've got to tell you, between 30, 35, and 50 and those are too young to get out of the industry. And they've got a lot of experience. Something has got to happen.

And they say that labor -- that OSHA is not their friend. He said those guys in Washington, you know, they are squirrely anyhow and they tell me, Owen, when you go back there, don't get like them. Don't forget where you came from.


MR. SMITH: But they are telling me that they have problems now thinking you guys are really representing them. The problems of labor, they say, but they are really not representing us.

I've had my say.

CHAIRMAN BURKHAMMER: Yes. This could go on for a long time. But I think we'll stop with the discussion and save the rest of the comments for the workgroup if that's all right -- it doesn't matter if it's all right with the committee. We're going to do that anyway.

Mr. Cooper.

MR. COOPER: Are you requesting a verbal reply now as to your proposal to us on PPE or do you want us to go back to the workgroup?

CHAIRMAN BURKHAMMER: He has asked us to constitute a workgroup to review the proposed PPE revision.

MR. GARDNER: What sort of timeframe because I hear his comment period is going to end probably before we get back?

CHAIRMAN BURKHAMMER: What is the timeframe, Glen?

MR. GARDNER: Comments are due by July 23rd. If you could do a workgroup, that would be nice, but if you can't, I mean, just individually.

If you plan to submit comments, I mean, these are some of the comments we would really like to have. Those obviously direct impact the construction industry. And the issue I just raised about leathers that are used in welding and that type of thing.

So we would certainly like to have your comments, but if you can't do it by way of a workgroup, I doubt that you can do it at this meeting.

CHAIRMAN BURKHAMMER: Yes, there is no way a workgroup could get a response.

MR. GARDNER: We would like at least to have your comments through the normal channels.

CHAIRMAN BURKHAMMER: All right. If you could provide the committee with a copy of the proposal.


CHAIRMAN BURKHAMMER: Each individual member if they choose can respond.


MR. BUCHET: Would it be possible to get an electronic copy so that we can e-mail it to various people who are not here?

CHAIRMAN BURKHAMMER: Do you have it electronically?

MR. GARDNER: It is on our web site.

CHAIRMAN BURKHAMMER: It is on our web site now.

MR. BUCHET: It is on the web site.


MS. SHERMAN: Just to clarify a point, the committee members are being asked to comment individually as opposed to the committee as a whole because of the time problem?



CHAIRMAN BURKHAMMER: I'm afraid that is the only way it can work. I think the timeframe probably is too short now.

MS. SHERMAN: That's fine. I just wanted to make sure that that point was clarified.

MR. GARDNER: Thank you.

CHAIRMAN BURKHAMMER: Glen, if you could see that we are going to get copies?


CHAIRMAN BURKHAMMER: Each member of the committee if they choose can respond electronically to Glen.

Thank you very much.

MR. GARDNER: You're welcome.

CHAIRMAN BURKHAMMER: Let's take a break until 3:00 o'clock at which time we will come back with Cathy Oliver.

(Whereupon, at 2:45 p.m., the meeting was recessed.)


3:05 p.m.

CHAIRMAN BURKHAMMER: ACCSH will come back to order. As a clarification point to Glen's request to ACCSH, due to the time constraints that the information is due back to OSHA, we are not able to constitute a duly-commissioned workgroup.

So we have asked each ACCSH member who wishes to provide comment back to Glen's questions to do so.

The public also has a period of time when they can comment in the public comment period.

So each individual member who supplies a comment will be comments from that member and not construed as an ACCSH Committee comment. It will be an ACCSH member's comment. Okay.

Cathy Oliver.

MS. OLIVER: Good afternoon.


Special Presentations
Update on Voluntary Protection Programs (VPP)/ Short Term Construction Demonstration Program Partnership Program Elements

MS. OLIVER: Thank you. I appreciate this opportunity to speak before you regarding a couple of our cooperative efforts in the area of construction.

Today, I have been asked specifically to address -- give you an update on OSHA's VPP demonstration for short-term construction and also to talk a little bit about our OSHA's strategic partnership initiative.

First, I am going to address the VPP Demonstration Program. So far, we are very encouraged with our one-year experience with this program.

And just to recap, this is a program where we have a two-phased approach. We go out and do an on-site review of a company to determine whether or not they have a sound and effective safety and health program.

And once we have made the decision that, yes, in fact they do have one and it has been implemented effectively at the corporate level, then the corporation submits implementation plans for a variety of work sites.

And we go out and try to do an on-site review as quickly we can for shorter-term work sites.

In the main, the VPP criteria for these programs are the same as for as VPP Star Program with a few exceptions.

We require some great requirements for the company. We also look at the company history. And we also focus really strongly on their subcontractors safety and health program.

Two companies are currently in the program. Black and Beach has what I am going to term as a full membership. They have been approved for phase one and phase two approval.

And Turcon has had a phase-one or company approval. And we are anticipating getting some implementation plans in from them very shortly.

We have adopted a multi-regional approach to evaluating both the company and the on-site review.

Christopher Warren of my staff serves as a team leader on each one of these on-site reviews. And then, we have a set team of safety and health professionals that go along with Chris plus we include the VPP manager that is in the area that has jurisdiction over a particular site.

So we feel by taking this approach we can ensure that there is a consistent evaluation. And we can ensure that quality of companies that we bring into this program.

These evaluations have shown that protecting workers with an excellent safety and health program can be done at ground breaking.

Those of you who are familiar with the VPP requirements probably know that we require one year experience in the Main Star Program. So we feel we are really getting some experience in showing that that one year experience may not be necessary.

When we have gone out to the company sites, we have been really impressed with the participation by the CFOs and the chief executive officers in our on-site reviews in demonstrating their commitment to safety and health.

And the programs at the site level have also proven to be very effective, particularly their subcontractor programs.

By way of results, Black and Beach's site in Massachusetts has an injury rate of 5.5. They have had no lost work time injuries in over 572,000 hours.

And the owner at that particular site is so impressed with the VPP that they want to be applied to the VPP status after the site is fully constructed.

In a refinery in Louisiana, Black and Beach had over 530,000 hours with zero loss time and zero recordables. They did have 25 first days and five near misses at that particular location.

Black and Beach has also demonstrated that they can use 100 percent fall protection at 6 feet and above and that that protection is feasible and cost effective and does not adversely impact their project timelines.

We do think there are some improvements that can be made in the program, particularly in the health area in terms of monitoring for exposures and hazards communications. And we are working with those companies on advancing those programs.

We have two spots left in the pilot. We have one application for one of those spots and hope to be through our evaluation of that very shortly.

By way of improving the program, we think we can make some improvements in our administration of the program.

Because it is a short turnaround, we have to go on-site and get a VPP report out in a very short period of time. And so we need to work on that.

And we also believe in the program criteria, we ask for an annual evaluation. But on some of these construction projects, that really doesn't make sense. And we think maybe going for sort of an evaluation at each phase of the construction may be more appropriate.

We look forward to continuing our experience with this program over the next year and also working with the star sites that are also in VPP.

Currently, we have four companies in six sites in our VPP Star Program. The companies in the Star Program are Turcon, Black and Beach, M.A. Mortenson, and BE&K. And in addition, we have nine residential contractors at some VPP sites that will soon get star status as soon as our Federal Register notice is published by the end of this month.

So that sort of is an update on the update on the demonstration program. And if you have any questions on that, maybe I want to take those before I move onto the partnership.

CHAIRMAN BURKHAMMER: Questions for Cathy?


MR. BUCHET: Sure. Can you go over how you handle the multi-employer work site and the subcontractors?

That is one of the things that we are tackling here. And I would just like to listen to how you work through it.

You said you looked at them. You looked at the subcontractor programs?

MS. OLIVER: In terms of our on-site review, we look at how they -- how the contractor's and the subcontractor's programs interrelate.

We expect that the subcontractors as well as the contractors have effective programs, but we evaluate on a VPP site in three main ways.

We look at documentation. And we do employee interviews. And we also walk through the work sites.

So we will be looking as we walk through the work sites to ensure that there are aren't any hazards that are exposed to the subcontractor employees as well as the employees of the company.

But our main way of determining whether or not the contractors has an effective program is through our interview techniques, both formal and informal.

MR. BUCHET: What happens if the subcontractors do not have a good program? What does that do to your evaluation?

MS. OLIVER: If we saw any indication that the subcontractors weren't being protected at the same level as the primary contractor, then that work site would not get a VPP status.

MR. BUCHET: Thank you.


MR. CLOUTIER: This demonstration project has been going on for one year. And we have two sites involved currently?

