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The meeting of the Advisory Committee on Construction Safety and Health (ACCSH) was called to order by Chairman Erich J. (Pete) Stafford at 1 p.m., Monday, March 18, 2013. The following members and OSHA staff were present (* mark members who participated via teleconference):
Monday, March 18, 2013
Chairman Stafford welcomed the attendees and informed them that this was a special meeting for OSHA to consult with ACCSH on pending regulatory updates that affect the construction industry. Chairman Stafford stated OSHA provided all ACCSH members briefing documents in preparation for this meeting with respect to the Subpart G - Signs, Signals, and Barricades and Subpart CC - Cranes & Derricksfin Construction, issues. Essentially, the documents laid out the current language, the proposed revisions to those standards, and included explanations for the recommended changes. OSHA wants ACCSH to provide their recommendations on how to proceed with the proposed regulatory updates. Chairman Stafford informed the audience that if they wanted to address the committee, they must sign up to be recognized during the public comment period at the conclusion of each discussion.
29 CFR 1926 Subpart G - Signs, Signals, and Barricades
Mr. Stevanus briefed the attendees that the construction standard OSHA was updating is 29 CFR 1926.200, Accident Prevention Signs and Tags. OSHA is taking on a series of consensus standard updating projects, the latest of which is updating the ANSI signage standards on signs and tags. In this instance OSHA is updating the ANSI Z35.1 1968, Specifications for Accident Prevention Signs, to the new ANSI Z535.2, Environmental and Facility Safety Signs. We are also updating the ANSI Z35.2 1968, Specifications for Accident Prevention Tags, to the ANSI Z535.5, Safety Tags and Barricade Tapes for Temporary Hazards; and the ANSI Z53.1 1967, Safety Color Code for Marking Physical Hazards, to the ANSI Z535.1, Safety Colors. As in the past with other consensus standard updating, OSHA is publishing a Direct Final Rule. OSHA uses the Direct Final Rule process when it's determined that the rulemaking is noncontroversial and will not have any economic or compliance burdens on the industry.
Mr. Stevanus went on to inform the group that in this rulemaking, OSHA will allow employers to follow either the current ANSI consensus standard, currently cited in OSHA's rule, or they will be able to follow the latest ANSI Z535 standards. OSHA has determined that the newest ANSI Z535 standards are at least as effective as the ANSI standards now cited in OSHA standards. This will allow employers the ability to purchase and/or use signs and tags based on the newest ANSI standards and not be in violation with OSHA's current standards. Currently, anyone using signs and tags based on the new ANSI standards can be potentially cited for a de minimis violation. In addition, by giving employers the option of which consensus standards to follow, the rule will impose no new compliance burdens or economic cost. Basically, any provision in this current standard which cites or refers to the older ANSI standards will now cite or refer to the older and new ANSI standard, giving the reader their choice.
Mr. Stevanus also informed the attendees that OSHA is removing the provisions in the current standard that referred to figures and tables. The figures and tables, which were pulled directly from the old ANSI standard, will be removed and the reader be referred to the same figures and tables that are either in the old or new ANSI standards.
There was considerable discussion by Chairman Stafford and Mr. Bethancourt about OSHA's plan to eliminate the figures and tables from the new standard. They were both of the opinion that these figures and tables were valuable assets to employers, especially if they had to make signs themselves. They encouraged OSHA to consider retaining the figures and tables in the standards. Referring the employers to the ANSI Standards, which have to be purchased, could result in a financial burden to some employers.
Question: Ms. Shortall - After the changes are made to this, will you put out any guidance material about the changes in the Final Rule?
Answer: Mr. Stevanus - We hadn't discussed that, but if it's something that would be needed, I'm sure that could be easily done.
