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UNITED STATED DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)


VOLUME II of II

Friday, September 15, 2000

Holiday Inn Capital at the Smithsonian
550 C Street, Southwest
Discovery II Conference Room
Washington, D.C.

P R E S E N T

Advisory Council Members Present:

Michael Buchet
National Safety Council

Stephen J. Cloutier
Charlotte, NC

Stephen D. Cooper
Intl Assoc. of Bridge.
Structural & Ornamental Ironworkers

Felipe Devora, Safety Director
Fretz Construction Company

Larry Edginton
International Union of Operating Engineers

Harry Payne
Commissioner of Labor, North Carolina

William Rhoten
United Association of Plumbers and Pipefitters

Robert Biersner
Solicitors Office

Russell B. Swanson
Designated Federal Official

Marie Haring Sweeney
National Institute for Occupational
Safety and Health

Jane F. Williams, President
A-Z Safety Resources, Inc.

Owen Smith, President
Anzalone & Associates

Stewart Burkhammer, Acting Chairman
Bechtel Corporation

Friday, September 15, 2000

A G E N D A
 
ACCSH Workgroup Reports PAGE

9:00

Hexavalent Chromium
Owen Smith; Bill Rhoten

238

9:15

Safety and Health Programs and Training 
Owen Smith; Bill Rhoten; Steve Cloutier

249

9:45

Remarks
Charles N. Jeffress

264

10:30

BREAK


ACCSH Business

10:45

ACCSH Committee Procedures and Guidelines
Jane Williams

285

11:45

Planning Session

342

Full ACCSH Committee

12:00

Adjourn


P R O C E E D I N G S

[Time noted: 9:05 a.m.]

MR. BURKHAMMER: Good morning. Welcome to day two. The first work group report this morning is Owen Smith and Bill Rhoten on hexavalent chromium.

As soon as Bill gets his Starbucks coffee and donuts he will be up.

All right. Before Bill starts, why don't we go around with introductions. Harry, would you start, please?

[Introductions.]

MR. BURKHAMMER: With that, Mr. Rhoten?

HEXAVALENT CHROMIUM

MR. RHOTEN: Good morning, Mr. Chairman. I am just going to make some remarks in regards to our work group. We had our second meeting on Tuesday and there were some issues that were raised of a technical nature and there was some question as to the logic used to determine that we had to lower the permissible exposure limit as low as was suggested. And I think those questions I suggested should wait until a further meeting when representatives of NIOSH and OSHA health services can answer those. I think at the first meeting they did an excellent job of going through that whole procedure. So in the future I think those questions can just be answered.

I think that the main charge of this Committee is really going to be, at this point anyway, just to gather information on what the effects to our industry will be if they lower the permissible exposure limit down to the level they are contemplating.

On our part, we have done some research in regards to how much our members are exposed to stainless steel welding. That's our main exposure, and probably 15 percent of all the welding tests that the United Association administers. And we have our own welding program and own certification program, is on stainless steel. That is not to say that 15 percent of the welding is stainless steel. It is no doubt less than that. And what we plan to do is send a letter out to the local union business groups and ask them to give us their best estimate of what percentage of the welding in their jurisdiction is in fact on stainless steel.

Beyond that, I know that the industry has changed a lot in the last five years. Right now there is semi-automatic welding machines that are being used to a large extent in the industry, and there are fully automatic welding machines being used that can remove the welder from the work area anyway. Beyond that, in the past, a typical weld had a 37.5 degree area that had to be welded. That is, now the technology has changed. And they're getting into a 10 percent area which is further going to reduce exposure to our welders. So I think in the coming years, whether or not this standard comes to pass, that our welders are going to be more and more less exposed to stainless steel welding, that is, being right there in the immediate area where it is being done.

And what I would like to do, if NIOSH or OSHA or both want to see some demonstrations, I would like to suggest that we can set up -- our training facilities have all of these automatic and semi-automatic welding machines, and Bechtel has agreed to allow us to borrow some respirator-type equipment so that we can in fact put on a demonstration for anybody interested at our training facility in Charleston, South Carolina. It is possible that we could move that equipment up to Washington -- to D.C. at one of our training facilities here and put that demonstration on. It would probably take the day, but I think it would give the people that aren't familiar with the hands-on process of what's happening with that in the industry a pretty good idea of where we're going.

We've also, and probably at our next workshop meeting -- I wouldn't make any claims on being an expert welder. I've welded a couple pieces of pipe, and couldn't wait for the insulator to get there and cover it up.

[Laughter.]

MR. RHOTEN: But we have some people in our building that really are experts on this whole issue and we would have them probably at the next workshop meeting. And probably if NIOSH or OSHA wants to see this type of demonstration we can put that on. And we can also get some figures on the cost from the contractors, no doubt, if the industry does change in that direction what the effect is going to be. But personally, I think it's going to change there anyway. I think within five years you're going to find that the welders now that are exposed to stainless steel welding in the immediate area are going to be off making semi-automatic welds with a television camera. They are doing that now. And the automatic welds, there's no need to even be in the area once you set it up. You just set the machine up and you go on. And the technology is going leaps and bounds. So I think that will be the answer for us as far as our people getting exposed.

The other crafts, the Center to Protect Workers Rights has offered to put together some kind of a basic questionnaire that we can get to the building trades and hopefully the other crafts can then determine where their members are exposed to this type materials and find out at least to what extent.