MS. OLIVER: Two companies.

MR. CLOUTIER: Well, you've got Black and Beach and Turcon. And Black and Beach has two sites, one in Massachusetts and --

MS. OLIVER: Right.

MR. CLOUTIER: -- a refinery in Louisiana.

MS. OLIVER: Right. Yes.

MR. CLOUTIER: And Turcon is going through the first phase?


MR. CLOUTIER: How do you far do you plan to expand this program?

MS. OLIVER: Our initial plans are to have four companies in the program. But depending on our experience and how many resources we have in the agency, I mean, we might be able to expand that at some point in the future, but we are hopeful and I think we will meet four companies.

MR. CLOUTIER: And that is going to be over a three or four or five-year period of time?

MS. OLIVER: Yes, about. I can't remember in the initial thing, but I believe it was four years. I can get back to you on that with specifics.

Chris, do you have that?

Three years. I'm sorry. Three years.

MR. CLOUTIER: Well, how is the agency going to expand it because four companies over the litany of thousands of construction firms that are out there and the hundreds of outstanding firms, we need to expand that program and get it going.

MS. OLIVER: Yes. I mean, we have always looked at this as a pilot program. And if in fact it is successful and our first year's experience as it will be, I mean, we are hopeful to expand it.

And I think one of the key aspects of the program is the impact that it is having on the subcontractor, as I am sure you aware.

MR. CLOUTIER: What type of site is it in Massachusetts, do you know?

MS. OLIVER: The site in Massachusetts is a -- they are building an electrical power plant.

MR. CLOUTIER: A power house.

MS. OLIVER: In Louisiana, it is a refinery.

MR. CLOUTIER: Are there any short-term projects, six-month long projects or less or one-year long projects or less currently in the program?

MS. OLIVER: The two Black and Beaches.

MR. CLOUTIER: Yes, but the power house takes two to three years to build. And the refinery is ongoing. That is an existing facility where Black and Beach has work.

MR. WARNER: Both projects are actually coming to an end very shortly. They will be 18 months and a year. The power house started. We got into it about six months into the project. It has been going for about six months. And it's cooling down right now. The refinery project is actually ending in another month, half a month.

MR. CLOUTIER: And that refinery project, was it an existing facility?

MR. WARNER: It was an existing facility, but it was a brand new construction at that facility.

MR. CLOUTIER: Again, my question is what are we doing about the short-term projects that are six-months or less or six months to a year?

MS. OLIVER: At this point in time with regard to the VPP, we don't have any coverage for those types of sites, but I think in our partnership program, we are making some headway for those types of projects.

MR. CLOUTIER: And are you guys looking at any commercial projects, office buildings, high-rises, hotels?

MS. OLIVER: It's --

MR. WARNER: Wherever the company sends us. We are not restricting it to any type of industry or building.

CHAIRMAN BURKHAMMER: Cathy, you did comment, when you were talking about the statistics on the Massachusetts project that their total injury rate was 5.5?

MS. OLIVER: That was what they submitted to me.

MR. WARNER: And that includes all subcontractors.

CHAIRMAN BURKHAMMER: And that is great? I mean, was the comment that that was good or great or the --

MS. OLIVER: Was the comment that it was great?


MS. OLIVER: No. I think I was just reporting on what the actual number was and what my experience had been.


MR. MASTERSON: And I may have heard you wrong, but I thought you say that you had nine residential employers?

MS. OLIVER: Not residential. What we call resident or nesting contractors at VPP sites.

MR. MASTERSON: Okay. The term of one year or larger -- or longer is one of the qualifying factors as I understand it. Is that correct?

MS. OLIVER: Well, for the short-term program, we think the project has to be at least one year in length because by the time they submit their implementation plan and we get out there to review, we need at least that one-year window.

But for the regular Star VPP, they have to have one year's past experience. And then, we are looking for projects that are longer term in length.

So once they get the VPP, they usually are a VPP site for a couple of years generally.

MR. MASTERSON: Have you given any consideration to looking at a shorter time period because there are a lot of people out there that are in construction that in my case 45 to 120 days, yet I've got to 2.3 million manpower hours with an instant rate of 1.2?

MS. OLIVER: Well, what we have decided to do and I believe I reported to you last time I was before this committee was to take this one step towards the short-term construction sites in terms of one year in length.

And then, as we have good experience with that, maybe moving into the shorter-term arenas less than six months.

With regard to voluntary protection programs, as I just mentioned a few minutes ago, I think some of our OSHA strategic partnership programs that Berrien will be talking about in a few minutes are having some impact and recognition in the areas that you've just talked about.


MR. DEVORA: You answered most of those questions. But am I understanding that by short term, you are defining short term as a year or more. Is that correct?


MR. DEVORA: Okay. And this is a company specific, geared toward the company. And then, they are using a particular job site as their benchmark to measure effectiveness? Is that --

MS. OLIVER: Well, it's really a two-phased approach. What we want to make sure of at first is the company at the corporate level has a strong commitment to safety and health and has an effective safety and health program.

And we actually go to the company site and do an evaluation there, a thorough VPP evaluation. And then, they can bring -- once they make that phased approval, then they are qualified then to submit what we call implementation plans and bring in a variety of sites under their VPP umbrella. And then, each site would get a VPP.

MR. DEVORA: Right. And my next question is, and the sites that they bring you, are they under construction already or are they in the pre-committee phase? Do you accept jobs that are already under construction? Or should they be new projects?

MS. OLIVER: We accept probably both, but we prefer to get the implementation almost, you know, prior to ground breaking or at ground breaking because we need to have that lead time to get there and do our review.

MR. DEVORA: Right. And you review it at different phases of the project as I understand it?


MR. DEVORA: Of the steel erection and the concrete. It's not just a one-time inspection shot?

MS. OLIVER: Our VPP managers can go back if they feel that they need to. But with the short term and everything, since it's just that, we usually try to pick the phase that's the most dangerous, if you will, when we go.

I know all phases are properly dangerous, but we try to pick a good time to go.

MR. DEVORA: Is that the only exposure to an inspection that this site would have?

MS. OLIVER: If there were a complaint at that site, then OSHA would respond to that complaint in an enforcement mode.

Or, of course, not a fatality, but if there was one or any kind of significant even, they would be --

MR. DEVORA: But other than that, they are exempt from inspection?

MS. OLIVER: Yes, yes.

CHAIRMAN BURKHAMMER: Back when we had a Construction Safety --

MS. OLIVER: Pardon me.

CHAIRMAN BURKHAMMER: Back when we had the Construction Safety Excellence Program with OSHA and the building trades, and there was two companies, Alston and Bechtel in the program.

And for various reasons, the program pooped out. Would those two companies if they applied for the new program start over? Or would their previous history cause them to be accepted?

MS. OLIVER: Well, I think what we are looking for as far as an application for VPP, we need certain information about the company safety and health program.

To the degree that that is already available, we would do a review of that. We would do a fresh review of that.

I am not sure I would take an application from that program which was over two years off the shelf and take a look at it.

I mean, I would want to make sure that what we had was up to date from the company. But certainly if they submitted it, we would review that information.

CHAIRMAN BURKHAMMER: Okay. Any other comments or questions of Cathy?

MR. CLOUTIER: Would it make sense to qualify contractors, qualify employers, qualify the entire firm and let them run with the program? Could you not qualify Black and Beach nationwide?

MS. OLIVER: I don't think we really know at this time whether or not that would be something we would want to do.

It certainly is something at the end of this program that would probably be good to discuss.

MR. CLOUTIER: Well, I think you need to consider that because I think if the program has not been successful, you need to find as many champions out there that like the program, that showed successes, that showed that there are some problems, but they worked through those.

So you've got people standing in line wanting to get on board. If not, it's going to fail like other programs and go by the waist side.

And I think as an employer, we would like to see the entire company qualified to a couple of different projects. And then, as the years go by, they just fit. They re-up and renew every couple of years as an employer.

MS. OLIVER: Well, at the end of the period of this pilot, we welcome your input. What I would like to be able to do is bring to you the results as we have it and let's talk about where we go from here.

MR. CLOUTIER: And we've got to capture some smaller employers. Some short-term projects to us is less than a year.


MR. CLOUTIER: Because that is the typical construction cycle. There are probably 85 to 95 percent of all projects done every year are less than 12 months.



MR. COOPER: Cathy, we just spent some time this morning seeing the video with Jeffress signing this agreement on crane certification for operators and much ado about that which was the right thing.

In the VPP Program, do you require that the crane operators on that site be certified?


MR. COOPER: That's part of the program?