Mr. Jeffrey Peckham, Chairman, ANSI Z535 Committee. Mr. Peckham informed the committee that the ANSI Z535 Committee sets down the principles for the design of safety signs, labels, tags, and colors, and it's these standards that OSHA is looking to reference now in their standard. Mr. Peckham stated that the ANSI Z535 standards represent the state of the art for safety signage. The first reason why is because within the ANSI Z535 format, you are allowed additional panels on the signs themselves. Mr. Peckham stated that if you look at a typical construction area sign you would have the ability to have graphical symbols, as well as text on the sign, and the ability to have additional information, even in the form of bilingual or multilingual panels. The current signage formatting that OSHA currently has does not have the opportunity to convey this more substantial information. Over the last 30 years, legal precedent has set down what constitutes an adequate warning and what the duty to warn is. The ANSI Z535 Committee has come up with the definition for the proper content of a safety sign, which includes the description of the hazard, how to avoid the hazard, the consequence of interaction with the hazard, and that seriousness level of the hazard. These are some of the design aspects that create effective safety signage, and we look forward to working with OSHA. Mr. Peckham said he would volunteer the services of the ANSI Z535 committee to help illustrate a pamphlet that would describe the differences between the old and the new signage.
Question: Mr. Matt Gillen - Are there signs commercially available that meet the new standard?
Answer: Mr. Peckham - Yes. They are available in the sign catalogs of most safety sign manufacturers.
Question: Mr. Jones - This question is directed more to OSHA. Have you given any thought to sun setting the old ANSI requirements, so that we can move forward with the newer requirements, or is there a cost associated with it and research going into that? Is there any injury illness data available that may support such a move?
Answer: Mr. Stevanus - No studies have been done to see if there's any improvement.
Question: Chairman Stafford - Mr. Peckham did you have a comment?
Answer: Mr. Peckham - The Z535 Committee would strongly encourage OSHA to adopt the Z535 approach, so that we do have a national uniform system for hazard recognition, instead of two systems side by side. We recognize there could be a phased in approach to achieve that. From a sign cost perspective, there should be no additional cost to print a Z535 sign compared to an old OSHA sign, given today's technology.
Question: Ms. Tish Davis - Have the new ANSI signs been evaluated in the field?
Answer: Mr. Stevanus - OSHA hasn't done any of that. If anybody has done it, it would have been NEMA.
Answer: Mr. Peckham - I can speak to the use of the ANSI Z535 standards, and the formatting for product safety labeling, the safety labels that go on consumer products, as well as industrial products, and even the equipment that's used on a construction site, and we've seen a reduction in accidents as well as effective communication of critical safety information and reduction in lawsuits based on having provided adequate warnings instead of inadequate warnings, as was the case prior to the ANSI Z535.4 standard.
After some procedural discussion, Chairman Stafford informed the attendees that he would entertain a motion on actions to recommend to OSHA.
Motion: Mr. Walter Jones moved that ACCSH recommend OSHA proceed with the Direct Final Rule/Proposed Rule to update the Part 1926 Subpart G - Signs, Signals and Barricades standard and request public comment. The motion was seconded and passed unanimously.
29 CFR 1926 Subpart CC - Cranes and Derricks in Construction
Chairman Stafford then directed attention to the second regulatory update issue which was minor revisions to the crane and derrick standard. Mr. Paul Bolon, Mr. Garvin Branch and Mr. Bruce Justh, Directorate of Construction came forward to facilitate the discussion. Mr. Bolon informed the attendees that it was not uncommon for OSHA to publish a notice, that is usually just a technical corrections, six months to two years after a final standard is published. Normally, it corrects grammar, bad references, misspellings and things like that. This time there are a few larger things to correct, so OSHA is calling this an "amendment to the final standard," rather than just being a technical correction. Mr. Bolon emphasized the point that OSHA will probably not do a Direct Final Rule, but do a normal proposal, have a comment period, and then have a Final Rule.
Question: Chairman Stafford - So that I understand clearly, what is the next step once OSHA gets the recommendation from ACCSH?
Answer: Mr. Bolon - Publish a proposal with these amendments.
Mr. Bolon and team went on to facilitate the following discussion on the proposed amendments:
Question: Mr. Pratt - Why don't we exclude forklifts completely from this standard?