So that is basically all I have to report. I think it's just going to be an ongoing information process that we can put together. And if some people at the workshop meetings have questions of a technical nature in regards to why OSHA or NIOSH decides they want to lower that level down to the point it is, then I think we are going to have to have NIOSH or OSHA there. At least, I am certainly not capable of getting into that debate.

MR. BURKHAMMER: Bill, maybe we ought to think about having the next workgroup meeting at the Institute so we can go down and --

MR. RHOTEN: Well, that would be --

MR. BURKHAMMER: It will be a lot easier and cheaper than moving the equipment all the way up here and setting it all up again for a one-day show and then hauling it all the way back down again.

MR. RHOTEN: Well, it would be easier, but we certainly don't mind doing it. If it's not possible to have the meeting, that would be easier for us, but if it's not possible, we can surely do that.

MR. BURKHAMMER: And I can ship the respirator equipment to you wherever you are.

MR. RHOTEN: Yes, and we'll supply the qualified welders.

MR. BURKHAMMER: So why don't we think about that and maybe NIOSH, Marie, you could get with us and we could decide where the best place to do it, whether it's Washington or Charleston.

MS. SWEENEY: I'm sorry I missed the meeting. The concurrent meeting.

MR. RHOTEN: Oh, that's fine. This is going to be an ongoing process, I'm sure.

MS. SWEENEY: Was anybody from NIOSH at your workgroup meeting, Margie Wallace, or anything like that?

MR. RHOTEN: No. And I'm not being critical of that either because I think at the first meeting they very carefully covered every question that was asked at the second meeting that the people weren't at the first meeting.

MS. SWEENEY: Okay. Okay.

MR. RHOTEN: So we'll have to come to the third. We'll have all the answers.

MS. SWEENEY: I'll bring this back. I don't know if there is anybody from OSHA here who is working on the hexavalent chromium standards, but I don't know who can bring it back to them. But I will make sure. I will talk to Margie and the other folks involved at NIOSH and we'll certainly get back to you about that.

MR. RHOTEN: Okay.

MR. BURKHAMMER: And we can pick date. Michael?

MR. BUCHET: Mr. Rhoten, it sounds from the description that CPWR is going to ask your crafts what their members' exposure is as they perform welding operations.

MR. RHOTEN: No.

MR. BUCHET: Is anybody looking at the question of who is exposed when a welding operation is taking place, which is a much bigger population, potentially?

MR. RHOTEN: Well, for your first question, it is not necessarily welding. There are other crafts that are exposed to this chromium in other processes, asphalt and those kind of things. I think our members are primarily exposed to it in stainless steel welding, and to some extent the boilermaker and the tubes. And I don't know if you guys weld stainless, and the ironworker, but there are other ways that you can get exposed to this material that I'm not familiar with that they probably are. So the question here to them will be, what tasks do your members do that expose them to hexavalent chromium?

MR. BUCHET: Is somebody going to ask the bigger question which is, who is exposed in a given work area when any one of these operations is taking place?

MR. RHOTEN: Well, I guess you could get to that point no doubt and ask that question. It would be self-evident if it was on asphalt it's whoever was working around it. Okay. In our case when we are doing our welding, most of it is in isolated areas that nobody is immediately exposed, no more than they are to arc welding because you get arc flashes, and you're going to get -- you are just not going to be there. You are going to remove yourself from the area, you know.

MR. BURKHAMMER: In our experience, when we are doing stainless welding it's a pretty much an isolated function. And the other crafts, the carpenters that built the scaffold or the laborers that are cleaning up, or what have you, around there are pretty much gone. And the only people in the area are the fitters and the welders pretty much. So there is not a lot of exposure.

MR. BUCHET: Pretty much to me means it might be worth looking at to see if "pretty much" includes more or fewer.

MR. RHOTEN: And, again, I wouldn't claim to have a lot of expertise in this area. But I would suggest that I -- at least I believe that the welders are the ones that are getting the most exposure. So that -- and I can stand corrected, but then the other levels of exposure I don't think are anywhere near what you would get when you're welding stainless steel.

MR. BURKHAMMER: Marie.

MS. SWEENEY: Mr. Rhoten, one more thing. Do you plan on having the folks from CPWR show you a questionnaire before it goes out, or have input from NIOSH and OSHA?

MR. RHOTEN: Certainly, we are going to work with them. And the other part is we are going to send our own questionnaire out anyway. I've got it drafted. And I think the help from the Center to Protect Workers Rights was to draft something generic that she could take to the building trades and suggest that this is a generic letter that you send out and then let -- you know, the internationals are going to modify it to whatever extent they need to.

MS. SWEENEY: The reason I'm asking this question is they are probably questions that OSHA and NIOSH need to be answered by the trade; specific things like what is the route of exposure?

MR. RHOTEN: Right.

MS. SWEENEY: Is it germal or is it airborne? And if maybe some of the folks in the trade who have actually done their own monitoring so they know what the levels are. So we would be -- actually, I would be more than happy to work with you as an interface on this.

MR. RHOTEN: I think that would be important, because I think if there are questions you want answered, they also have to be framed in a manner that when you send them out to the field, the people understand the question.

MS. SWEENEY: Absolutely.

MR. RHOTEN: If you send a questionnaire on this issue out to a business manager and you don't basically keep it pretty untechnical, your answer is not going to be there.

MS. SWEENEY: Sure. So the offer stands.

MR. RHOTEN: That would be nice if you could do that, maybe work with the Center and have them get a generic questionnaire that we could take to the building trades and then ask them if they would consider sending it out.

MS. SWEENEY: Who at the Center is going to be working on that?

