<< Back to ACCSH: Meeting Minutes/Transcripts


OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH

U.S. DEPARTMENT OF LABOR

Room N-3437 AB&C
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C.

Friday, June 11, 1999

P R E S E N T


Advisory Commission Members Present:

CHAIRMAN STEWART BURKHAMMER
Vice President and Mgr. of Safety
and Health Services

MR. STEPHEN D. COOPER
Executive Director
International Association of Bridge,
Structural & Ornamental Iron Workers

MR. LARRY A. EDGINTON
Director of Safety and Health
International Union of Operating Engineers

WILLIAM C. RHOTEN
Director of Safety & Health Department
United Association of Journeyman & Apprentices
of the Plumbing & Pipe Fitting Industry of
the United States & Canada

MARK AYERS
Director of Construction and Maintenance Department
International Brotherhood of Electrical Workers

STEPHEN CLOUTIER
Vice President
Safety/Loss Prevention Manager
J.A. Jones Construction

FELIPE DEVORA
Safety Director
Fretz Construction Company

ROBERT MASTERSON
Manager, Safety and Loss Control
The Ryland Group

OWEN SMITH
President
Anzalone & Associates

JANE F. WILLIAMS
Safety & Health Consultant

MICHAEL BUCHET
Construction Division Manager
National Safety Council

MARIE HARING SWEENEY, Ph.D.
Chief
Document Development Branch
National Institute for Occupational Safety and Health

Advisory Committee Members Not Present:

HARRY PAYNE, JR.
Commissioner
North Carolina Department of Labor

DANNY EVANS
Chief Administrative Officer
OSH Enforcement Division of Industrial Relations
Nevada Department of Business and Industry

Staff Present:

H. Berrien Zettler
Jim Boom
Luz Dela Cruz
Theresa Berry
Linda Goldenhar
Robert J. Biersner

A G E N D A

AGENDA ITEM:

PAGE

ACCSH Responsibilities


     Jane Williams
     Steve Cooper

297

Remarks
     Charles N. Jeffress

328

Multi-Employer Citation Policy
     Felipe Devora

380

ACCSH Business

419

Public Comment

425


P R O C E E D I N G S

(9:10 am.)

CHAIRMAN BURKHAMMER: Good morning and welcome to the second day of the ACCSH meeting. You have a revised agenda in front of you that we are going to try and follow today.

But, prior to that, we have an announcement that I think everybody needs to hear.

MR. AYERS: I just wanted to let you all know that late yesterday afternoon Camille Villanova's mother died suddenly from a heart attack. So she has left Washington. Her mother lived in Philadelphia, along with her father.

So she will be up there for emergency leave to take care of the funeral arrangements and the like. So, I hope that all of you will remember her.

CHAIRMAN BURKHAMMER: Thank you very much. I appreciate that.

All right. The first thing on the agenda this morning is the carryover from yesterday on the ACCSH responsibilities. We will remove that from the table for discussion. Jane?

MS. WILLIAMS: Thank you, Mr. Chairman.

You were all provided the copy, and if you have read through it, you'll see a procedure in there that we call SBREFA, and that's how I would like to go through this document. Basically, we'll take each paragraph, except all comments, revisions, suggestions, and we'll just keep moving on and then move the entire adoption as discussed at its conclusion.

ACCSH members, the role of ACCSH members. Did anyone have any comment and/or suggestions on that issue?

(No response.)

MS. WILLIAMS: B) Conduct of proposed motions at ACCSH meetings. Any questions or comments on that one?

(No response.)

MS. WILLIAMS: C) Presentation of work group reports. Any comments? Yes, Linda?

MS. GOLDENHAR: I just have one. What if something is scheduled to be presented, because you only meet, you know, every what? Four months or so?

What if a work group report is scheduled to be presented and the ACCSH member is not here, but a work group member is? Is it possible for the report to still be presented or not?

MS. WILLIAMS: Yes. In most cases the work groups have been assigned two chairs to help prevent that occurrence so that one could always respond to the issues on behalf of the other.

Any other comment?

MR. BUCHET: Was that the question? Or was it that a work -- a non-ACCSH person could present?

MS. WILLIAMS: Oh. Was that the question?

MS. GOLDENHAR: That's sort of the bottom line.

MS. WILLIAMS: Oh, the bottom line. No. It's my understanding -- Mr. Chair, tell me if I'm incorrect. But I understand that only the ACCSH members of the committee would be in the position to present those reports.

CHAIRMAN BURKHAMMER: That's correct. The public members of the committee can discuss their points of view if they differ during the public commentary.

MS. WILLIAMS: Any other comment?

(No response.)

MS. WILLIAMS: D) Consideration of work group reports.

(Laughter.)

MR. BUCHET: Mr. Cooper is being quiet this morning.

MR. COOPER: I think, if you have two

co-chairmen and neither co-chairman was here, naturally, if you had the minutes of the last work group, wouldn't you give that to the chairman of ACCSH and ask him to report on that at that meeting?

MS. WILLIAMS: That was discussed in our meetings, and the comment that I received back -- and, Stew, you can certainly comment -- was that the work group chairs would have been more intimately involved in the multiple discussions that more than likely would not be in the text of the material.

I'm assuming, if the chair felt comfortable in presenting the report, the chair would do so. But to put that in the guideline, I'm not sure that's appropriate.

CHAIRMAN BURKHAMMER: That's a prerogative of the chair. Leave it out.

MS. WILLIAMS: Any other comment?

(No response.)

MS. WILLIAMS: Consideration of work group reports. Any comment?

CHAIRMAN BURKHAMMER: Yes. We ought to -- instead of work group reports are considered, shall be considered, because sometimes they may not be.

MR. DEVORA: Jane, backing up a little bit on where you have a draft report at the time of presentation that is not to be distributed to the public, you're talking about the final product that we're voting on?

So, in terms of things that we pass out in the work group? Drafts? If we were to pass out drafts to our participating parties in the work group?

MS. WILLIAMS: Participating members of the work group would be entitled to a work document for their review and participation. This is actual work group reports that would go to the ACCSH members for consideration.

This is a draft. We would not want to have a moldable draft to the general public confusing them on which one is current, which one isn't.

So once it is adopted by ACCSH, the final product, and amendments, the corrections or revisions, then it certainly, under Freedom of Information, becomes public knowledge.

MR. DEVORA: So anything that's out there as a precursor to something we've been working on is just simply a work product with the work group. Right? It's not anything that -- I mean, that's okay to pass out to them?

MS. WILLIAMS: That is correct. And the chair should identify that as a working draft, but it is not the initial draft report for ACCSH's consideration. It's not an ACCSH product.

We were at D. Any additional comment?

(No response.)

ACCSH meetings. This is basically just an order that help facilitate the chair in making sure that items were, in fact, available to the members. Any comment?

(No response.)

MS. WILLIAMS: B) Typical agenda format just clarifies the prerogatives of the chair.

C) Attendance by members. That --

MR. BUCHET: Why don't we make B, typical agenda format or model or something like that?

MS. WILLIAMS: Okay.

MR. BUCHET: We won't have people going when you have to follow this every time.

MS. WILLIAMS: Remember, these are guidelines. The guideline is just to give an example format. It is not -- it doesn't say must be, shall be or will be.

CHAIRMAN BURKHAMMER: Why don't you insert the term model or make it a model agenda format.

MS. WILLIAMS: Model? Model agenda format?

MR. BUCHET: Yes. Beautiful.

MS. WILLIAMS: Any additional comments?

(No response.)

MS. WILLIAMS: C) Attendance by members. This is the verbiage that responds to the use of proxy. Linda?

MS. GOLDENHAR: What I am doing right now, addressing sitting in for someone, isn't that incorporated in here? I think this is just specifically for voting purposes.

MS. WILLIAMS: This is specific for voting purposes. That's correct. We did not include -- Stew, would that be something that I should clarify do you believe? That members may --

CHAIRMAN BURKHAMMER: It's the DFO and Chair's discretion if somebody sits in for a member that cannot come. So I don't think that belongs in here. The proxy vote certainly does.

MS. WILLIAMS: The question was posed to me would that apply to other representatives of the committee. Would they be able to consult with the Chair and wish to send a representative?

CHAIRMAN BURKHAMMER: Oh, sure. It applies to anyone.

MS. WILLIAMS: D) Postponed meetings. Just a clarification. A meeting room clarification.

Work group meetings. Again, this is a basic let's be consistent; not take model work group agenda. Take out basic?

Work group criteria. This is just a clarification that the work group chairs are the ones, in fact, that would schedule their meetings. It only goes through the DFO for funding and other issues that -- for their assistance. And, of course, the chair has to be notified of all such things.

Four: The director --

CHAIRMAN BURKHAMMER: No. Wait a minute.

MS. WILLIAMS: Yeah.

CHAIRMAN BURKHAMMER: Go back up to the top of page six. Work groups meeting date and room location will be announced in the Federal Register and posted.

MS. WILLIAMS: Insert announced?

CHAIRMAN BURKHAMMER: In the Federal Register.

MS. WILLIAMS: Stew, we talked specifically with that with Bruce, and there was a concern there would not be enough notice to accommodate the Post, and they were --

CHAIRMAN BURKHAMMER: It's a statutory requirement to announce it.

MS. WILLIAMS: On a work group? Not for work groups. Only the ACCSH meeting.

MR. BUCHET: If there were committees, then they would have to be.

MS. WILLIAMS: That's my understanding.

MR. CLOUTIER: Jane, how about where possible?

MR. BUCHET: Can we hear a word from the solicitor's office?

MS. WILLIAMS: Stew, do you concur with that comment, that the work group meetings do not need to be -- or are not required to be in the Federal Register?

CHAIRMAN BURKHAMMER: Yes.

MS. WILLIAMS: So we will only insert announced and posted. Any additional comments?

MR. EDGINTON: Maybe a question. What I find myself struggling with, after having been involved with a number of our work groups -- and I don't know if this is something that we can address in here or elsewhere.

I'm struggling with what is the relationship between a work group product, particularly if that product is a standard, a proposed standard, and the larger work of the agency?

You know, we seem to be in a situation where we have got ACCSH sometimes forging ahead on standards or proposed standards, yet we don't have a commitment from the agency in terms of a general up or down.

So I am wondering, with respect to our work group activities, particularly as it involves standards, if it would be appropriate to include -- and I don't know if we need to do it in here. That's what I'm struggling with.

But it seems to me it makes good sense to try to build a bridge between what we're doing within the work group and the agency up front, because I think we have a lot of good people s[ending good time and good money, and if there is not a belief of the agency that there's a need or it is necessary, I don't know what we're doing here. And that's sort of a concern I have, and I don't know how to address it or where to address it.

MS. WILLIAMS: I discussed that issue very specifically with Mr. Swanson because of recent developments. His comments to me were: As they pursued to look at standards that effect the industry, they would rely upon ACCSH to advise them on those issues they feel pertinent for their considerations.

If they just elect their own topics and go ahead and proceed, they do not have the benefit of our input. He saw it as a two vehicle approach. One, we would select pertinent subjects, get that work prepared for them so that -- and advise them we feel these are issues they should be proceeding, and then they would have a beginning document, and we could try to cut down on the time line. That was fine.

My other concern was the process, once we accomplish our task, and their attention to those issues, which I'll address later in this meeting.

MR. EDGINTON: Well, I don't know. I -- and I guess that the sanitation rule is what -- our experience with that really got me thinking about this. But I said it could be any other rule that is moot by -- you know, it's one thing where we are giving the agency advice, guidance, if you will, on their work that they have brought before us, and it's clear that the agency's interest is there.

My concern is more towards how we get -- for lack of a better way of describing it -- buy in from the agency or at least get a nod from the agency that we are doing something that they believe is either necessary or appropriate or at least they will give serious consideration to.

CHAIRMAN BURKHAMMER: I think, if you look at the sanitation -- it's a good example of what you're talking about. That was not on the regulatory agenda.

MR. EDGINTON: Right.

CHAIRMAN BURKHAMMER: They didn't ask us to do anything with it. We took a subject and made a work group out of it and Jane and Steve pushed an excellent document through, and OSHA took ACCSH'S recommendation and it now is added to the regulatory agenda for the next regulatory year.

So it works both ways. They give us stuff and ask us to comment on their products, and we, in turn, have the option of developing products and giving it to them and asking them to add it to the regulatory agenda, which, in sanitation, that is what happens.

So, to answer your question, I think that's the mechanism we've had and continue to have. I think the relationship that has changed over the years since the Joe Deer administration when we forged a more closely working relationship between OSHA and ACCSH and has grown better each administration since, and I see it continuing to grow better under the auspices of the way things are changing at OSHA and the way things are changing here.

I mean, we spend a lot of time in work groups. We have a lot of people, as was brought up earlier, spending time and money to come to these meetings. As Michael said, put in a lot of effort; a lot of work is done.

And naturally, we would want to think that when we turn the product over to OSHA it would be received and utilized, and I think that's been the case, and I think it will continue to be the case.

So I'm not sure it would be worded properly to ever fit in here or we could ever find the words to put in here, but I think that's ongoing and happening.

I know that doesn't answer your question. It doesn't give you a real warm, fuzzy feeling, but I think that's kind of where we are.

MR. SMITH: Mr. Chairman, I think in a real world though there's nothing we could put in here that would be binding on OSHA, because we are advisors.

MR. EDGINTON: Not so much binding on OSHA. I'm thinking more in terms of just how we do our business. And, in all fairness, particularly to members of the public that we get involved in our work groups.

And again, the sanitation standard got me thinking about it. I've got a subpart M work group now, and I believe we've got all the right parties of interest at the table, and there is a high level of interest in the subject.

On my own I have made it a point of talking to the agency about where we're at and why we have an interest in doing this to at least give them a head's up that we are talking about this.

I guess one of the things I don't know is with respect to the distribution of ACCSH minutes or work groups minutes. I don't know how widely they get distributed in the agency, in terms of at least giving people a head's up that this is what we're thinking about or these are areas that we have work groups involved.

And Berrien knows and he can help us.