Answer: Mr. Bolon - That's what was proposed, and that was the draft text that came from the Advisory Committee. But we had comments in rulemaking that persuaded OSHA that if forklifts were modified with booms and winches and wire ropes that they take on the characteristics of cranes.
Question: Mr. Stafford - So this language was adopted based on comments you received during the rulemaking process, and you're not changing the intent. You're just trying to clarify what it means with respect to forklifts?
Answer: Mr. Bolon - We're trying to eliminate any confusion. If you are using a hook under the forks, a sling or chain, and this is fairly common, that you're not under the standard. Only if you add a boom and a hoist.
Question: Mr. Stribling - Unless equipped with a boom and hoist, so it takes two specific additions to that forklift to be considered under the crane standard?
Answer: Mr. Bolon - That's right. The "and" is very important, just like the winch or hook caught us because it could just be a hook and suddenly you're a crane, and that wasn't our intent.
A lengthy discussion took place concerning substituting the word "may" for "must" when it came to anchorage point for personal fall arrest systems (PFAS). They felt by inserting the word "may" the requirement for establishing anchorage point could be construed as being optional. Several ACCSH members felt the proposed change would be confusing to employers and employees. Mr. Justh provided the following rationale for the proposed change. "The way it's written now with "must," that would be the only place you could anchor a personal fall arrest system to. By putting in "may" you are giving the employer somewhat more flexibility. If there is a part of the building, for instance, where they could anchor it to, then saying "may" rather than "must" would give them that flexibility. After more discussion OSHA agreed to revisit all of the "substitute may for must" proposals to ensure the safety criteria are being compromised.
Mr. Chip Pocock, Steel Erectors Association of America. Mr. Pocock's presentation highlighted that the original C-DAC Committee never intended for telehandlers or forklifts to be covered by the crane standard. Mr. Pocock said there were least two manufacturers that built telehandlers that physically rotated. They were equipped from the factory with forklifts, but they also had a number of different attachments available. They had out riggers and had an extendable boom. What made them different from your standard telehandler is that the upper section actually rotated on the chassis or the car body. Mr. Pocock said he thought the intent of the Committee was to have those rotating telehandlers covered by the standard because they have all the characteristics of a crane. However, your standard telehandler, 6,000 , 8,000 , 10,000 pound, Lulls, JLGs, with a hook, with a boom, whatever, are not covered, because they're covered by another standard.
Ms. Tressi Cordaro, Ogletree Deacon, representing the Edison Electric Institute. Ms. Cordaro expressed her concerns/disagreement with the digger derrick definition OSHA is proposing in the amendments. The term "equipped" with both a boom and an auger. Her concern was if the auger was removed so a particular task could be performed would the equipment then be out of the exclusion criteria.
Mr. Jim Tomaseski, International Brotherhood of Electrical Workers (IBEW). Mr. Tomaseski shared the IBEW's position on the digger derricks definition. The IBEW would prefer that OSHA's definition addresses "design" and "accommodates, and not necessarily "equipped".
Question: Mr. Jones - I just have one small question on the digger derrick definition. You say the ANSI standard doesn't define it. Does OSHA need to define it? Is it necessary?
Answer: Mr. Tomaseski - Yes. If we've got a standard that excludes digger derricks when doing certain work, then everyone needs to know what a digger derrick is. There is no direction in the standard that tells you what it is or what it isn't. So somewhere, there's got to be some kind of guidance.
Question: Mr. Kevin Cannon - Mr. Bolon, has any of these proposed changes had any impact on issuing the compliance directive, or has this already been taken into consideration?
Answer: Mr. Bolon - No it has not. Our directive is in review now, and I don't think this presents any problem for that.
After some procedural discussion, Chairman Stafford informed the attendees that he would entertain a motion on actions to recommend to OSHA.
Motion: Mr. Charles Stribling moved that ACCSH recommends OSHA proceed with the proposed Amendments and Corrections to the Part 1926 Cranes and Derricks standard and give additional attention to the "digger derrick" definition and the use of May-Must language in the proposal. The motion was seconded and passed unanimously.
The Chairman adjourned the meeting at 3 p.m.