U.S. Department of Labor
Occupational Safety and Health Administration
Advisory Committee on Construction Safety and Health (ACCSH)
Thursday, May 4, 2000

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

Moffitt Reporting Associates
(301) 390-5150


Advisory Council Members Present:

Stewart Burkhammer

Michael Buchet
National Safety Council

Stephen J. Cloutier
Jones Construction Company
Charlotte, North Carolina

Stephen D. Cooper

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

Larry Edington
International Union of Operating Engineers

Robert Masterson
The Ryan Group, Home Building

Harry Payne
Commissioner of Labor, North Carolina

William Rhoten
United Association of Plumbers and Pipefitters

Russell B. Swanson
Designated Federal Official

Marie Haring Sweeney
National Institutes of Occupational
Safety and Health

Jane F. Williams
Agency Safety Resources Consultant



Call to Order
Minutes for February 2000 ACCSH Meeting
Stewart Buckhammer

OSHA Form 170
Stephen D. Cooper
Jane F. Williams

Data Collection
Michael Buchet

Musculoskeletal Disorders
Marie Haring Sweeney

Hexavalent Chromium
William Rhoten

Carolina Star Programs
John R. Bogner

Subpart N - Cranes
Larry Edington

Process Safety Management
Stewart Buckhammer

Safety and Health Program/Training
Stephen J. Cloutier
William Rhoten

Fall Protection
Felipe Devora
Robert Masterson

Noise in Construction
Marie Haring Sweeney
Felipe Devora

The Rule Making Process
George Henschel
Claudia Thurber
Marthe Kent

Workers' Home Page, OSHA's Internet Site
Susan Fleming

Public Comments
Charles Maresca
James H. Suttle


(9:02 a.m.)


Call to Order

CHAIRPERSON BURKHAMMER: Good morning. Welcome to the ACCSH meeting. We'd like to go around and introduce the members of ACCSH that are present. Bill, will you start, please?

MR. RHOTEN: My name is Bill Rhoten, I'm with the United Association of Plumbers & Pipefitters.

MS. WILLIAMS: Jane Williams, Agency Safety Resources Consultant.

MR. BUCHET: Michael Buchet, National Safety Council.

MS. SWEENEY: Marie Haring Sweeney, NIOSH.

CHAIRPERSON BURKHAMMER: Stew Burkhammer, Bechtel.

MR. SWANSON: Bruce Swanson, designated Federal Official.

MR. CLOUTIER: Steve Cloutier, Jones Construction Company out of Charlotte, North Carolina.

MR. MASTERSON: Bob Masterson, The Ryan Group, Home Building.

MR. COOPER: Steve Cooper, Ironworkers.

MR. PAYNE: Harry Payne, Commissioner of Labor, North Carolina.

MR. EDINGTON: Larry Edington, International Union of Operating Engineers.

MR. DEVORA: Felipe Devora, Fred's Construction Company, Safety Director, Houston, Texas.

CHAIRPERSON BURKHAMMER: Welcome, group. Now we'd like to go through the audience. Charlie, would you start, please?

MR. MARESCA: Charley Maresca, Associated Builders & Contractors.

MR. SUTTLE: I'm Jim Suttle, Executive Vice President, HDR Engineering & Architecture in Omaha, Nebraska. Thanks for having me as your guest.


MR. BRIGHTUP: Craig Brightup with the National Roofing Contractors Association.

MR. HERZOG: John Herzog, Air Conditioning Contractors of America.

MS. ABRAMS: Adele Abrams, Patton Boggs, Washington representative of the American Society of Safety Engineers.

MS. FOWLER: Shantelle Fowler, BNA.

MR. FINN: Pat Finn, Department of Energy.

MS. ARIOTO: Liz Arioto, L.E. Wentz Company.

MR. STROTHER: James Strother, Sheet Metal & Air Conditioning Contractors.

MS. TRAHAN: Chris Trahan, Building & Construction Trades Department.

MR. BOGEN: John Bogen, North Carolina Department of Labor, Star Program Manager.

MR. BROWN: Tony Brown, Kenny Construction Company.

MR. POPE: Tom Pope with OSHA.

MR. CUMMINGS: Hal Cummings, DTI Associates.

CHAIRPERSON BURKHAMMER: Very good. Thank you very much. Before we start, Marie, would you lead us in a moment, please?

MS. SWEENEY: Two weeks ago three construction workers were killed on a bridge site in Peoria, Illinois. There are also others that were killed as well and we'd like to just have a moment of silence for those workers who were killed in the last couple weeks.

CHAIRPERSON BURKHAMMER: Let's observe a moment of silence for these workers.


CHAIRPERSON BURKHAMMER: Thank you. We'd like to ask Michael -- I guess I won't ask Michael, he disappeared. If you'll open your packets and get out the minutes from the last advisory committee meeting, which was held at Chicago in conjunction with the Chicago Safety Counsel Construction Conference. Mr. Rhoten?

MR. RHOTEN: Let me find my notes here. Or without them, at that last meeting, I think those minutes reflect that there was a motion made as that I act as a liaison to the OSHA Training Institute and that's an error. There was actually a suggestion made that wasn't acted on and I think that if we need a liaison to the OSHA Training Institute, it probably should fall to the standing Training Committee that we have now, if that's what the committee would like to do.

Also in the minutes it reflected that there was a motion made that I chair a committee that would work with the OSHA Training Institute to try to put together a system that would give more credibility to the ten-hour OSHA card system. That is, they would be numbered so that people could verify that they had taken the courses.

Joe Durst with the carpenters is interested in that and I think that also should be with the standing Training Committee for examination and action.

CHAIRPERSON BURKHAMMER: If the Committee would turn to Page 4 of the minutes, what Bill is commenting on is highlighted in about the middle of the page there, where it says "A new workgroup was formed to examine..." Bill and Steve Cloutier have both talked to me about merging that and dropping that new workgroup and merging it into the existing Safety & Health Training Program Workgroup. If there's no objection from the Committee?

(No response.)

CHAIRPERSON BURKHAMMER: Seeing none, agreed. Bill will do that and we'll eliminate this new workgroup and merge it into the existing workgroup that you and Steve Cloutier -- any other comments on the minutes from Chicago, Mr. Cooper?

MR. COOPER: There were a group of Advisory Committee members who went from this meeting, the middle of this meeting over to the OSHA Institute and spent approximately three or four hours with the OSHA Institute concerning the manner in which training was being handled by the Institute.

I think it's very important that the minutes reflect that this Committee participated with the OSHA Institute as it relates to training and their budget.

I had mentioned that to the Directorate, someone within the Directorate, that that should be included in the minutes and I do not see it in the minutes.

MR. SWANSON: Does the Committee wish for that to happen? Is that's the consensus, we will cause that to happen.

CHAIRPERSON BURKHAMMER: That's what the consensus seems to be. If we could add that maybe between the comments that are highlighted on Page 4 and the testimony section, put a paragraph in there about the visit to the Institute. Thank you, Steve.

MR. SWANSON: Thank you.

CHAIRPERSON BURKHAMMER: Any other comments on the minutes, Jane?

MS. WILLIAMS: Mr. Chairman, on Page 3 we talk about a motion to break workgroups into two-hour sessions instead of four. That may not be able to happen at all times and it's my understanding that we would consider two-hour meetings, but there certainly will be opportunities where we have two, four or eight, so I would not want this motion to infer that the workgroup terrace would not have any flexibility.

If that's understood, we would not need to change this.

CHAIRPERSON BURKHAMMER: Well, not having been there, Michael, was this a motion that was made, seconded and approved?

MR. BUCHET: Yes, it was, though I don't know that we were making the motion with the intent of making every workgroup meeting from then on two hours. My sense was we were talking about coming back here to D.C. and trying to catch up.

Maybe the motion needs to stand as it's made because that was the discussion and the motion and we all voted on it and then we'd have to address the issue of scheduling all over again because some workgroups simply can't accomplish what they need to accomplish in a two-hour time slot and it may be that we have to find some other way.

We have people -- I wouldn't say "over-assigned," that would imply that the -- let's say we're stretched pretty thin and it's difficult to get everything done in two days without either working straight through the day with two hours and then taking the other day for your four-hour or six-hour.

MS. WILLIAMS: Mr. Chairman, I think we can accomplish it by just stating after -- instead of four hours, "whenever possible." That was the intent of the motion as we had understood it and I think if the minutes could just reflect "whenever possible," which is what Michael's understanding is, that we would in fact be in agreement with the guidelines.

MR. BUCHET: Mr. Chairman --

CHAIRPERSON BURKHAMMER: I think to be clean on this, since it is stated and you remember it as a motion and seconded and approved, I will entertain a motion to change the wording so we have a corrected motion seconded and approved regarding this, so there's no misunderstanding of what the motion was.

Michael, if you'd like to make a motion as to what your remembrance of it should be, or Jane, either one.

MR. BUCHET: May I consider that a second while looking at the explanatory --


MR. BUCHET: -- sentence that says "This motion was made some that ACCSH members can participate in multiple workgroup sessions during the main meeting."

I understood the intent when the motion was made was to address the issue of this meeting, not future meetings and we can either try and retool this or we can let this one go, because it hasn't taken place.

We have more than two-hour workgroups here and then I think we have a bigger discussion as to how we schedule these meetings in the future so that we can get to all of them, not only so that we can get to them, but we have workgroup attendees who need to participate in multiple workgroups and they're left to choose or to try and run between.

I don't think changing -- changing the wording will simply say that we have a problem, it won't solve the problem.

CHAIRPERSON BURKHAMMER: Jane, I think what I'd like to do during the day today, if all of the workgroup reports do not run long, we will ask you to make a short presentation on this which would cover what we've just talked about.

MS. WILLIAMS: That's fine. Thank you.

CHAIRPERSON BURKHAMMER: Does everybody on the Committee have the hand out that Jane gave us this morning? Is there anybody that didn't get that? The Advisory Committee Guidelines? Keep that handy, we'll be pulling it out later.

Any more changes to the minutes from the February meeting?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none, do I hear a motion to approve, with amendments?

MR. COOPER: Motion from Steve Cooper to approve.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Cooper. Second? Larry?

MR. EDINGTON: Second. As amended.

CHAIRPERSON BURKHAMMER: As amended, correct. Any discussion?

(No response.)

CHAIRPERSON BURKHAMMER: All in favor of approval of the February minutes as amended, signify by saying aye.



(No response.)


(No response.)

CHAIRPERSON BURKHAMMER: Approved, as changed. One of our Advisory Committee members, Danny Evans, is not with us today and I'd like to note Danny has cancer and is not doing well, so if we could keep Danny in our prayers, we'd appreciate it and I know he would appreciate everyone thinking about him and hoping for a great improvement in his condition.


CHAIRPERSON BURKHAMMER: The first workgroup report, Jane and Steve, OSHA Form 170. We have a hand out or you can get it out of your binder.


OSHA Form 170 Workgroup Report

MR. COOPER: You'll find in front of you hand outs from the rough draft that we have for OSHA Form 170, which is a form which compliance officers would use when investigating fatalities.

In the past, over the last few decades I might add, we've had some problems with the information that has been derived from the reports and the type of report that OSHA is presently using.

We had a workgroup meeting, which was chaired by myself and Ms. Williams of this Committee on May 2, 2000, last week -- this week, 15 were in attendance from the Directorate, Office of Management Data Systems, various other workgroups and the chairman of this Committee was in attendance, Marie and Mike, who chair the Data Collection Group, were also in attendance. It was a very good meeting.

The workgroup will concentrate on construction language and occurrences for Sick Codes 15, 16 and 17. Our concern with this committee is that the form that we are trying to develop for fatalities for OSHA compliance officers is clear, concise, to the point and still gets us the data that we need.

We are concerned that this type of governmental form can be lengthy and can be brought forth in a matter in which compliance officers might not fill the form out due to its length.

We've even had discussions that we've got to be concerned that it's not like the new census form that's traveled around this nation and which no one will fill out.

We had representatives from all different areas, as I said, this was a very good meeting. We are trying to get data back to OMDA, which is the computer people who put all this language in, trying to get this back by August of this year into a preliminary form and hopefully, a final form later this year.

This will include master coding and computer support functions in which if a particular fatality occurs, the computer would branch out off of a particular area and go into another area in which more specific questions could be asked.

It sounds like a simple measure, just bringing forth a form, but as it travels down the road, we have the Bureau of Labor Statistics involved, we have all other agencies involved in the government and it gets to be time consuming.

But we intend to get this work done and we intend to get it done in a manner in which the form can be used and gather very viable information for this agency and this committee so we can identify where the problems are happening, what skills were involved, all the other data.

We want it to be concise and I will end by saying we are very concerned about a realistic form, a concise and to the point form versus 20 pages of rhetoric which will not give us the data that we need.

Jane Williams may have a few other comments on this.

MS. WILLIAMS: I think that I'll just agree with everything Steve said. The meeting was very productive. We're looking forward to working with Data Collection to be sure we pick up their general requirements, capture the data that they're looking for and it's a very aggressive schedule, to have it done by August, but we're certainly going to try to provide the specification language to the OMDS so that they can in fact look at their next year resourcing to support our activities with the Directorate.

CHAIRPERSON BURKHAMMER: Thank you. I thought you had an excellent meeting with a lot of good dialogue. I know you will make the August deadline.

Data Collection, Michael and Marie?


Data Collection Workgroup Report

MR. BUCHET: Thank you, Mr. Chairman. If everybody takes a look, you should have received a copy of the working notes from the Data Collection meeting.

No? You should have gotten Data Collection also. If you haven't -- please take a look. You haven't got May 3, 2000 Data Collection and Targeting Workgroup.

Because that workgroup did not meet at the February ACCSH meeting in Chicago, we had a brief recap of our charge, where we had been and where we were going.

The constant refrain in Data Collection is that we need to know more to understand the difficulties of gathering data for OSHA and that sounds like a sour note and an old song, but it is an incredibly complex problem which makes our cooperation with the 170 Form workgroup all the more amazing, because they are on track and on target to get something done and in the field that is user friendly and useable rapidly and we seem to be the ones who are holding the process up by going but, but, but, but.

There are several reasons for the "buts." No matter how good the collection tool is, if the information gathered is not stored in a sort of standardized retrievable form, part of the useful information that could be gleaned from looking at the incidents in the field will be lost simply because of the complexity of the process.

We are going to do our best to make sure that the form goes forward on the form workgroup's schedule, while making suggestions to OSHA on how to be able to transition that to an improved data collection system and we only touched on that slightly.

Everybody remembers that we did a review of the NACCSH code because sick codes are going to disappear in maybe five years, maybe three years and the NACCSH will supplant them.

There is a new draft of the NACCSH out, we will have to look at that and find out whether a discussion of sick codes is something that needs to take place or whether we need to say to OSHA start working on the transition because it's going to be here before we're ready.

In keeping with all that sort of background information, we had scheduled a couple of presentations for the workgroup.

Don Peterson returned to answer questions that we asked of him when he came and made a presentation here in December. He has done his homework. One of the issues for OSHA is efficient targeting of compliance resources.

Mr. Peterson used to work for the Bureau of Labor Statistics and spent a lot of time working on Workers' Compensation data and believes that there is a way to harness Workers' Comp experience modification rating data, at least for construction companies in the various states assigned risk pools, to assist OSHA's targeting effort and he brought to this meeting a review, because not all of us at been at his first meeting, and then started answering our questions.

What we found out is we need more information. There certainly are some interesting possibilities once you get the experience modification rating data for a given area, there is a weighting system that will allow you to rank -- certainly at least one system for allowing you to rank the companies and prioritize which ones you might like to look at.

The next question becomes how do I know after I've ranked the companies on this historical data that they're actually working on a job Monday of next week so I can drive out there and inspect it. Mr. Peterson is working on that.

The next group that came in, F.W. Dodge, which is part of McGraw-Hill's growing information empire, brought a team of three people to talk to us about how F.W. Dodge collects information in the construction industry.

For those of you who were there, I hope you agree that it was astounding to hear the amount of energy and resources and people they have involved in that effort. They have a budget for -- as I understood it, for the collecting of construction information of 34 million bucks a year.

They spent a good deal of time telling us what they captured, when they captured it, how time-sensitive it was and they also very frankly went and explained to us what they don't capture, but they're looking at capturing.

I realize that there are limitations. We have agreed, and you can look at the notes for more detail, we have agreed that we will continue an ongoing discussion with F.W. Dodge. They are receiving pressure from a number of consumers, OSHA being one, to refine the information that they collect on construction.

One of the things that they don't collect routinely is subcontractor information after the jobs start. If they capture it through bidding documents, they have it and they keep it there, but they don't make a concerted effort to go to a job site once it's started to find out what subcontractors are there.

For the data collections purposes and certainly compliance targeting and for targeting interventions in the future, knowing what subcontractors are there and the mix of subcontractors by job type seems like it would be a very useful sort of information to capture.

We had some general discussion at the end, the session ran long, one of the Dodge guys had to leave to make his airplane, two of them stayed on and they may still be waiting to catch a flight because they left late.

We had, as I said, a promise to keep this conversation going. Marie, have you got anything you'd like to add?

MS. SWEENEY: You've covered it all.

MR. BUCHET: I've covered it all. Thank you, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Thank you, Michael. Excellent report. Any discussion on Michael's comments by the Committee?

(No response.)

CHAIRPERSON BURKHAMMER: The next report is on musculoskeletal disorders, the same two co-chair.


Musculoskeletal Disorders Workgroup Report

MS. SWEENEY: Good morning. We had a fairly lively meeting yesterday, but it wasn't too contentious, as it had been. Michael started out talking about some of the activities that went on at the conference in Rosemont and made the comment that he thought it was really good for ACCSH to get out into the field and talk to people that we represent and get their input and let them know who ACCSH is and what we do. He suggested that ACCSH get out in the field more often.


MS. SWEENEY: We had a couple of -- apparently at the meeting, and I was not there in Chicago, there was a discussion regarding the draft document on MSD and its presentation on the OSHA web site. We didn't have a whole lot of discussion at the meeting on that.

One of the questions of the attendees was what will the MSD workgroup do in the future and Michael and I have talked about this at length and we are committed to soliciting from the public, from employers, from employees useful and successful interventions and solutions that people have implemented on their job sites relative to preventing musculoskeletal disorders.

At the minimum, they could be anecdotal, but right now we haven't received much and I know we've been asking for that information for over a year.

We'd also like to have information on unsuccessful interventions that were tried, but in terms of the successful ones, we're interested in a couple of things: did you reduce the risk for Musculoskeletal disorders; did it perhaps increase productivity; did it perhaps increase morale; what were the positive aspects and what were the negative aspects; what in fact did happen; and could it be transferred from one job site to the other.

There was also some discussion about the workgroup creating a series of ergonomic modules to be inserted and integrated into the OSHA ten-hour course and we're going to be discussing this at the next workgroup meeting.

In terms of the document too, it is our understanding from OSHA that they are working on the draft ergonomics brochure, document, whatever you want to call it, and we do know that somebody at OSHA is reviewing the contents and hopefully, we will be able to discuss what OSHA has been doing at the next workgroup meeting, talk to them at length, so we would like a representative from OSHA who is working on the document to participate in our workgroup next time.

One of the highlights of the workgroup meeting was a presentation by Mr. Larry Livertor, who is a member of the Maritime Advisory Committee for Occupational Safety & Health, it's called MACOSH.

MR. DEVORA: Question. You said "review the document." Are you talking about the document on the web page? What document are you talking about?

MS. SWEENEY: The document that was submitted to ACCSH on September 30.

MR. DEVORA: Right. The one that's on the web?

MS. SWEENEY: On the web. And any changes that they might recommend, what kinds of things they're doing, what information -- more information they might need. There might be a correction. Larry is a --

MR. BUCHET: Larry, do we need to correct your title for the record?

MR. LIVERTOR: I'm an OSHA employee on (inaudible).

MR. BUCHET: Right. But you still have responsibilities with the Maritime Advisory Committee for Occupational Safety & Health?


MS. SWEENEY: Was that picked up? Larry is an OSHA employee who is on detail to the National Safety Council.

Anyway, he spent about an hour talking about a labor, management, MACOSH, NIOSH partnership that has resulted in a study looking at high-risk jobs in the maritime industry that are causing musculoskeletal disorders.

This particular study started in fiscal year 1998 and it includes shipyards from Maine to Seattle, from Seattle to the Gulf Coast, as well as a couple of small employers in the middle of the country, say on the rivers. They build shipyards, they work for the Department of Defense, they build barges, small companies, small rehab companies.

The goal of this study was to develop guidelines for dealing with ergonomic problems and also developing workable solutions. The goal was not to develop a rule.

What has come out of this is that NIOSH went to each of the companies, each of the shipyard companies, and again, this was a partnership, evaluated OSHA 200 logs, talked to employers, talked to employees and also did an ergonomic assessment using standardized tools to evaluate and identify high-risk jobs.

Then also through this partnership, they recommended interventions or solutions to taking care of or reducing the risk factors related to musculoskeletal disorders.

According to Larry, they've proposed approximately 57 interventions and from my discussion with Steve Hudock, who is the project officer at NIOSH, they're evaluating these interventions right now, seeing whether or not they work.

The information in an interim report will be put up on the NIOSH web site for all to see. It's not up there yet and probably by the next meeting we'll have that up on the web.

But really, the focus of it was not -- it was not done on a regulatory basis, it wasn't generated because there was a regulation, but it was generated because both labor and management knew that this was a high cost problem, both from a Workers' Compensation position to a human toll, there are a lot of people getting hurt, so they felt that this was a prime opportunity to go into the yards, share information to reduce musculoskeletal disorders.