MR. BURKHAMMER: Chris is.

MR. RHOTEN: Chris.

But, again, I think in a few years, at least in regards to the welding, this issue is going to be a lot easier to solve because of the technology that is coming. And there is not going to be any need for anybody at some point to stand over a stainless steel weld, five years, 10 years from now.

MR. BURKHAMMER: Any other discussion?

[No response.]

MR. BURKHAMMER: Thank you, Bill.

MR. RHOTEN: Thank you.

MR. BURKHAMMER: The next item on the agenda is Owen Smith. Bill Rhoten and Steve Cooper on safety -- Steve Cloutier, I'm sorry, on safety and health programs and training.

Bill. SAFETY AND HEALTH PROGRAMS AND TRAINING

MR. RHOTEN: I left my glasses home this morning, so you are going to have to bear with me. Oh, let's try these.

[Laughter.]

MR. RHOTEN: No, this is worse.

[Laughter.]

MR. RHOTEN: What we have got is I didn't frame this in the motion form, but rather a suggestion so that we can move forward with it. But basically it's -- we had the ACCSH workgroup meeting on Tuesday. There were six stakeholders present and they participated in the workgroup. And the main topic of discussion was the concept that was approved by ACCSH at the May meeting that every construction worker have a 10-hour OSHA card or equivalent.

The question of what process, what program should be considered equal to the OSHA 10-hour program was discussed at length and the workgroup recommends the following guidelines be used to determine if a program is equal to the OSHA 10-hour safety and health training program.

First, the instructor of the proposed program must be authorized to teach an OSHA 10-hour safety course. Second, the proposed program must be reviewed and approved by OSHA. Third, if OSHA determines the proposed program is equal to the OSHA 10-hour program then OSHA shall issue the 10-hour completion cards to the students that took the class.

The workgroup also recommends that ACCSH submit the above concept and recommendation to OSHA for their comments with the goal of implementing this type of program. I've got copies of that. I should have passed these out.

MR. BURKHAMMER: Yes, if you would, please.

We have a recommendation from the standing workgroup which he is now passing out for review by the Committee.

I will now entertain discussion.

MR. DEVORA: Are we talking about -- when you say "authorize" are we talking about authorized to teach an OSHA 10-hour course to have the OSHA 500 or 501 --

MR. RHOTEN: Yes. I think the feeling of the Committee is that it is important to know that the instructor that teaches this course that is supposed to be equal to the OSHA 10 hours in fact is qualified.

Now, beyond that, I'm certain that if OSHA decided that the person was qualified without taking the OSHA 500 course, then they could in fact do that. I mean, we are not trying to confine this to the point that it was not workable. Somebody shows up with several degrees in safety and health with a background in teaching. I'm sure OSHA could then say that, you know, you're certainly qualified to teach this course.

The intent is not to restrict this thing. It is just to find an answer to what is equal.

MR. BURKHAMMER: Michael?

MR. BUCHET: I'm a little puzzled why we have to say it has to be equivalent.

MR. RHOTEN: Well, that was the feeling of the board at the May meeting. I would just as soon that that wasn't in there, myself.

MR. BUCHET: To me, it is going to put in motion an incredible amount of work so that OSHA can say we've made some objective criteria to say what you're doing is equivalent to what is already in place and seems to be operating. But that is just a suggestion.

MR. BURKHAMMER: There's been a lot of discussion -- and I know Bill can elaborate on it more than I can -- about what is "or equivalent" and, you know, smart mark could be considered an "or equivalent".

MR. RHOTEN: Well, it already is.

MR. BURKHAMMER: I know AGC has some pretty decent training programs. ABC has some pretty decent training programs. It could be "or equivalent."

MR. BUCHET: But the process already exists to go to OTI and say we have an OSHA 500 instructor, we want to teach our curriculum and make it look like your 10-hour -- issue a card and the guy says you can or you can't.

MR. RHOTEN: Well, if I could. OSHA doesn't right now even approve any curriculum. That's -- they have a guideline of subjects that have to be taught, but OSHA doesn't approve curriculum. In the past, in fact, there was no curriculum distributed to the people that took the class.

MR. BUCHET: But the 10-hour matrix says you've got to do so many hours, talking --

MR. RHOTEN: Right.

MR. BUCHET: -- so many, so many, so many.

MR. RHOTEN: Right.

MR. BUCHET: And if you put your stuff together and you plug it in the matrix and say, here's what we are going to teach in this block, somebody will say, looks like, smells like, and you're okay if you go forward. Are we redoing that and asking OSHA to come up with another definition of the criteria?

MR. RHOTEN: I think what we are doing is we are giving an opportunity to people that think that they're program and their outline is every bit as equal to OSHA to go to OSHA and OSHA then look at it and say, well, yeah, this is good enough. Now, I believe the only people that can determine what's equal to the OSHA 10 hours is the people that own the 10-hour -- the OSHA Training Institute.

MR. BURKHAMMER: Jane?

MS. WILLIAMS: I remember the previous discussions talking about "or equivalent." And I have to agree with Mr. Rhoten, there are many employer companies who develop programs that satisfy their specific needs that very well would be in tune with a 10-hour that might cover something outside the scope because of the employers needs that it do so. So I think to have the "or equivalent" in there would satisfy not only the employers who may have them, but some of the specific trades who may have to go into some additional areas also. So I would feel that the "or equivalent" would be very appropriate.

MR. BUCHET: I think if you look -- go ahead, Bill.