MS. OLIVER: Yes, it is.

MR. COOPER: As it steel construction, the erection, you said you use a straight 6 foot fall protection?

MS. OLIVER: No. I said on the Black and Beach site, they were using 6 feet and above for fall protection.

MR. COOPER: They were 6 feet for steel erection. Do you know how they did that?

MS. OLIVER: I don't know specifically.

MR. COOPER: I mean, did they use elevated work platforms?

MS. OLIVER: Chris, do you know that?

MR. WARNER: It was a combination of many things. They often design fall protection on the ground before they put them up. They used the elevator platform.

MR. COOPER: Well, let me ask you about that, not that we need to get into this. But when -- a lot of the jobs are one-story jobs. And I know you're not talking about those types jobs.

But you can only tie off with your feet because you haven't put the other thing up. And the 6 foot will not work unless you use elevated work platforms, the scaffolds as you go along because if you tie up your feet, you are going to hit the ground 12 foot .6.

MR. WARNER: Right.

MR. COOPER: So I just wanted to make that point I guess.

MR. WARNER: And that was just their company policy. And they did use a lot of mobile platforms and scaffolding.

MR. COOPER: Which worked?

MR. WARNER: Which worked very well.

MR. COOPER: Thank you very much.

CHAIRMAN BURKHAMMER: Thank you both. We appreciate that.

Cathy, do you want go on?

MS. OLIVER: Yes. I would just like to say a few things about our OSHA Strategic Partnership Program, but Berrien is going to get into some specifics about the relationship with the construction industry.

And we currently have 32 active OSHA Strategic Partnerships. And 13 of them are about 40 percent in the construction industry. So we are encouraged by that. And we know that there are more under development.

As we meet with different groups, we are finding that are anxious to partner with OSHA. They realize that partnering provides them goals to meet or shared goals to affect a sustained impact on worker safety and health.

They find that it assists them in getting to a level playing field. And they also report back to us about how they appreciate the improved relationship they have with OSHA, the fact that they can now call OSHA on the phone and their fears are subsided.

The impetus for partnering has taken a variety of courses. Sometimes, they come to us. And sometimes, because we are working on something, a specific strategic initiative or something, we have gone to them.

We have a wide range of groups that are involved in these partnerships, such as trade and professional associations and unions and universities, insurance firms and state and local government.

When they get together, these partners normally try to come up with some common vision on what they're trying to achieve through this partnership by defining a partnership goal, defining measures of success, defining timeframes, how long they want to partner together, and defining resources that are required for the partnerships.

And a lot of the good experience we have had are that a lot of the different people that partner bring a variety of resources that can help achieve the common vision of the partnership.

We also discuss incentives, in other words, what is going to bring everybody to the table, what is going to make want to partner.

And I think some of our findings are very interesting in that sometimes it is not the OSHA's incentives that really bring them there, but rather the incentives of the partnership, the building of relationships, the meetings, the sharing of experiences with other companies in their own industry, and also some of the incentives that some of the partners bring.

For instance, sometimes the insurance companies have provided reductions in insurance premiums. And also, we have had partnerships that come up with one training program so all the companies in the partnership share that and thereby save some resources.

The OSPs that we get in or the OSHA Strategic Partnerships that we get in, the ones that are developed at the area office level are approved by the regional administrator.

The ones that are region wide are approved by the Deputy Assistant Secretary. And the ones that are national are approved by the Assistant Secretary of OSHA.

When we get these in, we review them to make sure that they have a defined goal and that they have a potential for significant impact on worker safety and health.

In other words, we want to make sure that if we are partnering with a group, we have an opportunity to really have an impact on a lot of workers.

We want to make sure the right players are involved in the partnerships. For example, if there are unions involved that they are part and parcel to the development and implementation of the partnerships and that we are not providing any OSHA incentives that we shouldn't be providing by compromising the OSHA Act.

We want to make sure that the employer and employee rights are still maintained throughout the partnerships and that there are adequate timeframes.

And probably one of the key things and one of the most difficult things in forming these partnerships is defining measurements. How are we going to know when that particular partnership has been successful?

So we are working hard to try to assist. In fact, we are starting a training course this year on OSHA Strategic Partnerships for our field people on how to develop them.

And one of the key components of that will be what are effective metrics for evaluating safety and health in the work place and how those can be integrated into these OSHA Strategic Partnerships.

So far, our partnerships have taken a variety of forms. We have the national template type of partnership where on a national basis like the National Park Service, we say we want to partner with these folks.

And then, there is a variety of local implementation of those partnerships. And I think that is going on right now with the AGC.

We have some industry-specific partnerships on logging and nursing homes. We have some on specific hazards. We had one on scaffolds, that just focused on scaffolding that showed some results in terms of reductions in injuries.

We do have a company partnership with Conagra. And the reason we have that partnership is because of the potential of changing the culture in a company like that can have profound impact on the entire company which is about 90,000 employees and hopefully eventually the meat packing industry as a whole.

So far, we have good experience. Again, we are struggling with the metrics so we can actually define these successes. And we are looking forward to making some improvements in those areas as well as training our OSHA staff which I mentioned a minute ago in sharing information with the public.

If we have a partnership that actually comes up with a product like the homebuilders partnership where they came up with a pamphlet that had the requirements for an effective safety and health program that that would be available on the web to be shared with others in that industry.

And we think by doing that that is also a valuable result of these partnerships, and also sharing lessons learned, you know, what is working, what works in partnerships and what does not so we don't repeat our mistakes?

So that is a general update on partnerships. And as I mentioned, Berrien is going to get into some more specific with regard to those that are in the construction industry.


Questions or comments on the second subject?


MR. COOPER: How many people do you have on your VPP and also staff?

MS. OLIVER: On the VPP staff, it is seven in the national office. And then, we have VPP managers in each one of our regions.

And some of our larger regions have four or five additional team leaders that assist them. That would be in the Atlanta region and the Dallas region.

MR. COOPER: So you have 40 or more?

MS. OLIVER: Well, it's less than that, but, yes.

MR. COOPER: Thank you.


MR. DEVORA: Quickly. Did I get this correctly, the area, you said area partnerships are approved by the regions. Regions are approved by the --

MS. OLIVER: The Deputy.

MR. DEVORA: The Deputy. Okay. And then, national by?

MS. OLIVER: By the Assistant Secretary.

MR. DEVORA: Assistant Secretary.


MR. BUCHET: Just to follow-up on Mr. Cooper's question, are these full people or are these additional assignments for people who are already in the regional offices?

MS. OLIVER: In some of regions with large a VPP program and that is probably most of them now with the exception of seven, eight, nine, and 10, it is a full-time VPP position. But in others, they have shared responsibility.

CHAIRMAN BURKHAMMER: Great. Thank you very much.

MS. OLIVER: Thank you.

CHAIRMAN BURKHAMMER: Data collection, Michael?

MR. BUCHET: I thought you were going to wait until tomorrow.

CHAIRMAN BURKHAMMER: You look like you were going to sleep.

MR. BUCHET: Okay. How much time do I have? Do you want the long version?


MR. BUCHET: I don't think so.

CHAIRMAN BURKHAMMER: Short version, five minutes.

MR. BUCHET: The extremely short version. Next time, I will make it a bigger font so we can all read it quickly.

ACCSH Workgroup Reports


Data Collection/Targeting

MR. BUCHET: The Data Collection/Targeting Workgroup convened on the 8th. And once again, we are just going to breeze through some of this and not necessarily in order.

One of the key issues that came up that we discussed was the overwhelming nature of the discussion on data collection and the workgroup's frustration with trying to come to grips with it.

So what we have decided to do is to take bite-size pieces of this monstrous of this issue and try and give some bit-size pieces of advice to OSHA provided ACCSH agrees with what the workgroup is suggesting.

And in this meeting, we have come up with a suggestion that we are going to make a motion.

There has been a continuing collection of where do we get data, what does the data look like, how do we compare data, how do we get OSHA's data to look more like everybody else's data? And that is an ongoing discussion. We will continue having that for who knows how long.

But it comes to a fine point. Actually, it came to a fine point while we were in Honolulu. There is a move to convert the Standard Industrial Classification code system dated 1987 to something called the North American Industrial Classification System codes.

And the NAICS are being phased in. One of the things we learned at earlier workgroup meetings is that the Bureau of Labor Statistics plans on having that phased in somewhere around 2004.

Immediately, the question came up, well, what impact is that going to have on OSHA's data collection? And more precisely, what impact is it going to have on construction?

Well, in the Federal Register, there was an answer to that, not a very nice answer, but an answer.