CHAIRMAN BURKHAMMER: You know, each work group has an OSHA advisory liaison that works with the work group, and that individual will use -- employer as an example. I believe they can tell you the inner involvement between Noah and the work group.

And when you have that closeness and that fit where it's an ongoing dual work group, in essence -- you have OSHA there and you have the work group members there -- they have an ongoing feeling of where that work group is. And Noah's input, along with Felipe and the committee's input, when that product comes out the door, OSHA is very well aware of what that work group has done and has been a part of that work group. Believe me.

MR. DEVORA: Let me add to that conversation. I don't know if Noah is here. A conversation I had with Noah earlier, or at some point in our work group, is that even -- you know, whatever -- however a vote of whatever nature turns out, that the advisory committee and our work in the work group and with OSHA participating or actually monitoring the work groups, that any work that is done isn't lost.

I mean, there is a vision or there is a thought or there's an idea of where the problems are, what the issues are and maybe where we're going with an issue.

The fact that we don't necessarily agree on a document or send it out, OSHA is still benefitting by the participation of the work group.

MR. EDGINTON: But I guess, Mr. Chairman, if I may -- and I don't mean to belabor this, but just one last point about this.

The notion that a work group product, to give it the standard, gets put on the regulatory agenda, in and of itself provides me with no great comfort, because, as we all know, there are items on that agenda that have been there for a decade and which no further action has been taken, and that's what I'm trying to get to, is that these items do get moot.

CHAIRMAN BURKHAMMER: I guess that's a continually unanswered question because, you know, the advisory committee was constituted as an advisor. And most people who give advise to people either take it or don't take it.

And if OSHA chooses, after all the work and all the effort that was put into it and the time spent by the OSHA people participating in the work group, that they decide to blow it off, then there's nothing we can do about that.

But I think that over the last five years anyway, in my personal opinion and being on this committee and working in work groups and chairing work groups, we have made an impact. I mean, I think we really have.

And Berrien, if you would like to comment.

MR. ZETTLER: Clearly this is an issue that needs to be treated with attention and respect, because I think DOC, since it's been established, has attempted to work as closely as we possibly could with the ACCSH. But, of course, DOC is not OSHA.

There are decisions made based on considerations, which DOC may or may not know about, at the time that a work group product is presented to us by ACCSH.

The work group product, of course, is something that if ACCSH decides to make a recommendation to the agency on, we will certainly take very seriously.

And to answer one of your other questions, the minutes and the proceedings of the ACCSH meetings are a subject of briefing for both the Deputy Assistant Secretary and the Assistant Secretary after each one of these meetings. So it's not a secret, and the highest levels of the agency know what the committee has recommended or has not recommended.

But, of course, -- and I agree with what Felipe said; that everything that the work groups do -- we have made a real effort to have a knowledgeable staff person present at all of the work group proceedings when the work group is attempting to develop a product. That time is certainly not wasted.

Our job, of course, in participating in these work groups is to respond to any questions that the work groups might have. It is not, however, our position to try and sway the work group to go one way or another. We're not there to have the work group tell us what we want to hear.

We are there to assist the work group in coming up with the work group's own recommendation, and if ACCSH accepts that recommendation and passes it on to the agency, we will certainly give it full consideration. But that's not the same thing as promising that we're going to do it.

I hope that you understand that any work product which is given to the agency will be looked at and will be considered and may very well have an impact on the way the agency does business, even if we don't go forward exactly as the committee has recommended.

MR. MASTERSON: One of the things -- and it is along the same lines -- that I found a little bit frustrating is that as the ACCSH has made recommendations in the past, updates back to ACCSH, as far as how OSHA is responding to those, or even if it's we're not going to take it into consideration, isn't happening.

And so, there is a work product that comes from a work group to the whole ACCSH. It's approved and is forwarded to OSHA and then it kind of goes into this big hole, and it would be nice to get some feedback on whether or not OSHA wants to use it, can use it, use parts of it or what they are going to do.

Just food for thought, and I think something that needs to be addressed at some point is some form of a feedback mechanism to the committee itself on past recommendations.

MR. BURKHAMMER: Okay. Thank you, Bob.

Let me address a minute the comment that was made earlier about paperwork.

Any paper that is generated in the work group is the work group's paper. It's part and parcel to what's ongoing in that work group. Data collection has tons of paper. MSDS has tons of paper. Felipe went through the bonds of paper in his.

That's an internal work group stuff. It's whatever they want to do with it as a work group.

When they come forth as today -- we have two motions on the table -- and they come forth to ACCSH, the work groups recommendation document that they're putting forth for our review, which is the two documents we have before us today, once that's done, they're an ACCSH document, and it's up to ACCSH to accept that document and move it forward to OSHA; reject that document and return it to the work group.

If it is returned to the work group, it is still a work group document.

Once it's approved by the full ACCSH committee and it goes on to OSHA, then it becomes OSHA document and falls under the Paperwork Act.

So, if the work group committee chair decides he wants to give paper out to God and country, I mean, that is his prerogative as the chair of the work group. I would hope that that doesn't occur a lot. But if it does, that is the chair's prerogative of that work group.

But once it comes on the table here, it's the group as a whole's product.

Michael?

MR. BUCHET: I remember earlier discussions about what the interim papers from the work group should be called, and I thought we decided that minutes were not appropriate, that minutes required some formalized record keeping, recording and supporting.

I notice that we have put minutes in this document here, and I wonder if we shouldn't use the word notes.

CHAIRMAN BURKHAMMER: Yeah. That's correct. Minutes was decided it was not minutes. All it was was update notes of the work group status.

MS. WILLIAMS: Do you wish that item to be changed?

CHAIRMAN BURKHAMMER: Yes.

Larry?

MR. EDGINTON: First, let me apologize to Jane for bogging this down, but I would like the liberty of one last question, which I have been struggling with with respect to work group activity that involves either revising a current standard or proposing a new standard.

I'm trying to get it straight in my mind with respect to the directorate's allocation of staff to support the work group; is can the directorate allocate staff or staff time to support a work group working on a standard or proposed standard when that standard is not on the semiannual regulatory agenda?

MS. WILLIAMS: The answer that was proposed to me by Mr. Swanson was yes.

CHAIRMAN BURKHAMMER: That's the answer.

You know, OSHA has limited staff too. If ACCSH, for whatever reason, decided to have 50 or 75 work groups going at the same time, I'm sure Bruce or Berrien would come to us and say, you know, enough is enough. This is ridiculous.

But we currently have 18, and we constituted one yesterday as 19. And we may constitute another one today, which would be 20. But these come and go. I mean, there is going to be some that fade away too.

You know, as long as I think we keep the balance somewhere between 10 and 20, I think it's realistic. I think Bruce thinks it's realistic, and I think he can support that with his staff.

MR. EDGINTON: Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: Two comments in regards to one comment by Bob. Having experienced sanitation and the item of November's agenda being totally missed in the ACCSH meeting, that was discussed with Mr. Swanson.

And, as a result, we got this document that was passed out at this meeting. "Advisory Committee Action Items Significant Events." Supposedly there are new tracking mechanism so that doesn't occur again.

The only suggestion I have to that very end is that where you have target action date, by many of the items they have N/A. I really would like to see a date or porter of something put in there, because this doesn't do us any good.

In response to Bob's comment, what's happening? Are you ever going to look at it? Why is it not applicable? All the ACCSH assignments had second quarter or had time lines. So we would ask that you would have time lines in there also.

MS. GOLDENHAR: Do we all have that?

MS. WILLIAMS: That was at my place, so I think everyone would have that. And that is a summary of our January meeting and constituted basically of tentative minutes and things of that nature.

Getting back to work group criteria, all the words referring to minutes will be changed to notes. And again, they are at the discretion of the work group chair. He may just wish to do a summary, a verbal summary, at the end of his meeting.

And we've inserted "announced and posted" in the first paragraph of page six.

Item four: Director, director to construction.

CHAIRMAN BURKHAMMER: There's two things here I think. Inform ACCSH members and DOC staff of date and time of next meeting. The date of the next meeting is set by ACCSH. So we need to re-word that. It may not even here, but it may fit back at the beginning somewhere.

ACCSH sets date of next meeting or sets date to meeting agenda. Then I would, for the rest of it, "The director of DOC shall:," because all these are things that they need.

MS. WILLIAMS: Okay.

CHAIRMAN BURKHAMMER: You've got director, director of construction up at the top. But if you start it with the director of DOC shall: and then --

MS. WILLIAMS: Just go down.

CHAIRMAN BURKHAMMER: And take the first one out and put it where it properly goes.

MS. WILLIAMS: Should that be changed? "Inform general public and DOC staff of time and date of next meeting"? Or do I cover that? I think that --

CHAIRMAN BURKHAMMER: Yes. I think you covered it.

MR. BUCHET: You have to make arrangements to post it in the Federal Register. Is that what we're trying to say? Or are we talking about some other mechanism?

MS. WILLIAMS: We had, in one of the six drafts, some very specifics. It was determined to eliminate those specifics to allow the directorate to do it via all the means he's required to: Federal Register, E-Mail, fax; whatever.

CHAIRMAN BURKHAMMER: I would move the date and time of next meeting to A on page one. Role of ACCSH members; the ACCSH members set the time of the next meeting.

MS. WILLIAMS: I'm sorry, Stew. What was that again?

CHAIRMAN BURKHAMMER: Your first one here under A, on page six, move it to 1A on page one as part of the role of the ACCSH members to set the next meeting date.

MS. WILLIAMS: Okay.

MR. BUCHET: Mr. Chairman, unintentionally, we may be removing one of the things that the directorate is supposed to do, which is to broadcast the decision of the ACCSH meeting. We decide what the date is and then the director is supposed to broadcast it through various mechanisms back to us and to everybody involved.

CHAIRMAN BURKHAMMER: All right. We'll leave it in there, but put it in 1A. That's a role of ACCSH, is to set the date. But it is the role of the directorate to inform. So good point, Michael.

MR. BUCHET: Thank you.

CHAIRMAN BURKHAMMER: Please continue.

MS. WILLIAMS: Okay. So, summary of A. We're going to add the directorate's notification. We're also going to repeat it under 1A.

B. That's just a list of items that we have all requested at various times to be in a packet to provide to all new members that come on board.

CHAIRMAN BURKHAMMER: Go up to the top of the paragraph on seven where you've got the list of people. ACCSH members, blah, blah, blah. Include ACCSH legal counsel.

Steve?

MR. COOPER: Mr. Chairman, I see this as an introduction package for newly appointed members, and I don't know about the actual initial discussion that threw it out.

But one of my comments were that at every advisory board meeting there would be a construction standard in front of each one of us, so when the construction standards come up -- is that in a different part?

MS. WILLIAMS: It's in a different part.

CHAIRMAN BURKHAMMER: Yes. It's in a different place, Mr. Cooper.

MR. COOPER: Thank you. Nevermind.

(Laughter.)

CHAIRMAN BURKHAMMER: Please continue, Jane. Bob. I'm sorry, Bob.

MR. MASTERSON: Jane, under this packet for newly appointed members, do we also address the updating of that packet for current members? I guess phone numbers, E-Mails, fax numbers, things like that, change.

MS. WILLIAMS: I didn't. The paragraph before addresses that he'll provide the communication and contact list and include all those things, and I certainly could add an updated as required.

CHAIRMAN BURKHAMMER: Yeah. But Jim does that anyway.

MS. WILLIAMS: True.

MR. BUCHET: We could solve that if we go back to the top of the page and make it we provide a current communications contact.

MS. WILLIAMS: Very good. We'll insert current.

CHAIRMAN BURKHAMMER: Thank you, Michael.

MS. WILLIAMS: Five: DOC staff work group liaison. Basically that's the function they need to perform and the finding is that person to be responsive to our work group. Any comments on that?

MS. GOLDENHAR: Jane? I'm sorry. Can I just say something about the introductory package?

MS. WILLIAMS: Yes.

MS. GOLDENHAR: Would it also be possible to include a list, like this list of the work groups, so that a person has a -- sort of a sense of what's going on; when work group reports going on.

MS. WILLIAMS: Absolutely. Current work group listing and contact.

CHAIRMAN BURKHAMMER: Thank you, Linda. That was a good addition.

MS. WILLIAMS: Meeting arrangements and notifications. B) Meeting support. Yeah, Bob?

MR. MASTERSON: I didn't notice, and I may have missed it. Okay. "No later than four weeks after the work group meeting."

Is there anything -- it may be in here, and I missed it -- as far as the amount of notification before work group meetings?

MS. WILLIAMS: We state in here that the work group should be scheduled 45 days prior to the call of the meeting.

MR. MASTERSON: I missed it.

MS. WILLIAMS: And then the notifications. But we also note that sometimes that may not be able to be accomplished, and we will do the best we can.

MR. MASTERSON: Thank you.

CHAIRMAN BURKHAMMER: You're deleting minutes here and putting in notes?

MS. WILLIAMS: Yes. All reference to minutes by work groups will be changed.

ACCSH member travel. Office of Public Affairs.

CHAIRMAN BURKHAMMER: Make it to page nine. The center of the page. ACCSH members will contact hotel and arrange arrival and departure date.

MS. WILLIAMS: Uh-huh. We knew that.

CHAIRMAN BURKHAMMER: Okay.

MS. WILLIAMS: Even if they were to block rooms.

CHAIRMAN BURKHAMMER: Even though Theresa blocks the rooms.

MS. WILLIAMS: We still have to call and give them our personal information.

Office of Public Affairs. In keeping with what this says, I will go back and prepare the final document and then provide that to the DOC, if it is, in fact, adopted by you, and that would be an assignment by all the chairs.

The directorate was concerned that staff not be burdened with that, because they were concerned with misinterpretations.

CHAIRMAN BURKHAMMER: Page 10, the first line: "Upon being informed by vehicle of next ACCSH meeting, OPA shall:" The same as we did before with DFO.

MS. WILLIAMS: Okay.

Are there any other comments? Steve?

MR. CLOUTIER: You need to go back to page nine where it says -- go back to the bottom of page nine where they're talking about federal reimbursements. It should say federal direct deposit reimbursements, because there's no more checks cut.