According to Larry, this isn't an industry that does a lot of collaboration amongst themselves, but they found out that this was really something that they needed to do in order to one, protect their industry, but also to make sure that workers were safe.

So next meeting we're going to ask a member of MACOSH, Larry Reid I believe is the chair, who works at NIOSH, and also the project officer from NIOSH, also a representative from one of the employer groups, as well as labor, to come to the committee meeting -- not the committee meeting, but to the workgroup meeting, and give us an update on the study, tell us what they're doing and tell us some of their successes and perhaps if they have some feelings as well.

Is there anything else of note that we need to --

MR. BUCHET: I suppose only the question would the committee be interested in having that presentation done at the full committee instead of the workgroup? We don't know. How -- an hour, Larry? An hour, hour and a half?


CHAIRPERSON BURKHAMMER: I think that would be well worth the Committee's time to hear that. Could we make a note to add that?


MS. SWEENEY: You were handed the notes from the meeting just recently, so that ends my report. Michael, if you have more?

MR. BUCHET: I have nothing to add, Marie.

MR. DEVORA: There was a question asked yesterday and I don't remember the answer and it's only been one day, but someone asked was there any more comments that we could add, if they could submit more comments to your workgroup or changes to the web page?

MR. BUCHET: The process is to submit comments to the workgroup and we received some from Lauren Wolf at the conclusion of yesterday's meeting and we'll discuss those at the next meeting.

After the workgroup discusses them, if the workgroup says we should bring them to ACCSH in the form of a motion, we will and that motion will be they should be added to the document that's on the web page or they should modify the document on the web page and then ACCSH gets to decide whether or not those comments get passed on, so we're more than willing to have comments and as we say, keep bringing those interventions in.


MS. WILLIAMS: Mr. Chairman, I would ask that if the OSHA Directorate is going to be giving any type of a status report on the working brochure, draft brochure or whatever, could that not be presented also at the full ACCSH meeting?

I would not want to miss the MSD meeting where that would be presented because I think that's something that would affect us all for discussions here.

CHAIRPERSON BURKHAMMER: I don't see any reason why we can't do that. We'll put that on the agenda for the August or September meeting.

MS. SWEENEY: Mr. Chairman?


MS. SWEENEY: Would you want to integrate that report as part of the workgroup committee report next time?


MS. SWEENEY: Okay. Thank you.

CHAIRPERSON BURKHAMMER: Any other discussion on the MSD report?

(No response.)

CHAIRPERSON BURKHAMMER: Okay. Thank you, Marie. Jane, I think now might be a good time for you to insert the discussion on the Advisory Committee on Construction Safety & Health Rules & Guidelines document and what you'd like us to do with that.

MS. WILLIAMS: After our Chicago meeting I took the comments that had been given to me to go through our guidelines and make recommendations to you for changes.

How this appears, the language that has a strike through is the existing adopted language. The language that is underscored is insert language for changes that have been recommended. There's no pride of authorship in this whatsoever, so anyone who would want a term changed, please just suggest it to the Committee and we certainly can do it.

I think if you go through this tonight and look at some of these issues, you will not have a problem with them. There are a couple, though, that I will just point out for you.

We had a great deal of discussion on what constitutes a draft report and it was the consensus that we eliminate the word "draft" because of the confusing that it's causing when something goes on the web, when it leaves a workgroup or when it's finally adopted.

The term that was suggested by most of you was, if you look on Page 2, you will see where we have struck "draft report" and we're referring to it as an "in process report." That is the report at the time that it's presented to ACCSH, to the Committee.

That report in its final form is not available to the public at that point in time, it has to be acted upon by ACCSH. Once that is completed, there will be several things that will occur.

One, if the Committee adopts it as it is, it goes to the Directorate, it's available and the Committee can request it go on the web site and they would do so by a cover document that would state who the chairman is, if additional comments are requested and can be processed or if it's a final, done deal, never to be talked again type of an issue.

If the Committee has comments that they wish to have incorporated and/or changes, the chair would then refer the document back to the co-chairs, who will edit the document, make the changes and then forward the corrected adopted report to the DFO so that it can then be made available to ACCSH and public request.

The key here is to be sure we get the right document in its adopted form out to the appropriate people who need this information.

Reports distributed by the Directorate will either be in written form or it can be put on the web site, as I said. We will have a cover sheet so the public, when they're reviewing a document, they will understand what its intent is, who to contact with comments and we can have a more streamlined information back into the workgroup process.

The other issues coming down, how we review reports, there really isn't much change in that. We do seriatim. Under the ACCSH meeting we just say "will be available." Most of these are practice type statements that we're going.

If you go to Page 6, postponed meetings, we have had a concern there, just clarifying that it is the Assistant Secretary who will approve the postponement of any scheduled ACCSH meeting.

The model workgroup agenda, Page 7, I've struck four hours duration, so the workgroup meeting shall be determined by the workgroup chairs and that's in keeping with our prior discussion, whether the work can be done in two-hour, four-hour, eight hours, whatever, so I think that will be okay.

The criteria, whenever we can serve notice of 45 days on workgroup meetings we will. It will be posted on the ACCSH web page, as we have said prior.

The co-chairs have the prerogative of presenting a formal written report to participants of their meeting or, if they wish to just give a verbal summary at the conclusion of that meeting, that will be up to the chairs. If they wish that report to go on the ACCSH web, then they would do a cover sheet and provide that to the Directorate so he knows what their intent is.

Going into meeting preparations, this is just how we go about arranging ACCSH meetings or not the ACCSH meeting, but the workgroup meeting more in particular.

Research meetings to get prepared for our meeting. Page 10 again reemphasizes the cover sheet process so we can inform people what we're doing and Page 11, any ACCSH meeting that is scheduled is approved, there's no one who really approves it, except of course the Assistant Secretary, so that language can be removed as it's showed here. The same way with the Government Travel Agency. It's the contract people we have to utilize.

You will see an insert that the ACCSH members will contact the Directorate of Construction to begin their travel authorization process. We've been doing it a little bit backwards, it has been getting confusing from members and causing a lot of problems in our travel arrangements, so what this is basically saying is that we will call Bruce's office, tell them that we have scheduled a workgroup meeting, he then can start the travel authorization paperwork process. They we go through contacting Public Affairs and go through all the stuff that we're doing.

The last item is just eliminating the airline ticket information, which we no longer are doing. Everything is electronic and these changes are just bringing into it compliance with the procedures of what we're doing for those of us who travel out of state or out of the Beltway.

Mr. Chairman, that's most of it. I think if the Committee would like to look through this later and digest it, we could come back with a motion or comments for the changes.

CHAIRPERSON BURKHAMMER: I have a question. If you look at Page 2 and Page 8 at the same time, I'm not quite sure I understand the difference between an in process report and a meeting summary report.

MS. WILLIAMS: At the end of the meeting, typically in a workgroup meeting, as we did with 170 yesterday, we gave a verbal summary of all the action items that we had discussed so that participants of the meeting knew exactly what the next steps of the Committee were going to be.

That was just a detailed summary that I did in lieu of formal meeting minutes to go to all the workgroup people. We do have a report that came here to ACCSH which we reviewed earlier, but it is not my intent to copy everyone in the 170 workgroup meeting with the details that came to this meeting, so I provided a verbal summary.

The in process report would be -- an example is our infamous MSD report. Once it was adopted, it is still an in process document, Marie may still wish to have additional comments, so it's not a conclusive, final document.

I certainly will entertain any other terms to make it clear what we're trying to achieve here.

CHAIRPERSON BURKHAMMER: So your 170 report you and Mr. Cooper presented earlier falls under Page 8?

MS. WILLIAMS: That is correct.

CHAIRPERSON BURKHAMMER: And Marie, yours on MSD falls under Page 8?

MS. SWEENEY: It's a final document, there will be no changes to that report.

MR. BUCHET: What we have done with the Committee splitting hairs with workgroups that we co-chair is to provide what we've called notes, I think fairly consistently throughout, and have tried to make them the basis of this oral presentation for the full ACCSH.

They don't rise to the level of something as formal as the document that was sent to OSHA as a model, but they certainly could be posted on the web for the workgroup, as far as we're concerned.

CHAIRPERSON BURKHAMMER: My point here is trying to find out in the first reference on Pages 2 and 3, if these are considered in process reports, then the ACCSH full Committee has to vote to adopt the report and then if I turn it over to the DFO. If it falls under 8, it requires no vote of the Committee and it's a workgroup working document.

MS. WILLIAMS: That's how I see it.

MR. BUCHET: Our meeting notes are final. We're not going to -- we won't review them at the next meeting and say okay, does anybody want to make changes to the content.

But we would like to post them on the web so that there is a fairly simple and efficient access for people who want to find out where we've been and where we intend to do because we do state where we intend to go in some of these notes.

But it is not a work product that needs to be recommended to OSHA.

MS. SWEENEY: Mr. Chairman, if I may?


MS. SWEENEY: On Page 7, one thing under the notes model workgroup agenda, third from the bottom with the little check box, it's a summary or action item of current meeting, which Jane was saying is a verbal summary.

Really, what those notes do is reflect a verbal summary in a written form. It also helps us to know what we have to do for the next meeting. It's really just kind of things that went on.

You might want to add that as another check box and say it's written meeting notes, they're not required and I would suggest that they not be, but as an option of the chairs.

MR. BUCHET: Why not simply call them summary notes or meeting notes or meeting summary, leave the form up to the chair and the workgroup to decide on and then allow the workgroups that would like them posted on the ACCSH portion of the web to post them?

CHAIRPERSON BURKHAMMER: You're allowed to do that under 8.

MS. WILLIAMS: That's correct.

CHAIRPERSON BURKHAMMER: So if we called these three documents status reports, which is what Page 8 describes, that's fine, you can do with them what you wish.

MS. WILLIAMS: Okay. Status report.

CHAIRPERSON BURKHAMMER: Discussion on Jane's comments? Larry?

MR. EDINGTON: Let me ask a question for my own edification. It's always been my understanding, in terms of my responsibility as a workgroup co-chair, that I don't have an absolute obligation under our rules to produce, if you will, formal minutes and I want to make certain that we're clear we're not creating expectations that there will be formal minutes from every workgroup meeting and that they're made both available to members of ACCSH, as well as posted on the web site, if we thought it were to be appropriate.

With my workgroups, we've been working relatively informally, we have been producing what I would characterize as a document which summarizes the activities of our meeting and in some instances may lay out what we hope to accomplish on an interim basis, work assignments, et cetera. We've done nothing more than that.

CHAIRPERSON BURKHAMMER: You're right. That's also under 8, it says either in writing or verbally, so you're all right there also under 8. Michael?

MR. BUCHET: Mr. Chairman, I wonder if we come up with a more neutral name for whatever this activity is, if we call them status reports, then they seem to become a formalized part of the process.

Maybe chairman's notes or chairman's summary, something that sort of puts them in the -- that indicate by the title that there is a prerogative involved and if the chairman doesn't do it, the chairman doesn't to it and that's the workgroup's issue.


MR. CLOUTIER: Mr. Chairman, may I suggest we use the wording "progress notes"? What concerns me, if you go to Page 7 of the document and we have the model workgroup agenda, if you run down the check list, it gets to be more of a formal meeting, formal requirement and you lead into that trap of the "report."

CHAIRPERSON BURKHAMMER: Is progress notes acceptable to everybody?

MR. CLOUTIER: And if you go to Page 2 and say workgroup report or say it's progress notes at the time of the presentation to the ACCSH Committee unless there's a formal recommendation from the workgroup to the full Committee to be voted on.

Because we've seen this go full cycle. We used to have very formal meetings, back end formal meetings and we're pushing more and more to a formal status report and posting an additional thing.

I think we could call these progress notes that happen at a particular workgroup meeting.

CHAIRPERSON BURKHAMMER: Is progress notes acceptable to the Committee? Mr. Rhoten?

MR. RHOTEN: Just a comment. It would seem like sometimes the issue of the Committee would dictate where you need a formal situation or a less formal situation.

Some of the issues have been pretty heated and there's been a lot of opposition and in those cases it seems like you need some kind of a paper trail of sorts to define where everybody is at, but if you come back with a consensus, it doesn't seem to be like it needs to be too formalized.

CHAIRPERSON BURKHAMMER: That's the prerogative of the chair, to be able to create whatever you think is appropriate.

Hearing no objection to progress notes, Jane, would you make that correction?


MS. SWEENEY: Mr. Chairman, another issue?


MS. SWEENEY: This in process report, I'm sort of confused and I think I'd like to have some explanation on it.

I thought that when the workgroup presents a report to the ACCSH, to the full ACCSH and it is accepted by the ACCSH, it really is not in progress, it is a final product of the workgroup.

MS. WILLIAMS: Once adopted, that's correct.

MS. SWEENEY: Once, adopted, that's correct.

MS. WILLIAMS: That's correct.

MS. SWEENEY: Now, it's my interpretation of this verbiage here, "in process" means that it is either being written by the workgroup or it's presented by the workgroup to the full Committee, but the full Committee has not accepted it and it's basically a draft that goes back and forth. Is that what we're talking about?

CHAIRPERSON BURKHAMMER: Yes. If you'll look on Page 3, at the top there where she defines the in process report with amendments or changes, we make the changes and amend it as the Committee chooses to do.

The chair then sends it back to the workgroup for final correction or we can forego that, at the chair's prerogative and turn it over to the DFO at that time, as amended during the workgroup during that session, so it's an either/or.

MS. WILLIAMS: The reasons, too, we had said that it would be referred back to the chair was not to put the Directorate in the position of interpreting comments, so we were in control.

CHAIRPERSON BURKHAMMER: Yes, I know. But there's been certain times when we've made motions and the motions have had amendments made to them that make wording corrections in the document that we made at that time and give the corrected document to the DFO after the final vote.

We don't have to refer it back to the Committee to make minor word changes, it's major corrections that we would send it back for.

MS. WILLIAMS: That's true.


MR. MASTERSON: I may be slow, but am I understanding that you're suggesting putting documents that are currently being worked on by workgroups on the web page?

MS. WILLIAMS: That's the prerogative of the chair.

CHAIRPERSON BURKHAMMER: If the workgroup chair wants it that way. It's up to them, it's their call.

MR. MASTERSON: And this is before it's been presented to the full Committee and accepted?


CHAIRPERSON BURKHAMMER: No, no. Only after it's presented to the full Committee can it go on the web page.

MR. MASTERSON: So then it's a completed document.

CHAIRPERSON BURKHAMMER: It's an accepted document.


CHAIRPERSON BURKHAMMER: Any other discussion?

MR. DEVORA: One question.


MR. DEVORA: An example that comes to mind, the MSDS that's on the web page right now, we're saying that we're still soliciting comments for that. Is that an exception to this final product?

MR. BUCHET: That product was turned over to OSHA and maybe the word "draft" is misleading. It has not been edited for periods, commas and not all the misspellings have been caught in it.

It is a complete document, it stands as it exists. It was given to OSHA as a model or as material for them to generate and then we did a show and tell. We held up examples of what were supposed to be generated from that draft.

The workgroup's charge to continue soliciting material and information has gone on, it went on before that document was created, it went on in the last charter and will continue to go on and we are reaffirming that.

What we are saying is that there is a mechanism, if a better mouse trap comes down the road and we need to get that on Page 17 of whatever the final product is, there is a mechanism for getting the better mouse trap, looking it over, getting a consensus of ACCSH that yeah, that really probably is a workable solution for our industry and giving it to OSHA.

Now, remember, the document that OSHA creates, when it creates it, may or may not include what we send along. We are simply fulfilling the obligation to continue to collect and give good advice to the agency.

CHAIRPERSON BURKHAMMER: I think we have -- and correct me if I'm wrong, but there's three workgroups who have completed their work and submitted their documentation to OSHA, but are ongoing for research continuation, working with OSHA. MSD is one, multi-employer is one and sanitation is one.

Those are three things that are ongoing that have the potential for updates or changes, depending on new information or incoming data or new toilets or whatever comes out of the deal.

They can change those and supply new information to the Directorate, who again, as Michael said, has the option of accepting or not accepting what we supply, but those three workgroups are continuing.

MR. DEVORA: Okay. It was just, like you said, the word "draft." It's the final draft, it sort of leaves that impression.

CHAIRPERSON BURKHAMMER: And it really is a draft. We're giving a recommended draft to the agency to determine then -- for them to determine what they wish to do with the draft.

Any other discussion on the notes and changes that Jane has made? If you take a few minutes and look through it and see anything in there you want to talk about, bring it up.

MR. BUCHET: Mr. Chairman, are we going to do this now or I thought we were giving this as homework and we'll finish it up tomorrow?

CHAIRPERSON BURKHAMMER: That's fine. We can do it as homework and we can finish it up tomorrow. That's fine. Not a problem.

Hexavalent Chromium. Owen is not here, Bill, would you take that, please?

MR. RHOTEN: Sure. Mr. Chairman, I've opted to give you a very brief verbal report.

CHAIRPERSON BURKHAMMER: That's fine. Sometimes brief is good.


Hexavalent Chromium Workgroup Report

MR. RHOTEN: Basically, we had a very successful first meeting and that was mainly due to the fact that Caroline Freeman from the OSHA Health Standards came to the meeting and also that Marjorie Wallace from NIOSH was on a conference call from Cincinnati and those two ladies provided the committee with the information that we needed and gave us a background on the problems with this particular issue.

In any case, let me give you a little background on where this started. In 1993 OSHA was petitioned by the Oil Chemical & Atomic Workers for the burdensome standard to lower the permissible exposure for -- occupational exposure to hexavalent chromium.

OSHA denied that request at the time and then the next year OSHA initiated a Section 6(b) Rulemaking for hexavalent chromium and the new rule is expected to lower the exposure limit that will apply to the general industry, shipyards and they want to adapt the rule to reflect the conditions in the construction industry.

Notice of this Proposed Rulemaking will be in The Federal Register some time next year. I think we're trying to define what the workgroup's duties would be, how we could assist in this effort.

After some considerable consideration, I think it came down to this, that NIOSH needs access to job sites where they can perform tests. They'll need to get access to sandblasting sites, welding sites. I think we have to gather information through the building trades to identify what crafts are exposed to this and how many.

I can tell you that I yesterday pulled some figures out of our office, because we have a welding certification program, and determined that about 15 percent of our welders -- our welding tests are stainless steel and I think we need to gather that kind of information from the other crafts and also assist NIOSH to get on the sites to do the tests.

We've got 140 testing facilities in the UA, where we do our own testing for the contractors and those sites we'll make available. I think there's about 100 million workers that are exposed to this product, so we'll be again working with the building trades to try to determine if we can gather information.

I think the question is going to be, at the bottom line, is the technology there to reduce the exposure limit to the point that they need to get at to protect the worker. That's going to be the question I think that needs answering in the coming months.

For instance, in stainless steel welders, if you have to put them on air line respirators to make welds, it's more than just an inconvenience, in some cases it's going to interfere with the quality of the weld that the guy can make in tight places, but that's going to be our contribution to the -- that's what we'll contribute to this project in any case is just information.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Rhoten. Any discussion? Larry?

MR. EDINGTON: Thank you, Mr. Chairman. Bill, the thought occurs to me as you're talking about that that you may want to take a look at some of the work that the Center to Protect Workers' Rights has done on their T-Beam exposure assessment.

MR. RHOTEN: That was brought up at the meeting, the fact that they already have some information. I think NIOSH has access to that. I'm sure they do.

CHAIRPERSON BURKHAMMER: Chris was at the meeting. I sat in on this workgroup meeting and was really impressed with the depth that they have gone to look at Chrome 6 and the effects of Chrome 6 and Marie was also in the meeting and they had a representative from NIOSH on the phone.

I think the overall start of this workgroup was really good. I think we got off to a great start, I was pleased with the way Bill ran the meeting and I think we're going to have some outstanding contribution from this, thanks to the industry.

MR. RHOTEN: We're still going to get that work site in Hawaii lined up.

CHAIRPERSON BURKHAMMER: And I'm ready to go whenever you call. Not a problem. Why don't we take a break, come back at 10:30 and I'm going to ask Harry to introduce our next presentation when we come back, if you would, Harry.

(A recess was taken at 10:06 a.m.)

(Back on the record at 10:28 a.m.)

CHAIRPERSON BURKHAMMER: Harry, would you introduce our next guest, please?

MR. PAYNE: Yes. Mr. Chairman and members of the Committee, about seven years ago we began the Carolina Star Programs in North Carolina, which is our iteration of the USVPP program.

In our discussions with industry, we tried to elicit and one of the things that came out is we held high the excellence issue and tried to put great emphasis on the program. A key element was who we were going to put in charge.

We have been very fortunate to get someone who not only operates the program, but has used the program as a tool to encourage excellence. It's not just recognition, it is advocacy and he has taken it to a really high order.

During the course of his work, John Bogner has realized that we were ignoring the construction industry, just because it was hard to measure, so over the last few years John has developed a discussion with construction and its various aspects in North Carolina, in the hope to reward excellence in a group that we spend a great deal of time with in other ways.

Out of that enterprise came the North Carolina Building Star Program, which is a hybrid, if you will, or a star within the same constellation as our Carolina Star.

I very much appreciate that John has stayed with us, he's had a great number of offers to go elsewhere, but his commitment to safety and health and to improving the Star Program in North Carolina has been very good for all of us.

Mr. Chairman, it's a great pleasure to have him up here with us this morning.



Carolina Star Programs

MR. BOGNER: I'm behind you, so watch your back. Good morning. It's a pleasure to be here and I'd like to spend the next few minutes and talk to you about the Building Star that we've got designed in the State of North Carolina.

A brief background on myself, as the Commissioner eluded to, I spent several years in the industry, I started off in the construction industry building houses as a laborer, in between high school and going to college.