And that is the Commerce Department, and this that the NAICS are being done at the Bureau of Census at the Commerce Department, invited the industry to comment on how the North American Industrial Classification System should be expanded to include construction.

We tackled that. SIC codes 15, 16, and 17 will become something like 233, 234, and 235. And we decided that the 233, 234, and 235 were not necessarily in the best format for helping OSHA collect data, analyze the data, compare that data to any other data that's out there, and do any -- and target.

So we worked on the issue. One of the problems with -- it is not unique to the NAICS is that some of the classification as they go from SIC to NAICS are being diffused and some of them are being merged.

The historical data trends are going to disappear. You will not necessarily be able to track a crane operator from one to the other very easily.

You may not be able to track a construction manager doing heavy construction from one set to another set. And we set about trying to adjust that.

And we had some high-priced help in the world that we were being given our annual review. I'm not sure. But Acting Chairman Mr. Burkhammer came in with a marvelous suggestion that we take management services and break that out to a series of subcategories to better explain what that means and that we remove those subcategories which are now found in 233, 234, and 235 and put them in a category all their own, and that we take all the specialty subcontracting which we don't know the nature is in 235 and plug them into 233 and 234 so that you know what specialty is working on a building project or what specialty is working on a heavy construction project.

And since I am giving you the short version, I can't give you the overheads or the flip -- I didn't make any.

CHAIRMAN BURKHAMMER: We will just imagine.

MR. BUCHET: Just imagine. I want to see anybody else is awake. Yes, just imagine. Imagine with me, if you will.

The upshot of that is we the workgroup are proposing that ACCSH make a motion that we draft a letter sending -- and we will draft the letter and we will let you see the letter, sending these comments that I have rapidly outlined to the Census Bureau in the hopes that they can modify what they are going to do with the construction NAICS.

The only hiccup to that is the public comment period ended the end of April. So we are going to have beg and crawl on bended knee to see if they will accept these comments anyway.

Mr. Chairman, you got any comments you would like to add that fast version?


MR. BUCHET: Well, I will fill the rest of the time to the best of my ability.


MR. COOPER: You only got one minute.


MR. BUCHET: We also looked at what the workgroup is going to be working on in the future. One of the other things that we spent a great deal of time on and you have heard some of that is how data collection, the workgroup in particular, but data collection as an activity would be influenced by the Form 170.

And we sent a letter to the Form 170 workgroup which they have received and they are going to incorporate in their workgroup's procedures.

And I foresee in the future that we will be cooperating to refine what the 170 looks like to collect the data that we think is most important.

We will also look at something that apparently can be done fairly rapidly. And that is on the OSHA form, I believe it is the 1, there are optional N codes, N the letter N, N codes.

And it is quite possible that we could design some of those or assist OSHA in refining those so that we capture useful, more useful information through that medium.

We also will be looking at conforming OSHA's present coding system for things like hard body and the mechanism of the injury to ANSI or BLS standards because at the moment the OSHA data is not entirely comparable with other large data sets.

And as I said, we are going to look at this tackling bite-sized projects instead of trying to grasp the whole issue.

Now, if you look at the bottom of page 2 of 5, the workgroup proposes the following motion. I make the following motion. Co-chairs draft a letter containing the NAICS code suggestions outlined to be forwarded under ACCSH cover to the Department of Commerce, Bureau of Census. And the contact person for that is Carole Ambler, as soon as possible.

Thank you, Mr. Chairman. That concludes my report.

CHAIRMAN BURKHAMMER: Thank you, Mr. Buchet.

We have a motion from the standing committee. It doesn't need a second. However, I would like a moment with Mr. Buchet to see if he would want to change his motion.


CHAIRMAN BURKHAMMER: Mr. Buchet, would you like to amend your motion?

MR. BUCHET: After deliberation with my conscious and a greater power, I certainly would.


MR. BUCHET: Completely off the top of my head, I would like to withdraw that motion and make a similar motion that goes very much like the following, that ACCSH recommend to OSHA that Assistant Secretary Jeffress send a workgroup drafted letter to the Secretary of Commerce, Bureau of Census, containing the NAICS, the suggested NAICS modifications.

CHAIRMAN BURKHAMMER: It comes from a standing committee. It doesn't need a second.


(No response.)

CHAIRMAN BURKHAMMER: Hearing none, call for the question.

All in favor, signify by saying aye?



(No response.)


Pass your motion over, please.

MR. COOPER: Mr. Chairman.


Mr. Cooper.

MR. COOPER: Since it's already -- we're pass the date, I think you might try and emphasize to the front office that it is a very timely letter and it doesn't get caught up in the normal which it could be very heavy weight instead of just lightweight.

CHAIRMAN BURKHAMMER: When can we expect the draft letter?

MR. BUCHET: It will be a week.

CHAIRMAN BURKHAMMER: A week. Okay. Why don't we send it electronically and fax to the committee and let them look at it? And then, the responses will be back by a certain date that you'll give us. And then, forward the letter to Bruce.

MR. BUCHET: Well, let me defer to Barry. And how soon do you want it? How much time? We can review it for a week and then get it back to us two weeks from now, but we could probably do it faster if we had to.

MR. ZETTLER: I think obviously the faster, the better. I don't know what is realistic in terms of the committee members' schedules.

In view of the fact, however, I think the point Mr. Cooper made is a very good one. In view of the fact that we are already tardy on this comment that it would be appropriate to spend that process up as much as we possibly can.

CHAIRMAN BURKHAMMER: With that duly noted, Mr. Buchet, would you make all haste to draft the letter?

MR. BUCHET: Well, I will make haste to draft the letter. And I'll give everybody two days to reply.


MR. EDGINTON: Mr. Chairman.

MR. BUCHET: A week and a week sounds fair.


MR. EDGINTON: It might be worthwhile finding out if NACOSH has also approached this subject because if they have and they've asked the agency to submit comments on their behalf, perhaps this could be viewed as a supplement to agency comments. I don't know that they have, but --


MR. EDGINTON: And the reason that I ask it, I have had that conversation with some NACOSH members. Now, if they did anything with it, I know that there were some discussions about this.

CHAIRMAN BURKHAMMER: I have a conference call set up with the chairman of NACOSH to discuss several issues. And I'll add that to the list. We will find out.

The Training Workgroup, Mr. Cloutier.

ACCSH Workgroup Reports



MR. CLOUTIER: Mr. Chairman, the Training Workgroup met yesterday very briefly. There was an extremely small quorum with one stakeholder, one OSHA staff, and myself there. So we adjourned the meeting post-haste to go to the multi-employer meeting.

But during the meeting, the OSHA staff or Camille Villanova was kind of enough to provide the workgroup with a document with an update from OTI.

And these were some informal responses from OTI in response to questions that had been submitted from the last workgroup meeting.

And their answers are as follows. OTI and the Director of Compliance Programs are working on core courses for OSHA inspectors.

Currently, there are three tracks: industrial hygiene, general industry, and construction with basic and recommended courses.

The OSHA 500 course is updated continually. The last major addition was the revised respiratory standard.

OTI is working on a final exam for the OSHA 500. No information on grades, records, or test scores, passing scores was obtained.

There are no plans to include recommended exams for 10 and 30-hour courses in the OSHA 500 course. Each instructor is expected to customize the course for their own student.

OTI is considering a training CD. However, at this time, they are not clear if this is going to be a 500, 10 -- for the 500, 10 or 30-hour course.

Currently, there are no plans to provide OSHA 500 instructors with slide videos, etcetera, that can be delivered at the end of the course for the new instructors. It is up to each new instructor to customize their own course.

OTI stated that no formal requests have been received for the development on the topics of demolition, steel erection or blasting.

OTI stated that they teach these issues as part of their courses. And we got a remark that the updates for the crane-scaffold videos are not a job of OTI, but I hope that is just a jest. I hope they are participating in that process.

And finally, there are no plans by OTI to develop a "universal 10-hour course" that can be used by all OSHA 500 instructors that can be used by all school and outreach programs.

And also, there is no plan at this time to put an expiration date on the OSHA tower card.

This workgroup will take this information under advisement and will strive to have greater participation at the next workgroup meeting.

Mr. Chairman, we respectfully submit it.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cloutier.



MS. WILLIAMS: Was there any comment in regard to suggestions for consideration of reducing the 10 hours to 8 and the 30 to 32?

MR. CLOUTIER: Not at this time.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cloutier.

What I would like to do, I know we are pass the 4:30 adjournment, but I'd like to clear the agenda with the exception of the two tabled motions. And we can spend tomorrow addressing the two tabled motions and clear everything else today.