MR. RHOTEN: I might also suggest that I think the main intent of our committee is this, is to get this issue. I think we have all agreed, at least in concept, that this needs to get done at some point. And the intent here is to get this over to OSHA so that we can have some dialogue to tell OSHA from the ACCSH Committee that this is a good idea. We want to get there, and have some dialogue on how we are going to get there. I'm not suggesting that any of those three items on here can't change. This is the best suggestions we have out of the subcommittee to accomplish where we want to go. And they certainly could change at some point.

The subcommittee and I personally think it's one of the most important issues that's in front of ACCSH and I think in the long term it will save more lives than any other issue that you've got -- that we've talked about in the last year. I don't think the training is getting done. I don't think it has ever gotten done. And all these other issues that we're talking about, aren't going to do the good that this will do. If it takes five years to get it done, so be it. But if we don't start we are never going to get it done. And there is no reason not to get it done.

MR. BURKHAMMER: Michael?

MR. BUCHET: I agree with those goals. My questions are more to trying to make the process a little more streamlined. And I am thinking along the lines like just take out the "or equivalent" and say, you have to have a 10-hour --

MR. RHOTEN: Period.

MR. BUCHET: -- but let me put this -- the equivalency somewhere else. And the proposed programs be submitted to OSHA for approvals in OSHA 10-hour and to not have a whole series of courses out there that -- well, I've got an OSHA 10-hour card in my pocket, but I had an "or equivalent" program.

MR. RHOTEN: Well, you know, I don't have any problem agreeing with you, but we are rearguing what we argued for the last year. And this Committee has decided that they want that in there to get it to OSHA and I agree. If I had my druthers, it would just be a 10-hour OSHA card, their outline, period. But I don't have that.

MR. BUCHET: I'm just saying put the "or equivalent" somewhere other than in the title of this card.

MR. RHOTEN: The card? No. What I'm suggesting here is if they go to OSHA and they have a qualified instructor, OSHA approves their curriculum as being equal, then why not give them the 10-hour card. It will be a 10-hour card that they get. And that's the suggestion that they will in fact get, a 10-hour card because the program is equal to the 10-hour course and the instructor was qualified to teach it.

MR. BURKHAMMER: Mr. Cloutier?

MR. CLOUTIER: Mr. Chairman, and members of the Committee, this topic has been bantered back and forth and discussed significantly over a year now, and the Advisory Committee voted unanimously at the last meeting to push this concept back to OSHA to talk about this training requirement or construction workers. And there are a number of new pilot programs that are out, there are a number of trade associations, and I know the unions certainly have one that it provides good, quality, solid, safety training for their workers, or their employees, or their association members.

And one of the concerns that we discussed at this workgroup meeting was certainly the 10-hour card, the 10-hour course. And if you're taking a 500 or a 501 course, OSHA gives you a menu to pick from. And I may pick my 10 items, you may pick your 10 items, and all of us in the room may have a similar course, but it may be somewhat different. A number of folks have gone out and are pushing the "or equivalent". They have some outstanding programs out there that probably surpass the 10-hour card or the 10-hour course.

And I propose to Mr. Rhoten and to the members of the Committee that maybe we revise the motion to say that we continue a dialogue on quality control because that is the issue of the program. We approve it, we fine tune it, maybe OSHA comes back and OTI -- and I know OTI is here -- and speak to some of that. Hey, this program has been around for a number of years, folks, and it has been working with the 21st Century and maybe we need to make some changes in the quality control. We upgrade it, and we would revise or have a good look-see at the program.

My amendment would be that we continue the dialogue with OSHA on the quality control program so we control it on who teaches the course, and who approves it or the equivalent.

MR. RHOTEN: So OSHA does.

MR. CLOUTIER: Right.

MR. RHOTEN: Do you just want to add that to this recommendation? I would be happy to have you add that to this recommendation, but I would like to have the other provisions in this recommendation stand. What you added is our intent anyway. What's in these recommendations is a suggestion to be considered and I don't see any harm in that. Although I have no objections to your amendment on top of these suggestions.

MR. CLOUTIER: Let me continue to say that this workgroup would like to get an answer back from OSHA at the next meeting on what is going on or the first meeting in 2001, because I'm like Bill, I don't want to see this thing continue to go on and on and on and not get some feedback.

MR. RHOTEN: I agree and I don't know that we -- its been going so long now I don't know that it's been on the floor that OSHA had to come back directly with all the answers by the next meeting. I would hope we could have at the next meeting at least an outline from them on the feasibility of getting this thing implemented and on how we can implement it.

Now, if it's evidently going to take a standard, I don't think they can do it administratively if they wanted to. I don't know the answer to that question. I doubt it. It seems like it's going to take rulemaking. And then that's the dialogue that I would like this Committee to have with OSHA is on how we get this rulemaking started. So I wouldn't expect at the next meeting they would have all the answers. But I would certainly like to have their thoughts.

MR. CLOUTIER: Mr. Swanson -- response from the Agency.

MR. SWANSON: I'll be happy to come back to the next meeting and talk to this Committee about OSHA's status vis-a-vis requiring 10 hours of training for every man/woman entering a construction site in America. But let me assure you that it won't be done by letter or directive. It will --

[Laughter.]

MR. CLOUTIER: It won't be on the web site either, will it?

MR. SWANSON: It probably won't be on the web site. It will be by regulation. And as everyone is aware, there is going to be at least the potential of some significant changes on OSHA policy which are going to take another 12 months to sort out. So while I'll be happy to discuss the subject and share with you the insight from the Solicitor's office as to what at the least we would have to do to make this a requirement, whether it will be a requirement or not is certainly not something that I will be able to answer. I hope that doesn't disappoint you.