It opened up your eyes. Of course, back then when you're 16, 17, 18, climbing around on a roof, carrying shingles or carrying cement blocks, you're not too concerned about safety, you're just worried about getting paid and going out on a date.

From there, I got my Bachelor of Science Degree in Industrial Safety Management from Indiana State University at Terre Haute, Indiana and then I went to work in the steel industry and I found out in a heart beat that there is a little bit of difference between the textbook and the real world where you've got 9,000 employees in a steel mill.

When you used to predict two or three fatalities a year, it really made you grow up in a hurry. You didn't wear a necktie, you chewed tobacco and you climbed around and did things that you never thought you'd ever do in your life.

I had an opportunity to work in the paper industry and ventured a little in my own business before coming in as your friendly OSHA compliance officer.

I was your friendly OSHA compliance officer for two years and then when Commissioner Payne took office, he had a vision that the State of North Carolina design a program similar to the Volunteer Protection Program, which is with the Feds, and I was fortunate to be interviewed and accepted that job back in September of 1993 and since then, Commissioner Payne has given me all his support and kind of let me take the reins and go with it.

Those in the room here are -- is everybody familiar when I say VPP? Is anybody not familiar with the Volunteer Protection Process?

Pretty much what it is, that was a partnership that was designed to take Fed OSHA, industry and employees and more or less try to provide the safest and healthiest work environment possible in a positive way.

Through the North Carolina Department of Labor and the Bureau of Consultative Services, which I fall under with OSH, we designed what we call the Carolina Star Program.

I hate the word "program" because I think you have enough programs. I look at it as an ongoing process. Processes are better.

What we tried to do is build a strong foundation with some large companies that are very committed to the safety and health processes within their organization.

Currently, the State of North Carolina has 22 Carolina Star sites in the State of North Carolina. I know there's over 550, roughly, throughout the United States, counting Fed run OSHA programs and State run OSHA.

At that time, the Commissioner talked to me, he said you know, John, that's good, but we're hitting the major corporations, the Georgia Pacifics of the world, the International Papers, the Occidental Chemical Corporation, we need to get into some of the smaller companies.

We also need to look at municipalities, we also need to look at the construction industry, so I said okay, Harry, it's time to open up the box a little bit and we designed what we called our Rising Star Program in the State of North Carolina, which is sort of equivalent to the Merit, if you're familiar with the Merit Program within the Federal organization.

We currently have two Rising Star recipients, that just came into effect October 1 of last year. We currently have about seven pending applications, but the biggy here was we have also the first municipality to become a Star site.

That was exciting because we weren't quite sure how to handle that within a municipality because we didn't have control. We like to have control of these sites, but with a municipality, when you have thousands of acres and people to cover it, you have your sanitation workers, your road crews, you have a lot of people moving around, you get kind of uncomfortable, how are we going to control this, as far as making sure they're developing good safety and health processes.

But we were able to overcome that and work with municipalities and we have several municipalities within the State of North Carolina that are trying to work toward achieving the Rising Star or Star status and we're really excited about it.

However, going back to when I was about 16, 17, climbing around and one thing I think -- somebody used to ask me John, how do you know about a lot of these violations and I said probably because I violated 90 percent of the rules and regulations when I was growing up and working in the industry.

But I said to myself how can we design something in the construction industry. I know the Feds have worked on some pilot programs with it and they seem like they're doing real well, but what we try to do is first of all, I wanted to have a forum and talk to people who do the job.

I don't think that we could set up a process or a program for people if you're not out there doing the job each and every day. So we had some forums and we worked very closely with the AGC's office and talked to a lot of construction companies out there, listened to their concerns, took it a step further, talked to a lot of the employees.

We're very fortunate in North Carolina, I have a couple very strong what I call residential or in-house contractors, like Monday Industrial Contractors and Beacon and these are people who do construction and they do a very good job and they have the same problems as anybody else, from employee turn over to educational level.

You have a lot of Hispanic workers out there, you have -- you just have a big mix of people and how do you get to them with safety and health issues.

What we found is there's like -- I consider keeping it simple, four key elements, although we have to tailor it a little bit different to the construction industry and this is what we're really excited about now in North Carolina and we currently have three companies out there that are working on their Building Star application.

The State OSHA has taken then under their wing and we're going to continue to work with them, to help them be more or less the pioneers. You normally have pioneers and settlers and sometimes that credibility with OSHA -- I know when I was in industry, that's the last party that I would call into my facility, but now we're changing that.

We're changing that make up and this is what's getting really exciting for the State of North Carolina.

We're still looking at management commitment. You have to have management commitment to safety and health issues. Not just talking it, but walking the talk. Not only is it important to have the management commitment to safety and health issues as a priority, it's a double-edge sword because the employees have to believe that there is a commitment to safety and health issues.

I know I'm preaching to the choir, but we do a lot of talking, but a lot of times that does not surface. In the construction industry, it is so important with the type of workers you get and the turn over and what have you, we have to set the tempo as soon as they walk to your site.

The construction sites that I talked to when I was designing the Building Star, I said why is it that you can go from 90 employees one week and next month 300 employees and you have absolutely no OSHA reportables. What are you doing out there, you've got to be doing something right.

What I gathered was it was so important for their front line supervisors, and we all talk about the front line supervisors, but in the construction industry -- because I know in the general industry you have more team concepts, but in the construction industry those front line supervisors typically are the ones that were like me when they were 16, 17, climbing around, doing the job.

They came up from the rank and file, so to speak. And whether union or non-union, nobody wants to see anybody get hurt. So what they've done is they set the tempo, they know what's right and what's wrong when it comes to tying off or the proper way of burning or lifting or material safety data sheets or guarding or GFCI, they understand this and what they've told me is it's just unacceptable.

Then the employees working there, they have to be involved. They have to have the ownership, the accountability. You cannot have per see a car drive up on a construction site and everybody starts hey, here comes the safety guy, now we have to be safe. It doesn't work that way.

So how do we get the employees to be accountable and held responsible? That's true. The employees have to be held accountable and responsible for their safety and health actions.

So we have the management commitment and we get the employee involvement, where they have a say so, and they're held accountable and responsible, then we have to look at the hazard recognition.

I'm sure that not individual in this room wants to get hurt or see a co-worker get hurt. Most of you are in here trying to help your working environment, wherever you come from, as far as safety and health issues. But we still have people get hurt.

We started off with a moment of silence. People getting hurt. We had some fatalities. What are we going to do to change those, can we ever change it? That's the frustrating part because as safety and health professionals, you don't know about the job sites that you've made safer or the injuries that you've prevented or fatalities that you've prevented, you only hear about the ones that slip through the crack, that you weren't able to save or protect.

So hazard recognition has to be pointed in to the employees. Not only is it hazard recognition, because nobody wants to get hurt or see a co-worker get hurt, typically people get hurt only because that individual, he or she didn't recognize that job hazard within that job task or process that they were performing or it was a behavioral type of a habit, something that we knew wasn't quite right, we always did it that way, hey, we need to get it done.

But I'm here to tell you that if we concentrate and let the employees know from day one, set the tempo when they walk through that gate that they have to have that safety hat on, as far as the knowledge that safety and health is a top priority, those employees will have a higher employee morale, they'll be more productive, you'll have better quality work performance out of them, less absenteeism and it's going to be more profitable and that's right, because there's nothing wrong with a company being profitable. They have to be profitable.

But you'll find out that the profitable companies are also the ones that have less injuries and accidents.

The second half of hazard recognition is most of the time when we do our audits or our check lists and we have our punch lists of safety items, you'll look and 80 percent of those are typically created by a worker. That's the facts of life.

If we don't educate those employees out there and don't understand and are not accountable, then we're going to continue to have problems and what we try to do with the Star process is to take them to the next level.

Obviously, if this was a glass of hot liquid and it was on a shelf and it poured on me and I got second degree burns on the side of my face, if anybody has ever worked in a steel mill and seen people getting burned, it's probably the worst type of injury you can ever see in your life time or experience.

You have an accident investigation; is that correct? And if it spills and misses me, hopefully we're going to have a near miss investigation. Think about it. Sometimes we do, sometimes we don't. What do we do at 2:00 in the morning? Typically, it doesn't get done.

What we try to do with the Star process is have them look at what if. Identify the hazards. Okay, here's a hazard, hot liquid. Here's the exposure, an employee. Let's remove the hazard before we have an incident or accident that takes place.

Now is our job done? No. Because we have to find out what employee let that hot liquid uncovered, unsecured in an area where it could fall on somebody because that individual didn't realize or recognize that they were creating a hazard.

So it goes back to we have to not just go through the motions to appease OSHA or your corporate people as far as the safety and health training, but what systems do you have in place to monitor the effectiveness of the safety and health training.

Yeah, so and so fell 30 feet here. We went through fall protection last week. They signed right here, gave them coffee and donuts and they were educated and trained that they are to be tied off. Hey, they didn't tie off, that's not my fault.

No. We have to do better than that. There's no reason in today's society, as educated as we are in high technology, that we cannot work together as one and that's what we're trying to do in the State of North Carolina.

We are committed with North Carolina OSHA and the construction industry and working with the employees to develop quality Building Star sites. There's no reason why we can't recognize a lot of these, a lot of these companies do a good job, but we unfortunately only focus in on the negative aspects and that's something our society is built around.

We hear about all the negativeness but we don't hear about the positiveness. So Commissioner Payne has set the foundation that we go ahead and start to work the these companies on a positive mode, make them better, have them help us out because they're out there.

They have the credibility. What we're finding out is happening is subcontractors are coming on site and saying whoa, I'm going to have to be on my toes with this company because they are safety and health all the way and that's a good thing.

When you have people walking on a site and you go talk to an employee and ask them about safety and health and they say hey, when I'm working for this main contractor or prime contractor, we have to be on our toes, so that's what we've got to start to capture.

As this is an infant stage, as we start to capture this, we'll have to fine tune it. We'll have to work with the building industry and construction industry and see what we can do to continue to develop and nurture this partnership and as we're developing and nurturing it, we hope to share data with the rest of our colleagues across the state and also across the United States, as far as how successful this process is for us.

Anybody who is familiar with the VPP process and also with the Star process, one of the problems has been the unrealistic goal, as far as having somebody on-site for three years.

Obviously in the construction business, unless it's something major, a stadium or something, you're not going to have the three-year process going on because you just can't make money that way.

So what we decided to do in the State of North Carolina, we're not going to hold them to being on a site for three years. What we're going to do is let them fill out an application and in front of you, you have a packet. What we've done is we've combined all three programs, the Carolina Star, Rising Star and Building Star, within this packet.

It fits real nice into a binder, it's very cost effective for the state. We've also got a little sticker for the construction workers to put on their hard hats, if anybody has ever been out in the construction field, you know the guys like stickers and we have a web site for information and it also has a link to the Federal VPP Participation Association.

So this is some basic information. One the application is filled out, we look at it, we will not go and visit that company's headquarters in the State of North Carolina unless they have two other site projects in place.

Then what we're going to do is we're going to spend the first day or so, what I don't like to do, but it's a part of the process, is crossing tees and dotting eyes, so to speak. I'm more of a hands-on type of individual, but we're going to go out there, make sure the paperwork is in order and then we're going to go to the site projects.

That's really where you find out what's going on in the real world and we're going to work with these site projects that have a good safety and health process and we're going to give them recommendations and work with them and learn from them and give them our expertise to make them better and have a safer work environment in the construction industry.

If we approve them at that time as a Building Star site, the company is allowed to submit up to three work projects during a calendar year, so they can give us three during a calendar year.

Now, unfortunately, you have the other side of the coin. How do we monitor that in fact day in and day out they're going to do what they promise us to do?

What we've committed to do is remove them from the program inspection, meaning that OSHA will not show up at their doorstep in a compliance mode for program inspection.

However, unlike the Carolina Star or Rising Star, at team can show up unannounced, on a positive mode, to go in there and to fine tune things, make a few little adjustments, realistically, in the real world, I cannot personally tell you I'm going to go in there and never find a problem. That's not the real world.

But our job is each time to try and make it better, so we will go in unannounced and make sure that indeed they are following the safety and health processes that the construction industry has committed to us and doing so.

There will be no monetary penalties issued. That's how we're going to monitor that system. Each year the company has to do an annual safety and health evaluation of all the site projects in the State of North Carolina and submit their OSHA data, showing us the injuries and illnesses on those sites.

We will evaluate that and each year they can submit up to three new projects. Every three years we go back and we basically do the whole thing again.

I'm a firm believer, even our Star sites, three years is a time where you need to go back and dust things up, polish things up, fine tune it a little bit.

But what's exciting about it is when I was in industry, unfortunately I failed to do what we've been able to do with a lot of companies in North Carolina and I experienced at lot of fatalities, a lot of tragedies, seen a lot of things and I've been committed to try to do a more efficient job in the State of North Carolina, so has North Carolina OSHA.

As a team, there has not been one company out there that we have not made better when it comes to safety and health issues and there should be nothing wrong with that.

What we need is we need to keep those doors open and the communications open to keep that partnership going with State OSHA or Federal OSHA, in industry and the employees, because if we do -- we'll have our differences, but if we do work together, in the long run we will make an effect and reduce injuries and accidents and that's what I basically came here today to talk to you about briefly.

I appreciate you listening to me. If you have any questions, I'll take them. If not, there's a web site in the information in front of you, if there's any questions -- does anybody have any questions? Yes, sir.

MR. BUCHET: Under the Building Star Program, when a construction applies and they're in the process and they reach a certain status, you say you retain the right to show up on-site unannounced. Does their agreement the you include the fact that they have to let you on the site?

MR. BOGNER: Did everybody hear that question? I'm their best friend out there. We already have gone ahead and we've approved them as a Building Star site. They know up front that part of that agreement with me recognizing you as a Building Star site are removing you from a program inspection is that we, and we're acting as the Bureau of Consultative Services, because the way State OSHA is set up, we have our compliance mode, we have our consultative services and we have your education, training and technical assistance.

I fall under the jurisdiction of Consultative Services. The only difference is we will show up unannounced versus announced, due to the uniqueness of the construction industry and if they would not let us in, obviously they're not fulfilling their obligation and we would have to smile and ask them to withdraw from the Building Star.

I don't see that being a problem whatsoever. As a matter of fact, we have had some instances in the real world, even in the industry, general industry, with the Carolina Star and each time they have contacted me, I've talked to the head of compliance and we've been able to work close together and it's been a very beneficial advantage for a company. Does that answer your question?

MR. BUCHET: Yes. Thank you.

MR. BOGNER: Other questions? Yes, sir.

MR. RHOTEN: You sign these agreements with the general contractors, correct?

MR. BOGNER: Yes, sir.

MR. RHOTEN: Then does the general contractor require the subcontractor on these safety written programs, for example, to have the same thing in place?

MR. BOGNER: The question is as far as a general and then the primes, down to the subs. This is basically a design. Once again, we're not perfect, we're starting, it's a design for the general contractors.

There are subcontractors that have come to me and they say hey, John, we're the little guy, how are you going to help us out and what I'm trying to get them to do is more or less make lemonade out of lemons.

It's easy for me to sit back and say well, hey, don't do this for a flag, don't do this because you're going to be recognizes as you're a Building Star site, do it to reduce injuries and accidents.

But to answer your question in regards to Building Star, that general is responsible for that whole project and site and that means he's going to be responsible for the subs on that site.

MR. RHOTEN: Well, I understand that, but in his bid product or in his communications with the subcontractor does he demand that he has a written safety and health program or does he demand that he comes up to the standard that's in this agreement with you?

I mean, if you've got a site that's a Star program and a plumbing contractor signs up that doesn't have the provisions that you want in this agreement, I guess that's my question, is it a complete program, I guess?

MR. BOGNER: Well, let's look at the real world. If I have a Ma and Pa come up here, father, son doing some sort of work on a construction site, they're not going to have the four-inch binders.

Does that mean that they can't perform that job safely? I don't think so. I think they can perform the job safely, as long as they understand the safety and the work practices that they're going to be responsible for on that site, that's sufficient, as far as I'm concerned.

MR. RHOTEN: I guess I was thinking more along the lines of a mechanical contractor that had 25 employees that came on the site, instead of a Mom and Pop.


MR. RHOTEN: But I guess my point is you're signing these, is the owner of the facilities under the participating sites -- it seems like there's no contractors listed, it's the sites. Are the owners of the facilities in this arrangement? Are they brought into it to insure that the contractors that they hire --

MR. BOGNER: They're going to have to because they won't be a Star site without that, but basically, we're not looking at a formal per se contract. What it basically is is this is a partnership and it's almost like a handshake, really.

They're responsible for the safety and health process on their site. We'll work with them. We're not going to dictate to them what each of their subcontractors have to do in their programs and their policies.

MR. RHOTEN: That's all I'm suggesting. What you really have then is a program with the general contractor and whether or not he pushes that down to the subcontractor is basically up to him?

MR. BOGNER: Well, if he wants to be a Building Star site, it has to be pushed down to the subs because if not, he's not going to be a Building Star site.

CHAIRPERSON BURKHAMMER: Bill, let me -- I think I can answer the question. One of our subsidiary companies is a contractor to the Shelby Plant under COSHA Tacoma.

If you'll notice in the back, they're a Star site. They're a Star owner at the Shelby Plant and they've asked all their contracts or contractual agreements with us state that we abide by all the rules and requirements of their Star Program.

MR. RHOTEN: Right.

CHAIRPERSON BURKHAMMER: So in essence, even though we're not signatory to the Star Program that they are, we're required contractually to work under that agreement, as is all our subs.

MR. RHOTEN: That's my question here. Are the subs bound by this contractually. They aren't bound unless the general contractor makes them bound.

CHAIRPERSON BURKHAMMER: Well, we bind they contractually.

MR. RHOTEN: I know you do, but there's a case -- I guess the question is are there cases here that they aren't bound legally?

MR. BOGNER: No, they're going to be bound by it. When they bid their job to come in there, that site general contractor is going to say hey, this is the way it is, we're a Building Star site, this is our requirements, you have to meet these requirements or exceed these requirements or we're going to have to get another contractor in here.

MR. RHOTEN: Right. The same requirements, the written programs and the training, the whole thing?


MR. RHOTEN: All right.


MR. COOPER: If you hang around here along enough (inaudible) you will hear some discussion on proposals that anyone on a construction site, a worker on a construction site would have at least an hour of OSHA training to get on the site.

CHAIRPERSON BURKHAMMER: Steve, they can't hear you.

MR. COOPER: I have a question for you here. In your program, in your Carolina Star Safety Programs, you point out that management agrees to operate an effective program, meeting an established set of safety criteria. In that criteria, is it mandated that the supervisors or foremen have particular required safety training?

MR. BOGNER: All management, they're responsible as far as part of the -- if you look at the whole application in the book here, I didn't realize there was going to be that much detail, but there's a section in there that will spell out management commitment, as far as the training involving the supervisors, all that should be spelled out. Yes, they are required.

MR. COOPER: Does it spell out specific amounts of training?

MR. BOGNER: As far as time element? No.

MR. COOPER: So in other words, they could have some minimal safety training on-site that would meet your criteria?

MR. BOGNER: That's correct.

MR. COOPER: Take it from a guy who has been around, when I was your age years ago, running out there also, one of the biggest problems we have and anyone who knows anything about construction safety knows that if you have a safety minded foreman, you will more than likely have a fairly safe job.

The requirements -- and you also know that if you are on a job site and the supervisor -- foreman is the term I'll use, sends out down in the trench and you say no, then you are terminated and you know that.

It's the same thing in my business and all of us who are in the construction industry here, that foreman has the care, custody and control of that job because that is the only person on the job site directly in the work force.

The owner is downtown trying to make payroll, getting estimates, et cetera and all the engineers, et cetera, and all the other staff of the construction company are not right there.

So the care, custody and control of that job and all the workers goes directly back to the supervisor and what we have in our industry is a lot of supervisors, a lot of them from the union and a lot from the non-union, that are not trained in specific safety requirements for their skill talents.

My area is steel erection. We have foremen in the field that have never read the steel erection safety standards, the Federal or State safety standards. That permeates every trade. What we really need to reduce the accidents in the construction industry is requirements that one cannot be a foreman unless that individual has had specific safety training, and I say specific safety training, for the skill attached.

I'm not talking about going to a Seven-Eleven store and getting a ten-hour course and passing it around and I'm not talking about tool box safety meetings. Criteria for foremen that relates to safety and health in that particular category that the foreman is doing the work in.

MR. BOGNER: You bring a very good point up, but you also have some issues you've got to contend with as far as are you going to make it almost like a CSP or a CIH examination, how far do you go with the educational levels.

Then a lot of times people go to these conferences, half of them fall asleep, half of them come and go and they just get the piece of paper then they leave and say hey, I'm certified.

I believe that you still -- even though we do have to do a better job training the specifics for that industry, as you suggested, we need to make sure that these people understand what's going on and you're only going to do that if you have a system in place to effectively monitor their knowledge.

It doesn't do us any good to send somebody to a trenching course, come back and say they're a competent person and assume that they're going to be a competent person on that site and send three people in there and a wall caves in and kills two people and he says well, I went to school.

That's where we fail, because of saving money, time and resources, we don't spend enough time to monitor how effective the training has been and how these people are actually implementing the knowledge that they were supposed to be receiving.

MR. COOPER: I'm going to respond to that and say, and I'll be concise, Mr. Chairman, I'm not talking about being a CSP or PE or et cetera and I'm not talking about having a safety director in the field being the foreman.

But I am saying, just in my own personal opinion, that a foreman should have at least 40 hours of safety training periodically, whatever that means, once every three years, however, in that particular line of work that he or she is doing.