So with the committee's patience, Noah, would you please come forward and make your presentation?

ACCSH Workgroup Reports
Standards Update

MR. CONNELL: Good afternoon. I'm Noah Connell, Director of Construction Standards and Compliance Assistance Section of the Directorate of Construction. I appreciate the opportunity to be here.

A couple of notes with respect to just updating where we are on our standards projects. Steel erection, we are in the process of preparing a final rule.

And we are still on schedule just barely somehow. We are still on schedule. Our target is to complete this project by the end of this year, that is December, 1999. And we are trying to do that. We have nine folks spending 75 percent of their time on this project. So we are trying.

Confined space, we are also at the moment on schedule. Our target is to complete a proposal -- is to publish a proposal, a proposed confined space standard by December of this year.

A couple of things that we have been working on is, number one, it is going to be in a plain language format. And we have completed the draft version of that.

And we are getting very close to the stage where other offices within the department are going to be involved. And, of course, once we get into that phase, I get a little less confident of our timelines. So that is where we are.

Subpart (m), we are doing an advanced notice of proposed rulemaking on subpart (m). We are in the very last stages of this.

We are now in the formal concurrence process on the draft. And in fact, we are at the very tail end of the formal concurrence process. But the very tail end is not necessarily the easiest part of the concurrence process.

Subpart (l), we are doing an advanced notice. Let me also say on subpart (l), the advanced notice of proposed rulemaking.

Let me just mention to remind the public, in an advanced notice of proposed rulemaking, we are not making any proposed changes to regulations. What we do is we raise issues, we ask questions, and we ask the public to comment on those issues and questions.

The status of the subpart (l) project is that we are in the process of briefing the second floor on the issues and questions that DOC is proposing be a part of the AMPR. And at the same time, we are preparing a draft of it.

Safety and Health Program standard, our target is to release to a draft text of a Safety and Health Program for construction some time this summer.

Another major project that, it is not a standard, but we have carried a plain language rewrite of STD 3.1, the compliance directive on residential construction that has -- that is in the -- that is ready to go.

The only thing left is for it to be placed electronically on our Internet site. Once it goes up, then it becomes official.

And I would be happy to try to answer any questions.

MR. MASTERSON: On subpart (m), the advanced notice, when are you looking for that or when is your target on that?

MR. CONNELL: We've passed our target on that.

MR. MASTERSON: What's the new target?

MR. CONNELL: I had hoped that we would get that out in the very early part of this year. And then, I hoped that we get it out in February or March.

I don't know what to tell you on that except that we are wrestling with completing the concurrence process. And I don't know what else to say about it.

MR. MASTERSON: Okay. Could you and I get together after and talk about the workgroup?

MR. CONNELL: I'm sorry.

MR. MASTERSON: Could you and I get together either later today or tomorrow and discussion participation in the workgroup?


MR. MASTERSON: Okay. Subpart (l), any projection of when you'll have the advanced notice of that ready?

MR. CONNELL: That's in a much earlier stage of development. We do hope to get it out this year, that is 1999, but it is in a much earlier stage. It is not as an involved project as some of the others. So I am hopeful that we can meet that.

MR. MASTERSON: One final question, the plain language --

CHAIRMAN BURKHAMMER: Bob, speak into the microphone.

MR. MASTERSON: I'm sorry. One final question. The plain language rewrite, the 3.1, when we will have access to that?

MR. CONNELL: I believe that should be posted on our web site either by the end of next week or the early part of the following week.

MR. MASTERSON: Thank you.


MR. COOPER: You could never guess what I'm going to ask.

MR. CONNELL: This is about residential construction, right?

MR. COOPER: On the steel erection standard, you said you had nine people working on that 70 percent of the time or something thereof. How are you evaluating the data on that?

You've got a vast amount of post-hearing data. Are you aware of the SENRAC data also? There is 18 months of negotiated rulemaking. Is that part of the evaluation also?

MR. CONNELL: Are you referring to the SENRAC statistical data or the --

MR. COOPER: The minutes. We have 18 months of deliberation on negotiated rulemaking. And that deliberation gave all kinds of variations on why they wanted to do things particular ways.

Is that part of the evaluation? Or is it just post-hearing data that you are evaluating?

MR. CONNELL: We are evaluating, for example, there is a lot of discussion in the preamble to the proposal.

So when we do our analysis of the comments that came in during the hearing and in the written comments, we also look at what is in the preamble to the proposal in terms of evaluating the whole thing.

As you know, there were not written transcripts of the SENRAC meetings themselves. But where we have information like in the preamble that reflects the thinking of SENRAC, yes, that is definitely part of the evaluation process. It is all evaluated together.

CHAIRMAN BURKHAMMER: Jane, did you have a --

MS. WILLIAMS: I just have a question or a comment that Bob made. I thought I understood earlier that there had been no activity on the fall protection workgroup, but I thought I just heard you say you might have comments for Noah. And I wonder if I missed anything from your workgroup.

MR. MASTERSON: No, I said I would to speak with him about participating in the last meeting.

MS. WILLIAMS: Oh, I'm sorry. I thought you had information.


MR. CONNELL: My pleasure.

CHAIRMAN BURKHAMMER: The last item for today, we save the best for last, is the Directorate of Construction Report.



Special Presentations


Directorate of Construction Report -
Partnership Programs in Construction

MR. ZETTLER: I will defer to the pleasure of the committee. I do have some overheads with some of the updated statistical material if you want to spend a few minutes going over that or else I can just orally report on it. I will just leave that up to the pleasure of the committee.


MR. BUCHET: Could you provide us with printouts of those?

MR. ZETTLER: Oh, I have real nice, colorful slides that I can show.


MR. ZETTLER: All of these slides are available electronically. They are all available electronically, but it does require Harvard Graphics to do them. So that may be a problem for a lot of people.

I don't have any idea whether or not it's possible to convert from Harvard Graphics to any other format. I have understood that it is difficult to do that. I don't know if it is impossible. So I leave that up to people who are much better at these things than I.

Some of the numbers that I wanted to run over before we get into other substantive issues, what I have available that some of you may be interested in looking at is I have a number of what I consider to be key statistics which I have laid out on a chart for a period of years, sometimes five years, sometimes as much as seven years showing you the trends that have happened over those years.

And I also have included for 1999, I have included a projected number where it was appropriate for me to do so. I have included that projected on the chart.

One of the things I first wanted to indicate because and again I don't know to what extent the committee is interested in these numbers, but I will go over them. And if you want more information, I will be happy to do what I can do later.

First of all, on numbers of construction inspections, there has been a -- there was a distinct downward trend, as all of you know, and I know you have seen some of these numbers before, from 1993 to 1996 when the agency was in the process of attempting to find out or to work out for itself how re-invention applied.

We got through that process. And in 1997 and 1998, our numbers of inspections rose to over 18,000 construction inspections for each year.

For 1999, however, we project a downward trend to something near 16,000 inspections at the rate we are going now.

Now, because those are projected numbers, it is -- they, of course, are suspect. So we may end up 18,000 inspections again.

But our projections right now based on where we were at the same time at this time of the year last year, that is what our projections are based on, we will end up with something like -- something under 16,000 inspections.

We anticipate that our -- well, this is not really an anticipated number. But we believe that in -- that we will maintain or continue to maintain approximately the same percentage of serious violations which we group together as serious, willful, and repeated on the assumption that all serious, willful, and repeated are the most dangerous, most hazardous of the violations.

We expect that we will maintain the same kind of rate that we had previously which is approximately 77 percent serious violations.

That compares to something like 65 percent I believe it is in general industry.

One of the new numbers that I have brought this time which I think we do not usually show you is the number of in compliance inspections in construction.

This is a construction-specific number. This, I do not have a projection for this year on this for 1999 on this chart.

But the number in 1997 and 1998 was relatively close in that we came out with 6,300 and 6,400, respectively, in compliance inspections.

Now, if you do the arithmetic on that, you will see that approximately one-third of our inspections in construction are in compliance even though 77 percent of the violations we find when we do find violations are serious.

Now, one of the numbers that I think is important for you to realize, one of the numbers that is sort included in that in compliance inspection rate is the so-called focused inspections.

Now, focused inspections are counted -- as I am sure you know, focused inspections are counted differently from other inspections or not in compliance inspections are counted in that focused inspections are site inspections.

We normally have, no matter what the number of contractors on site, we would normally come out with one inspection on a focused inspection.