MR. CLOUTIER: We heard at the workgroup from one stakeholder that has developed a new program that has come to the Agency. It's been blessed by the Agency. And it's become a pilot program and they're going to run it for a year or two -- particular codes. I thought that was very positive.

MR. SWANSON: I would like to see every group in America that has anything to do with construction require of their own members that nobody take the field without a 10-hour training requirement. If the contractor associations would do that, if the non-organized union employers found a way of doing that, I would applaud that and I'm sure that the present Assistant Secretary would applaud that. But the question is about how OSHA is going to mandate this in America and that is a much, much higher mountain to climb. But I am happy to see the issue on the table and we start talking about it.

MR. BURKHAMMER: Bill.

MR. RHOTEN: Maybe we should just move ahead with this first and then I'll make some other comments. But I would welcome your amendment on top of this; these suggestions that we would like to send to OSHA and they are in the form of suggestions. And, again, those three items are the best way we could suggest to OSHA that they judge an equal program. They can certainly -- I don't see any harm in sending those suggestions to OSHA in the form of suggestions.

MR. CLOUTIER: And certainly, Mr. Chairman, his motion says the workgroup -- and I'm certainly part of the workgroup -- has recommended that ACCSH submit the above recommendations to OSHA for their comments.

MR. BURKHAMMER: Just so I understand where we are here, Mr. Rhoten, the motion is, every construction worker have a 10-hour OSHA card or equivalent, followed up with the following suggestions that the workgroup is making to support the motion.

MR. RHOTEN: Yes. Well, the concept was already approved by ACCSH. The concept is in fact approved. You can just send that on to OSHA. And I think what held that from being sent on to OSHA was the discussion over what's an equal course and you -- the workgroup was charged with discussing that issue on what is equal. So the workgroup did in fact discuss it. And what we suggest is that this is the best determination we could come up with on how you could judge an equal course.

Now, we could discuss that at length and have other suggestions on what is equal. I just think it's unnecessary. I would like to get the issue to OSHA with these suggestions and then have some comment back from OSHA, again on the feasibility of moving forward with it. I have no problem at all with the suggested motion that we continue dialogues and those kinds of things. But I think these are good suggestions to be considered and a lot of thought went into these by the workgroup.

MR. CLOUTIER: And, Mr. Chairman, we would then get a response back from the Agency, yeah, nay, or they want to continue more dialogue with the workgroup, and the workgroup would continue to move forward.

MR. RHOTEN: I'm just looking for dialogue with OSHA.

MR. BURKHAMMER: Okay. Based on that, since we approved the motion at the last meeting, and the workgroup is now coming back with the suggestions to support the motion, I don't think we need a vote by the workgroup on the suggestions. We will just forward them on with the motion that was presented last time.

MR. RHOTEN: With this amendment, thank you, Mr. Chairman.

MR. BURKHAMMER: It has now been forwarded on officially. Received, as stands.

MR. RHOTEN: As recommendations.

MR. BURKHAMMER: And we put that down there. So that's fine. Thank you, Mr. Rhoten.

MR. RHOTEN: Thank you.

MR. BURKHAMMER: Prior to hearing from the Assistant Secretary who has joined us, Bruce has asked that he could share a couple of items with us that I think are pretty important.

MR. SWANSON: If I have an option here, Mr. Chairman, as important as these are, can I waive it until after Charles has spoke?

[Laughter.]

MR. BURKHAMMER: Spoken like a well-trusted employee. Yes, you can.

[Laughter.]

MR. BURKHAMMER: Welcome.

REMARKS

MR. JEFFRESS: Thank you. Good morning. I am delighted to see a good attendance here. I appreciate you all spending yesterday and today dedicated to this public service. For many of you I know it's a sacrifice, I appreciate your being here and participating and engaging in the kind of discussion you have just been having about what are the right kind of policies for OSHA to pursue with respect to construction.

If this were an easy job it would have already been done. So I appreciate your struggling with it.

What I wanted to do this morning is to talk a little about OSHA in a general update on where we are and what is happening with the organization, and not specifically with respect to construction, but with OSHA generally just as a way of background; touch on a few construction issues and talk a little bit about what this group has done over the last few years that I'm appreciative of and then respond to any questions you may have. I understand from some of the folks who made presentations yesterday that there were questions raised yesterday that folks were kind enough to kick to me today. So I will be happy to respond to questions you have about things that came up during the last couple of days that you want to pursue with me.

First in terms of OSHA, where we are, what changes and developments are, one of my deputy assistant secretaries, Jerry Mand, has left us. Jerry was with us for a little over a year, about a year and a half, I guess; dealt mostly with technical support, OSHA policy issues and whatnot. His wife lives in Boston, and she was having a baby and he felt maybe he ought to be in Boston. So he has moved on to other employment in Boston. We wish him well.

In terms of our budget, of course, we are all waiting to see what Congress will produce with respect to the budget. Since you last met, the House and Senate conferees agreed to fund OSHA at the President's request level. So both houses are agreed at this point to provide the same amount of dollars to OSHA that the President requested. They did, so far -- and it's not final, the bill hasn't passed -- but the conferees did agree that a million dollars would be shifted away from Federal OSHA enforcement activities to State consultation activities.