We need -- not you need, not North Carolina needs but we all need foremen with the mind set to run a safe job and that mind set comes from instructing the foremen on the manner in which the work should be and shall be erected.

MR. BOGNER: You're right. We do have a lot of companies in the State of North Carolina that are doing that. I know for a fact like Monday Industrial Contractors, speaking of the front line supervisors like you mentioned, they do go through a quarterly and yearly training with corporate people and they go to different conferences and seminars, so you are right.

Because if those people are educated and trained in safety, health and well-being, they're the ones that are going to set the tempo and that's one thing that to me is a little bit more unique in the construction industry than the general industry because like in North Carolina, we have not as many unions as I dealt with when I was up in Pennsylvania, you have a lot more team concepts going on.

In the construction industry, you have to have the key front line supervisor, as you suggested. The companies that are doing a better job are the ones that are training their supervisors.

Do I have that spelled out, as far as in the detail I basically touched upon as far as the actual requirements of 40 hours or 80 hours or what particular courses? That's something that could come down the road, as we start to fine tune things.

But when we go in and do that internal audit and anybody that's from North Carolina, they know what we're going to try to do out there, we're going to talk to all the front line supervisors and make sure we have that mind set.

It may be a recommendation that you're not reading for Building Star. You might be a year away because your supervisors are not trained efficient enough on what their job is doing and that could very easily be a recommendation.

But I do appreciate your comments. Thank you.

MR. COOPER: Thank you.


MR. EDINGTON: I guess the question I would have and your most recent comments caused me to think about it, is for organized work places, is there any requirement for the involvement of the workers' exclusive representative in order to be eligible for participation in a program?

MR. BOGNER: Yes. Most certainly that's a very big part, I'm a big advocate of that. Any unionized organization, bargaining agents will be involved, they will be working with us in conjunction, that just expands our partnership.



MR. BOGNER: We currently -- excuse me. We currently have two unions on our Star sites with Carolina Star working with the teamsters. Yes, ma'am?

MS. WILLIAMS: When the inspection team -- apparent violations that they notice, you said if they can correct it, you would encourage them and work with them to correct it or if it couldn't be immediately corrected, you would have them notify you as to when the correction was made.

Have you ever had anyone voice a concern to you about that type of inspection process being discoverable?

MR. BOGNER: No, I can't say -- really, right now the way we try to do it is we try not to fix things, to fix things. We try to find out how we can eliminate.

See, that's the problem with even compliance or an audit. Typically, what would happen is if you look at things, within 18 months 80 percent of those deficiencies will reoccur.

So what we try to do with the Star is to roll up our sleeves and if we have a problem with guarding systems, we've gone ahead and made fixed guards, so to speak, so you cannot remove them and we've had lubrication outside of the guard, so to speak, for example.

If there is something that they cannot fix right then and there, obviously if there's a hazard, it doesn't mean it's unsafe. And that's the truth. Just because it's a hazard, it doesn't mean something is unsafe, it's what's your exposure.

What we try to do is money or anything else, they are going to have to contain that, to make sure no employees are affected to that hazard, but ultimately it has to be corrected.

If they will not correct it, then we lose that partnership and we have no choice other than to refer that as a referral and the way it's set up is we refer it to Commissioner Payne, he would write a letter saying please take care of this, if not, we'll have no choice other than to refer it then to Compliance. That has never happened.


MR. PAYNE: I think part of the concern is whether in this intervention strategy we're building a case against the company and they're sensitive to that.

We have been very careful not to create issues. We're not trying to -- we're trying to avoid liability for the company and I think they accept it pretty clearly as that.

Thinking about your questions and what we've been doing, Star is different in that it's more of a measure of the culture of the work place and there's no one single measure of that. At some point it becomes somewhat subjective, after all of the objective criteria have been met.

Simply that all of your supervisors have had "x" hours of training doesn't mean that you've got the culture.

Our experience, with the sites that John and his team have worked with, is once they get that culture thing going, they are far beyond anything we could ever ask of them anyway.

It's that one hump they get over to where it's something you've got to do, something you might want to do, to where this is a core part of our organization.

Our experience is once they get there, we're basically out of the process, except to be a resource on questions, to be a second set of eyes.

In defining the problem with the moveable work place and the challenges in the construction industry, there's no way to describe in any coherent way the challenges one will encounter, so rather than say you've got to do this this way and that that way and have this training, we've tried to look at those cultural indicia, whether the commitment is there.

What we find is once that commitment is there, the other questions quickly go away.


MR. RHOTEN: You may have answered this, but how many contractors, building trades contractors, are signed to this agreement now or under this agreement?

MR. BOGNER: Right now I've got three major contractors that are working under an application, one might be back on my desk right now.

MR. RHOTEN: Three building trades contractors?

MR. BOGNER: Right now.


MR. RHOTEN: Back here it's all sites. All these sites are owner sites, so the sites have been approved, so if a contractor goes on that site, does then the owner say okay, you're going to fall under the Star Program when you come on the site?


MR. RHOTEN: So if he gets the bid, he's almost pre-approved?

MR. BOGNER: No, he works under the owners.

MR. RHOTEN: So the owner is the one who is really the push behind this, not particularly the contractor. It's the owner that's going to have the hammer.

MR. PAYNE: I think if you go to work at Occidental Chemical, you've got to be really, really -- have a good safety record, have a good -- show to them all that stuff. That doesn't give you Star as a company. It gives Oxychem Star as controlling their work site.

On new construction it's a little bit different, where the contractor is in essence the owner.

MR. RHOTEN: Right, but in most cases, under this program the owner is the one -- the site is determined that the owner has put together a program that he will then require that the general contractor adhere to, which then makes the general contractor a party to this agreement.

MR. BOGNER: That's right.

MR. RHOTEN: So it's aimed at the owner community from the top down as opposed to the general contractor.

MR. BOGNER: But I have also had contractors that before we designed the Building Star have gone through this process knowing that they couldn't be a Carolina Star site, but when they put their bid in, they basically put the bid in saying that hey, we follow all the procedures for Carolina Star, even though they don't qualify since they were a contractor, because we just had -- Building Star just came about in October of last year, so it's fairly new, as far as -- but what I'm saying is in the bid process, when they went into an employer saying as far show me your safety and health issues, they're able to say hey, look, we're already following a lot of these criteria and guidelines and they felt that it's helped them get some bids.

MR. RHOTEN: So there's no doubt that the owner looks at the past performance of the contractors that he hires on that plant?

MR. BOGNER: Most certainly.

MR. RHOTEN: Is there a certain line that they're unacceptable? What experience level would they be that they would be unacceptable?

MR. BOGNER: You know, it's going to be harder, when we're up in the mountains and we don't have -- you've got a company that's it out, it's not like a metropolitan city where you have a lot of resources, it's a little bit tougher.


MR. BOGNER: So what they have to find out is they have to put on a lot more training and education themselves because where else are they going to get the workers to do the job.

So the key is, like Mr. Payne says, we've got to assure ourselves that the site owner has the control and has the resources to at least assist companies that might not have the knowledge that they need to have.

There's not necessarily a dry, cut line because if I'm up in Hendersonville, up in the mountains, and I've got a plant out there and I have nobody else around, I can't be taking -- I don't have the resources, so I can't draw a line, other than the fact that they have to do the education and training of the contractors coming on their site.

They had a roofer contractor and the individual had nothing. They'd been doing it since 1905, passed on by three generations, and what we did was we explained what our concerns were and what the company did was work with them to buy new equipment, worked with them on training so they could perform that job adequately, because they were not allowed on that site the way they were performing that job.

MR. PAYNE: I think, Mr. Chairman, if I may, we're mixing two areas. One is the VPP current Star site that we were doing previously, which requires not only control of the work site, but control of all subs, all temporary workers that come on the site.


MR. PAYNE: The construction industry who are not permanently located on a site wanted to recognize their excellent wherever they went, not just when they went on a Star site, so that you weren't sending your best crews to the Star site and somebody else elsewhere.

What we wanted to look at is overall excellence of that contractor and their practices and in that is the control of any subs they might have.

Basically, if you don't manage your subs, if you do not insist upon excellence, you won't get to be a Star site. You can't contract away your ultimate responsibility for everybody who works on that site.

CHAIRPERSON BURKHAMMER: Any more discussion on this? Steve, do you have anything you wanted to add?

MR. COOPER: Well, I can tell you that I've worked on a number of these sites and Mr. Rhoten, if you go through and you look at the fact that this program was driven by user councils, if you look at clients, Celaness, Monsanto, Kimberly Clark, Oxychem, GE, they were leaders in the forefront of this and then as a contractor working for one of these facilities, they put you through the meat grinder, crossed every tee, dotted every eye.

In addition, I can remember when we worked at Monsanto, there was eight hours of training for front line supervisors and an additional four hours for every employee that worked at the site, plus daily safety meetings.

MR. RHOTEN: The questions I asked weren't to criticize the program, I just wanted to understand it.

MR. COOPER: I understand, but there are some contractors in the Building Star Program at this time and there's others that have expressed an interest in are going through the application program.

These guys have done a great job. They've stepped out of the box and are trying to make a difference, recognizing that it's a mobile work force and are here today and gone in a short period of time.


MR. MASTERSON: Actually, I'd like to compliment the State. We recently had an inspection on one of our job sites and even though we're not in the Star Program, they did a review of our site and afterwards sent a letter back to my job site supervisor basically patting him on the back and complimenting him on what a good job they had done.

Now, I can go out there all day long and give out incentives, but that simple little letter that said hey, you're doing a good job went an awful long way to bring the whole mind set of safety up for my people.

MR. PAYNE: Thank you.

CHAIRPERSON BURKHAMMER: That's good. We work in a lot of states and I, too, would like to congratulate Harry on the North Carolina program.

Of all the states we work in, I think we've had some situations where OSHA has come out, both Federal and State programs, and we had a situation last year at one of the plants in North Carolina where we had an unfortunate incident that one of our subsidiary companies was involved in.

Harry's team came out to the site and instead of the typical who shot John scenario that sometimes occurs with that, it was more like a partnership agreement, where all the parties involved, the owner, us, the OSHA people from Harry's shop all worked together to try to determine -- because it was a very unique situation that occurred, to determine what the root cause was and work together as a team to solve the problem and try to find out what happened rather than trying to shoot somebody to give a citation or collect some fines.

I think that's a real tribute to Harry and the team work that he's created in North Carolina OSHA and I'm pleased that we're working in your state.

MR. PAYNE: Thank you.


MR. MASTERSON: What has become well apparent to me is that in North Carolina --

CHAIRPERSON BURKHAMMER: Can you speak up, Bob?

MR. MASTERSON: What has become apparent is that in North Carolina they have moved the concept of safety well beyond just the Star Program.

This whole process that they're looking at has gone down through their entire compliance staff, not just consultation, and I think that they're winning a lot of battles that they would have lost if they had only tried to use a bat.


MR. BOGNER: Thank you very much.

CHAIRPERSON BURKHAMMER: Thank you very much, we appreciate you. It's 11:20, let's try to get a couple more workgroup reports. Larry, Crane?


Subpart N - Cranes Workgroup Report

MR. EDINGTON: Thank you, Mr. Chairman. The Subpart N workgroup met a few weeks after our last meeting in Chicago, we met again in late March.

As has been the case for our past several meetings, we've been meeting all day. At our last meeting, our activities involved the following, and let me first say that we continue to have excellent representation from sort of all sectors of interest in the workgroup meetings, whether it's the manufacturers of cranes, owners of cranes, users of cranes, operators of cranes, we still have everybody in the room, which we take to be a very good sign.

A couple things happened. First and foremost, we had -- as the Chair knows, some questions had arisen with respect to the charge of the workgroup, in particular was the workgroup charged with doing, if you will, a complete revision of the subpart. That clarification was provided by the Directorate, I think that question has been answered to the satisfaction of all participants and we're moving forward accordingly.

Also, what was extremely helpful is we had a representative from the Solicitor's Office do a couple things. One, just do a review of the rulemaking process, to make sure that we were touching all the bases we needed to touch.

And two, as one of the things we had talked about in terms of perhaps a simplistic approach to updating of the subpart was to take a look at bringing forth the current NTB 30.5 references.

What was pointed out to us is we needed to gain a better understanding of what, if any, employer obligations might be changed between changing the 6(d)(8) reference to a 94 reference.

We are in the process now of attempting to do a side-by-side comparison of the two, to understand what additional employer obligations might be changed. What we thought was a simple reference change may in fact impose additional employer obligations and we want to make sure we understand that.

Also, we have reached out -- the workgroup recommended that I do it and I have done it, reach out to the main (b)(30) committee for some assistance because there are several areas of the industry that we don't have representation on the committee yet. Cranes comes to mind, gantries comes to mind, maritime, working on the water comes to mind.

I have talked to Paul about that, he has agreed to -- at their last committee meeting he was going to request additional representation. I know that that has happened yesterday. I was contacted by a representative and I don't know that I have their title right, but the drill shaft folks and the caisson business, their association has indicated an interest in participating, so we've got them on board.

We'll be meeting again either the 23rd or 24th of this month, that's still up in the air. That will be finalized by the end of this week. As of yesterday, the availability dates for workgroup members were sort of neck and neck, but we'll have that notice out by the end of the week.

CHAIRPERSON BURKHAMMER: Where do you plan on meeting?

MR. EDINGTON: We'll be meeting here in Washington.

CHAIRPERSON BURKHAMMER: Thank you, Larry. Any comments or discussion on Larry's report on cranes?

(No response.)

CHAIRPERSON BURKHAMMER: Thank you, Larry. The next report, Process Safety Management, Owen isn't here, so I'll kind of cover for him a little bit.


Process Safety Management Workgroup Report

The committee met, had a good first meeting and they decided basically, after much discussion, to wait for the official release of the Notice of Proposed Rulemaking from OSHA and once they get the Notice of Proposed Rulemaking on the PSM standard, the committee will meet again and have a document at that time to work with. That's the status of that committee.

Safety and Health Program Standards and Training is a combined committee, Steve and Bill Rhoten.


Safety and Health Program/Training
Workgroup Report

MR. CLOUTIER: Mr. Chairman, the Safety and Health Program/Training workgroup met on Tuesday, May 2 at 8:30 in the morning. Both co-chairs, myself and Mr. Rhoten, were present, there were 11 stake holders present. We went through the welcome, the introductions and all parties participated in the workgroup discussions.

It was agreed that the safety and health programs are on hold until we receive additional information from (inaudible).

Our primary discussions were spent on the training issue and there was lots of discussion. The workgroup agreed that there's a need -- and it's been noted and spoken here today again, a need that we require safety training prior to workers coming into the construction industry.

There was additional discussion on the OSHA ten-hour hazard awareness program, its effectiveness, its usefulness, whether we need to add or delete or how we can improve that.

Additional comments were covered for the need that OTI, the OSHA Training Institute should be able to provide instruction with additional training aids to back them up. If you go to OTI or take a 500 course around the country, you should be able to come home with some workable documents, more than what we're receiving from OTI, to present those classes.

Camille Villanova from DOC provided the workgroup an opportunity to look at a large notebook full of outreach documents that could be used to supplement instructor's training documents as they come out of OTI and there were positive comments there.

An additional topic that came up is talking about portability of training and portability in documentation of the training and issuing of pocket cards. If you remember, you go to the Institute, you can come back, you can teach your courses, you have a stack of cards almost that you issue with people's names and the date they took the course.

We think there's a better way of doing that and at the last meeting that was held in Chicago, per Mr. Rhoten's discussion, Joe Durst talked about the possibility of numbering these cards, there's got to be a better tracking system, is there an 800 number you call, is there a scanner where you swipe your card through.

One of the stake holders there had a sample, a little credit card that had an embedded chip in it where you could track that information, so we know that there's various additional methods and means to track the training.

There was discussion about the Job Corps training programs that are ongoing around the United States and the high frequency of accidents that occur on their sites. The workgroup discussed a good viable means and methods to improve and reduce the accident and injury rates of the Job Corps would be implementing that ten-hour program for those folks.

It was noted during the discussions that NIOSH is in the process of developing individual training modules for secondary schools, secondary education to improve that process.

Many of us, as we grew up in our careers and I can remember back when I was in high school you could actually take shop courses and we learned about eye protection, not wearing jewelry and rolling up your sleeves and all the appropriate things that would work and not work in whatever you were doing. A lot of those classes have gone by the wayside.

Further discussion included, as I spoke earlier, about developing and considering other methods and ways to look at distant learnings, PC-based training, CB training, other outreach programs.

Finally, it was agreed by the workgroup and there was a unanimous decision there to bring a motion to ACCSH and I'd like to bring it here today, but vote on it tomorrow, Mr. Chairman, from the workgroup and our work product is that the Department of Labor and the OSHA Agency endorse a concept that requires every construction worker to have a ten-hour card or equivalent.

We know when we present that to the full ACCSH and to the various stake holders here, we recognize that it's going to open up areas of additional discussion, is there a phase in period, is there any reciprocity, can you define equivalent, there's no trade associations, there's no unions, there's OTI that has fine training programs or equivalent that's out there.

But the point is we've got to find a way to get the training to the worker prior to coming to the site.

There was also some additional discussion about well, if the guy comes to work or the lady comes to work, could we assign them to a card-carrying member who has had the training for a short period of time until they can participate in the training, so there's another round for thought.

But in the meantime, the motion to ACCSH would be that the Department of Labor and OSHA endorse a concept that requires every construction worker to have a ten-hour safety training card or equivalent.

With that, we closed the meeting and I'd like to respectfully submit that as a co-chair and I'll let Mr. Rhoten give any comments at this time.


MR. RHOTEN: Well, I'd just like to second that motion. It's been a long time that we've discussed this whole issue and I think personally that that ten hours of training will accomplish more to protect workers than any other item that's in that program standard that's proposed.

I think that -- in the long run, if you can get this accomplished and if it takes three years or five years, I really believe if you get this accomplished, it will do more to protect the worker on the job site than anything else we've discussed today, for sure.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Rhoten. We have a motion and a second on the floor for discussion. Mr. Masterson?

MR. MASTERSON: We're going back to the same old story and though I have a lot of respect for Bill, I don't think the OSHA ten-hour program is really going to protect that many people.

It gives them training that you can get out of any book, it's very, very different from experience. I do believe training is required, I do believe experience is required, but requiring a card I don't think is even close to being doable.

I heard a lot of references to OTI. OTI has four trainers assigned to construction, there is no way they can provide enough training and enough authorized trainers out there that will do a good job and consistently deliver the same message, as well as tailor those programs so it fits the industry of construction that the individuals are work in.

The endorsing concept I'm having a little bit of trouble dealing with, what do you mean by a "concept"? OSHA has standards, I've never heard of an OSHA concept. Help me with that.

MR. RHOTEN: Well, I don't know if it's --

CHAIRPERSON BURKHAMMER: Bill, would you like to address that?

MR. RHOTEN: I don't know if it's OSHA's concept, I think it can be our concept. We're not OSHA, for starters. You talk about experience on the job site and that's how you get there, a lot of people get killed while they're getting that experience on the job site.

Right now across the country you've got these temporary employment agencies that are putting people out on job sites that might call themselves a plumber or might call themselves an electrician.

He's an electrician because the employer is going to give him money for doing some wiring, he's not an electrician. He's got no safety training.

I could go on and on with this subject, but the bottom line is there's really no down side for anybody if we head off in this direction. There shouldn't be any cost item to the employer because what you would do is make it a pre- requirement of employment and my understanding under the Wage and Hour laws, the employer is not required to provide that training.

I can tell you that I don't expect this thing to happen tomorrow, if it happened in five years or seven years. I know that the OSHA Training Institute and the colleges out there now and the consortiums that are being built can in fact furnish enough trainers to get people trained.

It's no mystery to get somebody through a ten-hour class, they're doing it in every other field in the country.

But if we don't take the position that this needs to be done as a minimum, the training is not going to get done. Nobody -- it's just not going to get done. What's going to happen is we're going to continue like we are now, where some companies have a 15-minute indoctrination, maybe once a week they'll have a tool box meeting, maybe the foreman that's giving the tool box meeting won't even know how deep a ditch has to be before it's required to be shored.

I personally again believe that this would be one of the best things that we can do as a committee, is to head off in this direction and then work out the problems that might occur getting this implemented.

You know, it says ten-hour OSHA card or equivalent. There's going to be other problems associated with getting this to the end result, but I think that all those problems can be dealt with over time.


MR. BUCHET: Mr. Chairman, thank you. On the issue of delivery of training, it practically will take some time to reach the vast numbers that we're talking about in the construction industry.

That certainly is not the same thing as it's impossible or unadvisable. The OTI has a limited number of instructors, the ed centers that fall under OTI have a limited under of instructors, but they produce through the OSHA 500 classes many, many instructors who are capable of delivering the OSHA ten-hour construction outreach program.

Everybody calls it the OSHA ten-hour, it is in fact five hours of required training and then a huge list of topics that you can tailor to the particular industry, job, project, site, population you're doing the ten-hour training for.

The issue of certification I think is going to take some work. What the current looks like and the fact that it's trackable and it has some ability to call up and say well, here's one that looks a lot like a Xerox copy, did this guy really go through the course, that's another thing.

But the delivery of training simply will be to shift some resources and provide the training and the National Safety Council is happy to help provide some of that as part of an ed center, as many other organizations in the room are happy to provide that.


MR. EDINGTON: Thank you, Mr. Chairman. I guess I'd say I often have the good fortune to spend time with Mr. Rhoten outside of the settings of this committee, in various other venues and any of us who have spent any time around him have been subject to hearing about his concern and strong belief in the need for ten-hour training.