MS. WILLIAMS: Oh, that's right. That changed.

(Pause.)

MS. WILLIAMS: Any other comments?

(No response.)

MS. WILLIAMS: Mr. Chairman, I move the adoption of the Advisory Committee on Construction, Safety and Health Committee Rules and Guidelines as discussed and amended.

CHAIRMAN BURKHAMMER: So moved. It comes from an established committee. It doesn't need a second motion on the floor. We've had discussion. I call for the question.

All in favor of approval, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Approved, as amended. Please make the corrections, and you and Bruce and I will sit down and finalize it and put the packages together and send it out.

Thank you, Jane. That was an excellent job and a tremendous amount of effort and time on your part, and we really appreciate what you've done.

MS. WILLIAMS: I'd like to thank all the people who assisted.

CHAIRMAN BURKHAMMER: Okay. It's 9:40. I think we're still on track for the Assistant Secretary at 9:45. In fact, here he is. I was going to give you a five minute break until he came, but we'll pass on that. Welcome.

MR. JEFFRESS: The stage is mine, huh?

CHAIRMAN BURKHAMMER: The stage is yours.

MR. JEFFRESS: Talk about timing.

REMARKS BY CHARLES N. JEFFRESS

MR. JEFFRESS: Thank you all for continuing to advise us on construction, safety and health. I appreciate you spending your time and energy this way.

This morning I had several things I wanted to share with you, and I wanted to leave a fair amount of time as well for whatever advise you have for me or questions you have for me about things that you'd like to hear my perspective on.

I want to talk some about what's going on within the agency, just on some administrative issues, talk about some standards issues, and then talk about some Congressional action. Actually, I'll probably talk about the Congressional action second.

First, some things going on administrative issues. I understand you have some interest in the budget. I have some interest in your perspective on the budget and would welcome your feedback on this part of it.

For the Fiscal Year 2000 budget that's before Congress right now, some of you may know, we submitted the budget requesting -- the President requested for OSHA about a 10-percent overall increase for the agency.

In terms of personnel, it requested 67 positions, one for every federal area office, to be compliance assistant specialists to do teaching, training, outreach to employers, construction and general industry; a broad range of safety and health issues to assist employers in complying with the OSHA Act, to assist employees who want to know about the standards and know about their rights under the standards, but compliance assistant specialists to do teaching; to do the training.

As I've been saying at various appearances, I'd like for OSHA to be as well known for our education as we are for our enforcement, and so this is a down payment, if Congress approves it, for a significant increase in what we do in terms of education.

There is also a significant request, in terms of money, for the materials for education. To improve our website, to improve our Internet delivery of training, to provide materials for these trainers to use, to produce more educational and outreach materials. Again, construction, general industry; across the board to provide materials.

Probably the biggest part and the most important for us to the President's request for money was for expanding the education and training function of what OSHA does.

Having said that's the President's request, the reality is that the direction currently of things going on at Capitol Hill -- the Labor Department appropriations bill has not been provided enough money to even continue with last year's programs, much less for any growth.

If the pro rata cut that's currently been announced by the House leadership for the Labor Department bill is applied across the board, not only would OSHA not receive any increase, we'd receive about a 20-percent reduction in this year's money.

There is not a lot of belief that that will hold. There's general thinking that that's too drastic a cut. But should they follow through with what -- the policy that's been announced so far and apply that across the board with no further changes, we could expect a 20-percent reduction in the OSHA budget.

As I say, I do not expect that will happen. I think that's too drastic. The same seems to be happening to every other Labor Department agency. It's not just OSHA that's being picked on, and I don't think that's likely to occur.

But there is absolutely no discussions going on at the moment in Congress about specific requests for money because there is no agreement as to what level of money should be available for the Labor Department appropriations bill, and I expect it will be a very difficult September at the end of the fiscal year before all of this gets worked out for the year 2000.

So, all bets are off. I can't tell you what we are going to do next year. With as much uncertainty as there is about what kind of money we are going to have, it is very difficult to make plans for what the program should look like next year.

Even while we are uncertain the 2000 budget, the time has come for the Department to be preparing what our request will be for 2001, and if you have particular suggestions or comments to me as to what ought to be in the 2001 budget, I need those and I need those quickly.

The first blush, our first proposal to the Department for consideration is due next Monday, and I have some outlines of things we are going to give them. I am not at liberty to share them, but obviously, for the next month or so, we will going back and forth with people in the Department about what is appropriate.

And we welcome your advise as to what kinds of things we ought to do.

Generally, you can tell, by what I did last year, in terms of what I am looking forward to next year. Continued enforcement presence, continue balance between enforcement and compliance assistance. So I'd be looking for both sides of that.

One of the things that this group suggested and other construction groups have suggested as well that I will be discussing with the Department is beginning a survey within the construction industry to identify those employers that have high rates of injuries and illnesses.

You know we are doing this in the general industry side now. We have not had any way to identify which construction employers, which contractors are having particularly high rates of injuries and illnesses.

While we talked about the limits of a survey and whether the data is really out there to respond to a survey, the survey still seems to be the only suggestion; the best way people have. So I will be discussing with the Department the possibility of requesting funds for such a survey for fiscal year 2001, and I'll tell you whether we will go forward with that.

But, in terms of construction, that is one thing that will be a dramatic departure from the past. If we go forward with, it would -- that you will be interested, I am sure, in commenting on and talking to us about how we do that.

Two other things going on within the agency. I want you to know now that last month, I guess in April, I announced that Arthur De Coursey and my staff would be a liaison for me to families of victims and to victims of industrial accidents, people who have worked with our areas to get information about the circumstances of the accident or what OSHA is doing.

I expect our area offices to provide the victims and the family of victims with that information. Occasionally people get frustrated and want more or don't feel they get the right level of service. I want someone in my staff to be able to work directly with victims and families of victims, and so I have asked Art De Coursey to do that.

And within an hour we made a -- issued a press release, he had his first call. So I think there is perhaps some demand he can assist with in that regard.

Another administrative and policy matter with respect to audits of -- internal audits done by companies of their safety and health program. This came up in the context of some Congressional action. Mr. Ballinger has a bill in to privilege these audits such that OSHA could never get access to internal audits that employers do for safety and health purposes.

My response has been that currently when we make inspections, if we find problems, we might ask a company for their audits, for any information they have, any evaluation they did, any report they did on their safety and health performance and might use that audit to inform and educate our compliance officer about what the employer knew and when they knew it and what they did in response to problems that they found.

Eighty percent of the time we have used those audits, those audits have come back to help the employer because they show the employer did take appropriate action, given what information they knew.

Our promised a number of folks that we would put that policy in writing. We don't have in writing a policy on audits at this point. So we have a draft one, and it is being circulated within the Department now.

And my plan is shortly, perhaps within the next month or so, to publish this in the Federal Register for notice and comment so that employers, employees and folks around the country can look at what our policy is and comment on it, because I do want to reassure people that do these audits that they help them; that if they do the audit and respond appropriately, it works to their advantage.

And I want to encourage people to do these audits and not discourage them. I also believe, if we put this in writing and have a policy that is recognized as fair, that we will make the need for legislation seem less important and perhaps that bill from Mr. Ballinger will not go forward.

But you should be looking for it, and we'll get you a copy of it advance its publication, the audit policy that we will be proposing so you all can comment on that.

I am going to move to congressional action. Any questions, comments on those that we have talked about?

MR. DEVORA: One question on the audits, Mr. Jeffress. One of the issues that we see in construction, that I see in our area as discouraging that question is a catch-22 and somehow or another, the attorneys eventually get involved with these internal audits.

We have no problem, you know, sharing these and showing OSHA, show the agency what we are doing to make our job sites a better work place. So, if we -- you know, we would seek some legislation or some protection for these audits and investigations so they don't end up -- whereas they may help you and I, the agency and our company to work together to provide a safe work place, obviously it is more ammunition for that other profession out there.

MR. JEFFRESS: And that has been my discussion with Mr. Ballinger. I really think the move to protect these audits comes not so much from fear of OSHA looking at them as from liability of a third party lawsuits, and I really think that is what driving the pressure on the other side.

I don't know that putting forth our policy is going to, in fact, relieve our pressure or keep people from continuing them under legal privilege. But at least from our point of view I want reassure people we think it's the right thing to do.

And if you do the audit and respond appropriately, it will work to your advantage and not your disadvantage.

CHAIRMAN BURKHAMMER: One thing that a lot of companies are doing -- and, Felipe, maybe you are doing this too. I know our company is doing this.

All of our self-assessments are client/attorney privilege, and the reason we do that is just like you said, is the third party liability issues, especially if something might occur later on down the road that could reflect back on that self-assessment.

So maybe part of Ballinger's drive is that part or little tiny piece of it, but I think the overall part that you want to do is the right thing. And if we could separate those two, it would be great.

MR. JEFFRESS: I wish there was some way we could separate them. It is being portrayed in Congress that people are doing them under attorney/client privilege because of concerns about OSHA getting access to them.

I believe, like you, it is not OSHA's access that is the real driver here. It's the third party issue.

Nevertheless, if asked, folks will say, yeah, you do this because of liability issues and OSHA can't change that.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: And I agree, and I think the self-audits are a valuable tool. One of the problems we have, and one that we have experienced personally is that once we turn that audit over to somebody other than our attorney, we lose the attorney/client privilege.

So, if we were to voluntarily hand you a copy of audit we did, we forfeit that attorney/client privilege. Now, if you can find some way to protect that, that might be a different situation.

MR. JEFFRESS: I understand that, and if it is done under attorney/client privilege, I doubt OSHA can get access to it. If we do get access to it, unless it's trade secret, there's probably no way that OSHA can protect it. It will be part of our files. So I think your assessment is accurate.

On the Congressional activity, there have been more OSHA bills affecting OSHA introduced in the past year than there have been in the last three years combined. I'm just astonished at how much legislation there is out there.

I don't know how much of it is going to move, but I am going to list for you what is out there and then just a couple of comments about some of the bills I think might be important.

Mr. Blunt and Senator Baun both have bills in ergonomics to keep OSHA from proceeding with adoption of an ergonomics rule. Mr. Pitra has a bill codifying the VPP. Mr. Ballinger has a bill on audits, as I said, and on whistle blower protections. Mr. Ballinger also has a bill on no penalties for serious violations.

Senator Wellstone has a bill on whistle blower protections. Mr. Clay has a bill on whistle blower protections. Those are bills that the Department and the administration support.

Senator Wellstone has a bill on public employee coverage for federal, state and local employees. Ms. Andrews has a bill on coverage for state and local employees. Mr. Ballinger has a bill on the agency doing cost benefit assessment on our rule making. There is a bill for expanding the SBREFA process.

There is a Levin/Thompson bill on regulatory reform. Mrs. Stark has a bill on needlesticks. Mr. Talant has an interest in record keeping in safety and health programs that may become a bill. We're not sure yet.

Senator Enzie has a Safe Act that is a companion bill in the House. Mr. Goodling and Mr. Hutchinson have a bill on attorney's fees. The attorney's fees bill is interesting. The attorney's fees bill says that any time that OSHA loses a case, that the party on the other side can collect attorney's fees from OSHA.

You know, the current standard is if it's frivolous, if OSHA brings a frivolous case, then the other side can collect fees. This says just if OSHA loses the other side gets the fees. Life could get very difficult here.

It's hard enough to take cases right now when folks are concerned about whether we have a good case. But if the standard becomes any time we lose, we pay, it would be a real blow to OSHA's enforcement. I can tell you.

But that is just a list of the bills that are out there. We've talked about some of these issues in the past. I think we have talked about whistle blowers in the past. We've talked about ergonomics in the past. I don't think we need to worry about either of those today.

One bill that I thought was going to have unanimous support was the bill codifying the voluntary protection program, and this bill is currently a little stuck. There is an issue about employee representatives signing off on the applications for VPP.

Our current rules say that if there is a collective bargaining agreement in place, then the representative of that bargaining unit has to decide on the application for VPP, which seems appropriate since it could be required for employee involvement.

But that provision is not in the bill that Mr. Prita has put forward and this negotiation is ongoing about getting that in the bill and making it clear that if there is a collective bargaining agreement, that the collective bargaining unit agent has a role to play in VPP.

I believe we can work that out, but it is hung up at the moment.

The bills on public employee coverage I think will get some attention. I don't know that they will go forward this year, but certainly, with the Post Office bill going forward last year, it has created an interest in covering more public employees.

I will best testifying before Mr. Talant's committee this week on safety and health programs. He, two years ago, held a hearing on this and my predecessor, Greg Watchman, when he was acting, testified, and Mr. Talant ridiculed the fact that the agency would have a rule requiring employers to have safety and health programs.

He doesn't believe that employers should be required to have safety programs, and that probably will be a very difficult hearing later this week.

But, there is a lot of action. I believe that Ergo appears to be the labor issue of the year for the Congress and Ergonomics will probably be the focus of it, but it has certainly generated a lot of legislation that affects us, more so than the past few years.

CHAIRMAN BURKHAMMER: And Cathy Oliver was here yesterday and gave us an update and a report on VPP and the success of the new construction piloting effort, and some of us had discussions between us and among us and others on driving the VPP effort below a year, because the majority of our construction projects now are short-term, short duration, a lot of turn arounds, a lot of outages and the majority of the contractors do work in that less than one year environment. Very few do work in the over one year environment.

And I think to make the program successful and to expand out to touch the good players, and that is what it is intended to do, we need to find some kind of a way to drive it down to the below one year group of people.

We'd like to help you do that, and I would like to work with the agency to do that and work with Cathy to come up with a way to expedite the paperwork process, expedite the going to the various sites and reviewing the programs.

And one of the suggestions that I think Mr. Cloutier had yesterday -- and I don't want to speak for him, but I know him well enough that I think a lot like him. And that is to have a corporate program and approve the corporate program and let the corporation that has the approval pick the sites to put the program on.

It is pretty obvious to the majority of the large contractors. And Berrien yesterday indicated, or somebody indicated, a large contractors is 25 or more employees. I question that. If that is the way it is, that is the way it is.