So, while the dollar amount is the same, should this budget pass as currently proposed, it would have a little less federal enforcement than what the President had asked for and a little more State consultation. But, nevertheless, the same dollar amount, and if it passes this way, over the past three years that will affect a 25 percent increase in OSHA's budget -- good support from the Congress and the President for the work we do. And I appreciate those of you who have been supportive in that.

That's the good news. The unfortunate news in the budget is that there remains on the House and Senate side a rider in ergonomics that would prohibit OSHA from adopting and ergonomics rider. Both houses adopted that rider. The President has said that he would not sign the bill if the rider is in it. So the negotiation this month will be over, at least with respect to OSHA, not so much over the money as over the riders. And while that is big for us, OSHA is just a very small part of what the total amount of money in the Labor/HHS bills are. And there are a lot of other things in there more controversial than OSHA. So the negotiations over that likely will take all month.

But the good news is, I think, both the Congress and the President are determined to get the budget in place with no problems keeping the government going. And Congress is determined to get out of here in early October, so anticipate that this all will be resolved in a month and we will be able to go forward. No one anticipates the kind of continuing resolutions going on and on that have happened in some years.

So I am relatively pleased with where the budget stands at this point.

In some other nonconstruction areas with respect to standards, ergonomics being the thing that is taking most of our time and effort at this point, the August 10th deadline for final briefs has passed. We got about 9,000 total comments on the standard on the proposal and through the hearings and the post-hearing briefs. We are making changes to the regulatory text. A lot of people came in with suggestions and comments, good suggestions and comments, pointed out weaknesses in what we proposed. We are making modifications and improving -- I certainly hope it's improving, I believe it's improving -- the text that we proposed, and I expect that we will be able to complete the work by the end of the year.

The work on rewriting the text is not the biggest part of the work. The biggest part of the work, as you all know who have worked with standards, sanitation or other things, the biggest part of the work is not in writing the text itself, but in writing the justification on why we chose this particular option rather than all the various alternatives that people have suggested, responding to each of the substantive comments that came in and documenting the justification of why we are doing things this way.

So a big part of the work is still ahead of us. But this is September. I do believe we will be able to get that done by the end of the year.

Another standard that I know is of interest is the recordkeeping standard. I don't know that I've promised it to this group three or four times, but I know I promised it to other groups three or four times during the last three years. I can tell you that we are finally in the stage now of having discussions with OMB on the recordkeeping rule. It will be out there by the end of the year and it will take effect January 1, 2002. So people will have a year to prepare for this new way of keeping records and do the training in the new form.

Because we are still in discussions, I cannot share with you what the details of it are. I can tell you that it will do some of the things that we advertised, I think, in an effective way. It will be much clearer about work relationship, much clearer about restricted work. We will clean up some of the questions about what is first aid, and what is medical treatment that are out there. I think it's a significant improvement. We will have a new form that is simpler and easier to use, so you won't have to decide whether something is an illness or not before you decide how to record it. So I think it will be a significant improvement than what we have now.

Don't look for dramatic leaps forward. What you see you can recognize, but hopefully it will be refined and improved as opposed to a revolutionary document.

Two other standards that we had hoped to have out by the end of the year. It would appear that we are not going to be able to get out by the end of the year. The tuberculosis standard, we are still working on that. Because of devoting so many resources to ergonomics TB has not moved as fast as I had hoped. The same with the paying for personal protective equipment. The people who will work on that are right now fully occupied with ergonomics. So PPE will have to follow ergonomics. But we will start working on that before the end of the year, but I doubt we will be able to get that out by the end of the year.

And then steel erection. Noah probably talked to you a little about that yesterday. I believe we have reached decisions on all of the policy points an have done most of our writing on that. It is also suffering a little because all the resources are devoted to ergonomics, but I still expect to get that out by the end of the year as well.

Those are the five standards that are past the proposal stage: ergonomics, recordkeeping, tuberculosis, steel erection, and PPE. And I'm satisfied we will make progress on three of them this year and two shortly thereafter.

In general terms, I don't know whether Bruce has given an update on enforcement activities, enforcement levels or not. The enforcement levels of OSHA in terms of numbers of inspections, we are actually ahead of where we planned to be this year. Usually at the end of the year we seem to be scrambling to catch up to what we planned to do. I am glad to say the field staff this year has been very aggressive and very efficient and ahead of where we expect them to be. The numbers of inspections this year will be higher than has been the last four or five years.

In part that is because we have had some staff increases. People are now trained in the field making inspections, so you will be seeing a slightly higher level of inspections in the future compared to the past.

Our significant cases where we find problems that generate $100,000 for one penalty are running about the same as last year. We will probably have just under 200 cases for the year by the time we are through.

As of this point, 60-some of those are in construction by the end of the year. And when I say "end of the year" now I'm really talking the end of September. There will be a few more coming out before the end of September, but about half of them will be in construction by the time we are through would be my guess.

I don't know whether you folks saw it or not, and I have copies, there was an article in yesterday's New York Times on injuries and illnesses and their decline. I don't know if people saw that or not.

Alan Krueger an economist at Princeton, noted the decline since 1992 in injuries and illnesses and was somewhat surprised to note that in every other economic expansion injuries and illnesses have increased and there have been more injuries and illnesses. And the fact that we are actually three million fewer injuries and illnesses than what the economists would have rejected, given the economic boom that we've had the last few years, he tries to explain it in his column as to what the reason might be for that. He tries real hard not to give any credit to OSHA, but I think he ends up having to give us a little credit. Most of the credit going to employers, employees, who have redoubled efforts, whether motivated by workers' comp costs or just motivated by not wanting people to get hurt, or whatever the motivation is. But it was a very nice article on the decline and injuries and illnesses.