For quite some time I was beginning to wonder whether or not Bill's thoughts on this were falling on deaf ears. I recently learned in fact that it certainly would appear that his voice has managed to reach across the oceans, when I learned that Malaysia has now implemented mandatory training requirements for their construction workers, very much along the lines of what he's been advocating for so long.

When I heard that, I said to myself, I said you know, I said, if you can figure out how to do that in a situation that's as complex as the construction market is in Malaysia, we damn well ought to be able to figure how to do it in the United States and I fully support the motion.


MS. WILLIAMS: Thank you, Mr. Chairman. I would like to go on record stating that this is long overdue. I comment the committee for bringing it to this committee.

I certainly hope we all would endorse it and it is doable. I can tell you right now in Arizona in one year we have trained over 10,000 people, construction workers, before they could go onto very specific sites.

It can be done. The trainers are qualified, they brought them in and it was accomplished. If the owners and the people require it, it will get done and it also is a caveat to be sure that we save a heck of a lot of folks that are coming on our sites right now that have zero training.


MR. COOPER: If you've known Bill Rhoten as long as I have and you take a look at him and see that white hair over there, you probably can figure out he's probably been in Malaysia recently.

The ten-hour program, if you look in the want ads, you will see want ads for people to come and work for your organization, but you have to have your driver's license. You mentioned the temporary employment agencies. There's some estimates that say that 20 percent of the construction workers in this country right at the moment, and of course we have good economic times right now, are from temporary employment agencies, 20 percent.

So therefore, as a temporary employee, you go to the agency and you may be put into construction or you may be driving a truck somewhere that day.

I fully support the ten-hour program for construction workers across this nation and it's high time to push this, it's high time for OSHA to accept it.

Keep in mind, this is not necessarily by any means borne by the employer. To get the job, you need to get the credentials of ten-hour. To drive to work, you need to get your driver's license. It's very minimal for our industry to provide and to insure that this is done.

If we can't get this done, I don't know why we're into some of the other issues that we are into in these work shops.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Cooper. Mr. Masterson?

MR. MASTERSON: First off, I don't think anybody at this table objects to training and knowledge. What I'm objecting to is a requirement that it be a ten-hour card.

The OSHA ten-hour program right now, as it exists, even using the five hours and electively going to the other modules, does not meet my needs or my industry's needs and to let those people walk onto a site and assume that because they've completed that course that's going to make them safe, that's the equivalent of saying you're willing to get on an airplane with a pilot that has never been in an airplane, just a simulator.


MR. CLOUTIER: I would remind this committee if you look at the motion, it talks about a ten-hour card or equivalent. We recognized at the workgroup that we open up a can of worms.

For many, many years, this advisory committee and for the members that are here, we have discussed this, it's come up, it's gone down, it's come up and we still see our accident and injury rates in some areas of the country that continue to go down, other areas that continue to go up.

You read the trade publications, you see the evening news, you see the morning paper, we're still having accidents and injuries throughout the business.

The workgroup's feelings was it's time that we get off dead center, push the issue and work a way, find a way to make it happen.

We threw the ten-hour card out there because it's something that's recognized by the Agency and many of us have gotten a lot of mileage out of it.

There's many trade organizations, labor organizations, third-party vendors that provide outstanding training. We just feel if you're going to be in the business, you need to have some sort of training and we're all going to win.

Employees are going to win, management is going to win, the customers are going to win and we're going to reduce the carnage that goes on in this country every day.

I think it's time for this Committee to get off dead center, make a statement, push it to the Secretary, Assistant Secretary, get the resources assigned and then work out the trials and tribulations.

Sitting back and doing nothing is being a bunch of ostriches and sticking your head in the sand and it's time we move forward.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Cloutier. Mr. Rhoten?

MR. RHOTEN: I just might mention too that I don't particular agree that if you went through the ten-hour course anybody could consider that guy an expert on safety or that he's all safe. He naturally has to be trained on the particular things on his job site.

But that ten-hour course is basically made up of a 30-hour curriculum that you can pick and choose from, so hopefully, most crafts will be able to pick and choose the ones that they want to use, that will fit their circumstances.

You know, it's been a voluntary program since 1972, I think, and I think the last few years -- a few years ago they were giving out 10,000 or 12,000 cards a year, I think they're doing now 200,000 plus cards a year and that's been because of, to a large part, an industry demand.

I think that OSHA and we need to get the message out to the owners of the facilities that hire our contractors that all they really have to do to get personnel on their site with ten hours of OSHA training is just say that's what they want and then we'll do it.

It's been happening all over the country. If an owner of a facility says look, six months from now if you, contractor, come on my facility, I expect that all your employees have had a minimum of ten hours of OSHA training and that OSHA card, which gives it in fact -- whether you might not like the curriculum or not, it was very well designed, it gives it credibility.

Those 30 hours that were put together by OSHA years ago and changed and modified, they weren't just thought of lightly.

But the point is if we don't go in this direction now -- this might take five years to get there, but if we don't start, we're never going to get there and this is the time to start.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Rhoten. Mr. Devora?

MR. DEVORA: Thank you, Mr. Chairman. I also have no problem with endorsing this concept. I think the idea that the OSHA ten-hour card is necessarily the delivery system might be my only problem with the motion.

I think that's something that we're hanging our hat on, but whether it's the ten-hour OSHA card or whether it's an in-house training that you've been doing on a regular progressive basis where you can monitor that training and in your mind is more or as effective as the OSHA ten-hour card that you take one time, whether there is or not, that's another portion of the delivery system.

I would agree with the endorsement of the concept that there be some verification of training. I just don't know if the OSHA ten-hour card is that delivery vehicle.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Devora. Mr. Buchet?

MR. BUCHET: Certainly there's some consideration when you think of overlaying an OSHA ten-hour on an already existing program that is serving part of the industry's needs.

One of the things I think we learned from OTI is that they are almost infinitely approachable and they are willing to look at your curriculum and see if you are doing enough so that it would meet the criteria for an OSHA ten-hour, in which case you might be able to do a residential OSHA ten-hour in Georgia that was different than a residential ten-hour in California and have both of them end up being suitable to internal purposes, as well as being able to issue that passport.

If the design of this becomes a passport that allows a worker to go around the country saying I've actually got this and it can be verified and it's proven, then all of a sudden we free up a lot of people to do a lot of work in an industry that right now has real problems managing its resources, the workers.

I think there could be some investigation, as to what modules need to be tacked on to suit the needs of particular parts of the industry and will satisfy OTI as a basis for the ten-hour.

I think it's key to realize that the ten-hour is only the minimum. There is all sorts of other training required for site-specific hazards that will still be required no matter whether they have the ten-hour or not, but the ten-hour will be, as Mr. Cooper suggests, the driver's license.

You will know from that certificate that the person comprehends some of these basic items. One of them may be the language that it was taught in and then it should make the secondary the site-specific should be able to build on that platform. Thank you.


MR. RHOTEN: I agree with the previous speaker, that maybe the curriculum could be changed to meet whatever is necessary in particular situations in residential construction.

But I think the key reason that the OSHA ten-hour card is what should be used as the vehicle to accomplish what we want to do is because the instructors are in fact certified.

The instructors go through the OSHA 500 course, they in fact are then qualified and authorized to sign a list and send to the Department of Labor that these people have taken this course.

Not too many instructors that I know -- I don't know any that are going to falsify one of those courses. That's not going to happen. But if you get outside of that parameter and decide that a contractor can certify his own people, then I think we're going to lose what we're after, which is to really verify that the guys have the training.

I can't think of a better vehicle to do it. I'm not suggesting that some reputable shops wouldn't hire a safety director and he could teach these guys without the OSHA 500 credentials and the training might be very well as well.

But I can tell you across town there would be somebody that wouldn't do that and there's got to be some kind of credibility, if we head down this direction, to verify that the training actually took place and that's why I suggest the OSHA 500 instructors.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Rhoten. Ms. Williams?

MS. WILLIAMS: Mr. Chairman, I just wanted to add in our discussions I was going to mention what Bill just did and I totally agree with his statement.

With the OSHA ten-hour, looking at it from the employee's perspective, so many training processes do not tell an employee what his rights are, that he can call OSHA or that he has other alternatives to him in the field.

He doesn't even know the hazards and I've seen that, so I think there's a distinct advantage to the OSHA ten-hour, to insure we are allowing these new folks to know that they do have rights and that they can call when they are not being subject to the proper safety performance.


MR. DEVORA: I guess my point is not so much the verification of the authenticity of the ten-hour card, but I guess I'm talking about monitoring the effectiveness of that training.

There really is, after the ten-hour card, other than if you do it in-house, I don't know how else you can monitor the effectiveness of the training or monitor the effectiveness of the trainer that actually provided the training.

The only way I can do it, using the driver's license analogy, is if you have a driver's license, that doesn't mean you can read all the traffic signs in Mexico if you're driving or vice-versa and I think that the delivery system and the effectiveness has to be monitored.

I'm not really concerned about the verification of whether they have the training or not, that's society, if somebody is going to falsify it, they're going to falsify it.

MR. RHOTEN: I hope that you'd go to jail for it.

MR. DEVORA: I hope he does, too, absolutely.

CHAIRPERSON BURKHAMMER: Mr. Buchet, I would like to join with Mr. Devora in offering an amendment to this motion requiring tri-annual refresher trainer, which would solve his problem.

MR. BUCHET: I don't have a problem.

MR. RHOTEN: Again, I don't expect that this is going to be the perfect system, but there's no system now and it well might be that there's some instructors out there that are going to be maybe not the best instructors in the world, but sitting through the class with the right curriculum, by accident to worker is going to pick up information that could save his life.

CHAIRPERSON BURKHAMMER: Mr. Buchet, was your comment on the amendment a motion to amend or a dream?

MR. BUCHET: It certainly was a dream and it was offered to discuss the amendment. The serious point amount monitoring the effects, downstream effects, I guess they're somewhat analogous to the driver's license and that is once you learn the basics, the proper performance of that is reinforced routinely by tool box talks, job safety meetings, going through the other training.

It may not be necessary for the ten-hour to have a two or three-year refresher. It might be nice, but it may not be totally necessary.

CHAIRPERSON BURKHAMMER: So are you making a motion to amend?

MR. BUCHET: No, Mr. Chairman.


MR. COOPER: Mr. Chairman?


MR. COOPER: I support Mr. Buchet's option to withdraw that amendment.

CHAIRPERSON BURKHAMMER: I deeply appreciate that, thank you. We have a motion from a standing workgroup, we have a second. Mr. Cloutier, would you reread the motion one more time?

MR. CLOUTIER: The motion is for the Agency to endorse a concept that requires every construction worker to have a ten-hour card or equivalent.

MR. RHOTEN: An OSHA ten-hour card.

MR. CLOUTIER: It should be a ten --

MR. RHOTEN: OSHA ten-hour card. Department of Labor, OSHA ten-hour card.

MR. DEVORA: So we're amending the motion, Mr. Cloutier, to read what?

MR. RHOTEN: I like it this way. The Department of Labor, OSHA card.

MR. BUCHET: I believe the formal title is OSHA ten-hour construction outreach program, but we need somebody to grab the program document, which is about ten pages.

CHAIRPERSON BURKHAMMER: For motion purposes, I think we all understand what the reference is for when we say OSHA ten-hour card.

MR. RHOTEN: Because later we got that word "concept" in there, we can change it all around.

CHAIRPERSON BURKHAMMER: So if you would add the words to the motion "have a" and insert "OSHA," I think that clarifies for voting purposes what --

MR. BUCHET: Perhaps add the word "construction" because there is a general industry outreach ten-hour.

CHAIRPERSON BURKHAMMER: Well, we have construction worker. I would not assume that a construction worker would take the general industry ten-hour course.

MR. BUCHET: Depends on the trade. Some people work general industry in a shop and come out on the project to install something and they'd be well-advised to take both courses.

CHAIRPERSON BURKHAMMER: Mr. Cloutier, would you amend --

MR. CLOUTIER: I will reread the motion.


MR. CLOUTIER: Endorse the concept that requires every construction worker have an OSHA construction ten-hour card or equivalent.

CHAIRPERSON BURKHAMMER: Does the seconder agree with the change in the motion?



MR. RHOTEN: It's a pleasure to second that motion.

CHAIRPERSON BURKHAMMER: Thank you. Does everybody understand the motion as amended? Even though Mr. Cloutier asked to vote tomorrow, I would like to vote today because I will not be here tomorrow.

MR. RHOTEN: Call for the question, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Thank you very much. Call for the question. All in favor of the motion as amended, signify by saying aye.




CHAIRPERSON BURKHAMMER: Very good. Motion carried.

What I would like to do now that the motion is carried is return this motion approved to the workgroup for further analysis, study, clean up, change, fix, add, work with the other concepts that you mentioned above, into the PC-based training, CD ROM training, different aspects of how you can do it so we can give OSHA a more fully defined program rather than just a statement.

Thank you very much Mr. Cloutier and Mr. Rhoten.

MR. CLOUTIER: Mr. Chairman?


MR. CLOUTIER: I just wanted to thank you, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Fall Protection, Mr. Masterson.

MR. MASTERSON: Felipe, do you want to take the lead on that?



Fall Protection Workgroup Report

MR. DEVORA: Sure. Fall protection has been meeting since I guess last October, a little bit before that, actually. The docket is actually closed on comments, however we were still taking comments for our program, to give ACCSH.

However, for purpose of information, it was pointed out to us yesterday and then verified here a minute ago when I got the copy of the new agenda, that this fall protection ANPRM is now on the long term action agenda here and there is no -- the next action is undetermined and the priority is substantive and non-significant.

So having said that, I'll go on with our report here. We have compiled all the comments that we've taken over the last year or so on the ten different issues. This is one of those octopus type things we've been asked to comment on because each one of these ten questions with regards to fall protection have subsections in them, so it's very voluminous and there's a lot of comments.

So I think what Bob and I have struggled with a little bit is what form we're going to bring this motion or whatever to the ACCSH Committee and I think what we've talked about is we're going to get these -- we're actually in a binder form, Bob has agreed to do that for me here locally and we'll be getting each of you a copy.

It will be mailed and what we'll ask you to do is go through the ten questions and at your own leisure, go through the subparts and then I guess sort of a different approach would be give us some of your input on where we're at.

We had some consensus on a lot of issues in the workgroups, however I will -- and Bob, you can add to this, to be honest with you, there were certain expertise in different workgroups.

We had one workgroup where it was mainly residential folks and those comments are in there. We had one group that addressed precast, we had another group that addressed drill shaft, so we had a wide variety of comments.

These comments are in the docket and they will also be in this brochure that we're sending out to you, some of the comments.

Having said that, we'll get those to you before the next meeting and have you -- give you time to understand and study the comments and then I guess Mr. Chairman, I would ask for some help and I'll be containing you about what form we're going to put this motion in because like I said, it's ten questions with subparts in them and it's going to require some study and some thought about how we're going to -- are we going to vote on each ten of them, are we going to vote on each subpart of them or how are we going to do that.

If anyone else has any thoughts on that, we would like -- or do we just give you the product and say here's the product and we write an opinion and we send it to OSHA, we vote to send it on to OSHA with those comments.

CHAIRPERSON BURKHAMMER: Is this based on the form that you all sent out, the survey?

MR. DEVORA: Well, that survey was not necessarily a survey, it was just a repetition of the ten questions in The Federal Register.

CHAIRPERSON BURKHAMMER: Okay. So you're going to bring a report back covering the ten issues?

MR. DEVORA: Yes. It will be a report and it will be the comments attached to the report on those ten issues.

CHAIRPERSON BURKHAMMER: Then I would suggest you have a motion for each issue because they're different.

MR. DEVORA: For each one? And then there's subparts to each question.

CHAIRPERSON BURKHAMMER: The subparts go with the question, so you'd have one motion for the question and subparts.


CHAIRPERSON BURKHAMMER: Give me a call and I'll show you.

MR. DEVORA: Very good.


MR. MASTERSON: What we're going to provide to each of the members is a fairly thick document. Right now it's about five inches thick and it's a lot of reading.

We have made comments, but the reason we want to do it this way is so that you all have ample time to review our responses to each of the questions and not give it to you today, expecting you to review it tonight and then vote on it tomorrow.

I would hope we should have this in your hands within two weeks from today.

CHAIRPERSON BURKHAMMER: Great. That would be appreciated, to give the Committee a couple months over the summer, with vacations and everything, to go through it and review it and come prepared at the fall meeting to fully discuss it.

In your opinion, how much time -- considering you have ten issues, fairly substantial to each one, I would guess a half a day just for you.

MR. DEVORA: There are some issues on there that I'm sure are going to generate a lot of discussion, so yeah.

CHAIRPERSON BURKHAMMER: Jim, if you would note on the next agenda a four-hour block of time for that issue, thank you. Anything further?


CHAIRPERSON BURKHAMMER: Any comments on Felipe or Bob's report? Michael?

MR. BUCHET: I understand from the comments that this has sort of fallen off OSHA's relatively high priority list. Do you want to entertain a motion to suggest that it be elevated again? That's a question, Mr. Chairman.

We put a lot of emphasis on sanitation and we felt that that was where we needed to emphasize OSHA spend some resources and quite possibly we might want to do something similar with fall protection, but that's a question for discussion.

CHAIRPERSON BURKHAMMER: I think it's a fair question and I think we ought to wait until the next meeting, when we go through the papers and the documents and the questions and the motions that are going to be generated and maybe at the end of all that, depending on what the Committee's outcome is, that motion might be worth making at that time.

MR. BUCHET: Thank you.

CHAIRPERSON BURKHAMMER: Noise. Felipe and Marie.


Noise in Construction

MS. SWEENEY: Thank you, Mr. Chairman. When I opened this inaugural meeting of the workgroup and I had actually about 12 or 13 people attend and there was a lot of interest, one thing that we did was we brought in Don Franks, who is the head of the hearing loss section at NIOSH, who talked to us about the issues related to hearing loss and construction workers.

After a 45-minute presentation, I thought folks on the committee were enlightened, as well as had a lot of questions and still will probably bring more people in to give us background on hearing loss in construction workers, as well as sources of noises.

Jim Maddox, from the OSHA Health Standards or Safety Standards program came in and gave us an update on the ANPR and he said that they probably wouldn't have the ANPR out until some time this summer. That's still to be determined.

They have sent the ANPR up for a legal review, but they're as yet to have an attorney assigned to the review, so depending on what happens there.

We don't really know all the things that OSHA needs from the workgroup relative to the proposed standard and Felipe and I haven't discussed this, but we will decide in the interim whether or not we're going to have another workgroup meeting until the ANPR is published.

Perhaps some of the members of the workgroup might want to call us to see whether or not they want -- we still want to provide them with background information about hearing loss, about sources, about personal protective equipment, hearing protection, so those are the main points. Felipe, did you have anything else?

MR. DEVORA: Yes. At this point, like Marie talked about, until we actually see what the proposal is, we're really in the information gathering stage and I will say that this is a very -- from what I heard yesterday, there was about five minutes there where I heard a lot of words that I didn't understand.

The scientists were going at it and this poor contractor over here, all I knew was that they were talking about something that was obviously very important.

So there's a lot of technical stuff in this, so in terms of using this time for information gathering, I think it's very important and I would also ask the rest of the committee, any information, giving thought to manufactured equipment, noise levels, data, maybe cranes perhaps, any of this kind of background information is only going to help us when we do know what our actual charge is and what the proposal looks like.

Having said that, Marie is going to handle the science and I'm going to handle the contractor items.

MS. SWEENEY: And you hung in there very well.

MR. DEVORA: Thank you.

CHAIRPERSON BURKHAMMER: And what a team that will be. Any comments or questions on the report?

(No response.)

CHAIRPERSON BURKHAMMER: Okay. It's 12:04, we'll adjourn for lunch. Please be back here at 1:00.

(Whereupon a luncheon recess was taken at 12:02 p.m.)


(1:05 p.m.)

CHAIRPERSON BURKHAMMER: All right. Welcome back in session.

Several times over the past years that I've been associated with ACCSH we've had numerous discussions on the rulemaking process and how it works or doesn't work, depending on one's point of view.

We've asked that we have a presentation made this time and I'm glad to see they're here to talk about the rulemaking process and kind of give the ACCSH Committee an overview of how it's really supposed to work.

I think we're going to be able to get a lot out of this, so without further ado, Claudia, are you and George ready?

MS. THURBER: We are.

MR. BUCHET: Not only how it's supposed to work, but maybe a couple of war stories on how it does work.

MR. HENSCHEL: And how it doesn't work.



The Rule Making Process

MR. HENSCHEL: Good afternoon. My name is George Henschel, I'm Council for Safety Standards and here's Claudia Thurber, who is Council for Health Standards. Marthe isn't here yet, I guess, but I assume she will come in at some point during the presentation and if it's at a good point, we can have her start her presentation or she may want to just wait until we're done with ours.

I see a couple familiar faces, some folks who have been involved in rulemaking, Steve Cooper for example, and Mike. Those of you who have seen rulemaking, you've probably heard the story about making law and making sausage.

People who have seen either, they know that it's not a pretty process. You may like the final product, but the process is not a nice one.

Let me start off. We're calling this "Headlines and Hurdles," but actually it's more like jumping through hoops. There are a lot of different steps that are necessary, as you know, and for those of you who have done rulemaking and have been involved with rulemaking, at lot of this will be familiar to you, but there will still be some surprises, I'm sure.

Let me go over some of the things that we're going to discuss. First of all, our basis statute, the OSH Act, the substantive tests and criteria that we have to meet and the procedures, basic procedures for setting rules and standards, which we'll discuss also.