But I think a large portion of the major contractors have pretty effective programs, have excellent rates and they are known by everybody and how those players are.

And to give them a corporate program and let them select the various sites that they put the program on that has the corporate program I think would be a real benefit to the agency and save them a lot of time, save them a lot of effort, save a lot of time for Cathy and her team to go on out and go on over each one of these sites in advance and looking at the program, because it's the same program in most cases.

It may be tweaked a little bit to fit the type of work they're doing. A refinery, a powerhouse, heavy and highway, et cetera. But, if you approved a corporate program, that would take care of a lot of these less than one year type of contracts.

MR. JEFFRESS: I appreciate that. I understand that is an area we should explore. I have some experience with good corporations, and nevertheless, they have sites they don't control very well, and it's a little trouble as to how we know and how you know and how the corporation know what's going on at this remote site.

In construction for short-term projects there really is no way to make it site based. It would have to be, it seems to me, corporate based to drive that down. I think you are right.

MR. CLOUTIER: I think you can make it twofold, Charles. I think you can take it and qualify some major players in the industry that have good programs and then let that player take it to a work site where it is effective at the work site and then you get the customer on board as well.

So, it can be twofold where you win both sides of the table. You get a fixed plant that is being built at an existing facility that this contractor comes in that has got the good program and you get the plan on board. You can expand the program immensely.

MR. JEFFRESS: How do we get some reassurance that the subs on that site are also -- also have good programs?

MR. CLOUTIER: The way we do that is as you qualify these contractors part of the qualification process is that the first and second and third tier subs are going to have to participate in the program, and you are going to have to make it blanket-wide.

And we're going to have to take some chances out there. We're taking chances now with who we qualify. And we heard some industry rates yesterday by Cathy's office that were good, and we heard some that I thought were a little above average and still qualified.

But I think it is viable for these subs to get on board. It has got to be a win-win situation for everybody. It has got to be for the contractor, a win for their subcontractors, a win for the employees and workers at the site, a win for the agency, because you are not spending agency money wisely going out and going to these sites all the time.

We keep hearing we don't have an effective targeting method, and that's because we're spending half the time at the wrong place.

MR. JEFFRESS: I'd be interested in what method we should use to look at the sub to get reassurance about the sub on the site. Looking at the corporate program for the general -- conceptually, I can understand.

I think it's pretty easy to do. I'd be interested in what level of reassurances or what kind of reassurances you think we should ask for or should receive about the subs that are going to be on that site.

MR. CLOUTIER: I think you will find that as you go around and do your audits during the year. You go to various sites that are approved and you look long and hard at what's going on at the site. Is everybody participating in the program? Is everybody bought into it?

What are the pluses? What are the minuses? What road blocks are there out there?

But it's doable, and we hear partnering, and the agency wants to partner with us. We've got to make it twofold and work it all the way down the food chain.

CHAIRMAN BURKHAMMER: Another thing you might do is when Cathy's team reevaluates the program, the safety and health program under the particular corporation you want to approve, part of that look would be the contractual relationship that's in the contract between the general and the various subs.

So, if there's a -- like in our contracts we have a whole section on requirements of subcontractors. Second, third, fourth, fifth, sixth whatever down the road. We even have them for the Johnny on the Spots and the vendors and those kind of guys that come in for five minutes or five hours.

So, when you review their program, that should be part of the review, and that would tell you if there is an effective mechanism to drive that program down through the various subcontractor levels that are going to be on the job. If that's missing, don't improve the program.

If it's there, then it gives Cathy and her team an indication that they do have an effective means to --

MR. MASTERSON: One thing that comes to my mind is qualifying a company is a win-win situation, because then you have given a tool to the company to hold out the carrot if you would for a specific location for short-term.

OSHA is still going to respond in the event of an accident or a claim, so both avenues are being covered. But you have given that company something they can hold out. Not just to their own people, but to the contractor base saying, hey, this site is going to be here, and here is the advantage of working for us.

MR. JEFFRESS: And I really think that's the best use of VPP. I mean, that's why it exists in many ways, is for that incentive and for that model. You know, if I look at what's happening on the general industry side, we've got 500 sites roughly in the VPP program.

You know, removing 500 sites from our list of six million places to inspect doesn't really effect our targeting a whole lot, but, in fact, it gives people a level of excellence to strive for it, and it is a motivator, as you say, to the contractor and to the subs as kind of a badge of honor in some ways.

It doesn't effect OSHA nearly as much as I think it does the employers and the employees that are participating on site.

MR. MASTERSON: One of the problems that has been described to us is that OSHA can't get to all these small sites; can't even find them. This might be a mechanism to drive that type of a program down to that small site that is only going to be there for 60 days or 120 days.

Or otherwise, OSHA is never going to find them. They're too small, too scattered. You don't have the resources. So why not use this as a mechanism to drive it down there?

MR. JEFFRESS: I'm not sure how many of those small sites are operated by companies that are large enough and staffed enough to have VPP programs, but there may be some.

MR. SMITH: Well, I'm a subcontractor, and I'm one of those guys that bounce around, and I must tell you that it does vary.

Very often we will submit an estimate, and before they issue a contract, they'll not only want to see our program, but they'll want to know what our experience rating is.

And we have been high bidder and got the job because of those other things.

MR. JEFFRESS: So something like this to point to would be an additional way to prove the excellence.

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: On that some point, as a general contractor, a medium-sized general contractor, in our area we're talking about partnering with our local folks there. And the biggest question, when it comes back to the contractors, the number one question is, you know, why should I partner with OSHA? What's in it for me?

So it all comes back to this marketability question and raising that bar, and what we talk a lot about with our area directors are the leveraging of their resources, and they understand that. We understand that; that we can leverage OSHA's resources, and we can also market our company's. And it is a

win-win situation and exactly what Steve said.

You know, we are raising the bar, and it's a company-wide -- a corporate program like that is extremely marketable and beneficial to the industry. But, by the same token, we are raising the bar and not making it -- you know, mediocrity is not what we're after, but excellence.

CHAIRMAN BURKHAMMER: Maybe if VPP wouldn't be the acceptable means to even pilot with. Maybe a partnership effort between OSHA and the contractor -- you know, PEPCO, Raytheon, Jones; somebody in that game plan -- to develop this program in the relationship and in the partnership. And then, at the end of the partnership, you've got the program and the tool to then take a new program.

MR. MASTERSON: The other thing I wanted to mention is right now it's getting to the very, very large construction companies, the Bechtels and people like that.

I build 12,000 homes a year, and we can't qualify for one of them no matter how good our program is. There are a lot of small employers out there that have very effective programs, and the review process would turn that up.

And I don't think you necessarily have to be a large corporation or have a lot of money in order to have a good safety program, and we're overlooking those small employers.

Yesterday it was shared with us that the vast majority of serious injuries are happening with those small employers. We need to find some way to start bringing them into the loop, and right now we are just ignoring it.

MR. JEFFRESS: Good point. Well, I appreciate you all's conversation. And Cathy will, no doubt, be continuing to explore this possibility.

CHAIRMAN BURKHAMMER: She's taking notes.

MR. JEFFRESS: I understand.

(Laughter.)

MR. JEFFRESS: And I signed something yesterday, which I don't even know if it's been distributed yet, announcing that Cathy is, in fact, going to be the liaison for the whole agency on partnership programs and will be a special person for me, in terms of keeping track of what we're doing and assuring that the quality level is in these programs and reporting on these programs.

So, she is going to have some extra responsibilities for helping develop these kinds of things in the future.

CHAIRMAN BURKHAMMER: That's great. That's an excellent choice.

MR. JEFFRESS: And speaking about partnerships, I'll mention that within the construction area a group came in two weeks ago to talk to us about a partnership that may or may not come to fruition, but because it has been mentioned and employees and employers together came in to talk about it, it seemed to me to have some real possibilities.

The boiler constructors and the boiler makers came in to talk about the possibility of having some partnership program with that group that would be similar say to what we have with the roofers in the Chicago area. And that is the most partnership, at the national level anyway, that we have been talking about exploring and talking to folks about.

Let's move then to some standards issues, issues relating to the standards that we're developing.

Section health program rule. I know this group is real eager for us to clear out the general industry rule so we can move right on with the construction one, and I have to report to you some delay in the general industry rule.

The Court decision on the cooperative compliance program, the text of that decision, the judges writing that decision, wrote it in such a way that would lead some readers to conclude that a safety and health program is a standard.

Generally a standard addresses a specific hazard and gives direction on how to control a specific hazard and what employers must do to control these specific hazards. Things that require employers to engage in processes. You know, posting a poster or keeping records are generally considered regulations, but not standards.

And we have been proceeding with the safety and health program as a regulation in that it required employers to put a process in place for safety and health, but it didn't specifically say, here is how you control a specific hazard.

The Court, nevertheless, in their language suggests that a safety and health program requirement should be treated as a standard and not as a regulation. If that is to be the case -- and I don't know that it is. I still believe it is a regulation.

But if it is going to be attacked as a standard, I want to defend it as a standard.

We are doing some further research on employers that have safety and health programs, what hazards they have controlled through those programs, what specific hazard reductions they have found as a result of implementing those programs and that research is going to cause it -- we need to complete that before we put the rule forward.

So the general industry rule I now expect to go forward the end of this year, rather than the summer, which is when we hoped, and that probably pushes a construction and safety and health program rule back by the same amount.

So the end of this year, the first of next year with the general industry proposal out was when I would then say, okay, let's modify this as necessary for construction.

So, I would ask you to -- in terms of your planning and your work, to be thinking about the first of the year 2000, after January 1st, beginning to look at and expecting from us some work on a construction rule in this hearing.

Any comments on that? Yes, Jane?

MR. WILLIAMS: Charles, will the construction program rule through the same comment and process as general industry did?

MR. JEFFRESS: It will have to.

MS. WILLIAMS: Thank you.

MR. JEFFRESS: I guess a question I would have for you all, having had a lot of stakeholder meetings on the general industry rule, do you think that would be helpful to do on the construction rule as well, to have significant stakeholders meetings before we --

(Chorus of absolutely.)

MR. JEFFRESS: Okay. All right. In terms of how we develop that rule, we need to factor that into the time.

I was asked to comment on the record keeping rule, which is -- I think I'm the only person in the country that wants to see this thing done, but I want to get it done. It's been difficult to get everything nailed down on this.

But, it would appear to me that we are going to be able to get this rule out this year to take effect January 1, 2000. It will probably be very late this year. I would expect us to have a rule out in October and people to be spending the last three months of this calendar year learning about the new rule, getting familiar with the new forms and putting the procedures in place.

The -- well, we are not finished with the text, and it hasn't been reviewed. I can't share something with you at this point.

There are clear definitions, I think, of what is work related. There are clear definitions of what is restricted work time. As it was in the proposal, there will be, I think, clear and better indications of, you know, what is first aid and doesn't have to be recorded and what does have to be recorded.

We're making sure that this rule and our ergonomics rule work together so that it is a clear -- just a clear determination of what is a work related musculoskeletal disorder.

The form that BLS has helped us design is much simpler than the current form. It's more intuitive. I mean, if you look at it, you understand it. You don't have to make a decision in something; an injury or an illness before you record something.

So, I feel good about the rule. It is

not -- the proposal had a lot of significant changes from the way that rule records are currently kept, and I have to say a lot of those new ground breaking things we're not going forward with. I don't expect to go forward with.

So there won't be as many changes in the way people keep records, as may have been contemplated by people who read the proposal.

One of the difficulties will be -- I'm sure some folks have software systems for keeping records, and if there is a different system, even minor changes require time to get them reprogrammed. I expect to put the rule in place, but probably not being issuing penalties, as long as people are keeping records the old way until folks get trained and have the systems in place to keep it the new way.

I wouldn't expect to see penalties unless people are not keeping records at all or, you know, are intentionally falsifying records. As long as folks are moving towards the new way of recording keeping next year, I think there will be a period of time where we need to give folks some allowance of making the transition from the old system to the new system.

But that will be coming, and I would encourage you all to encourage your unions and your associations to spend some time the end of this year familiarizing yourselves with the new way of keeping records.

Comments?

MS. WILLIAMS: Sir, can you comment on whether or not you are proceeding with the job site injury law?

MR. JEFFRESS: I'm not likely to go that way. There's enough comments in the record that suggest major problems with that that I don't think it is realistic to have site logs.

MS. WILLIAMS: Thank you.

MR. JEFFRESS: Understand, of course, that it's not a final rule yet.

MS. WILLIAMS: I understand that, sir.

CHAIRMAN BURKHAMMER: Linda?

MS. GOLDENHAR: I'm just wondering -- Linda Goldenhar, from NIOSH -- if there any plans to evaluate this new recording keeping and thinking about it early on, because some of the criticisms of, you know, why it has taken a while in terms of the owner, you know, making it more onerous.

And maybe, given what you're saying, if it's easier to use, it might be good data to collect as people start using it to show that it's working or employers like it.

MR. JEFFRESS: Help me with that a little. We have done a pilot test of the new forms. BLS did a pilot test of the new forms with a focus group of a number of employers in the area to get a sense with them of was it easy to understand, did it capture the right things, what was not being captured and it helped a lot in making sure that the forms went well.

I kind of expect that if we make a major push on people understanding this way of keeping records and retraining people in keeping records, what has happened in the past when OSHA has done that is the number of injuries have gone up.

And I expect there will be some bump. Not really because it's a different way of keeping records as much as just more people become aware of their responsibilities to keep records.

So I'm not sure that looking at the numbers that are recorded is necessarily going to be a measure, one way or the other, of the effect of this. But what did you have in mind, in terms of evaluating it?

MS. GOLDENHAR: Actually, I was thinking more qualitative rather than quantitative, because then people might look at the numbers alone and misinterpret. But in terms of evaluating the effectiveness of actually implementing this new standard in terms of qualitative way with the people who are using it to help sort of give the context of the potentially higher numbers.

MR. JEFFRESS: That's a good point. We, no doubt, will be getting lots of comments from people about it, but actually doing some kind of formal review and bring people together to talk about the effectiveness of it, the quality; is it clear? That's something we could do the first year as well.