So there were approximately in 1997 as out of the 6,300 in compliance inspections, we did 1,300 focused inspections. So that leaves about 5,000 inspections that were in compliance that were not focused inspections.

And the number that we use to calculate the number of sites that that would correspond to, we have used based on our previous experience, we use three contractors per site.

So as a consequence with the 5,000 not in compliance -- in compliance non-focused inspections, that gives us something like 1,800, 1,900 sites that are not -- that are in compliance, but are not -- or at least had some contractors who were in compliance, but are not focused inspections.

Now, a site you may have and in fact we often do have some contractors who are in compliance while other contractors on the site are cited. So those are all things that make it hard to draw straight line comparisons.

Fatalities, one of our goals, as all of you know, one of the agency's goals is to reduce fatalities by the year 2002 by 15 percent.

I just want to read through the last, one, two, three, six years on the fatality numbers in construction.

In 1992, we had, OSHA had 1,900 -- 903 fatalities. These are based on BLS numbers, by the way. They are not necessarily investigations by OSHA, but they are construction related fatalities.

So in 1992, again, there were 903 fatalities.

In 1993, one year later, we had 924 fatalities.

In 1994, 1,027 fatalities.

In 1995, 1,055 fatalities, so far always up.

In 1996, we had a slight drop to 1,047 fatalities.

In 1997, which is the most recent year that BLS data is published, we have 1,137 fatalities.

I have no idea how the agency is going to be able to accomplish its strategic goal with the way those numbers are going right now.

We hope to be able to do some more detailed studies by analysis, among other things by analysis of the 170 Form which reports the fatalities investigated by OSHA.

We are having a -- we are going to be looking at some of those things to see if we can get a better handle on what the agency needs to do to stimulate or help the industry get some control over the fatalities that are happening in the construction industry.

One of the numbers that -- one number that I can give you with respect to 1999, FY 99 is the fatalities investigated in the federal states thus far this year.

So far this year, we have looked at -- we have investigated 494 fatal accidents.


MR. ZETTLER: This is so far this year only.

CHAIRMAN BURKHAMMER: In just the federal states?

MR. ZETTLER: In just the federal states.

We have two regions, region 4 and region 6 which make up 232 of those inspections. So, you know, it is clear that the fatality rates are unacceptably high.

The Assistant Secretary has commented about this over and over again in his own speeches that he has made. I have talked about it.

It -- I hate to say it, but it almost looks like this is an intractable number. I think that if there is any way that ACCSH or anyone else can help us find out what we ought to be doing to work with industry to reduce those fatality rates, we would love to hear about it.

So far this year, we have also -- I can also -- I am just going to share one more number with you. And this number is down significantly from last year. It's about 60 percent of what it was last year.

So far this year, on significant and egregious cases, those are cases where we have over $100,000 of penalty, so far this year, we have 42 total cases, significant cases of which four were egregious, meaning that we applied the egregious penalty factor to those.

That is down a good bit from last year. We may -- of course, significant and egregious cases are not something that the agency targets for.

Those are things which we come across usually as a result of the investigation of fatalities or accidents that we see reported in the newspapers or something like that.

So having presented those numbers, I guess we can go on and talk about some other things.


MR. ZETTLER: Yes. I can make -- I can certainly black and white copies for everybody. And you can sort of see the difference. And besides, they are all labeled anyway. I can make those for you tomorrow morning.

And I say, those of you who might have access to Harvard Graphics, I'll be happy to make it available to you electronically.

The only other item that I wanted to make some comments about before just sort of turning it over and just having general questions that you might have for the directorate, I wanted to go over a little bit on the partnership programs.

Of course, Cathy kept telling you that I was going to give you this astonishing report on partnerships. And now, I feel like I'm under such pressure, I can't possibly deliver.

But anyway, we have gone over with you all many times in the past the more common, some of the more frequent, the more well-known partnerships.

You have all heard before about the partnerships in Colorado. You have heard about the roofing program. You have heard about many of those.

So I thought what I would focus on now is a little bit of a more general approach. Most of the 13 partnerships which Cathy mentioned that exist in construction, most of those are local. There are I believe five, maybe that are national partnerships that have been approved at the national level.

We have now in the pipeline, we have three partnerships that we are working on. And we are still pretty much in the negotiation stage in those partnerships, although we are coming to a conclusion on some of them.

Unfortunately, the staffing limitations that we have in our Office of Construction Services make it difficult for us to do more than one national partnership at a time as far as the negotiating part is concerned.

All of these -- the three that are in the partnership -- of the three that are in the partnership, two of those are essentially local partnerships which we are working on with in those two cases AGC chapters, one in St. Louis and one in south Florida.

Both of those have come in with partnerships that we are now in sort of, as I say, the negotiation phase on it.

There is also an ABC partnership which is also in the pipeline which is a national partnership which is basically a recognition of superior performers in safety and health at the company level.

So while we don't -- while OSHA does not yet have, as Cathy indicated to you, OSHA does not have any kind of recognition program for contractors with work sites of less than a year, we are working with ABC to develop a kind of pilot kind of project which will extend some kind of recognition by the agency for contractors, not necessarily limited to particular work sites, but for contractors who come in under the auspices of the ABC and meet the requirements and criteria that will be set up in that partnership program and perhaps receive -- and will receive some recognition from OSHA as superior performers in the safety and health field.

We would welcome that kind of a partnership with others. One of the most difficult things that we have found so far in the construction industry is that we have not had a whole lot of success unless you count three as a success.

We have not had a lot of success in companies or trade associations coming forward with proposals to enter into partnerships.

We have been a little disappointed in the responsiveness of some of the national organizations, for example, or even their local chapters and the apparent reluctance that those groups are showing to come in and enter into partnerships.

I have given -- I can't tell you how many groups that I have talked to. I know Bruce has talked to many groups and so has Tom Marple, the Director of our Construction Services Office, have talked to many groups trying to get -- to encourage groups to come with partnerships. And that has not happened very much.

Now, there are two other groups, however, that have come in to start talking with us. They -- actually, one is on the verge of coming in to talk with us. It hasn't come in yet, but the other one has come in for preliminary talks.

Both of those groups are groups that are working with the National Safety Council which, as you know, is one of our partners in the roofing program in Chicago.

But the National Safety Council has a cooperative relationship with ARTBA, the highway construction trade association. And they, those people did come in to talk with us the Department of Transportation about a possible partnership with them, but we are in the very, very early stages.

They have nothing on paper yet. They just wanted to talk to us about the kind of partnership we have formed, the kinds of partnership we have formed and what kind of expectations we would have for a partnership of that sort.

The other one the National Safety Council has indicated to me will be coming in, although they haven't yet and I think it is only a matter of just getting their stuff together, is the NEA and the iron workers are working also on a cooperative relationship with NSC I am told. And they might also be interested in coming and talking about a possible partnership.

So that's really all the remarks I have to make by way of an introductory remarks. And I would now invite comments from anybody that you might have for us.

CHAIRMAN BURKHAMMER: Questions or comments?


MR. BUCHET: I'm a little confused. Those were your introductory remarks. When do we get the body of the presentation?



Mr. Cooper.

MR. COOPER: I guess you're getting paid by the word.

We've done an awful lot of talk about partnership and unfortunately some more with your comments. At this late date, there may be a lot of questions that relate to the directorate that it's rush hour now.

But I would say this, as we look at your figures, our figures for fatalities, you've got to take into consideration that there has been approximately a 30-percent increase in construction in this nation in the last three years. That is a guess number, but that is close. And you're to have numbers like this.

MR. ZETTLER: And -- excuse me. I didn't want to interrupt. I was going to say, we have also looked at the rates. They are not produced on this chart here, but we have looked at the rates, too.

The rates are not coming down. They are remaining at best even. There are slight little raises. And if you look at the rates, they go up and down by very few percentage points, but basically they are remaining stable.

So even though I grant you that the numbers would be expected to go up with the larger work force, the rates are not going down. It is very troubling.

MR. COOPER: That's another question. Why were the inspections down because you've made fewer of them?


MR. COOPER: Let me help you out here. It could be that you're doing better inspections and spending more time and being more thorough, but you don't have a reduction in the compliance staff over this couple of years?

MR. ZETTLER: Well, I actually believe and I think I can produce the numbers to show you this. The basic reason why the numbers have gone down is because of the fact that more of our field people are doing outreach and partnership kind of activities.

That is the fundamental reason why we have fewer inspections as far as I can tell in construction.

Now, if as happened in 1996, if the leadership of the agency believes that we need to maintain a certain level of inspection presence, then the numbers could very easily go up.