But there are a lot of things that we have to deal with besides our own statute. We have other statutes and Executive Orders, we have to address concerns of Congress and political concerns. There's the whole priority process, how OSHA sets its priorities and keeps them and public participation. This committee is certainly part of our public participation in the construction area, areas in which committees can help and individual members of the public and other organizations can help.

Let me start off by talking about the first standards that we ever had on the books. These were referred to as Section 6(a) standards, Section 6(a) of the OSH Act. There was a two-year window of opportunity, we called it, during the first two years of the OSH Act Congress directed the Secretary of Labor to adopt established Federal standards and National consensus standards as OSHA standards, without having to go through the notice and comment process.

This obviously resulted in the big book of standards that you see for each of the areas that we cover.

Now I'll turn it over to Claudia, who will start to give you some information about standards that actually go through rulemaking.

MS. THURBER: One of the things that we're permitted to do under the OSH Act is have an emergency temporary standard and the upside of the emergency temporary standard is that you don't have to meet the requirements of the APA, it can be immediately effective, it can take care of a grave danger.

The down side is that we have a very dismal record with emergency temporary standards. In the 29 years or so that we've been in existence, there have been seven or eight of them, one was unchallenged, one was challenged but prevailed and all the rest of them struck down by the courts.

They last for six months, there is an ETS -- the Emergency Temporary Standard becomes the proposed rule and it then goes through all the proposal stages after that.

The thing to remember about it is it's really for the very exceptional situation, it's a very extraordinary way to set a standard and we are very reluctant to use it, if there's any way of going into regular rulemaking or starting with guidelines and moving into rulemaking.

MR. HENSCHEL: One thing that we usually need to clarify with folks is that OSHA standards are not the only types of regulations that OSHA issues.

All OSHA standards are what they call regulations or rules, but not all regulations are standards. For example, I give some examples up here on the slide, OSHA issues regulations on injury and illness record keeping, it has rules on its consultation program and there are a number of procedural rules that OSHA has for enforcement, for actually conducting rulemaking.

These rules are not covered by Section 6(b), which is our regular standard setting process. These are what are referring to as APA, Administrative Procedure Act rulemakings, which are just notice and comment and there's no right to a hearing, no responsibility to have a hearing for those.

But the type of OSHA rule that you're most involved with here on the Committee is the OSHA standard and we have some basic requirements that we have for OSHA standards that have been set by the court, primarily in what's referred to as the Benzene decision.

We have to comply with Section 3-8 of the OSH Act, which requires that we regulate only significant risks. We need to find that there is a significant risk of health functional capacity. We have to find that our standard is reasonably necessary and appropriate and we have to make a determination that our standards are technologically and economically feasible. Those are obviously very loaded terms and there's a lot of case law on them.

There are additional requirements for what are called so-called health standards under Section 6(b)(5) of the Act. These requirements include that we have to assure that to the extent feasible, to the limits of feasibility, that no employee suffers material impairment, even if exposed to the hazard for a working life time.

If there is a significant risk and there are problems with feasibility, we have to regulate to the limits of feasibility, if the risk is still significant.

Now I'll turn it back over to Claudia to go through the whole process of -- I'll hide under the podium.

MS. SWEENEY: Would you define "significant risk" please?

MS. THURBER: I wish I could. What the court said in the Benzene decision was that we had to have significant risk. The court said we don't have to make risk-free work places, but we have to eliminate significant risk to the extent that we can.

The court did not -- and this is a plurality of the court, it's kind of a funny decision that way. It wasn't nine to nothing, it wasn't even seven to two, it was four, with one ore chiming in on it, which makes a plurality.

There is no mathematical straight jacket. What they said was that the decision as to what is a significant risk will be based largely on policy and then they gave some sort of numerical guidelines.

They said a reasonable person would consider a one in a thousand chance of dying from inhaling fumes as a significant risk, whereas a reasonable person might consider a one in a billion chance as an insignificant risk. so we have loose guidelines.

But that doesn't mean that we have to have at least one in a thousand chance of death, because as George said earlier, we're looking at material impairment of harm and in fact, in some standards, in our new TB proposal, we're looking at impairment of harm as being infection with TB and blood borne pathogens and I know the health standards better than I know the safety standards, blood borne pathogens we looked at infection of hepatitis B virus, even though only maybe 20 percent will go on to some sort of clinical disease or some sort of outcome.

I'm not coordinated for this. As George said, OSHA is constrained by feasibility on health standards and feasibility means capable of being done.

As far as technological feasibility, it means that the technology is out there to do it, that it can be foreseen that it can be developed or that it's available and can be put into use right now, so it's really three different things.

It doesn't mean that an industry is doing it right now, it can be technology forcing. It has --

MR. BUCHET: Claudia, is there a time frame on that? If we say in ten years we might develop the strategic defense initiative, that's foreseeable feasibility or are we talking --

MS. THURBER: I think reasonably foreseeable is what it really means and if within a year or two the technology can be developed -- usually we're working with what's there or what's out there and not everybody had developed.

And it is true that industries have stepped forward, Marthe was talking this morning at another meeting, I think it was acrylonitrile or vinyl chloride where it was technology forcing and within a year, industry came into compliance. Was it vinyl chloride?

Economic feasibility. Economic feasibility means that it must be written so that you cannot destroy a whole industry, but you can break the laggards.

In other words, an industry has to be able to absorb the cost, pass it on without threatening long term profitability or compulsive standards. That's the industry, not one particular business.

In terms of safety standards, we look at cost benefit, in terms of health standards, we are not permitted to look at cost benefits, we look at cost effectiveness. In other words, we find out how low we have to go, we look at all the alternatives to get there and we choose the one that is the least costly.

Cotton Dust decision is the Supreme Court decision that gave us our feasibility analysis, not cost benefit analysis and our limitations and that's the one that I just talked about.

Now, in terms of challenges to the standard, we go by the substantial evidence test. In other words, the determinations of the Secretary shall be conclusive, if supported by substantial evidence in the record considered as a whole.

So what's "the record"? The record is everything we rely upon and it's usually characterized by our docket, which contains articles, our hearing transcripts, video tapes, just about everything you could imagine that goes into that long process of rulemaking, comments, studies, testimony.

We do not follow the formal Rules of Evidence in our rulemaking, but we do have rules and we are obligated to write a preamble that explains what we have done and we must consider all the evidence and we distinguish evidence that we do not accept.

MR. HENSCHEL: One of the things we've done, by the way, as far as dealing with evidence in the record, is we've -- in a couple of recent rulemakings we've started to accept electronic comments to the docket and we've established a place on the OSHA web site where when a proposed standard comes out, employers and employees and any other interested persons in the public who want to comment on a proposal can actually file it directly from the web site.

MR. BUCHET: It is any interested person, it's not just an affected population?

MR. HENSCHEL: Any interested person.

MR. BUCHET: Anybody who wants to give an --

MR. HENSCHEL: That's correct.

MR. BUCHET: Thank you.

MR. HENSCHEL: I see that Marthe is here. Hello, Marthe.

UNKNOWN: Marthe is here, she's just hiding while you guys are doing such a good job.

MR. HENSCHEL: If you'd like, we will continue and then anything you want to chime in with, feel free.

But anyway, I mentioned earlier the OSH Act and there are a lot of other statutes that we have to deal with and a lot of people in the public don't really realize how many different statutes and as you'll see, other directives that we have to comply with.

For example, the Administrative Procedure Act generally applies to all notice and comment rulemakings. The Federal Advisory Committee Act, under which this Committee is serving, we have to make sure that all the requirements are met whenever an advisory committee meetings, on the other hand, we have to make sure that whenever we have what are referred to as "preferred sources of advice," an advisory committee is considered that, we meet certain formalities.

We have to comply with the National Environmental Protection Act. There's not a whole lot that we generally have to do on that, but it's still something we have to pay attention to.

Those of you that are familiar with the Steel Erection proposal know that there's a statute called the Negotiated Rulemaking Act, which provides for some alternative procedures in accordance with the Federal Advisory Committee Act for negotiated rulemaking.

Negotiated rulemaking is really what -- I think it's somewhat of a misnomer, because the Agency still has to develop a proposed rule and has to go through its normal rulemaking process on a proposal, so it's really negotiated pre-rulemaking. It's negotiated development of proposal and development of evidence that will support the proposal.

We also have to deal with the Paperwork Reduction Act, where we are limited to some extent in the amount of paperwork we can impose through our rulemaking requirements and we have to keep a budget, a paperwork budget, which we have to run by OMB every year.

We also have a statute -- these next two are pretty closely related. There's the Regulatory Flexibility Act, referred to as Reg Flex or RFA, and the Small Business Regulatory Enforcement Fairness Act, which has a somewhat unwieldy acronym, SBREFA.

Both of these statutes are directed at the impacts of regulations on what are referred to as small entities, small businesses and small governmental entities.

Finally, there's Unfunded Mandates Reform Act, which is where any kind of government directive imposes directly costs and impacts on -- that are actually not taken into account directly in a rule, that may be imposed indirectly.

As I say at the top of this particular slide, --

MR. BUCHET: George, the Unfunded Mandates, that's an effect on private as well as public entities?

MR. HENSCHEL: There is some there, yes. Most of the concern that's addressed publicly has to do with impact on governments. Most of the attention that's paid to it. We do have to deal with both aspects, though.

MR. BUCHET: The economic study must answer an awful lot of those questions for the industry participant?

MR. HENSCHEL: That's part of the economic analysis that OSHA does and I'm sure Marthe can speak to that in more detail.

There are a number of other things, when we talk about economics also that leads right into this, a number of other requirements that we have that are non-statutory.

For example, we have a number of Executive Orders and some of them are -- there are two in particular that are of particular note to us. One is the President's Executive Order on Regulatory Planning and Review, and that's 12-8-66, that's the latest in a series of these Executive Orders that require agencies to do economic analyses of their proposed rules and final rules and to coordinate with OMB.

And there's the most recent one on Federalism that became effective November 5, it deals with impacts on state and local governments and other government entities.

We have a Presidential Memorandum on Plain Language, those of you that have read the Ergonomics Proposal will note the different format that was used for that and there's a major initiative in the government, led by the Vice President, to have agencies write their rules in plain language.

Question and answer format tends to be a more popular means of writing rules these days. Sometimes it works, sometimes it doesn't. We use it where we can.

There's always Congressional interest in everything that we do. You may have noted, there were a number of hearings recently on various aspects of OSHA, from the home worker element that was in the news so much, there's been a lot of hearings on ergonomics and related things. Congress does take great interest in everything that we do.

Now let's assume that we've got a rule that we want to propose. How do we go about this? How do we go about starting a rulemaking?

There are any number of first steps. OSHA receives a number of petitions, they may receive them from any member of the public, asking that OSHA either revise an existing rule or develop a new rule for perhaps a hazard that hasn't yet been addressed by a specific standard.

There are advisory committees, such as this one. OSHA has different types of advisory committees that it can call upon. Under the OSH Act, there are specific requirements for standards advisory committees.

There's currently an advisory committee that is underway on metal working fluids, for example. There are negotiated rulemaking committees, which is really a form of advisory committee, there is stake holder input, where it may be a petition, it may be just letters to the Agency.

There are court decisions, for example if a standard -- if the Agency has regulated and a court has determined that the Agency needs to take further action to either revise the rule or to go back and revisit it, the court will tell us to do so.

And there are also times where there are decisions in the enforcement area, where OSHA may be trying to enforce a particular standard in a particular way and the court will sanction that or, if they do not and OSHA has a number of these, OSHA may consider going back to revise the rule.

Finally, OSHA may have its own internal review of particular hazards to determine whether the existing rules are adequate or whether there are new rules necessary.

MS. WILLIAMS: George, is there any certain quantity of petitions that would trigger your interest?

MR. HENSCHEL: I don't know whether there's any particular quantum. I think that what will happen sometimes is that when a number of petitions come in, OSHA will then go and evaluate the hazard itself and develop some additional evidence and determine whether it needs to -- sometimes it will go for an Advance Notice of Proposed Rulemaking, which is a pre-rulemaking step, to try to get more information.

And sometimes -- you know, there are all kinds of means of getting additional evidence. Sometimes the Agency will also talk to one of its existing advisory committees or even establish a new advisory committee. Yes?

MR. BUCHET: You mentioned the ANPR. Is there anything that stops an advisory committee from asking to see or volunteering to help create the ANPR before it goes out?

MR. HENSCHEL: There's no formal ban on that, although the Agency does set the agenda for its advisory committees, so if the Agency is interested, the Agency may certainly take advantage of that. Depending upon what the Agency's priorities are, they may or may not.

The next step is the regulatory agenda and I'll turn it over to Claudia for that.

MS. THURBER: Let me just add that it's not at all unusual for OSHA to use information generated by advisory committees in ANPRs.

Twice each year by law OSHA must publish its regulatory agenda and this is government wide, everybody in government who is regulating has to publish a regulatory agenda.

We publish in April and October and I understand our new one is out and it's usually put on our web page as soon as possible, at any rate it's always available on The Federal Register web page.

It's required by the Regulatory Flexibility Act, Executive Order 12866 and in it, we have 12 to 18 months projections on things. We've divided it into four sections. We have a pre-rule section, a proposed rule, final rules, long term actions and completed actions. Actually, that's five.

In it, we put our anticipated dates. Sometimes we don't know how long it's going to take, so we will put something something zero zero, which suggests this is of a lower priority than others and we do try to be accurate, but the dates there do slip and we are not required by law to meet those dates.

Executive Order 12866 requires us to list all regs that we have under active consideration for the coming year, so if it isn't in the reg agenda, it's not under active consideration in the coming year and those are the regs that have an annual effect on the economy of $100 million, that adversely effect the economy in sector productively, jobs, et cetera, or regs that OIRA, the Office of Information & Regulatory Analysis in OMB decide are significant.

We also make a preliminary determination as to whether these will have a potential impact on small entities, but quite often for some of them we're very much in our early stages, so that is a preliminary determination.

George talked a little bit about the Advance Notice of Proposed Rulemaking. We do use it a lot. We are not required to use it, it's not a statutory animal of any kind, not a formal step.

What it really is is a statement that says this is the information we have, we think we're going to regulate in this area, tell us what you know about this and we tend to put down what we have, we tend to ask a lot of questions in it and we let you know what we're concerned about. it's very preliminary.

Sometimes we call them requests for information and sometimes we have both, as in buta dyn.

We hold stake holder meetings and this is something we've been doing in the last four or five years, we didn't do it a whole lot before that. We look at people who are effected by the standard, manufacturers, suppliers, employers, employees and other parties. We also have participation from professional and trade associations.

We try to get a lot of information. We also try to provide the information that we have. In other words, the direction that we're going in terms of the topic.

It's not an advisory committee and we're very careful to make sure this is not an advisory committee. We're not interested in a consensus from those who attend it, we are interested in what's happening with them, what they think of our general ideas of what we're going to do about the regulation.

If we have a draft text or if we have a draft outline more likely, we will generally share it with our stake holders and get their input. It's another step in the process very early on for people to participate and give us information and help us to write a better reg.

Okay. We've touched on this a little bit. This is the statutory animal, this is the Notice of Proposed Rulemaking and in it, always at the back, we have our proposed regulatory text. Most of us who are in this business start reading there first to find out what's really going to be required.

Then we're required to explain it and we generally go through the background, which is a statement of the history, what's been happening, how did we get here, was this by virtue of petitions, was there a large accident, did Congress mandate for us to do this.

We have a summary and explanation of the proposed standard, that includes all of its provisions. We cite the statutory criteria and the requirements and explain how this particular standard meets those criteria and requirements.

There is a large but summary section on economics and feasibility and this is the initial cut at what's feasible and what the economic costs will be.

There's also -- and this is becoming even more prevalent in the later standards, a long section of issues and questions. I think we try harder every year to focus the public on what we really need to know so that people aren't sending in just everything they have, but they're addressing the issues that truly are issues.

Then we let everybody know that there will be an opportunity for public participation. Sometimes we will know that there's going to be a hearing and we may schedule it in that document, other times we'll say does someone want to have a hearing and if someone wants to have a hearing, then we hold it and we will schedule it in another document.

MR. HENSCHEL: A few words about SBREFA, which has come to take up a lot of our time and energy in the last couple of years, those of us that have been so involved in the process.

SBREFA set up a requirement to have a small business review panel and Congress said the effected agencies had to do this. Well, who are the effected agencies? OSHA and EPA, defined in the statute.

So what happens is that if a proposed rule may have a significant economic impact on a substantial number of small entities, and I raise the question what do these terms mean, we don't know for sure, the Act does not define them. We haven't formally asked anybody to define them because we don't really know what they'll say, but if we, in our judgment and OSHA, in its judgment, believe that a rule may have a significant economic impact on a substantial number of small entities, we're required to convene a small business review panel.

This panel consists of OSHA, OSHA chairs the panel and puts members on the panel. OMB is also on this panel and the Small Business Administration Office of Advocacy is represented on this panel, so this is one of those strange bedfellows kind of organizations.

What the panel does is first, OSHA and SBA identifies small business representatives who would be effected by the proposed rule. The panel then distributes information to the panel, including the draft proposed standard and other materials, it may include part of the economic analysis, it may include other feasibility information and those small business representatives review these materials and get back to the panel.

The panel receives these comments usually in writing and sometimes by telephone in a telephone conference and we've had several of these conferences and they can be very interesting experiences.

Once the panel receives the comments, the panel prepares a report that it submits to the Assistant Secretary and the panel summarizes all the small business comments and includes suggestions, including a lot of the suggestions that the small business representatives have made to improve the standard, to make it clearer, to reduce impact, and it includes issues that it wants OSHA to raise in the proposed rule.

This is sometimes not consensus between OSHA and OMB and SBA on these things, as you might be surprised to find out, but there can be a consensus report and there can be separate views that are attached to it by one or another of the parties, of the members of the panel.

MR. BUCHET: If there isn't consensus and the small business, for instance, says this shouldn't go any further, what happens at that point? Or are you going to cover that?

MR. HENSCHEL: That's included in the report and the report is --

MR. BUCHET: That's advisory to OSHA?

MR. HENSCHEL: Right. And what it does is it reports the small business representatives' views. OSHA is not required to take any specific action based upon the panel, it does need to address the issues.

MR. BUCHET: Address the issues.

MR. HENSCHEL: And now an organization that's very close to your hearts, you know who these folks are, your committee is a very important part of the rulemaking process for OSHA construction standards.

It was established, as you know, under the Construction Safety Act and it was originally a nine-member committee. It was to assist the Agency in developing construction standards, Federally funded and assisted construction, and in the administration of the Construction Safety Act.

When the OSH Act came along, one of the first steps that OSHA did in the standards area was adopt the standards that had been developed for construction under the Construction Safety Act as established Federal standards and the next thing was to expand the size of the committee to meet the requirements under the OSH Act, which provides for 15 members, so that's how there are more than nine of you here.

OSHA consults with your committee on construction standards, we provide the committee with proposed standards and supporting information and this committee reviews proposed standards and provides recommendations to the Agency and it may majority and minority views. But it is the one standards advisory committee that OSHA is required to use.

CHAIRPERSON BURKHAMMER: George, on that one that said minority and majority views, in all my years associated with this committee, we've never given a minority report.

MR. HENSCHEL: The regulations actually specifically provide for that sort of thing, if the committee wants to do it.

MS. KENT: There's whole new opportunities.

CHAIRPERSON BURKHAMMER: You've opened a whole new door. Jane, where are our guidelines here so I can make sure that we don't have to --

MR. HENSCHEL: Let me address the whole question. This was the Executive Order that leads to most of OSHA's economic analyses. There are certain aspects that deal with small business, but the main thing is Executive Order review for the overall impact of the rule.

The Office of Information & Regulatory Affairs, OIRA it's called at OMB, reviews significant regulatory actions. Basically, what is a significant regulatory action? There are certain cost aspects, if the rule is of a high enough cost they will look at it and the bottom line is if it has significant or novel legal issues or other issues, and basically, anything that OMB wants to look at, OMB can designate as significant.

A significant regulatory action, if it's economically significant, if it's likely to have an annual effect of $100 million on the economy or, as I mentioned, anything else that they designate.

OIRA reviews our proposed rules and they review our final rules. They keep records, occasionally parties will seek to meet with OMB, with the OIRA staff, to discuss proposed rules and final rules. OIRA has to keep records of these communications, they have to keep a file and they have to make that file publicly available at the end of the rulemaking.

MS. KENT: And they also have to invite the Agency.

MR. HENSCHEL: Right. I'm sorry, that's correct. They have to invite the Agency to any meetings that they have.

MR. BUCHET: Does OIRA have phases?

MS. KENT: Oh, does it. Oh, yes.

MR. HENSCHEL: Oh, yes, they do.

MR. BUCHET: What sort of skills and professions populate the faces of OIRA?

MR. HENSCHEL: There's a wide range. Our desk officer right now I believe is a PhD economist and there are a lot of public policy --

MR. BUCHET: Are there any safety?

MR. HENSCHEL: I don't know. They must have some staff who are involved with safety.

MS. KENT: They have health people, they have risk assessors who join in the review process when that's necessary, so we're going to send TB over, risk assessment is a big issue, there will be somebody there.

Safety, I've not actually had that experience and the reason is because most of our safety rules don't trip the OMB trigger.

MR. HENSCHEL: In that way they act a lot like the Department of Labor does in that there are little pockets of expertise in different parts and if we need to draw on them, we can.

MS. THURBER: After all this is finished and after the rule has been sprung from OMB, usually within hours we're calling The Register and saying it's coming over, as soon as we can get our signatures. It's really a race to The Register because we're all exhausted and we're so excited about getting something out.

So it goes to The Register, if it's a long rule it takes a week or so for them, maybe even more for them to get it into print. If it's a real short one, it could go in very quickly.