MS. GOLDENHAR: That might be something -- in terms of partnerships, that might be something that NIOSH researchers could also help, you know, put together in a partnership manner.

MR. JEFFRESS: Yes. Yes.

CHAIRMAN BURKHAMMER: Steve?

MR. COOPER: Charles, I represent employees. I don't -- I know all the contractors now work with you trying to get on the VPP program. I wanted to point out to you what you had pointed out before.

We have 19 committees working to advise you. Silica, hexavalent chromium; all kinds of good things. Multi-employer stuff. And I find that, from my own personal view, this committee has reduced its effectability to you by just being a committee that works only on all these standards, and there's a lot of other things that this committee could keep you abreast of or abreast to or advise you on.

And one of the concerns -- I said I represent employees. But one of the concerns that I have had and a lot of us -- whether we're management or labor -- is the manner in which the compliance officer is conducting themselves on the job site.

Whether they are qualified. What's happening at the OSHA Institute? Why is the one region -- the standard is addressed in a different manner than it is the other region?

With the limited resources, which we are very well aware of that you have, why is it that a compliance officer can spend four to five hours three days in a row video taping a job site, which is a complaint you have heard before.

And we represent employees, but some of the employees that we represent are really concerned about issues that are occurring in area office and, in fact, regions.

And I think we, on this committee, can get bogged down. I know I certainly have because I'm on about half of these committees.

MR. JEFFRESS: Thank you, Steve. I appreciate your time.

MR. COOPER: I've got 72 hours in so far, and I think it's about time for overtime.

I think we can bog ourselves down and not really provide the service that the advisory committee should be providing on the policy thing, whether you take the advise or not. But there is a lot of areas, other than these 19 work groups, and which now my chairman says there might even be a couple more.

MR. JEFFRESS: I had one down here I was going to ask about.

MR. COOPER: I think at the last meeting I said, you know, I had enough involvement in these proposals. But I just wanted to bring that out, because we've been talking VPP a long time this morning and these other areas.

To me, that is, I think, more important than some of the other things.

MR. JEFFRESS: To the extent the one you're talking about aren't talk groups, the enforcement folks and talk about the manner in which we do enforce inspections, I would encourage you to do that. I welcome that kind of input.

MR. COOPER: For instance, let me --

MR. JEFFRESS: I don't think we regularly schedule the discussions of that, but I would be happy to have that, if you'd like.

MR. COOPER: For instance, let me bring a question up.

I realize that you have got a real budget problem in getting compliance officers traveling across the country, staying at the dormitory at the institute.

What is happening on the proposal that training was going to be flashed from the institute or other areas into the area directors offices on a Wednesday and they would all see the same program? Is something happening there?

MR. JEFFRESS: Yes. When Hank Hane was brought in to head the OSHA Technical Institute, we intentionally did a search for someone who had experience in distance learning. Is what I call it. Flashing via satellite or vide or whatever to place it around the country.

And that was his specialty. He was the distance learning specialist for the Federal Aviation Administration before he came to OSHA. He has, and I have approved a proposal we were trying to get funded, to establish the technical equipment to do this kind of training at a distance, because it is going to be a much more effective way to train people than bringing people together in one location.

He has done it before. He knows how to do it. I am impressed at the proposal he has got.

MR. COOPER: But those type of proposals -- and, Mr. Chairman, I will be done in a moment.

But those types of proposals are one of the numerous things I think should come from this committee. For instance, we have expertise on the committee and throughout the country that through a program acceptable to the institute, which is you, would go to Chicago, wherever, free of charge work in a work group again with the institute and be available there to make presentations on a particular issue, such as cranes or multiple employer work site problems or all across the board.

I think probably the compliance officers may listen more than someone -- or their employer. But those type of things, I think, are very important and would help the compliance officer, because it really comes down to that man or woman out there trying to make that inspection and the quality of that inspection and what they know about it.

And that's the kind of function that I'm more interested in than some of the others.

MR. JEFFRESS: When we did our employee survey last year, one of the primary interests of employees has been access to training. Employees themselves want this. So we are going to find a way to deliver that. It's important for us to do.

And Hank hasn't been here to talk about his concept of how it could work. And maybe one of the things we want to do is have him come in to talk about that.

CHAIRMAN BURKHAMMER: Yes. We'd like to hear from him next time. We're building our agenda already.

MR. COOPER: I'm done.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

MR. SMITH: Charles, you mentioned ergonomics a couple of times today. Bearing in mind that the construction industry is different from general industry and a lot of our tasks don't take up a lot of time doing the same thing over and over -- maybe an engineer gets to sit and ride in his cab, but the rest of us are doing it.

Hypothetically, if you had a rule, what would it look like?

MR. JEFFRESS: For the construction industry?

MR. SMITH: For construction.

MR. JEFFRESS: Well, that's -- we're committed to the process of establishing one. I don't want to presuppose what that might look like, but I'm satisfied with what we have learned in general industry.

In construction it would have to be a program, just like it is with what we're working with in general industry. Whether it's construction or general industry, any proposal that tries to say how many repetitions or how much force you can use or what kind of posture you can get into is going to fail; that there is no way to try to, in a rule, describe precisely what repetitions or how much weight you can lift or what positions you can get in.

That's not a useful direction to go I don't think. I think it's much more likely to be responsibility of the employer to look at what kinds of strains and stresses are causing injuries to the employees and then to address those in a way that makes sense within the industry.

So I think it would have to take a program approach. Probably identify the kinds of things you ought to be looking at. You ought be looking at vibration, you ought to be looking at weights, you ought to be looking at posture, you ought to be looking at repetitions; you might want to identify the kinds of risk factors, if you will, that employers are going to have to be aware of.

But it is going to have to be a program approach rather than a specific kind of approach.

CHAIRMAN BURKHAMMER: One of the challenges you gave us a few meetings ago when we talked about your thoughts of construction, musculoskeletal disorders and -- and you shared with us that you'd like us to give you back some kind of a -- for lack of a better word, best practices scenario, and Marie and Michael have taken that committee and they are working on that now.

And they had a very good work group meeting where they had some ideas and suggestions come out and Michael made a presentation, which you'll see the notes from.

But I think he's moving on the right track, and I think that work group, hopefully in the near future -- near future is a term that means different things to different people, but --

MR. JEFFRESS: Is this government near future or private industry near future?

CHAIRMAN BURKHAMMER: In the near future I think they might be able to share with you some thoughts that they have and the work group has on that issue.

MR. JEFFRESS: That would be good.

MS. WILLIAMS: Mr. Jeffress, I'm aware of a letter that Mr. Swanson has initiated to Mr. Burkhammer regarding the sanitation standard, which I've asked a copy of.

Were your intention to place that issue on the agenda for October?

MR. JEFFRESS: Uh-huh.

MS. WILLIAMS: And I just want to voice that although I appreciate the fact that it is going to be on that agenda, I am extremely disappointed that it did not make November and April after we so painstakingly followed all the instructions by the directorate to insure that might happen.

I just want to preface that I think this is most significant health issue for women facing us in construction, but it also one that is affecting every worker within this industry. It's also a major one that is, in fact, preventing us from getting the new entrance to come into the deplorable conditions on our job sites.

So I guess what I'm looking for is your commitment to every construction worker that you will do whatever you can to get us a safe, sanitary and healthful work environment.

I just wish to share that I have pledged my commitment and my resources. I'm going to do whatever I can to get to every union association, to every trade association, to all the association liaisons I have access to, as well as every governing body I can, because I truly believe that this is such a significant issue for awareness that we need to correct it.

And we need a commitment to move on it and not just have it sit somewhere after a year and a half of painstaking work. So I am asking you if you would be able to commit to me for that.

MR. JEFFRESS: I appreciate that, and yes, I am committed to doing that.

When this came from this group and I received it, I said, okay, we will put this on the next regulatory agenda. One thing that is sort of like the near future discussion.

The regulatory agenda, once the staff prepares it, gets reviewed by several agencies within the Labor Department, signed off on by the Secretary's Office. It goes over to Office of Management Budget for review. They have a specified period of time for review and comment.

They comment, then we finalize it and send it out for publication. It's about a 90-day process. That spring regulatory agenda that came out was done before this committee gave me the -- the staff work for that had gone forward before I got the final vote from this committee on that.

But my commitment is to put that on the regulatory agenda, which the next one will be the fall.

We can go ahead and work on things prior to it being on the regulatory agenda. The reg agenda is not a requirement before we start working on something.

In looking at what the construction standards group has on their agenda for this year, I went through with the staff what it is they were planning to work on this year. I felt like I did not want to displace something that was on there with this new one.

This will go on there. This will be worked on on the next agenda, and we will get this done. But I think the staff is working reasonably on the word load they've got right now, and we'll add this as the next thing on it.

But I hear your comments, I hear them loud and clear, and I think it is the right thing to do.

MS. WILLIAMS: Thank you, sir.

CHAIRMAN BURKHAMMER: You'll probably hear them again too.

We have reconstituted the sanitation work group and renamed it the diversified construction initiative work group, and Jane and Larry have offered to co-chair that. So you'll be hearing more from them in that realm.

MR. JEFFRESS: Mr. Chairman, there were two other points I wanted to make, and then I am going to have to run. I apologize for not being able to stay longer.

There was some interest, I am sure, on this committee on the partnership we have entered into with the Insulation Manufacturer's Association. I just wanted to mention briefly what that is about.

In '95, when OSHA went through our priority planning process, we identified synthetic vitreous as one of the areas of concern for us. It translates basically into insulation, the fiberglass insulation fibers.

And, focusing on how to address the issue, looking at how to addressing the issue. We had a number of other construction issues to address, and it didn't look like we were going to get to this in our rule making capacity very quickly.

The Insulation Manufacturer's Association came forward and said, rather than you doing a standard right now, we'd like to implement a voluntary program within our industry to reduce exposures and to monitor, amongst installers, what the exposure are and try to implement better practices, in terms of respirators where necessary and reduce exposures among installers.

Given where we were on actually doing anything in a regulatory manner, I suggest this is the right thing for us to do, and I think we'll work very hard with the manufacturer's association and with the installers.

At one meeting with the building construction trades folks about it I think the building construction trades wanted to take a wait and see attitude. They were not enthusiastic over a voluntary agreement; so that the building construction trades were not a party to the partnership, only are aware of it.

But I am I heartened by what the Manufacturer's have committed to in terms of reducing exposures. I'm heartened by what the installation association is committed to in terms of reducing exposure among installers and trying to get respirators worn where exposures are particularly high.

We are committed to monitoring what actually happens with this partnership to see whether exposures come down below 1.5. But currently the rate is 25. There is a new dust level right now, and their exposure level within their voluntary program is 1.5 per cc. So it's a reduction in what the exposure level would be under current OSHA standards.

So, we are committed to monitoring this and working with the association to see whether they can control it and what the best practices are. I'm pleased that we've been able to work with them on it. There is not any blanket commitment to have a new regulation in this area.

It's something that we will monitor and follow and track and see what's going on. But I will say, while we're working on other regulatory matters, I'm heartened to have this voluntary agreement with the association for right now on that area.

But I know there may be some folks that have concerns about that or other folks that may like that. I wanted to raise it and mention to you that we've done that, and I think that's something useful for us to have done.

If there any comments about that, I'd be happy to address them.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: Thank you, Mr. Chairman. I know Mr. Jeffress knows this, but I think it's important to clarify this for many of my colleagues with respect why the building trades want to on board with this.

The fact of the matter is that when the manufacturer's approached the building trades it was done in the context of this voluntary standard being quid pro quo for OSHA not moving forward to adopt one of their own, and we felt that that was something that we could not support in good faith.

We recognize that there were many good things in what they showed us and what they were talking about, it was moving in the right direction, but so long as they gave it to us in that context, the trade off is that this is in lieu of an OSHA standard.

We felt at the time that this certainly was something we couldn't support, nor something that the agency should support.

MR. JEFFRESS: And the last point I would make. On the Paperwork Reduction Act, OSHA and IRS -- well, IRS has more paperwork required of American business than all of the rest of the government put together. Like 72 percent of all the paperwork requirements for American business come from IRS.

So, I don't want to compare ourselves to IRS, but I regret to tell you that OSHA is number two.

There has been a lot of comment made and a lot of inquiry made as to what OSHA can do to reduce the paperwork burden on American business that we have out there.

One area that we're looking at that this committee would welcome your commenting on -- and I see Steve Cooper has volunteered to head a subcommittee to work on --

(Laughter.)

MR. JEFFRESS: That we are looking is a number of our standards require certifications of activities that employers conduct to comply with the OSHA standards.

For instance, when we require you to do training in many cases, in some cases you're required to certify the training that's conducted. We require you to inspect cranes, and we require you to keep some certification that cranes have been inspected.

There are a host of areas where we require the employer to do things for good safety and health practice and then require a certification of it. The question that has been asked is when the compliance officer goes out there to evaluate someone's training that's been provided, of what value are the records the employer keeps for training?

A point of fact: If the compliance officers goes around and talks to the employees about can they recognize these hazards, do they know what to do in the even there is a problem, how do they protect themselves, if the employees know that, then the employer is not going to get cited for training deficiencies, because employees obviously know what to do.

If the employees don't know it, the employer is probably going to get cited for training deficiencies regardless of what the records say. So there is a real question as to whether the documentation and whether the certifications are, in fact, important or not to keep.

If we want to go performance oriented, a manner of inspecting, maybe these documents shouldn't be required.

So we have a standards group that is looking at certifications, whether we really need to require employees to keep these certifications, and, if not, whether we should repeal those certifications.

So there is a standards team working on that. You and me have some concerns and interests in that area, so I'd like you to participate in that process. Of course, at this point, we're just working on the proposal. It's a long way before anything gets finaled.

But, of course, whether developing this proposal or reacting to it after it is a proposal, I would like this group to be involved in that process.

CHAIRMAN BURKHAMMER: Okay. Thank you. Thank you, Steve, for volunteering.

MR. JEFFRESS: I have to say, Mr. Chairman, Steve didn't really do that. I was just speaking for him like you spoke for Steve Cloutier.