The Bureau of Labor Statistics also released a report last month on fatal occupational injuries and not dealing with just injuries, a report they do every year, and the number is down somewhat. The five-year trend for people getting killed on the job is about 6,200 a year. In 1999 there were a little over 6,000. So it's a little lower than what the five-year trend was for 1999. A lot of the reduction -- probably most of the reduction was in homicides and people being killed on the job. Again, I suspect that's the good economy. The crime rate was down generally and it also was reflected in terms of people being killed on the job. But that is good news that the rate is down somewhat.

In construction, however, the rate continued to be triple what the employment rate is; 20 percent of the fatalities in the country occur in the construction industry and we've got about 6 percent of the employment in the country in the construction industry. So this continues to be a very dangerous industry. It continues to be one where the hazards change day-to-day and continues to be one where we have got to pay attention.

You also worked on 10 hours of training for everyone who works on a construction site. I think that's a terrific goal. I think if we could get that accomplished I believe that we would in fact achieve a significant reduction in fatalities and injuries on a construction site. It is an ambitious goal.

[Laughter.]

MR. JEFFRESS: A very ambitious goal. Bruce's comment not to look for it next year is a good comment, very much on point. And I am increasingly impressed at the need to provide instruction in different languages as well. The report -- I was with NACOSH yesterday. The report from Iowa was that there has been a significant relocation of people from Bosnia into Iowa. And English just is not making it in terms of communicating to folks about the hazards on the job.

Every time I turn around there's a special population somewhere that is difficult to communicate with. And we simply have got to find ways to translate our concerns about safety and health into languages that people understand.

A major emphasis for us this fall in OSHA is going to be to take our outreach activities and to assemble them into a coherent plan. As you know, we do a performance plan every year. When the field puts together their activity plan it tends to emphasize compliance. We are very good at talking about how many inspections we are going to do and what we expect from the results of the enforcement activity. We do a lot of outreach activity. We do a lot of training, and we do a lot of seminars. We do a lot of producing assistance materials to put on the web and distribute other ways.

Congress has mandated that 15 percent of our time be in compliance assistance, the growth in OSHA's budget about 25 percent growth the last three years. Most of it has been in education and outreach compliance assistance type activities. But we have not tried to pull all of this together into a comprehensive annual plan until now.

So this fall for the first time we will assemble building from the area office level up and from the directorate activities in Washington up to one central plan. We will put together in one place what out outreach activities will be for the current year.

We are having a meeting with executives from around the country October 23rd for everyone to bring their plans in for us to compile the national plan and also, frankly, to learn a little from each other.

We have found that fall protection programs may be done in Kansas City and Boston at the same time, and maybe we can learn from each other and not each office have to redo it. So there are things that we are learning about ways we could be more efficient internally, as well as putting together in one place our outreach activities. I don't think OSHA gets nearly enough credit for the amount of training and education we do.

Everybody thinks of OSHA as the enforcement agency carrying the hammer. I think it would be helpful to have all of these outreach activities assembled in one place and let folks see that in fact they can call OSHA for help. We can provide advice. We are more than an enforcement agency. And I think it will be helpful to round all that up from one place.

As with our other activities, this is something Federal OSHA is engaging in for the first time. But I told my friend, Harry, I would say, you know, the States should look for this, some requests coming down, next year, probably about adding the State outreach activities to what the Federal folks are doing so that we can have at some point a comprehensive national plan for outreach assistance.

One of the highlight of our outreach activities this year is that the Ford Foundation and Harvard University, which jointly administer a program called Innovations in Government, have recognized the expert advisors that OSHA has on our Internet as one of the most innovative programs in government in the country. They have selected 25 finalists from over 800 applications for innovative government programs and the expert advisors have been selected as one of those 25.

We will compete next month to see if we are one of the 10 winners. But one of the 25 finalists, so I am happy to celebrate that. But there will be a competition next month and presentations to determine whether this is a winning innovation and one of the 10 most innovative programs in government.

I know some of you are familiar with the confined space advisor, the hazard awareness advisor. We have a number of different advisors that people can hit on, on either our Internet or associations, are downloading it onto their -- onto CDs and disks themselves and distributing it to their members. But people can use it to find out what the hazards are in their particular workplace without having to read through all the standards. It's interactive. You type in, you know, what kind of business you're in, what kind of materials you handle. And the advisor will give back to you. Given the kind of work you do, here are the kinds of concerns you ought to have, here is what you ought to be checking, here is what you ought to be expecting. They are very creative and useful tools for people who don't have the time or the technical expertise to read through and understand all the standards. So we are very pleased with that and pleased with the recognition that that is giving.

One other piece of the outreach activities I would mention are grant awards. You all are familiar with these; we do them every year. We have been able to increase the money for those last year and we will increase it again next year. We just awarded $8 million in grants and have announced another round of grants of $5 million that we will be doing this fall.

One new feature of this, for this decade anyway, it's a throwback to what happened in the late '70s is an effort by OSHA not just to fund people to train workers on specific topics, but in fact to give support to organizations who want to build an institutional capacity to provide safety and health training to workers over a period of time. So we have our institutional grants which we awarded this year for the first time since the new directions grants back in the late '70s. Some of that 8 million went to institutional building grants and the entire faculty. And it's announced now, we will go to institutional building grants. We are trying to help people develop the capacity so on a year-on-year basis they will be able to provide training to workers.