The proposal sets the public comment period and it starts on the day it's published in The Federal Register, and incidently, it's on the web page at that time, too, on The Federal Register web page and I think we try to get it on ours that day also.

The public comment period can be 30 days, 90 days, whatever the Agency has determined is appropriate for the amount of comment or whatever the Agency can afford to spare, in terms of trying to get this out by the end of one year or the end of the next year. There is no statutory requirement, except for 30 days.

In the proposal there's an opportunity to request an informal public hearing. In my experience, we almost always have them. It's the rare standard, usually it's a very small safety standard, that does not have a request for a public hearing and even in some of the smaller safety standards we've had half day hearings.

The public participates in a number of ways. The vast majority of them participate by sending in written comments, hard copy, usually four copies, which are then distributed to the people who are working on the standards.

Now they're sending in e-comments. Last I checked, we're not able to do attachments with e-comments, so if someone sends an e-comment in, you have to send the attachment in separately, the article or the supporting graphs or whatever else you're sending in.

If you object to the proposal, you are entitled to a hearing. If OSHA schedules a hearing, OSHA will ask you to submit a Notice of Intention to Appear and this is a very -- it's a brief document, it's a very important document because in it you say who you are, who you represent, what you plan to say, how much time you'll need to say it and what supporting evidence you'll be bringing in.

This is absolutely essential for scheduling the hearings, so that everybody will have a chance to speak. People who ask for five or six hours on a hearing are probably not going to get that because the project people, the judge and others go over this and they decide what's an appropriate amount of time.

And there's nothing special about testifying. OSHA considers all the comments of equal weight and persuasion, depending on how inherently persuasive they are. It's not imperative that you stand up and read your testimony for 20 or 30 pages, it will be read, considered, analyzed, part of the record even if you only participate at the stage of the written comments.

Testimony, documentary evidence, and we've had the range of documentary evidence, from papers to video to -- well, in blood borne, we had a couple of dirty needle sticks that had to be discarded before they hit the record and I'm sure that in the safety standards there have been a number of actual hard evidence things.

MS. KENT: Fire axes.

MS. THURBER: Fire axes. In field sanitation we had a set of parasites, a sort of desk set that somebody had made up into baby food jars. Some high moments.

After the hearings, and we generally take the hearings on the road, if it's a large hearing, our ergonomics hearing has been to Chicago and to Portland and I guess they'll be back this next week for more time in Washington. Our indoor air quality hearing was all in Washington and it lasted almost seven months. TB we took to four places.

We try to go where the workers and the industries are that will be able to testify because we're there, so I think it's very important that we go out on the road, because not everybody can afford to come to Washington, take days off and testify.

After the hearing the judge will set the post hearing comment period, which will include a period for briefs. First there will be a period for you to send in your extra material, for you to comment on what was said by other people or perhaps what was said by OSHA, and OSHA is available on the first day of every hearing to answer questions. OSHA's proposal is its statement.

MR. BUCHET: At the post hearing comment period, is that limited to only people who have spoken or sent in written comments or can anybody send something in and say I don't like what Harry said on Thursday?

MS. THURBER: It is limited to those who are participating in that process, so if you want to go on with the process, you would file -- if you wanted to go all the way, you would file a Notice of Intent to Appear and at least appear for some small amount of time.

And there is another way to appear. If for some reason you've forgotten to file your notice and you have just a few words that you want to say, it's in the judge's discretion to allow you to speak for up to ten minutes, if there's time. At some hearings there's just no time, ergonomics has been going day and night and I doubt that there's been any time for walk-ons. In others, people have dropped out and there's been time for three or four walk-ons perhaps at the end of the day.

The post hearing comment period is for those who participated in the hearing, to make another statement, submit more information. The brief period is after that, it usually runs about 30 days and that's your chance to write up a brief, your summary of the evidence, how you feel the evidence effects what you're doing. It's your kind of last shot at things.

Following the hearings and maybe one day off to rest, OSHA starts drafting the final rule and OSHA has to follow all the steps that it followed before, except for the small business panel.

It has to review and analyze the rulemaking record and the record can be anywhere from four or five comments in the smallest of rulemakings to several hundred thousand comments in the I&Q rulemaking, ten thousand comments in the ergonomics rulemaking. Obviously, some of the comments will be a post card letter writing campaign or something, but many, many of the comments are substantive, all must be read, all must be analyzed, all must be part of the record and considered.

OSHA will begin revising and evaluating the small business impacts, they'll also update the paperwork package and they'll develop the final regulatory test and preamble. It sounds like simple steps, but not one of them is simple. They're done by teams and it's a lot of work and it takes a lot more time than we think when we first start out.

Then we will evaluate, mostly those of us in SOL, the final rule for legal sufficiency under the Act and under all of the authorities that George went through earlier.

After the team has finished, has gotten to the point where they're written the reg text, they've done all the analyses, they've written all the parts, it goes through an internal clearance process at the Department of Labor and this is after it's gone through an internal process within its own offices.

Marthe will be reviewing for her office, George or I will be reviewing for ours and sometimes our boss, Joe Woodward, will be reviewing, depending on the topic.

OMB review, this is kind of a review of OMB reviews. If it's a significant regulatory action under Executive Order 12866, George talked about that, they will review the paperwork under the Paperwork Reduction Act and also any Federalism impacts.

They tend to look to other people in other agencies, too. If we have a health standard, it might go to FDA or it might go to HHS for some comments from them. Hopefully, we've already done that beforehand, so it's not a surprise to us.

And then finally, under SBREFA, all final rules must go to Congress. This is a 1996 requirement, so we're not so used to it as we are some of the other older requirements.

What this says is that the rule that we have will not be effect for 60 days and then it is effective, unless it's disapproved in the latest of three dates, and don't write this down or anything because it's complicated and we're not always sure exactly what it means, 60 calendar days after The Federal Register publication or if Congress passes a Joint Resolution of Disapproval, then it would not be effective, and the President could veto it, unless the veto is overridden, so you can see we'd have a three-step process there.

MR. BUCHET: Do they have to override the veto within a certain number of days or it takes effect?

MS. THURBER: I think they have 30 session days and session days are hard to calculate. We sat down in the office when we first got it and tried to figure out exactly how many days.

MS. KENT: It's impossible, nobody could count it.

MS. THURBER: The up side of this is that no regulation has been disapproved yet and if it stays that way, we may never have to worry about what a session day is or anything related to it.

MR. BUCHET: Wait for ergo.

MS. THURBER: I'm sure ergo will be fine.

MR. HENSCHEL: One of the things that we are grateful for is that in this final review process one of the early versions of the SBREFA Bill called for us to consult with the review panel, both at the proposed rule and at the final rule stage and we're very grateful that that version was not passed, because it takes an awful lot of time.

Finally, success and OSHA publishes its final rule in The Federal Register. Usually we will have delayed effective dates, if there are provisions that impose certain requirements for technology or for engineering controls, for example.

Then there's the ever popular correction notice. Sometimes -- I had to put that in there because it's gotten to be almost a set part of the process. There are often -- besides typos, there are things that just -- from one version to another just didn't come out right in the final and there are things that we were supposed to correct that we didn't and we end up correcting them there.

There are oftentimes -- what someone who intends to challenge a rule will do is they will petition the Agency for reconsideration or a stay of the final rule. This is what's referred to in legal jargon as exhausting your administrative remedies. It's going to the Agency and getting one last shot, saying Agency, do something about this or we're going to sue.

MR. BUCHET: George, can that be anybody or does it have to come from the population that's been commenting throughout the rulemaking process?

MR. HENSCHEL: We've had whole wide ranges of people who have filed. We have had organizations that didn't formally file comments that challenged. There are a number of questions as to who has standing to challenge a particular standard. They've come out different ways in different standards.

For example, I think in fire protection, a fire protection manufacturer challenged the rule and I think the court said that they didn't, but then there was another rule similar to that where the court did say they had standing.

Challenges to OSHA standards are under Section 6(f) of the Act and there are 59 days after the rule is promulgated for an interested person to challenge and the challenges are in the U.S. Courts of Appeals, any Court of Appeals. The Fifth Circuit tends to be very popular for the industry, Fifth and Eleventh Circuits and D.C. Circuit lately.

This may include a petition to try to get the court to stay the effectiveness of a final rule pending the review process and there's always -- once a challenge is filed, there are always efforts to discuss the final rule with the litigants and possibly to settle and possibly to have some supplemental rulemaking, if there are still issues that are outstanding that we may need to flesh out in more detail.

We don't encourage lawsuits, but we sometimes get them. But back to the process.

This slide is generally directed at the public. We try to encourage people to participate in the rulemaking and I guess this actually applies just as strongly to members of advisory committees, because just as much as a safety and health professional or an employer or employee, union rep on his or her own may be a source of great expertise for the Agency, this committee brings all of these elements together and the Agency can really make use of your expertise.

You see how complicated the process can be. Any amount of additional information that we can get that helps us developing a record is certainly welcome.

OSHA provides advisory committees with a lot of information, but there are a lot of sources that are -- in fact, they've been expanded considerably since we prepared this. The Federal Register is available on line, so one doesn't have to have a subscription to that huge volume anymore, you can actually get it on line.

OSHA's own web site has been expanded dramatically and I understand you're going to have a presentation later about some of the improvements to the web site. I mentioned that we're having electronic comments, the ergonomics rule is on the web site, a lot of our rulemaking documents, OSHA itself puts up these things. Even though they're available through The Federal Register, OSHA makes them available through its own web site.

Trade publications and professional journals, newsletters have provided a lot of information on what OSHA is doing and I encourage members of the committee, as members of the committee and representing your particular interests, if there is an area that OSHA is regulating that you would have some interest in, please participate. We need your expertise. With that, we'll accept any questions.

CHAIRPERSON BURKHAMMER: Does the committee have any questions or comments on the presentation? Michael?

MR. BUCHET: One heart-felt comment is thank you very much. It's made our job so much easier. We just make a suggestion and say get it done. My question is is there any practical way to give us a time line?

MR. HENSCHEL: A time line. There's so many of these steps, as you saw from these things, there's so many things that kind of double over themselves, so it's really hard to have any hard and fast time line frame for a particular project.

We develop them and we put these time frames in the regulatory agenda, to the best of our knowledge, but --

MR. BUCHET: How about a handy-dandy flow chart without the time and then we can assign it as we pick different projects? Is there such a thing?

MR. HENSCHEL: I think we could probably put together something like that, something rough.

MR. BUCHET: Would the committee appreciate it? Because I sure would.



MS. WILLIAMS: From an Advance Notice of Proposed Rulemaking to a Notice of Proposed Rulemaking, what are the technicalities that would have to be gone through or what would have to be done to streamline any type of a process or can you skip from one to the other?

MR. HENSCHEL: You don't really need an ANPR. OSHA goes with an ANPR when it's gotten the issues refined enough so it knows what it's looking for and can ask for specific information or, on the other hand, if it's at a really early stage and we just know the rough outlines of what it is that we want to get information on, then we'll ask very broad questions.

So ANPRs can be as narrow or as broad as we want them to be, but it's not -- no matter what format we use, it's not really a necessity for a rulemaking.


MR. COOPER: George, what is the -- I know the answer to is there a time line, the answer is no, I know that, but what is the general time line, I'll use that term, to revise an existing standard which has not been revised that much?

What I'm really talking about is the sanitation standard, of course. You know there's a standard on the board, you know that the SOL said we can't use that standard because it's not workable and so this committee has spent a lot of time on the sanitation standard and proposed it back to OSHA.

But the time frame on that standard, can you give us some idea on the fastest that could get done if it was started on today and if some emphasis was put on it?

MR. HENSCHEL: We've done rules as quickly as something like six months, if they're very, very narrowly drawn and they didn't have a lot of economic impact. Then again, you've seen what's happened with some other rules.

It really depends on how much information we have to gather, because sometimes it's more difficult to revise a rule than it is to issue a new one because you have to explain the differences between what it is you have on the books now and what you're proposing to do, how it will improve safety or health and what the impacts are going to be.

If you're starting from scratch for a hazard that hasn't been regulated yet, sometimes that's even easier. But it can be from six months, I think, upward.

MR. COOPER: Okay. Thank you.


MS. KENT: I'm just going to add one thing. A tremendous impact on our time lines is always what are the priorities in that regulatory office. That's huge. If you've got six people who are standards writers and you've got two hot ones on top and they're big and complicated, there's a big problem.


MR. BUCHET: I'm trying to think how long ago, but I think it was last year this committee requested information on how we could advise OSHA and then how OSHA could implement a change from the Manual of Uniform Traffic Control Device References that currently exists to the current manual.

In our last meeting, Secretary Jeffress said he was going to use something and I don't remember the title, but it was --

MS. THURBER: He finally called it a Direct Final Rule.

MR. BUCHET: Yes. How are we doing on that?

MS. THURBER: How are we doing on that. Well --

MR. BUCHET: What is it and how are we doing?

MS. THURBER: There's some information sitting on my desk right now that's been sent up from the construction people and I had it copied for George just this week.

This is something that George and I have been dying to get into, we've been dying to try and this may well be the vehicle for it. It seems to be something that's already required, that everybody is already doing.

It's hard to determine whether there will be costs, clearly there will be some printing costs or something, but we haven't looked into that yet.

What George and I are doing right now is we're looking at FDA, EPA and other agencies' experience with this, but obviously we need something like this for this sort of project. I'm glad you brought that up.

But again, as Marthe said, there are always competing priorities.

MS. KENT: And the issue with that one is whether there are economic impacts or not.

MS. THURBER: What we'll probably do format wise is something that EPA has done and others, we will sort of go out with a Direct Final Rule with a delayed effective date, but in the same Register notice we'll go out with the same rule as a proposal and if we get any significant adverse comment, I would guess if we get adverse comment at all, we would go through the proposal stage and go back into rulemaking.

It's a nice shortcut, but it's only a nice shortcut if nobody cares enough to protest against it.


MR. BUCHET: It would be hard to imagine that change causing an economic impact because everybody who is referring to the MUTCD is referring to the current one and using it now.

When you say "adverse comments," does that include comments such as the ones that read like you're not going far enough, so don't do what you're doing, go further or ones that say we object to what you're attempting to do?

MS. THURBER: Well, I can't second-guess the Agency, but it seems to me that if we went with a Direct Final Rule and the only comment we got was this just isn't quite enough, we'd probably go with what we had then and then look to the future to bring in other things that were necessary.

MS. KENT: I just wanted to explain about an economic impact. It depends on what the current industry baseline is right now and my understanding is that there is concern that people are not observing this rule. As soon as that happens, you have non-compliance, as soon as you have non-compliance, you have costs.

MR. BUCHET: The baseline isn't forced for what the practice is, but what the practice should be because the industry is not following the old version or even the update of the old version successfully. Are you saying --

MS. KENT: What I'm saying is that the current industry baseline from which costs run and benefits accrue is current industry baseline, what is the current compliance, not what it ought to be, what is it.

MR. BUCHET: Oh, I understood that the current baseline would be where the industry should be, according to current regulation.

MS. KENT: No, where the industry is now.

MR. BUCHET: Because if people are not in compliance for 30 years and you say we're going to adjust the baseline, then the standard -- the economic impact has to look at the 30 years they've been out of compliance, plus the --

MS. KENT: Not the 30 years. The economic impact is --

MR. BUCHET: The differential?

MS. KENT: That's right.

MR. BUCHET: In this case --

MS. KENT: That's the issue with that one.

MR. BUCHET: I think the feeling is that the industry that's trying to comply is complying with the most recent MUTCD and the ones who are out of compliance are out of compliance with the one that was published in 1970, as well as the one that is published today and those people shouldn't be counted because they're bad actors anyway.

MS. KENT: You need to set up a meeting with OMB and explain that to them. But if you want to check it out --

MR. BUCHET: We'll invite them here.

MS. KENT: The guidelines for doing economic analysis are very clear on that point, costs start running there. The question is if there's non-compliance -- now, the other question is if there is no non-compliance and everyone is already there, there's a whole question about why are we bothering, but that's a whole other issue.

CHAIRPERSON BURKHAMMER: Marthe, since we have you here and you have a captive audience, maybe you'd like to talk a little bit about your favorite subject.

MS. KENT: Well, it is going very well. We're back by popular demand next week for our last week of hearing for ergo, nine weeks of very intensive hearings. Next week in Washington we'll be running until 9:00 or 10:00 in the evening, maybe a little later a couple of evenings, so that people have time to talk.

You won't be surprised, this is a controversial issue, very, very strong opinions and views and data being submitted by lots and lots of people. I'm very impressed, actually, at the quality of the information that's coming in.

We obviously have a lot of work to do, but if you want to know how fast can we move when we have to move, unless -- well, we're going to make it this year, unless we're stopped. Obviously, that's always possible, by appropriations or whatever, but the internal processes have been set up inside.

We are going to manage that very closely and I would be very surprised if we didn't send it to OMB in October, September or October. That's ergo.

Now, you understand that construction is not part of that, right?


MS. KENT: No part of construction is a part of that. And literally no part, because people came in and said well, what about the office of a construction company, the answer is no. We're going to make it very clear that no part of construction is under that rule. So you can really look forward to that.

Contractors who do maintenance, we are going to handle all those splinters. I can't tell you what the verdict is on that yet, but --

MR. RHOTEN: Just a question. You know, there's going to be -- in our case, we have contractors who have fabrication shops, they're going to fall under it, I would assume.

MS. KENT: For those, I would think, but you know what, give me all your variants because in the final rule what we'll do is address every single one of them, in terms of scope and coverage and that would help us because actually, things have come up that we never thought about.

CHAIRPERSON BURKHAMMER: What about contractors that have on-site pipe fab shops or sheet metal fab shops? They would not fall under the rule, right?

MR. BUCHET: People are going to be going to the job site in droves.

CHAIRPERSON BURKHAMMER: Get those fab shops shut down in town.

MS. KENT: Those issues are really amazing with this one and people are submitting stuff, we're evaluating all of it, but it is not our intention at this point to cover construction in any form.

CHAIRPERSON BURKHAMMER: I've long been a proponent of MSD, so I'm probably a lone wolf in a crowd in construction.

MS. KENT: Steel erection is obviously your big item for this year. That's taking huge resources from everybody and we'll continue to do that.

You all know that we have a health initiative in construction, but I've spoken to you about that before and that is bouncing along and it's continuing to go forward and I know that you're helping us with lots of those issues and that's really good.

Nobody has put ergo in construction on the reg agenda yet.

CHAIRPERSON BURKHAMMER: Any more discussion?

(No response.)

CHAIRPERSON BURKHAMMER: Thank you very much. That was a very good presentation and we've asked Jim for a -- George, we've asked Jim if you could provide a copy of your slides to the committee, please.

With that, let's take a 15-minute break and be back at 2:30. Thank you.

(A recess was taken at 2:14 p.m.)

(Back on the record at 2:36 p.m.)

CHAIRPERSON BURKHAMMER: Next on the agenda and the last topic for the day prior to the public comment period, which we have a public comment, the Workers' Home Page, OSHA's internet site. Susan Fleming.


Workers' Home Page, OSHA Internet Site

MS. FLEMING: Hi, everybody. I'm with the OSHA Public Affairs Office and the new worker page that we announced last Friday is the result of a lot of collaboration between many different groups within the Agency.

This is what the front page of the OSHA web site looks like now and you'll see that the lead item is the new worker page. You can go there by clicking here or by clicking over on the photo.

Eventually, that photo is going to move over here as a graphic here and you'll be able to still click directly off the front page, so let's go there now and this is the new workers page.

On the left-hand side, scroll down here a little bit, we have all of the major items that are included in the worker page. This page is an effort to bring together in one location, like we did last year for small business, the particular items that would be of interest to workers.

We have explanation of worker rights, we have explanations of worker responsibilities and employer responsibilities. We have some discussion about how to make a complaint, what happens when you make a complaint and then a bunch of links to places like the regional and area offices and to our technical links page so that folks can go and find out other information about specific topics.

I'm going to take you here, to how to file a complaint. This is the one thing that's really new and different about this page, for the first time we are enabling workers to file complaints --

MR. BUCHET: Susan, can you handle some questions from us?

MS. FLEMING: Yes, sure.

MR. BUCHET: With the OSHA regional offices, would it be possible to do something to say hi, here's were your labor liaison is and explain that the labor liaison actually has some responsibility to outreach to workers?

MS. FLEMING: That might be possible. What we might could do is put something on there about just labor liaison. The regional offices goes -- a number of these links are not -- where they take you to is not new. For example, this is a page that's -- I'm going to go to the regional offices here.

That's simply a page that offers you a map, so we couldn't put a new page in there, but what we could do is put something in about the role of the labor liaison.

MR. BUCHET: I think that would help a great deal because many, many people have no idea that they exist and many more that know they exist have no idea what they can do.

CHAIRPERSON BURKHAMMER: Also, Susan, is there a way to put a link in there to ACCSH's web page?

MS. FLEMING: To the ACCSH page? We can put links into anything. I'm not clear why there would be one put to the ACCSH page. Do we want one to all of the committee pages?

CHAIRPERSON BURKHAMMER: This is all workers in -- oh, I'm sorry.

MS. FLEMING: Yes, this is for all workers. This is not --

CHAIRPERSON BURKHAMMER: I think you could link it to every committee, NACOSH and ACCSH and the Maritime and --

MR. BUCHET: Because each committee has "x" number of worker representatives on there that it would be good for the workers to be able to click to immediately.

MS. FLEMING: Do you want them all contacting you?

MR. RHOTEN: No, I don't want my name on there.

MR. BUCHET: At least to find out that you exist.

MR. RHOTEN: Well, they know I exist.