But at the moment, I think that I really don't know whether the Assistant Secretary -- I have not heard the Assistant Secretary express great concern about the numbers.

He may be satisfied that those numbers are appropriate given the fact that we I think are much more heavily engaged at the local level on partnership and outreach types of activities.

MR. BUCHET: How do the construction outreach and partnership activities compare with those in other industry sectors?

MR. ZETTLER: I have not done a study of that. I don't think any of us have done a study on that mainly because our records are not kept on the basis of what industry those things are done in.

But I mean, it's clear that I certainly could sit here and tell you that the numbers of -- the amount of time spent on partnership and outreach activities in the construction parallels the numbers of inspections, for example, in construction as compared to general industry.

MR. BUCHET: Are the other sectors of general industry experiencing fewer inspections because they are --

MR. ZETTLER: Yes. This is across the board. Yes, the downward trend in inspections is an across-the-board phenomenon right now.

Now, in general industry, there is a little bit of an excuse in that in general industry, they clearly are spending more time on inspections because they are doing the high hazard, if you will, inspections, the high hazard work sites. We are targeting those in general industry.


MR. EDGINTON: I know the hour is late, Mr. Chairman, but I feel compelled to say that what I just heard troubles me greatly and let me explain why with respect at least if you are right in terms of your explanation as to why inspections are fewer because we are spending time with outreach.

Now, my instincts tell me that contractors that you get with your outreach and your cooperative activities are those contractors that are already doing a good job or alternately are interested in learning how to do a good job.

So it is not surprising to me that this trend line has not changed as a result of that activity. So I don't know what more to say about it than that. I mean, this is not rocket science.

If you are telling me -- and I am open to this. If you are telling me that through your outreach efforts, you believe you are bringing contractors into the fold that up until now have had serious problems with their sites and that you believe that their sites are now significantly safer because of your involvement with them, I think that is wonderful. And I would really like to hear that, but my instincts tell me that that's not so.

MR. ZETTLER: I certainly could not affirm that the people, the contractors with whom we are doing the outreach -- I would certainly hope the same thing that you hope that particularly from our outreach side than -- more from the outreach than from the partnership that we are looking to find places or contractors where the training is really needed and those people are not performing at a level where they should be.

On the other hand, as you see, I mean, our in compliance rate is relatively high in my view. And that suggests that the agency needs, as we have recognized for many years, suggests that the agency needs a better targeting system.

MR. EDGINTON: But also what your compliance data shows that where they are good, they are pretty good, but where they are bad, they are very bad.

MR. ZETTLER: Right. What we are planning to do -- and this, you know, I -- all the decisions on this have not been made.

But what we are going to try to do is find a way to develop -- and this will not happen until I think next year, not fiscal year, but next calendar year, meaning by that perhaps as late as 2001.

But we do have -- the agency submitted, as you probably know for the FY 2000 budget, submitted an item for funding in its budget to do a data initiative similar to what we are doing in general industry to do that also in construction.

That item did not make it into the 2000 budget. We are resubmitting once again for the year 2001 budget, we are submitting a plan which we hope will be more thought out and will meet the issues and questions that were raised with respect to the 2000 budget and enable us to develop a data initiative which will give us better data at the contractor level, better data on what injury and illness experience, fatality experience contractors generally are having.

Now, unfortunately, there is an unfortunate part to that in that the agency cannot afford to go to the 2 million contractors that exist in the country.

What we can do, however, what we think we can do for a reasonable price is go to the larger contractors, meaning by that contractors with over 25 employees.

Now, contractors with over 25 employees are only a relatively small portion of the work force of the contractors in the country, but it is all we can afford at the moment.

We have estimated that if you go to the contractors that are over -- have over 25 employees, you are talking about approximately 60,000 contractors.

And frankly, that is what the agency can afford to do. And we will attempt to start or we hope we will be able to attempt to start if that budget package makes it through the system.

We hope that we can attempt to start at least targeting the poorer performers in terms of safety and health records among that group of employers.


MR. MASTERSON: I understand that you didn't make these numbers. And you got them from somewhere, BLS. Are you comfortable that these numbers are accurate?

MR. ZETTLER: As comfortable as I am with any numbers like this, yes.

MR. MASTERSON: Because doing the math real quickly, my best guess estimate is we are talking between 1,300 and 1,400 fatalities in 1999. That's a lot of people. And that's make six --

MR. ZETTLER: Based on the 494 number?


MR. ZETTLER: That was through -- that is actually eight months worth of -- see, that is through the end of May. So that's from -- it's a fiscal year. So --

MR. MASTERSON: I was figuring nine months. So actually, it would be higher than what I was estimating then.

I would be really concerned with eight straight years of an increase of that magnitude. What it tells me is, you know, whatever we are doing now ain't working at all.


MR. COOPER: Keep in mind that these are federal figures.


MR. COOPER: So you can add the states on this.


MR. COOPER: I think most all of us here realize that we work for federal OSHA, but we work for all the states, too.

Let me just ask you one simple question if there is such a thing. OSHA investigates every fatality that they know about in the work place that they can find out about it. There is an investigation of sorts that goes on.

MR. ZETTLER: That falls under our jurisdiction, yes.

MR. COOPER: Now, and you know obviously the size of the employer and which means how many employees that employer has.

And it seems to me that it would be rather obvious that you could easily tell the size of the employer who is having the fatalities which is one real benchmark unfortunately because we can't get the accident data.

And so if it's employers with under 15 employees who have the majority of the people, without targeting.

I can tell you this, I came here in 1976 on this committee. And that's the first thing, targeting. Now, I don't know how many years it's been, but we're going to hear every year, targeting, targeting, targeting, targeting.

It's apparent to me without the OSHA 170 and all the stuff we are working on trying to get straightened out now that there is some pretty good data on size of construction contractors that are having this problem. I know you said larger, 25 and above, but --

MR. ZETTLER: We have numbers. We actually have numbers on that. It turns out that employers with less than 10 employees make up 83 percent of the work place, but they only hire approximately 23 percent. And I could be off by one or two.

They only hire about 23 percent of the employees who work in the construction industry, that 83 percent, but they have, they experienced 45 to 47 percent of the fatalities.

I mean, we already know that. The problem, of course, is what we haven't been able to figure out.

And I don't want to say it's intractable, but it just seems like it is a very, very -- we have never been able I think to successful figure it out, how we target those small employers. They are the most difficult employers to find.

MR. COOPER: And to find.

MR. ZETTLER: Right. They are the most difficult people to find. And it's just, you know, we spend -- we anticipate that if we tried to do like a blanket inspection program just finding everybody of that small size, we would spend more time looking for these people than we would inspecting them.

And the agency I think hasn't just simply been able to come up with an effective way of targeting the people we really need to be looking at.

And, of course, we have had -- I know this committee has had workgroups in the past that have looked at that process. And unfortunately, we have not been able to come up with anything.

Now, you know, it is true that it is easier to find the larger employers. So that's -- those are the guys we look at. All you have to do is your ride down the road and you see them.

If anybody -- I think somebody ought to win the Nobel Prize if they could come up with a way of effectively and efficiently targeting the smaller employers.

CHAIRMAN BURKHAMMER: Jane is next. Jane.

MS. WILLIAMS: Mr. Zettler, you just reiterated what I was going to ask you. I believe it was at the small business forum in March where those numbers were given out that it was 85 percent is what I had written down were under 10, with 47 percent of those being fatalities.

I think the frustration that I am aware of is that you constantly go after the larger people who are doing it right and you are not looking -- granted there may be a problem of how you're doing it, but I think that's where the concentrated effort must be, looking at how to get to the people who are doing it wrong and not penalizing continually the guys who are doing it right.

MR. ZETTLER: Right. And, of course, that was the thought, as you know, behind our focused inspection program which was to enable us to if we find people who are doing it right to cut that inspection short.

And that is what the focused inspection was designed to do, but that is not a solution to the problem. I do agree with you.

MS. WILLIAMS: The suggestion that was given at that meeting was to start targeting the pulling of building permits. Has anyone started to evaluate that process because that would pick up everybody?

MR. ZETTLER: We have I believe certainly one and possibly two area offices that are running pilots on looking at building permits.

There are, of course, many localities that don't require building permits. Most of the larger concentrations do require it, but there are some that don't.

So all of our area offices wouldn't be able to do that in all of their jurisdictions -- within all of their jurisdiction.

I frankly don't know because I haven't had any kind of report on how that is working yet, but I don't know whether that is a cost effective or efficient way of targeting. I just don't know.

But I'll hopefully be able on the basis of what these area offices are experiencing will be able to find out whether that is a cost effective way of doing things.