MR. COOPER: Charles, I just want to point this out to you, because I know you've got people behind that work for you that will probably read this transcript.

It may not say it on the transcript, but yesterday I did get my fellow committee member from the residential home builders to agree that the employer should mind all PPE.

MR. JEFFRESS: Thank you, sir. That's a very important statement to have on the record.

MR. COOPER: Excuse me?

(Laughter.)

MR. COOPER: That's the truth.

CHAIRMAN BURKHAMMER: Thank you, Bob, for changing your philosophy.

MR. JEFFRESS: Mr. Chairman, I appreciate being with you today. I apologize. I've got a meeting over at the White House I have to run to.

CHAIRMAN BURKHAMMER: Thank you very much for coming, and we always appreciate your attendance.

Why don't we take a 15-minute break, and then we'll come back and we'll start on the multi-employer.

(Whereupon, at 10:45 a.m., the meeting was recessed.)

A F T E R  R E C E S S

(11:04 a.m.)

CHAIRMAN BURKHAMMER: We will reconvene. I'm removing from the table the multi-employer work group report that was tabled yesterday for the committee to spend the evening reviewing, the document that Felipe and the work group presented. Felipe?

MR. DEVORA: Thank you, Mr. Chairman.

MULTI-EMPLOYER CITATION POLICY
By Mr. Devora

MR. DEVORA: In review, I think the issue yesterday was a review of the comments that -- where as everyone had, I think, already gotten a copy of the draft a week or so ahead of time. Hopefully the draft was reviewed, but I think it was tabled so they could look at the appendix that I had added to the presentation of written comments that I had gotten from different folks.

One of the comments I heard after the meeting was if I'd known the floor was going to table it, I would have called it comments and just left the good one in there.

But, as you see, the comments range from favorable to the middle of the road, to yes, it's an improvement, to right out, you know, leave it alone. You don't know what you're talking about. Which is fine.

And the thing that I wanted to preface the discussion with was, number one, the point -- and it was made again this morning -- that we're not discussing a standard. That we are discussing a policy, an internal policy for OSHA.

You read some of the comments. You will see that some of that confusion comes through. That it's not a regulatory standard that we're commenting on, that it is a policy. So I wanted to make that very clear.

And then secondly, and most importantly, is the process that we went through to get here. I know personally I was pleased with the way the process unfolded. It got kind of bogged down sometimes, but we always found a different direction.

And I guess I urged us to go ahead and bring this to a vote, and I think we were even prepared to vote on it in the May meeting before that was rescheduled to this time, which gave me an additional 30 days and also gave me some additional written comments that we were able to include in the presentation.

As I understand it, in talking to the folks at OSHA, they are going to move forward with their multi-employer policy, whether it remains in the current form or whether it remains in some sort of revised form.

So, what was important to us is that we get some comments to OSHA. That was the purpose of our document. It's not a perfect document, as I alluded to yesterday, and I don't think we will ever find a document that will address every single example or contract situation or interpretation, or whatever you want to call it.

But, if you want to call this an important first step, we can do that. But we certainly -- and I will do this later on in the form of another motion --

move to continue to this work group and address some other areas and some other concerns.

But, to bring this to the table and bring it to the vote was partially brought on by, I think, OSHA's information to us that they were going to move forward with the multi-employer change or policy or whatever in the FIRM.

So, having said that, --

CHAIRMAN BURKHAMMER: The Chair will entertain discussion. Bob?

MR. MASTERSON: Keeping your comments in mind, Felipe, I agree with you. I think this is an important first step. But, based on past experience, I don't think we should bring a partial document into ACCSH and then deliver it to OSHA when we know there is still work to be done on it.

As I reviewed the comments last night, as I promised you I would, in going through these, I'm not so sure, in my mind, I am comfortable that all the comments have been given fair deliberation.

And as I go through these, in particular there is a couple of them here that really stand out in my mind. The first one, and one that I find surprisingly -- well, I find very surprisingly -- is the comments from Dave Langden.

He is a safety professional working for an insurance brokerage.

CHAIRMAN BURKHAMMER: Where is, this, Bob, in the book?

MR. MASTERSON: It's in the comments. It doesn't have a page number. Yes. In the appendix. It's about halfway through.

CHAIRMAN BURKHAMMER: The letterhead says ANON?

MR. MASTERSON: AON is the offshoot of the merger of Alexander and Alexander with another company, and he's in insurance brokerage.

And his comments: "There's nothing in the Act, to my knowledge, that speaks to anything other than employer/employer relationships." Further on it goes, "To require a compliance officer to be able to read, interpret and understand legal documents, I do not believe this is the intent of the Act."

"Compliance officers with or without law degrees, and I suspect the latter is in the majority, are not practicing law, nor should they be."

In the basic jest of that paragraph it is my opinion that the concept of controlling employer should be removed from the draft. To hear that come out of an insurance company tells me that it's not just the employer/employee issue here. They're looking at it in a much broader perspective.

Further on, reasonable card standards. Reasonable care. They haven't defined it in the medical industry yet, and they're still fighting with that.

How are we going to expect a compliance officer to make a decision on whether or not reasonable care has happened? One reference in here, and I'm not sure if it's this one or another one, is that if a violation occurred, obviously reasonable care did not take place.

And, as I go through some more of these, further on back, and I believe it is with McCrory --

CHAIRMAN BURKHAMMER: What is this?

MR. MASTERSON: Further on back through the appendix. Another comment. A comment actually made to AGC, and the commentator is McCrory.

"C6A1, reasonable care standards and what is enough to show reasonable care has been taken. Would a compliance officer have the perception that since there is an alleged violation of the OSHA standard, reasonable care has not been taken?" We see this now without an open book policy.

Further on in the next page, "How can we be the controlling employer and assume liability of a worker we did not hire, cannot terminate, do not direct, did not train, do not pay and, in many cases, do not have knowledge of the work the subcontractor worker is performing?"

What is even more interesting there, in my opinion, starting with that last paragraph, "In conversations with a local OSHA representative, local AGC and project owners, the greatest fear that many had at the time of the initial multi-employer/controlling employer language that was only in the proposed steel erection standard has now -- excuse me. Has now began to come true."

"The Florida OSHA area office kicked off a new special emphasis program, backed by the Atlantic Regional Office with full -- I'm not going to try to pronounce that. I'm not sure how to.

"This controlling employer directive was not in steel erection, but for the entire construction industry." And this was first statements by Atlanta Regional Office.

The quote from this meeting in Jacksonville made by the Atlanta OSHA representatives: "There are a lot more general contractors and construction managers in the area than OSHA compliance officers, therefore, we, OSHA, are going to be going after the general or construction manager to make them make the sub work safely."

This OSHA representative went further to say that "there would be no good faith recognized or focused inspection given to controlling employers unless they had a written safety program that included the subcontractor and their workers."

Excuse me. That's enforcing standards that don't exist. Now, this may be going into the FIRM manual, but it's being enforced as a standard across the whole industry.

The standard here was part of steel erection, that I don't believe is a standard yet, and they're already moving to adopt it as an industry standard.

My fear is anything that this work group moves forward in the form of multi-employer language is going to become a de facto standard. And so, if there's going to be a recommendation by a work group to the ACCSH on this language, it needs to be a complete document, not just step one.

So, based on that, I would like to see that the work group go back to the table with this document and address these concerns effectively.

There are some other issues that I know that I have and that is that -- looking at the dates of these comments, all these comments came in plenty early enough that they should have been included in the text of the document, not as an appendix. And I don't feel that that has been reflected in the document itself.

CHAIRMAN BURKHAMMER: Thank you, Bob. Hearing what you have said, I'll make two comments. I think the reasonable care standard and the reasonable care philosophy, or whatever term you wanted to use, has been truly battered about by the courts as was suggested in the one memo that the individual wrote.

"I think OSHA has a pretty clear understanding of what the reasonable care standard is about and utilizes it currently." In the current draft of the FIRM, which is included in your book prior to the proposed section, there is a controlling employer definition that is currently in use.

All this work group did I think is enhance that controlling employer definition.

I also think that when Felipe attached all of the comments, the work group, in its deliberations over time, addressed -- either made a decision to include comments from the people that comment or, for whatever reason, the work group decided not to include the comments. And I'm sure the work group had reasons for doing what they did.

So I think to make the statement that to send it back to the work group to reconsider or to take another look at the comments would be, in my opinion, a waste of time, because they've already done that. So I don't think we'll currently send it back. I'd like to hear some other comments. Larry?

MR. EDGINTON: Thank you, Mr. Chairman.

After I read the comments, I -- first off, they struck me, and I thought that Felipe did an excellent job yesterday of explaining what the comments really contained and in summary form.

And I too had the reaction that many of the commentors, one seemed to misunderstand the charge of the work group; that they weren't working on a standard. In fact, they were working on a revision to the FIRM. And it struck me that many of the commentors who expressed a particular concern seemed to be, from my point of view, arguing against the policy, the multi-employer policy or use of a multi-employer policy.

And I don't know how you could incorporate those types of arguments into the work group's charge, if you will, which is give advice and guidance to the agency with respect to how they do implement the

multi-employer citation policy.

So, the fact that those concerns are addressed there and are there and appear not to be addressed in the recommended modification to the FIRM does not disturb me terribly, because I think we're talking apples and oranges. You know, there is another forum, and it may be through us, where we say we don't like that policy, but that wasn't the purpose of this work group.

And moreover, picking up on Bob's -- where you started with respect to the comments from AON, who, as I understand it, was afforded an opportunity to participate in the work group and did -- and as I read through their comments, I was going along fine, saying this is a work group member, until I got to the very end of their comment, which says that the committee submits this draft to OSHA and it becomes a standard.

Again, that went right to the point that Felipe was making, is that we're not proposing a standard. And that's enough of my comments.

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: I just have one more comment on the process itself. I'm always fascinated, when I come to D.C. and tell my boss I'm coming up here to meet with you learned gentlemen, because he always wants to know -- and women. I'm sorry.

Because she always wants to know, or he always wants to know, what are we getting out of this. And we touched on it this morning. You did, Mr. Cooper, when you talked to Mr. Jeffress about how we go about bringing conformity to the way regulations are looked at and by different compliance officers in this field of education; that it's not always coming from OSHA down to the contractors.

What fascinates me is how I take this information and disseminate it to the workers. How it benefits the guys out in the field. And I think this could be an important step in at least broadening the discussion for compliance officers to say, well, wait a minute. Let me look at this current policy.

Maybe there is a little bit more there that I need to examine before we -- you know, before I cite someone on this.

So, by this process of incorporating, you know, comments pro and con on this policy, open up that discussion and create an atmosphere of more thought from the compliance officers or that they need to take another look at it and say, yes, it's not black and white and a multi-employer citation is not automatic.

I think the work group, through this process, has successfully accomplished a task. That's the way I feel about. I know Danny and I have had some discussions on it.

When I say it's not a complete document, I guess what I mean to say is it's not the end all. You know, it's not the end all, and I don't think we're ever going to find -- where it's not a standard, I don't think we're ever going to find just an absolute cut off point where the discussion is going to end.

You know, we're going to say, okay, ACCSH is finished with it, we're done, here it is, we're out of here. I don't mean say that it's an incomplete document. I think it's complete for the work that we've done, but there's room more discussion and there's room for more education on both sides of the table.

CHAIRMAN BURKHAMMER: Thank you, Felipe.

Owen?

MR. SMITH: Well, I think that the work group did a magnificent job. I think they considered the correspondence and there was a lot of give and take. It seems to me we've got what we've got right now, and we can adopt this probably and then go on to something else and address the rest of the concerns.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: Okay. Again, I have to go back to an important part of this is the fact that a compliance officer now is going to have read an employer -- excuse me. A subcontractor agreement and make determinations.

There's no provisions for how that should be done, and excuse me, there is a whole bunch of compliance officers out there that are not attorneys. They're not qualified to read those, even if the employer is going to be willing to share those documents with them and make those determinations.

And at this point there's no provisions in here or recommendations on how OSHA should handle determining whether or not the contractual language is adequate or not to cover those reasonable care situations and when the controlling employer has contractual or not.

What I read here confused me. I know the documents we use, depending on which trade. There may be three or four different documents that are part of our subcontractor agreements, and I don't believe that the majority of the compliance officers that I've worked with are qualified to make determinations in that.

But there, we're telling them and giving them direction that they should make that determination.

CHAIRMAN BURKHAMMER: There's no understanding where you're going. There's no direction in the current one either that delineates between the three classifications of employers and that FIRM has been in place and those guidance directions have been used by compliance officers up until and currently now.

The objective of the work group, I don't think, was to find the contractual differences between the types of employers. It was to enhance the understanding of the types of employers, and I think, from reading this from that perspective, I see that as having been done and the work group completed what their charge was.

At the work group session on Tuesday, a lot of things came up in relationship to the FIRM that Felipe and his work group decided would be a next step exploratory measure.

Maybe, Bob, some of your thoughts in the contractual definitions -- not the wording definition, but the contractual definitions, might be one of those exploratory avenues that they look at as an offshoot of the existing FIRM.

Michael?

MR. BUCHET: Just a point of clarification for my own mind. What was submitted yesterday is an incredible piece of work. I want to make sure that these comments that were slipped in the back are a part of the submission.

CHAIRMAN BURKHAMMER: I think Felipe said they were, and they will be included as part of the submission.

MR. BUCHET: A June 8th letter.

CHAIRMAN BURKHAMMER: And, for the record, they will be included as part of the submission.

Owen?

MR. SMITH: This has got to be a step better than what we have, because right now the guy comes out and he cites everybody, you know, whether or not you're at fault or not. They just say, hey, you're here. You get a citation.

And if this document leads the inspector to try to allocate some of the blame so that everybody doesn't get cited and they try to find out who created the problem and cite them, it is a step in the right direction, and I think the other things can be dealt with at a later date.

But right now the policy seems to be to cite everybody regardless, and this seems to try to allocate some responsibility to the offending party, addition I believe that to be a very good step. Thank you all.

MS. WILLIAMS: The issue I'd like to address is when we went into many of the work group meetings, it seemed that we were getting bogged down with who was shifting the blame, and they failed to identify the fact that we were there to protect the worker on the job site.