MS. FLEMING: It would never have occurred to me to put the committee pages up as a link.

MR. RHOTEN: It's not that I --

MR. BUCHET: I didn't mean having it linked to your web site or e-mail, but simply that there are worker representatives on these committees.

MR. RHOTEN: Well, I think that's on there now, that's available to them. This is supposed to be the workers page, the things he's interested in. The whole ACCSH committee is on the regular net, isn't it?

MS. FLEMING: It should be off of the construction page.

MR. RHOTEN: Yes. It's there already.

MR. BUCHET: My guess is if we can get workers to the workers page, that anywhere we can show from that page that there are workers involved in this process will help them. If you say okay, you can go find this thing called an advisory committee and find out there are workers on it, I think it would just take that much longer.

MS. FLEMING: Well, that's certainly something we can take into consideration, if that is a recommendation of the committee.

MR. RHOTEN: I think it's something that needs some discussion, maybe later.

MS. SWEENEY: Do you have plans to put this in or at least connect it to a Spanish language page?

MS. FLEMING: No. Not at this point.

MS. SWEENEY: I might suggest that you think about it seriously.

MS. FLEMING: The whole web site -- I mean, we have a few things in Spanish, but we have no plans to develop the entire web site in Spanish. It would be very expensive.

MS. SWEENEY: For example, rights and responsibilities, it would seem to me that there is a whole genre of workers out there, particularly illegal aliens, that don't understand that they are covered under the OSH Act.

MS. FLEMING: Do they have a lot of web access?

MS. SWEENEY: Who knows? Libraries, who knows?

MS. WILLIAMS: Susan, you may not be able to answer this question, but it seems like all the good things you have available, and this is great. Have you ever thought about a media blitz in the newspapers or something to let workers and people know the stuff even exists?

Because unless -- many people have computers and they have no idea that they can get access to this stuff.

MS. FLEMING: Well, we just put out a news release on this on Friday. We had a media round table on Friday announcing the availability of this page, I'm sure that articles will appear in the major trade publications about this page.

Whether or not it will go beyond that, I can't say for sure, but we did put this out. The news release announcing the availability of the page is up on the web site and we do have a lot of journalists surfing the site.

Would you guys like to see how to file a complaint electronically?


MS. FLEMING: All right. Where am I? I have to find my mouse. Does anybody see my little arrow? See, I have my technical specialist right here, John Elgin, who is helping me.

This explains the whole complaint procedure and he's taking us on. It does indicate clearly to the worker that if you file a complaint on line, it will be treated as an informal complaint, probably handled by phone, fax or in the case of some state programs, by a letter. This is what you need to fill out.

MR. EDINGTON: Is that even if it's an imminent danger complaint?

MS. FLEMING: No. Obviously, there's some discretion. If they conclude it's a imminent danger, we also have the toll free line here for folks to use if they want to report an imminent danger.

MS. SWEENEY: Is that all explained in the page before that?

MS. FLEMING: Yes. I'm sorry.

MR. EDINGTON: And this is an anonymous complaint?

MS. FLEMING: Well, you can certainly file anonymously, but there are certain fields that have to be filled out, which include things like the name of the company and the location of the company.

It won't let you file the complaint if you don't because it's worthless to us just to know that somewhere out in the world there's a company that is about to explode, so there's certain fields that have to be filled in.

MR. PAYNE: It could be traced back if it was not a -- I'm just picturing a company that's really going to get abused by someone that doesn't like the way they look or act, you know.

MS. FLEMING: That's always possible. We are obviously going to check things out, but this is going to be treated as an informal complaint, so unless it's an imminent danger, we're going to do phone fax.

CHAIRPERSON BURKHAMMER: Susan, does this go to the regional office, the area office? How does it get --

MS. FLEMING: Actually, it's interesting the way this works. What it actually does is it goes to a computer server, a complaint mailbox where they're all stored and then it is routed from there to the area office within each state that has been designated as the complaint handling office.

That might be Cincinnati for Ohio, for example, where we have five or six area offices. The folks in Cincinnati will review it and then forward it on to the appropriate office.

In most of the states that run their own OSHA program it will go first to the Federal office and then be forwarded to the State office, however California, for example, has said hey, most of the complaints are ours, send it to us first and we'll route back to you any that are appropriate for the Federal office to handle.

MR. PAYNE: Have you received any yet?

MS. FLEMING: Yes. The last time I checked there were over a hundred. Now, some of those will be test cases, where people just were testing the system. I looked at a few of them. Some of them are typical kinds of complaints that we get that really aren't us at all.

One of them was from someone who said why can this company ask me to work for 12 hours and not provide a lunch break. We don't handle that and there will be others like that.

But there were also some complaints that to me, not as a compliance safety and health officer but as a public affairs person, looked like they might very well be legitimate.

MS. SWEENEY: As a public servant, would you in fact route that to Wage & Hour, that kind of request?

MS. FLEMING: That should be routed by the folks who actually handle it in that area office, yes.

MR. BUCHET: Does this process allow the person filing it to say I want to keep my name confidential?

MS. FLEMING: Yes, it does. In fact, that's the default value. You have to un-check that if you are willing to have your name released.


MR. PAYNE: I'm curious as to why you would characterize something that takes a fair amount of commitment to do as an informal complaint, just out of hand, and it has some other action necessary to put it into some higher category.

MS. FLEMING: I'm not sure that I'm the best person to address that. I can attempt to do it, but you probably really want to talk to the compliance staff.

We try to handle a lot of complaints informally, if possible. That enables us to be sure that we get as quickly as possible to the ones that are the most serious and often things can be handled informally.

But obviously, the employee can always say I insist on an on-site inspection or if we determine, based on the fact that it's an imminent danger situation, we will inspect.

MR. DEVORA: Is anyone going to track the number of informal complaints? Is there going to be a rise, based on the only system that we have, now we have this system, if there's a 50 percent or 80 percent jump?

MS. FLEMING: Charles was asked that question at the news briefing we held last week and his response was we expect there may be somewhat of an increase in complaints. That's typically what businesses find when they develop some kind of an on line system, whether it's ordering socks or whatever.

So there may be somewhat more complaints, but the feeling is that maybe then we've reached some folks who weren't able to use the other systems.

MR. DEVORA: The danger that is I see as a contractor is a telephone call is a commitment also, there's a voice, there's a number, there's all kind of -- that takes a commitment for somebody to file a complaint.

This is a faceless, nameless way to access a company or for OSHA to access, gain entry. Maybe it is, maybe it isn't. There's no verification for whether it's a legitimate complaint or not.

MS. FLEMING: No, that's not true, because -- can you bring up the message that comes up? If I were submitting this complaint against your company, I would get back a message saying Susan Fleming, we received your complaint, your complaint has been forwarded to the Washington, D.C. office or whatever and you should hear back from the Washington, D.C. office.

So the office is going to -- the OSHA office is going to call me and verify what I've said, perhaps get additional information about this, so there will be some checking up with the complainant before OSHA comes out and visits your company or even phones and faxes you.

MR. DEVORA: You know, I'm just thinking in terms of even what's up on the web now for inspections. Some of the information is not correct and it's almost an act of Congress of get that changed or removed.

MS. FLEMING: But this is not going up. We're not going to post anything that says there have been ten complaints against Mr. Jones' company.

MR. MASTERSON: I don't believe that.

MS. FLEMING: Well, all I can say to you is that you have a lot more faith in our data system than I do, in terms of the amount of information that it keeps.

MR. MASTERSON: The one good thing I see about this is if we can use the web to file complaints, we can definitely use the web for MSDSs for the HAZ COM standard, file them around the country.

CHAIRPERSON BURKHAMMER: We're doing that now.

MR. MASTERSON: I know we are, but forward it and forward it and forward it.

CHAIRPERSON BURKHAMMER: What's going to happen in the area office in the regions where the handwritten complaints are backlogged? I know Denver has a backlog of one to two years, do they just add these to the back of their list?

MS. FLEMING: I really don't know. I'm here to talk to you about the worker page and how that works. That's a big compliance question to ask. It's out of my bailiwick.

CHAIRPERSON BURKHAMMER: Okay. Good response. Go ahead, Susan. Thank you.

MS. FLEMING: Are there any other questions?

MR. MASTERSON: I notice that the page is not secure.


MR. ELGIN: Okay. No, actually, what this is doing is the browser is set up where it doesn't come up on the screen. It is actually staying within OSHA because while this is on the public web site, it's going straight to the e-mail system.

MS. FLEMING: Are you telling him it's secure?


MR. MASTERSON: It's secure, but it's still going via the internet to the OSHA base?

MR. ELGIN: That's correct. It's coming from the public OSHA page where it's being e-mailed to -- well, it's actually going directly to the office or if it's going to another e-mail server within OSHA and then to the office. I don't know the exact routing.


MR. EDINGTON: Thank you, Mr. Chairman. First, let me say I certain, on behalf of myself and the International Union of Operating Engineers and all of our members, but I think all American workers thank you.

When OTI was in here, or rather when Salt Lake was in here a year or a year and a half ago I was particularly critical that a great deal of effort had been put into assisting employers in terms of understanding their rights and obligations, but very little work had been done for workers.

I think this is a step that's long overdue and I applaud you for that. We first started looking at this last Friday ourselves. We currently have linked it from our own home page for our members and our local unions.

Fortuitously, we had our general executive board meeting in town the first part of this week and we did a demonstration for them, walked them through it.

The point I would make about it is that the real value of this site I think is not just the ability to file a complaint on line, but rather it's a way through which to empower workers with knowledge, to improve their own safety and health conditions on the job and to work with their employer rather than against their employer.

I think that's the kind of value that the Agency needs to take great pains to explain. This is to help workers, it's not to hurt their employers. It's to help all of us improve job site health and safety and everything that you can do to put information up there that's necessary for workers to understand both what their rights are, what constitutes a safe and healthful work place, that ought to really be the focus of this.

Yes, it's important to have the ability to file that complaint, but most importantly, it's to have the information.

CHAIRPERSON BURKHAMMER: Thank you, Larry. I think most members of the committee would agree with you. It's a long time coming, we think you've done a wonderful job here and we're not -- please don't take the comments of the committee as being critical because we're not, we're just really pleased that we've finally got something out that the workers do have an opportunity to get into and utilize.

MS. FLEMING: And all the technical work was done by OTI and IT on this, too.

CHAIRPERSON BURKHAMMER: That's great. We appreciate it. Any other comments from the committee?

(No response.)

CHAIRPERSON BURKHAMMER: Great. Thank you very much.

Well, we've moved through our agenda fairly quickly. We have one public comment request and at this time, Charlie, would you like to take the microphone and present your comment, please? State your name and organization for the record.


Public Comment

MR. MARESCA: Charlie Maresca, Associated Builders and Contractors. Thank you, Mr. Chairman, for this opportunity.

On February 11 ten construction trade associations, including mine, forwarded to this committee, to the chairman and to every member of the committee, a report on the MSD booklet that now appears on the ACCSH home page.

That report was highly critical of the booklet and in fact, concluded that it could be more harmful than helpful.

In our cover letter, we recommended that the booklet be removed from the home page. To this point, we have not had a response from the committee, from any member of the committee, from the workgroups and we wondered whether we would be getting any kind of a response to that report.

We think that the report was certainly well credentialed, the report writers are well credentialed and we think it's important enough that it merits a response.

CHAIRPERSON BURKHAMMER: I received it, I've read it. I did not discuss it with either of the workgroup co-chairs. I will take it upon myself to do that prior to the next meeting and ask the workgroup to review it. Michael?

MR. BUCHET: Mr. Chairman, we have received that and as I think you are aware, Mr. Maresca, we received one other set of comments at the tag end of this past workgroup and have indicated that that will be discussed at the next workgroup meeting. We will take whatever other comments come in and discuss them at the next workgroup meeting.

MR. MARESCA: Our concern is that the discussion of ergonomics on this committee and in the workgroup is not obviously -- is obviously not taking place in a vacuum and that on occasion, that report -- the presence of that report on the web site indicates support for some kind of rule or acknowledge of best practices in the construction industry and we think that that conclusion would not be supported by the committee, first of all, and it certainly doesn't seem to be the intent of the booklet.

But it is the conclusion that's being drawn in the public and we think that because the advice that we have received from ergonomists is that it is not a helpful booklet, it should be removed.


MR. BUCHET: I'm not sure I heard correctly. The contention is that this discussion and the workgroup's work product has not been taking place in a vacuum? Is that what I understand you to represent?

MR. MARESCA: I think that's correct, yes.

MR. BUCHET: Then please explain the different opinions between your two letters, because one I believe accused the workgroup of working behind closed doors to create the document and now we're having a complaint sent to us that it's being created in the open and neither method is acceptable and I would like to find out which method is acceptable before we continue to discuss it in the workgroup.

CHAIRPERSON BURKHAMMER: I don't think the public comment period is an appropriate place to discuss that or have that on the record. I think at the next workgroup meeting, Charlie, if you would be so kind as to come and maybe we could have a debate or a discussion during that time on whatever the issue is that the co-chairmen want to raise, rather than doing it in a public comment period. Anything else, Charlie?

MR. MARESCA: No, that's all I have.

CHAIRPERSON BURKHAMMER: Okay. Thank you very much. We have one more public comment. James Suttle, the executive vice president of HDR, Inc.

MR. SUTTLE: Thank you very much, Mr. Chairman, and thank all of you for your hospitality, for me being your guest today.

My name is James Suttle, I'm executive vice president, vice chair of the board of directors for HDR, Incorporated. We are the 28th largest architect/engineering company in the United States, having some 2,600 employees scattered in 55 offices from coast to coast.

We got into safety through an unfortunate incident for us at the Greater Pittsburgh Airport in 1997, during the demolition of the old Pittsburgh Airport terminal. We were the engineers of record, working for the Allegheny County Aviation Administration.

There was a lot of head scratching about that incident and as I went on the speaker circuit, my speech was entitled "A Wake Up Call from Hotel OSHA," so in the last three years I think we have moved quite a bit as an architect/ engineering company in taking a leadership role and trying to be an example of what to do in addressing safety instead of, as many of my colleagues do sadly in the industry, burying their heads in the sand on the advice of their legal counsel.

Within 60 days of our settlement with OSHA, I fulfilled my promise to OSHA that we would have a safety director on staff, James Wilcott joined us. We allocated some $2 million extra dollars into our budget and began putting together what is now two volumes of a safety manual addressing some 36 strategic areas that are indicative of what our employees are involved in, probably the biggest ones are fall protection and confined space entry.

Our attitude as we started this was quite simply this. We're basically a white collar company, we're architects, engineers. We're hired in the design phase by an owner to produce drawings and plans, but we do go to the field on occasion, so we wanted to be right with safety any time an HDR employee left the building.

We are extending that inside the building so that we're right with safety any time an HDR employee comes to work, whether it's inside or outside.

We still have much to do and being the anal-retentive engineer that I am and trying to figure out what all this means, we have found quite a few holes in the whole equation as our industry provides these services to the public and to owners around the country.

Quite frankly, we have a lot to do and we need to be part of your solution and you need to be part of our solution.

I have found that architects and engineers do not have in our curricula at the college level a safety address. We're there on the design, over designing of the stresses and the strains in the steel members or whatever else, but we're not there in addressing safety as part of an integrated part of each design course and that needs to happen.

So we need your help as we work with ABET on the engineers, with AIA and others on the architect side to influence curriculum for the next generations of architects and engineers that come into the field.

On the owner's side, we are finding that owners do not hire us for safety. That is starting to change a little bit, but there's so much that needs to be done. The issue is, quite frankly, one of liability, but I think we can get over that. We need to belly up to the bar and say that there is a safety component here, Mr. Owner, we're all into it, we cannot continue putting a sentence in the specs that says "Safety is the responsibility of the contractor," end of discussion.

So some of our owner clients are addressing that and we are taking on responsibilities as the owner's rep and getting paid for that particular function, to either monitor, train or provide some other discussion that goes on on these sites.

But there's still so much more to do and so the bottom line of this particular part of my statement is that we need your help together to begin to influence owners, private as well as government, that safety is to be part of the scope of work for architects and engineers.

I do have one reason why I personally am making sure that our company is right with safety and that our industry, architects and engineers, begin to wake up to this.

Our world is changing, we're moving into design/build. When we move out of traditional, we are going to be partnered with construction companies and we together will have joint ownership of the safety aspects on projects, so this is another area that's coming.

I do thank you for the opportunity to be here. I came strictly to learn and to observe. I've done that and I've enjoyed the time with you and thanks very much for having me.

CHAIRPERSON BURKHAMMER: Thank you. That's certainly a breath of fresh air, to hear an architect trying to accept responsibility rather than pass it off to somebody else.

In the past when we have sat on -- I personally have sat on various committees with representatives of the architects and engineers community and being an engineer myself, they have always been adamant that they did not and did not want to accept any liability or responsibility for safety in design or any of that kind of stuff and to hear you come and completely change that scenario is truly reflective and I appreciate it very much. Felipe?

MR. DEVORA: I just wanted to add on those comments also that is very refreshing. As a lot of our work is negotiated and is design/build, typically I'll sit in on the meetings and I'll see what the architect wants, but when we do get to the safety aspect of it, I'll invariably ask the question would it be too much to supply some anchor points or can we include something in these shop sheet drawings where everyone can work off of and typically I get that blank look like aren't you the safety guy, we've got to leave now, but you take care of that.

So that's really -- I can't tell you how important it is, how many architects I've sat down with, we even had AIA representatives from our committee come speak to the safety committee and quite frankly, I think the consensus is that safety is someone else's problem and that quite frankly, if they had to design safety, they probably wouldn't be winning any awards. That was a comment from an architect who said that.

MR. SUTTLE: I still have a lot of heated discussions with our in-house attorney, but we are making progress. I'm just one voice, we need to make this hundreds of voices.

The next meeting of our large firm round table of the American Consulting Engineers Council will be in August. I've already talked to a few of you, I will be calling a few more of you. We do want to put safety on that particular agenda and we'll be planning that in the next four weeks, so you may get a fresh phone call from me about helping us to talk through this issue some more. I appreciate the time, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Thank you very much. That concludes our business for today. I will not be here tomorrow, I have a command performance for my employer that I have to attend. Mr. Buchet will act as acting chair tomorrow and with that, we'll adjourn for the day. Well, wait a minute, hold on.

MR. BUCHET: No, no. You're not going to do that to me.

CHAIRPERSON BURKHAMMER: Oh, I'm not going to do that to you. Would you like to speak?

MR. BUCHET: I'd love to speak.

CHAIRPERSON BURKHAMMER: Thank you. Go right ahead.

MR. BUCHET: As you remember, you asked me to speak.

CHAIRPERSON BURKHAMMER: Oh, that's right. Would you please give the committee a quick summary of the Chicago ACCSH meeting, for those of us that weren't in attendance?

MR. BUCHET: I can very briefly, Mr. Chairman, thank you. We had a motion in the meeting minutes that we discussed this morning say that we recognize the great contribution of the Construction Safety Council and that we were going to come up with some recognition for them for hosting us in February in Rosemont.

The reason I didn't want you to leave, Mr. Chairman, is I'd like to find out if I write a draft letter for a joint signature of yours and the Assistant Secretary's, would you find that acceptable? You get to edit it, of course.


MR. BUCHET: Good. With that, the reason we want to write the letter is that the Construction Safety Council, the Chicago Construction Safety Council and the executive director, Tom Broderick, invited us to take ACCSH on the road and run it in conjunction with his conference.

His conference has grown from relatively small beginnings to over 1,500 attendees and 110 or 115 exhibitors this year. A number of us made it, some very interesting exhibits, the laborers had a training bus, the operating engineers were there, Graham Brent had the National Commission for the Certification of Crane Operators in a grove set up inside the convention center. They didn't operate it, but they showed how you would have to maneuver a load through the cones and barriers without knocking over the tennis balls to pass the test.

Sanitation is gone, but there was a good exhibit on sanitation which will jump us to various presentations that were made, presentations at the conference and presentations in the advisory committee meeting and I'm sorry that Mr. Cooper isn't here, but Mr. Cooper and Ms. Williams presented the Assistant Secretary with an indelible reminder of the desire of this committee to press forward on a sanitation standard and that was a model -- you can't say Port-a-Potty, because that's not the right brand name, field sanitation structure, suitably labeled from ACCSH.

Part of that story is to show that a good time was had by all, as well as a rewarding time. I think the chance to meet people from the industry that don't get to travel to Washington, to get their input as well as to present ourselves and OSHA was a great and mutual benefit. Thank you, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Thank you, Mr. Buchet. I appreciate that. I'm sorry I forgot you until the bitter end.

Please draft that and send it to me for editorial and comment and then I will forward it on to the Assistant Secretary and I think it's great that we do recognize Tom and the efforts he's doing and the fact that he did invite ACCSH out there.

I think, from what I understand, even though I wasn't there, it was an excellent meeting and an excellent representation, so for those of you that went, thank you.

One of the things I want you to think about tonight, tomorrow Michael is going to come up with some dates for our next two meetings, so if you could look at your calendars tonight and be prepared tomorrow to discuss that, I'd appreciate it.

Also, there's a photo opportunity with the Assistant Secretary tomorrow, so if any of you want to have your photo taken, please wear a tie. I don't think it would look too good with him in one and the others not.

With that, thank you very much and we're adjourned.

(Whereupon, at 3:13 p.m. the meeting was adjourned, to reconvene Friday, May 5, 2000 at 9:00 a.m.)


This is to certify that the foregoing proceedings of a meeting before the Occupational Safety and Health Administration Advisory Committee on Construction Safety and Health (ACCSH), held on May 4, 2000, were transcribed as herein appears and that this is the original transcript thereof.

Melinda J. Metcalf