MR. MASTERSON: I thought I heard you say that you were going to send us somewhere in the neighborhood of 60,000 surveys to employers more than --

MR. ZETTLER: That is -- no, we are not going to do that. That is merely a proposal for the 2001 budget. It's not anything -- I mean, there is no certainty that that's going to happen.

MR. MASTERSON: Then, I would suggest that maybe you look at sending out 30,000 of those to employers with fewer than 10 employees and start getting some information on those employers if that's where all the fatalities are occurring.

I get every year from the BLS multitudes of those surveys. And my people aren't the ones being hurt.


MR. SMITH: Well, I was just asking, if in fact you had the information, would you do this, make the inspections?

CHAIRMAN BURKHAMMER: That may be a good ending. That's a great segeway to an ending of the day.

We would like to know if there is any public comments prior to adjournment?

MR. MOTT: I already know I've got a three-minute warning.

I'm Bill Mott with Huber, Hunt and Nickles Construction.

We are a large contractor. We can afford most of the things you all have been talking about. But I have kept track about five times today that the agency has said that it is not cost effective, we don't have it in the budget, we don't have the money.

Those same considerations don't seem to be addressing the construction population. In other words, it's an easy out for OSHA to say we can't afford it, we can't do it, it's not in the budget, but you can impose these things on contractors without any reference to budget or cost.

And I think, you know, what is good for the goose is good for the gander. And I understand where you're coming from. You don't have the budget. You can't do it.

But I think that ought to be in on the formula and when you're addressing these other concerns.

And I suppose it is at some point in terms of cost effectiveness, but this multi-employer thing is also another -- we've been beating this to death. All of us understand all the different factions and aspects of it.

But one thing that stood out this morning in terms of the check list and the criteria for determining whether or not to get to the point where the CSHOs have a check list to decide whether to cite multi-employer or not whether they have an effective safety program.

The contradiction there I can see in the written form is if you ever get a check list, if you ever determine whether or not they meet the effective safety program criteria, that will be in contrast with you are not even required to have a written safety and health program yet.

So I see some problems between if you have an owner that says you don't have to do anything for safety and no obligations under the contract documents as opposed to an owner that requires you to have a CSP with 10 years experience and all this stuff, that how is the CSHO going to gauge whether or not your contract document requires you to do more or less?

And that is going to conflict with the standard that doesn't exist for safety and health programs.

But more than that, everybody has talked about, we have brought it up several times about Washington state is doing.

Washington state has a check list on their multi-employer, control employer philosophy.

And we have submitted that. Felipe, I think you've got it. And I just wondered if anybody has really addressed that. We have given it to federal OSHA, the labor and management group in Washington state.

Even, we went up there. And we are doing the mariners now. And when we first went to town, we thought this is a totally union dominated state plan which it is in some respects. And I thought this is going to be difficult.

And you know what I found out? It isn't so difficult. What I found out is that labor and management, the contractors there, they have accepted that program. It had a check list and a benchmark. And the CSHOs are reasonable. We want to go back to what we were talking about reasonable.

And there seems to be a general understanding of any group you go to as to what is expected and what isn't. And I think under their fairness doctrine, the contractors know what they need to do.

And I'm just wondering if there has been any real investigation into that state plan. There is a state plan representative on the committee here.

Is that --

CHAIRMAN BURKHAMMER: They are both absent today.

MR. MOTT: Okay. Well, I would ask that you get with these people. And whoever it is that represents Washington state, that I think some of our answers might there, I really do.

I think they have already been through that mill. California is starting through it now with their multi-employer policies that they have just enacted out in California. And they are looking to Washington state to come up with criteria to be fair and just.

So I think with that, I'll -- I'm through.

CHAIRMAN BURKHAMMER: Thank you very much.

Carl, did you have your hand up or are you waving goodbye?

MR. HEINLEIN: I have two questions. My name is Carl Heinlein. I am the Director of Safety with the Associated General Contractors of America.

I was wanting to find out if we can have some clarification or some information on the current recordkeeping standard and how that will impact the construction industry seeing that it seems to be on a very fast timeframe and it will impact the folks that are represented here.

The second thing is if we can have some information on the most recent partnership with the Insulation Manufacturers Association, again impacting the construction industry and we would like to find out where that stands. And how that impacts the regulated construction community.

That's it.

CHAIRMAN BURKHAMMER: Those are two good questions. Thank you, Carl.

MR. HEINLEIN: Thank you.

CHAIRMAN BURKHAMMER: The 1904 when I talked to John Franklin yesterday. A couple of us talked to John yesterday. The 1904 is on track. And remember, Noah's terminology for on track. I think that is important.

John said that the 1904 is on track to come out some time in the October or November timeframe of this year with possibly a six-month understanding period.

So we could be looking at the first quarter 2000 for implementation of the revision to the recordkeeping standard.

Now, that again, I appreciate Noah's terms of the timeline in OSHA, but I think that is kind of what John's group is shooting for.

And the second question that Carl brought up, Berrien, do you have a --

MR. ZETTLER: I presume you are talking about the fiberglass memo.

MR. HEINLEIN: Fiberglass.

MR. ZETTLER: Memo, actually it's a memorandum of understanding with the fiberglass manufacturers. Frankly, I do not -- I have not caught up with that. I don't know.

I do believe that that is one of the points which Mr. Jeffress intends to address tomorrow. I don't know how much detail he's going to go into, but I believe it is on his list of topics to talk about.

CHAIRMAN BURKHAMMER: If not, I think we can pose the question, Larry. Would you take that into consideration of asking that if we don't have a response tomorrow?


MS. WILLIAMS: Mr. Chairman, I had asked that recordkeeping status be on the agenda. And I was advised yesterday in the directorate's office that that could be a question to be directed to Mr. Jeffress in his comment portion, more specifically, not where it was, but to what degree have the changes been made that was recommended by public comment?

CHAIRMAN BURKHAMMER: Will you take that as an action to bring up as a question tomorrow?

MS. WILLIAMS: Yes, I will.

CHAIRMAN BURKHAMMER: All right. Let's talk about the agenda.

Oh, we have one more. Carl.

MR. HEINLEIN: No. I was just thanking you.

CHAIRMAN BURKHAMMER: Okay. You're welcome.

Tomorrow, we are going to start at 9:00 a.m. per the public record that went out that said we start at 9:00 a.m. Some of us probably wouldn't mind starting at 7:00 a.m., but 9:00 a.m. will be fine.

We are going to start with Jane and ACCSH responsibilities. So again, committee please come prepared for that one.

We will have roughly 40 minutes of discussion. Hopefully, we can get it in at that time. If not, we will carry the discussion over after the Assistant Secretary Jeffress' presentation at 9:45.

And then, after Mr. Jeffress, we will go into the multi-employer discussion. And it will -- when we finish multi-employer and wherever we go with that, that will adjourn the day.

Also, I would like you to look at your calendars tonight. I want to set the next two committee meetings.

We seem to constantly have a problem with dates and getting the dates out to the public and has changing dates. And I get letters that say we screwed up and didn't give them enough notice.

So I would like for you to look at your calendars and look at September, the week of September 14th and the week of December 7th for the last two meetings of the year.

MS. WILLIAMS: Did you say 7th?

CHAIRMAN BURKHAMMER: December 7th and September 14th. So come prepared tomorrow. If you've got alternate dates, please bring them.

MR. COOPER: These are the last meetings of the year.

CHAIRMAN BURKHAMMER: The last two meetings of the year.

MR. SMITH: What is the last?

MR. COOPER: You are going to hold them back to back?


CHAIRMAN BURKHAMMER: Do you want to go 7th, 8th, 9th? And then, the next week, we can stay over the weekend, you know.

No, I mean, we've got a lot of things on our plate to do. And I think we need two more meetings this year to accomplish some of the things we need to accomplish. So --

MR. SMITH: Stew, what was the last meeting, not September but the other one?

CHAIRMAN BURKHAMMER: The September 14th, 15th, 16th, and 17th, December 7, 8, 9 and 10.


CHAIRMAN BURKHAMMER: I will also accept all other dates if you wish to bring some.

So with that --

(Whereupon, at 4:45 p.m., the meeting was recessed to reconvene at 9:00 a.m., Friday, June 11, 1999.)


This is to certify that the foregoing proceedings of a meeting of the U.S. Department of Labor, Occupational Safety and Health Administration, Advisory Committee on Construction Safety and Health, held on June 10, 1999, were transcribed as herein appears and that this is the original transcript thereof.

Court Reporter