The work group, I know, went through some very specific endeavors to be sure they never lost that focus. It was constantly reiterated.

I have used this in an informal settlement hearing, and it works. It did allow the contractor to demonstrate what he was responsible for and what the exposing contractor to his and people were, and they dismissed the citation.

It didn't cost any money. We were able to do it at settlement. I think it's an extremely good document.

CHAIRMAN BURKHAMMER: Thank you, Jane. Bob?

MR. MASTERSON: I agree with you. It is a good document, up to the point that it says the general contractor, if he so much as sets a schedule, he becomes the controlling employer. That is an open book.

There is no way you can stretch that, that a general contractor would not have ultimate responsibility and be held ultimately accountable for the action of every worker on site, whether or not he's there. That is not fair. It is not the intent of the Act.

The intent of the Act is that employers are responsible for their employees. I believe this would actually have the opposite effect and that it would allow my contractor to turn around and say, I don't have to worry about this because they have to do it.

MS. WILLIAMS: I think 1926.16 clearly identifies those tier levels of responsibility.

CHAIRMAN BURKHAMMER: Further discussion? Mr. Cooper?

MR. COOPER: There are concerns on the Hill on this issue as we speak this week on the term controlling contractor and over committees that have affairs that -- committees on the Hill that have some oversight on regulatory agencies.

And one of the thing that they're pushing for, as of four days ago, was for OSHA to define controlling contractor.

You've heard MSHA talk yesterday about who was responsible for what on a mine site. That's a different Act. That's a different Act.

Regardless of whether it happens or not, the concerns that many of us have is that this issue is in the bid documents on what is required and what isn't required. Our construction contracts generally really don't address too much. It just says you shall abide by all federal, state and local and our company safety policy.

I can understand the issues on both sides of this issue; however, what are you asking for, Robert?

MR. MASTERSON: I'm asking for the employer to be held accountable for how he handles, manages and treats his employees and when a general contractor doesn't support the safe management and handling of the work environment.

A general contractor, as myself, if I made aware that there is a situation that needs to be corrected, then hold me accountable. But until you can show I've been made aware that the situation even exists, you shouldn't be holding me accountable.

Number two, I'm sitting here, and I'm looking at citations being issued to a framing contractor because he's got a bad extension cord. He gets a $500 fine. I get a $12,000 fine for that same extension cord, even though it was a brand new cord and the contractor pulled the ground prong because he thought it would stop the GFI from tripping.

If there is going to be a multi-employer citation policy, there has to be limits on the citations to the point where the general contractor should not be receiving a citation that's greater than that of the exposing contractor. It should not be used to create repeat violations.

All the general contractors are asking for is to be treated fairly and equitably, and I don't believe that this document is going to lead to that. I believe this document is going to lead to just the opposite.

It's going to lead to a lot of small contractors deliberately saying I don't have to worry about this because the general contractor, by law, has to do it. Even though it's not law, it becomes thought of as a law.

MR. COOPER: Let me get this clear. You say that if a subcontractor brings to your attention a hazard that was created by someone else or the general, then that would be -- that would suffice?

MR. MASTERSON: I would say most general contractors, and I can't speak for all of them. I'll speak for my own company.

If a contractor comes to me or comes to one of my people and notifies us that there's an issue, that they can't work in that house because there's a safety violation, our supervisor would immediately start to correct it.

If an employer -- or general contractor -- excuse me -- has been given reasonable notification that something is a problem, even though he may or may not have been aware of it, once he's been notified, then the onus is on him to get it corrected or have the creating contractor correct the situation.

What you're saying is regardless of who creates it -- or what this is saying. Regardless of who creates the issue, regardless of who exposes their employees to the issue, the general contractor assumes responsibility.

What I'm saying is responsibility should be shared by all parties, including the general contractor. You can't hold a general contractor accountable unless he's been put on notice that there's an issue.

Particularly in my industry you may have a situation where you have a single person that serves as the general contractor building fives houses in four corners of the same state. He may not be in that site but once a week.

It's not fair to be able to sit down and say he is going to be held accountable for the actions of his subcontractor when he hired a professional licensed contractor to do the work.

MR. COOPER: Well, I don't believe it says that. You must read something into it, and I left something out of it.

But, beyond that, this issue is a large issue, and again, I'm glad you brought it up.

These are issues that this advisory committee should be talking about a lot. And let me just say once again, and not get inundated with all the work group, and I will -- I realize we're having a cross conversation, but I hope it's informative to the rest of the people here.

Although there is very few general contractors I know anymore -- a lot of CMs. But when a hazard is created on a job site -- let's just take, for example, a big trench right through the middle of it, and you're a subcontractor, Smitty, and you have a contractor get that work done a particular time, you don't have any control over barricading that trench that's not barricaded.

The only thing you have to do is get that work done in 16 days or whatever it is, and you realize that's one of the types of problems that you run into, that the subcontractor does not control the general contractor, but the general contractor can remove that subcontractor for all kinds of reasons, and therefore, controls the subcontractor.

MR. MASTERSON: Let's take that a step further. You have a subcontractor that you've hired to put sewer connection in on a house that is in Olney, Virginia.

Your office is located in Washington. You're going to be down at that job site the first part of next week, but he's digging that ditch today. He's creating the hazard.

Our contracts require him to guard it. He fails to guard it. OSHA shows up on Monday before I get there. I get cited. He opened it up on Friday. I wasn't there. How is that the responsibility of a GC?

CHAIRMAN BURKHAMMER: I think you're missing a point here too, and that's the reasonable care aspect. I think the reasonable care overrides a lot in itself.

And if a compliance officer comes out in the scenario that you just described and shows up on on Monday and you show up on Monday and you weren't there, Wednesday, Thursday, Friday, and the hazard was created on Wednesday, Thursday and Friday, and "x" was exposed on Wednesday, Thursday and Friday or somebody got hurt, the reasonable care standard is going to require him to ask him did you have anyone on site who had the authority to and your answer is either yes or no.

Did you think that there would be a possibility that this could exist? Your answer is yes or no.

So I think, when you follow along those sequential steps of the reasonable care standard, your answers would then dictate whether you would.

MR. MASTERSON: I don't disagree with what you're saying, Stew, but you're assuming a reasonable compliance officer.

CHAIRMAN BURKHAMMER: No. I'm assuming a compliance officer by now understands reasonable care.

MR. MASTERSON: I have a hard time with that since the medical profession has been fighting that issue for 20 years and they still haven't been able to establish what is reasonable care.

All I see is a document that's going to be put in the hands of attorneys, and they're going to have a field day with it, and I don't know -- you know, the Bechtels and the Rylands may be able to afford attorneys, but the Owens of the world, they can't afford to be putting all that money into attorney's fees just to prove themselves to be right when they were right to begin with.

We need to put something into the document that would give OSHA guidance, other than a big term like reasonable care. Reasonable care for -- no offense, Steve.

My opinion of reasonable care that I would show Steve is going to be far different from reasonable care for my daughter.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: Without belaboring the point, I think we went through this very same conversation, you and I and Felipe at a work group several months ago, and we sort of agreed that reasonable care had to have some sort of sliding component in it, depending on which type of contractor you were, what kind of subcontractor you might or not be controlling.

And if you remember the discussion, it was if it was a contractor that you had good faith and a long work relationship with, you probably didn't have to watch them every day. But if it was one that you had no relationship with, had only just hired and let's say their experience model was not as good as some of the other people on the job, you might have more responsibility to look at them more frequently.

And I thought we all agreed that we could live with that sort of scenario. With that, Mr. Chairman, I'll look to call the question.

CHAIRMAN BURKHAMMER: We have a call for the question. We've had two days of discussion on this issue and a lot of good discussion. I don't want to cut anybody off or stop anybody from commenting, but I think there comes a point when we need to vote on the motion that was put forth by the work group.

So I will allow two more discussions. One from Mr. Cooper and one from Mr. Edginton, who both had their hands up. And after that, I want to vote on this issue, and I'm going to poll the committee so I know how we're voting, understanding that Michael has two votes, one for himself and one for Marie.

Felipe has two votes, one for himself and one for Mr. Cooper who had to leave. I mean, one for Mr. Cloutier who had to leave. Excuse me.

(Laughter.)

CHAIRMAN BURKHAMMER: With that in mind, Mr. Cooper go ahead.

MR. COOPER: Ed brought up the steel erection standard where a lot of this controlling contractor business is in the proposed standard. There's only five limited areas in that standard that that applies to, the controlling contractor and that contractor's responsibilities.

But to just give the committee a good scenario on what happens in steel erection, we always have other crafts walking underneath us. There's never a case where we don't. We do not control those people.

And they're always trying to get their work done and we're swinging steel from the street 19 stories or on a warehouse clear across all the other crafts.

We have absolutely no control over those people. The only thing we can do is say we go to the controlling contractor, whoever we sign the contract for, and say we're going to quit steel erection because we can't get those people out of there. And we've done that.

I don't know what we'd ever do if they said, well, then go ahead and quit, because we can't, because that's what our job is.

But someone else controls them. The person they have a contract with controls them and that type of scenario is in the steel erection proposal. But we have it every day on every job.

But they are -- those other crafts, those other people, whether it be vendors or other crafts or other companies, they are controlled by whoever they have the contract with, and we want them out of there because we'd be in the soup also if we dropped something on them and hurt them. But that's where that came from.

There's a few other issues, but I won't go into them.

CHAIRMAN BURKHAMMER: Mr. Edginton.

MR. EDGINTON: Thank you, Mr. Chairman. Mr. Buchet beat me to the punch. I also was going to call for the question. But what I think is important for all of us to remember is that -- two things. One, that this is a recommendation to the directorate, and I know that directorate staff and solicitor's staff is listening to these concerns.

It's a proposed revision to the FIRM. I would anticipate that we will see something back from them in draft form. I would hope, before it goes out. And this is not the last time we're going to be talking about this I'm sure.

CHAIRMAN BURKHAMMER: Thank you, Mr. Edginton.

I think, with the work group's relationship with Noah and the OSHA staff, that I'm sure they'll be -- when Noah and his team come up with a final/final, we'll be able to see it I would hope.

MR. MASTERSON: Stew, may I respond to what Steve said?

CHAIRMAN BURKHAMMER: I'll allow you to respond.

MR. MASTERSON: Thank you.

Steve, I understand what you're saying about the large commercial sites and multiple employers being there at the same time. Typically on a residential site there's one contractor working on one house. It's relatively rare that you have two contractors in the same house at the same time.

So, on some sites what you're saying may be very appropriate, but at those other environments, and a large percentage of the construction going on in the United States, it is not that type of an environment, and this would not be appropriate in the environment that I'm looking at and that is one employer working in a house.

More often than not, if my mechanical contractor is in putting in HVAC equipment and an electrician walks in, the other contractor will leave. They won't work together. We try not to let them work together. So it's a different situation and it's not adequately addressed by this recommendation.

CHAIRMAN BURKHAMMER: Thank you, Bob.

We have a call for the question. Felipe, please repeat the motion.

MR. DEVORA: The motion is that the advisory work group on multi-employer citation policy from ACCSH submit or forward the work group product as presented to the committee for their consideration and review.

CHAIRMAN BURKHAMMER: Basically, what you're submitting is the revised FIRM?

MR. DEVORA: Correct.

CHAIRMAN BURKHAMMER: So that part of is the five pages?

MR. DEVORA: Is the five pages. Actually, the comments as well. Okay. They're an attachment to the draft. That's what we're submitting.

(Pause.)

CHAIRMAN BURKHAMMER: Basically what counsel has advised us is that the work group is submitting their product to ACCSH for approval to submit to OSHA.

MR. DEVORA: Correct.

CHAIRMAN BURKHAMMER: Thank you.

All right. A yes vote for the motion and a no vote is against. Mr. Cooper?

MR. COOPER: I vote for.

CHAIRMAN BURKHAMMER: Mr. Edginton?

MR. EDGINTON: Yes.

CHAIRMAN BURKHAMMER: Ms. Williams?

MS. WILLIAMS: Yes.

CHAIRMAN BURKHAMMER: Mr. Ayers?

MR. AYERS: Yes.

CHAIRMAN BURKHAMMER: Mr. Owen?

MR. SMITH: Yes.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: Felipe, two votes?

MR. DEVORA: Yes. Yes.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: Yes and yes.

CHAIRMAN BURKHAMMER: Nine for, one against. The motion carries. It will be forwarded on to OSHA for consideration. Thank you.

Felipe, next motion.

MR. DEVORA: We would move that the work group continue to look at other aspects of other issues on the multi-employer work group and stay constituted to look at further issues. I guess that's the way I want to say.

CHAIRMAN BURKHAMMER: So basically you're asking to continue the work group?

MR. DEVORA: Continue the work group.

CHAIRMAN BURKHAMMER: And address other issues that the work group thinks might be in addition to help. All right. He has a motion to continue the work group. All in favor, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: The work group continues. Thank you.

I also thank the work group for their due diligence and hard work and preparation for this and you and Danny's work. I know it went long way to deliver this product.

Two things before we adjourn. One, if you'd get out your ACCSH work group assignment sheet. I'd like to go down and see which ones the committee agrees we should continue, which ones the committee thinks we can eliminate.

Safety and health program standard. I think everybody is in agreement that is an ongoing committee and should continue. The training work group has been struggling. As Steve reported, they called a meeting and nobody showed up.

Is there any comments from the committee on continuing or dissolving? Jane?

MS. WILLIAMS: I think they should continue. I know myself I had told Steve I couldn't go because I was going to multi-employer, or I would have shown up just to acknowledge that I was there and would be coming back.

So I think there could have been more representation, had it not been for the other interests that we're involved in at this meeting.

MR. SMITH: I'd like to make the same comment. I would have gone to that one, except the multi-employer happened at the same time.

CHAIRMAN BURKHAMMER: Okay. Sounds like we want to continue that.

Steve?

MR. COOPER: Being the main complainer about the volume of work groups, I think you should continue this work group.

CHAIRMAN BURKHAMMER: Thank you very much.

Sanitation? Jane, any comments about that?

MS. WILLIAMS: I think our charge at this time is completed.

CHAIRMAN BURKHAMMER: Completed. Anybody have any problem with dissolving that work group until it comes up on the next regulatory agenda and then we can reconstitute?

(No response.)

CHAIRMAN BURKHAMMER: I need a motion, Jane, to do that.

MS. WILLIAMS: I move that we dissolve the sanitation work group.

CHAIRMAN BURKHAMMER: We need a second.

MR. COOPER: Second.

CHAIRMAN BURKHAMMER: Moved and seconded. All in favor of dissolving the sanitation work group, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Dissolved.

Scaffolding. Owen?

MR. SMITH: I move we dissolve.

CHAIRMAN BURKHAMMER: I need a second.

MR. BUCHET: Seconded.

CHAIRMAN BURKHAMMER: Moved and seconded that we dissolve the scaffolding work group. Any discussion on that?

(No response.)

CHAIRMAN BURKHAMMER: All in favor in dissolving the scaffolding work group, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Dissolved.

The safety excellence recognition, I move that we dissolve that work group.

MR. COOPER: Second.

CHAIRMAN BURKHAMMER: Moved and seconded. All in favor?

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Dissolved.

Enforcement priorities. Bob?

MR. MASTERSON: I move that it be dissolved at this point and be reconstituted at a later date, if needed.

CHAIRMAN BURKHAMMER: Is there a second?

MR. SMITH: I'll second it.

CHAIRMAN BURKHAMMER: Moved and seconded?

Discussion?

(No response.)

CHAIRMAN BURKHAMMER: All in favor of dissolving enforcement priorities and reconstituting at a later date, signify by saying aye?

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Dissolved.

File protection. Bob?

MR. MASTERSON: I think it needs to go on.

CHAIRMAN BURKHAMMER: I agree. That is an existing working standard, and I agree with that. That one stays.

Data collection stays. It's in the process of a working --

MR. BUCHET: Mr. Chairman, I thought you added enforcement priorities or something like that to us. I know you tacked a few things on periodically. We collected targeting and then I think you added one more, and I'm not entirely sure what it was. Or suggested that we should try to include that work.

CHAIRMAN BURKHAMMER: That was a little premature because I knew what was coming. You do have another one, and I'll get to that in a little bit. Let's leave that one alone for now. All right.

Cranes? Larry, I think it's ongoing and needs to remain.

Musculoskeletal disorders certainly is ongoing and needs to remain.

Hexavalent chromium. Owen?

MR. SMITH: I haven't had a meeting. Let's keep it until I talk to Bill.

CHAIRMAN BURKHAMMER: All right.

Multi-employer. I think, Danny, we've already talked about the motion made to re-continue that one.

Special assignment 170. Steve, that's ongoing and you've had meetings.

MR. COOPER: Yes. We'll do our normal and excellent job on that, Mr. Chairman.

CHAIRMAN BURKHAMMER: I'm sure you will.

Silica and construction. Linda, would you like to speak for Maria?

MS. WILLIAMS: Well, as far as I know, it's clearly an ongoing problem, and I would assume that she would want to continue that effort.

MR. EDGINTON: Mr. Chairman, with respect to the specific charge which she and I were given, we are very near completion on that, and we would hope that by the next meeting, and I know we will, we will have the report to you and this committee.

CHAIRMAN BURKHAMMER: All right. Let's leave it until the report. Leave it as existing until the report comes out.

Salt Lake City construction advisory work group. Michael?

MR. BUCHET: I'm open to suggestions.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: I'm at the same place. We're not getting much feedback from Salt Lake City on it, as far as their activities, and I'm open to suggestions of the full ACCSH.

(Pause.)

CHAIRMAN BURKHAMMER: Let's leave this one open until the next meeting, and we'll invite some people from Salt Lake to come and give us an update on where they are.

Michael?

MR. BUCHET: It might help to briefly review. We were asked to constitute that work group to assist Salt Lake City to create an advisor for the Internet that looks much like the logging advisor.

CHAIRMAN BURKHAMMER: Right.

MR. BUCHET: I believe it's ongoing, but --

CHAIRMAN BURKHAMMER: Let's leave that one open and get a report from them next meeting; where they are.

Task Force on ACCSH structures. Jane? Motion?

MS. WILLIAM: I move to dissolve.

CHAIRMAN BURKHAMMER: Second?

VOICE: Seconded.

CHAIRMAN BURKHAMMER: Moved and seconded. All in favor, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: It's dissolved.

Power industrial trucks. Larry?

MR. EDGINTON: I would move that we keep it for now. Steve and I were talking about it briefly. I think what we're all doing is sort of getting some feedback from our respective constituencies about problems we're hearing with respect to implementing the rule in construction.

CHAIRMAN BURKHAMMER: Okay. Any objections to that?

(No response.)

CHAIRMAN BURKHAMMER: And we have a new work group that we constituted yesterday, the diversified construction work force and issues that Jane and Larry are chairing. And anybody that would like to join that work group, please contact Jane or Larry and sign up for that.

We've got two requests from OSHA. One was from Glen Gardner yesterday on the PPE standard, and the committee decided that each individual of the committee, if they so choose, would respond directly to Glen on that issue as a comment from each member and not as a whole body.

And the next one was the one that the assistant secretary asked us about this morning, and that was the Paperwork Reduction burden that OSHA has and that they're looking at the certifications issue in the realm of training and cranes, et cetera.

I'd like to constitute a work group to work with them on that. I'm open for a motion.

MR. BUCHET: So moved.

VOICE: Seconded.

CHAIRMAN BURKHAMMER: Moved and seconded. We can title it the Construction Certifications and Paperwork Review Work Group.

I would ask, Mark, if you would co-chair that, please. Jane, if you would co-chair that also.

Any other members that would like to be part of that work group contact Mark or Jane and sign up. I think this is an important one that we need to move quickly on. Yes?

VOICE: Would you say again who the other chairs were?

CHAIRMAN BURKHAMMER: Mark Ayers and Jane Williams.

And we have a motion to constitute that work group. We have a second. All in agreement with constituting the work group, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: So moved.

Now I'd like to look at the upcoming meetings. One of the things that we haven't done well at is picking meeting dates, and then we get near the meeting dates and a lot of people can't attend for various reasons.

So, some suggestions have been made that we set meeting dates in an automatic time period in a given year, and everybody then would know when the dates were. You'd have them marked on your calendar, and we'd be able to move forward from that.

We had two meetings in 1999, and we're allowed anywhere from two to six in the charter. We've been having four as a routine. You know, summer is here. Vacations are here.

So the next time I would think that we could have a meeting with a full quorum would be some time in September after Labor Day, and then we could have a meeting at either the end of November or the 1st of December. But at the end of November you run into Thanksgiving, so that pretty well shoots that.

And if you get any later than the first week of December, you've pretty well shot December. Yesterday I gave you some dates to look at. September 14, 15 and 16, which Mr. Cloutier has now advised me he and I would not be here for. So, bomb those dates right out.

Of course, September 7th is Labor Day and you've got kids back to school and that whole issue that week. So that kind of shoots that week out.

So, looking at the next available week would be the 20, 21, 22, 23, 24 of September.

MR. MASTERSON: I wouldn't be available. That's the fall awards for the --

CHAIRMAN BURKHAMMER: All right. So that takes Bob out.

We could look at the last week in August, but that's a vacation problem. Does anybody on the committee have an objection to the last week in August? Does that interfere with vacations? No? Is that a good week for everybody?

(No response.)

CHAIRMAN BURKHAMMER: All right. Then let's put --

MR. COOPER: No.

CHAIRMAN BURKHAMMER: Steve? No?

MR. COOPER: That is the dates that you told us the other day to look at. So I don't know.

CHAIRMAN BURKHAMMER: All right. Why don't we put in 24, 25, 26 and 27 of August.

MR. COOPER: Of August. It's 24 and what?

CHAIRMAN BURKHAMMER: 24 through 27, Tuesday through Friday.

And then for a second year end meeting the week of December 6th looks to me like the only possible week we could have. If we can't make that week, that pretty well bombs the rest of the year. Does anybody have an objection to the week of December 6th?

(No response.)

CHAIRMAN BURKHAMMER: All right. Then the second meeting will be 12/6. I'm sorry. 12/7 through 12/10. By then we'll have a new administration.

I don't think there's any need to plan further than that, but I think we need to look at, if any of us come back to the next administration's ACCSH committee, maybe February, May, August and November as a sequential thing and set those dates so every year we have it. It is just automatic that the committee meets in that particular time span.

And the members of the committee, when they're constituted and come on to committee as a part of the new rules and regulations, we would have the meeting dates stamped right in there, and everybody in the world would know that's when ACCSH meets.

So we wouldn't have this problem anymore of you didn't tell me or I didn't get notice or I didn't get my copy of the Federal Register or I can't read or whatever the problem is.

So, I want you to think about that and maybe at the December meeting, when we know what's happened administratively.

MR. BUCHET: What was the date in February?

CHAIRMAN BURKHAMMER: The week of February 1st, May 1st, August 1st, and November 1st, whatever that week dates are. The first weeks of each of those months. So, think about that, and we can talk about at the December meeting. Steve?

MR. COOPER: Mr. Chairman, the location for the August and December meetings?

CHAIRMAN BURKHAMMER: We've talked a lot about at least having one meeting outside the beltway so we can get input from -- I don't want to use the wrong term. Input from people other than those who continually come here and offer their suggestions and input.

MR. MASTERSON: So I guess Baltimore is out of the question.

CHAIRMAN BURKHAMMER: So, you know, Baltimore is out. Virginia is out.

You know, there's a lot of construction going on in America and a lot of infrastructure construction, and I think we can -- if we have some suggestions from the committee of a place.

One, that is not a party city. And two, --

MR. COOPER: Topeka, Kansas.

CHAIRMAN BURKHAMMER: Or even think about in conjunction with something else, like the Texas Safety Council. I know one year years ago the advisory committee met in conjunction with the Texas Safety Association Meeting in Dallas.

We just recently met, kind of, with the National Safety Council 6th Annual Construction Conference. Every year in Illinois the Chicago Safety Council has a construction meeting.

So, if you can tie in with something like that, you get a crowd that is coming for the conference anyway, and we could do like we did in Illinois. Have an afternoon session or a morning session where we have an ACCSH meeting.

And I think we need to keep in mind the constraints of the budget when we do this, and we have to give OSHA enough notice that Bruce and Charles approve where we want to go and we have a real intent when we go there.

So, think about that, and if you have any suggestions, E-Mail them or fax them to me, and I will talk to Bruce about the August meeting being somewhere other than D.C.

MR. SMITH: This August meeting is right in the middle of -- well, it is here. Right?

CHAIRMAN BURKHAMMER: Maybe the December meeting, since it's usually cold here, we could go somewhere warm. There's a lot of construction in Florida. Not much in Palm Springs. But there is some in L.A. and San Diego.

So, please, send me your suggestions for the December meeting. Michael?

MR. BUCHET: Not that I'm pumping the Construction Safety Council, but Tom Broderick does good work. His last winter build safe conference was over 1,000 people and 100 plus exhibitors. The sessions were well attended, they were well done, and we'd be certainly willing to talk to them about trying to arrange to have ACCSH --

MR. COOPER: Wait a minute. You're talking about going to Chicago in December.

(Laughter.)

MR. BUCHET: Please, let me respond. Without a doubt, definitely not. Better than that, February. But it's close to the airport.

MR. COOPER: The man is sick.

MR. BUCHET: I'm there.

CHAIRMAN BURKHAMMER: Okay. With that, we have some direction of where we want to go.

Prior to our adjourning, we'd like to offer the public an opportunity to comment or discuss anything with us that they would like to present or bring to the committee.

(No response.)

CHAIRMAN BURKHAMMER: No takers. Huh? Carl is not waving today at anybody.

One thing we failed to do, and as chairman I apologize for this, is we did not approve the minutes from the last meeting. So, before we leave, I would like to do that.

So, if you could get the minutes out of your packet. And if you have anything to offer, I'd like a motion to approve the minutes. Mr. Cooper?

MR. COOPER: I've read them diligently last night after our meeting, and I move that we approve them.

CHAIRMAN BURKHAMMER: We have a move for approval. Do I hear a second?

MR. MASTERSON: Second.

CHAIRMAN BURKHAMMER: Bob seconded. Any discussion on the minutes? Corrections? Changes? Bob?

MR. MASTERSON: Outside of that, I just want to make one comment.

CHAIRMAN BURKHAMMER: Let's do the minutes.

Hearing none, all in favor of approval of the minutes from last meeting, signify by saying aye.

(Chorus of ayes.)

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Approved.

Bob?

MR. MASTERSON: I just wanted to set the record straight for Steve's remembrance, that I did not -- at no time did I commit the residential home building industry to buying personal protection equipment.

(Laughter.)

CHAIRMAN BURKHAMMER: Thank you, Bob, for that clarification.

MR. COOPER: Mr. Chairman, I know we're going to close, but I would hope that OSHA would consider, when we have -- I was thinking the meetings outside of Washington, that it would appear to me that some of the regional staff of OSHA -- maybe the training department in a region or whatever or the person in charge of construction might be advantageous for them to attend at least a day of the advisory committee.

Not necessarily as a spokesman for OSHA, but to see what we're doing, because we have pretty good contact in this building, but nowhere else.

CHAIRMAN BURKHAMMER: A very good suggestion. I'll include that in the letter that I forward to Bruce and Charles on where we propose to have our December meeting.

MR. COOPER: The ARA or someone like that. You know what I'm saying.

CHAIRMAN BURKHAMMER: Is that ARA or IRA?

MR. COOPER: ARA.

CHAIRMAN BURKHAMMER: Meeting adjourned.

(Whereupon, at 12:00 p.m., the meeting was concluded.)

C E R T I F I C A T E

This is to certify the above proceedings of a meeting of the Department of Labor Advisory Committee on Construction Safety and Health, held on June 11, 1999, were transcribed as herein appears and that this is the original transcript thereof.

SONIA GONZALES
Court Reporter