We will continue some focus training. We will continue to advertise some construction topics that we want workers trained in, but people having to change every two year what their focus is, or us changing groups every two years as to who we support, we are not getting the continuity. I think that would be helpful. And the expertise disappears if you can't keep people on. So we are trying to, with these institutional grants, develop longer-term commitments and training partnerships with non-profit groups that provide this kind of training.

Then the last thing I would mention with respect to the general update on OSHA in terms of partnerships, I don't know whether you saw it in the National Safety Council magazine -- thank you, Michael -- last month, Pat Tyson had an article on OSHA partnerships and suggested to people these partnerships actually work. They are in fact to everybody's advantage. I appreciate that kind of public support. But we have partnerships, as you know, ongoing basis with ABC. We have one with Pride in St. Louis with respect to construction. We have a lot of local partnerships: the roofing industry in Region 5; we have the steel erectors in Colorado; there's one going on in Houston; and there were working partnerships with the US, with the AGC, with association of tower erectors. And, of course, we have the care program which continues in Florida, which is not so much a partnership as much as it is a lot of folks working together in a coordinated effort to try to address fatalities in construction in Florida.

That's my sense of where we are. Actually I am pretty optimistic in terms of what we're doing. The budgets for it seems to be there. The activity seems to be at a high level. We are doing both the enforcement work which we have historically done and done well, I think. We are also doing education outreach work which I think is essential to OSHA's progress. The one area where we continue to struggle is standard setting, and we have had that conversation with this group before and will probably have it again. It is an area that needs improvement and it's not a short-term fix. But at this point I have to say I feel good about the work that OSHA is doing and the way it is being received.

Let me just make one comment on this account if I can before I take questions. And that is, I want to thank you all for what you do. You all roll up your sleeves and get involved in the nitty-gritty drafting of language and arguing about what good policy is. You take your work seriously and you don't shirk from dealing with tough issues. And I respect that and I think the country is well served by your being willing to do that. And thank you for what you have done.

When I look back on the work you've done, at least in the past few years, the ones I've watched and observed, you tackled ergonomics and brought a lot of comment from outsiders just like our tackling ergonomics in general industry brought a lot of comment from outsiders. But you didn't shirk from that. You addressed it straight up, and you're committed to continue to work through the issues that people have raised and I commend that.

The sanitation standard, you pointed out the changes that are needed and are consistently pushing us to make sure we get that done and that's appropriate. And that's something that needs to be done.

The confined space work you've done, the PPE. When I consulted you on that on where we should go on personal protective equipment, we talked about that. The safety and health program standard work that you've done, just time after time you have rolled up your sleeves and really looked at what it is we need to do to make a difference in construction. And I would hope that in working with you that we will see some fruits of our labor here as we look at injuries and illnesses in the years to come.

All of you are also serving past the time that you had expected your terms to expire and I want to thank you for doing that. You didn't have to do that. And I appreciate your willingness the continue.

Several of you have told me that you have been delighted to perform this public service, but you would also be happy to share this with someone else in the future. Others of you have indicated you would be happy to continue on and have been working with the Secretary's office. We will get new counsel. We will have reappointments made and some new members named by the time of the next meeting.

For those of you who may not be reappointed, I want to say to you now, you are invited back to the next meeting because we want to celebrate what this council did together at the same time that we get a send off to the new council. But I would expect that we would have new appointments made prior to the next meeting or reappointments for those of you who are going to continue to serve.

But from my perspective speaking for the last three years, before we get the new folks here, I want to say to you all who have done the work for the past three years, thank you very much. You've done a terrific job. You've addressed some tough issues. And I know for some of you you've received some criticism from some of your friends because of it, but I thank you for being willing to push forward in this area.

Mr. Chairman, what questions might you have?

MR. BURKHAMMER: Thank you for the kind remarks. Questions? Michael.

MR. BUCHET: In the budget, do you see any harm coming to your ability to put compliance assistance officers around the country as you have told us you were going to in the past meetings?

MR. JEFFRESS: No. Not only no harm to that. I celebrate. That's one of the things the President has gone forth with and the Congress has approved. As you know, we went forward with 10 of these positions even before they were officially approved. We did 30 more this past year. And this budget next year will let us do about 40 more. So by the end of -- or when all these positions for this coming budget are filled, every area office will have a full-time compliance assistance person there.

MR. BUCHET: Do you see that lone individual being able to affect the noise that comes up when you ask the field for --

[Laughter.]

MR. JEFFRESS: Well, you know, when you've got one person for the whole State of Kansas, it is a lot to expect from that one person. I understand. But also this is Federal OSHA's contribution or part of our contribution to resources that are otherwise out there. We also have consultation folks available in every State to provide this kind of assistance. Every compliance officer retains that responsibility to do 15 percent of their time in compliance assistance. We continue to provide through our national programs, through our Salt Lake City technical center, outreach materials. And, of course, you all have heard some from the OSHA training institute the kind of distance learning plans we have there.

So, no. I don't see this one person in every office being able to carry it. I do see it as a significant step forward. But we need to combine that with a lot of other resources as well.

MR. BURKHAMMER: Jane?

MS. WILLIAMS: Mr. Jeffress, you had asked us at the last meeting to consider ergonomics as an item for the new regulatory agenda for construction, and I have a question regarding that and then I have a comment that I would like to offer to you if I could. Are you pursuing that, adding that issue to the regulatory agenda? And if you are, would it appear as an advance notice or just something you are thinking about? Or have you gotten to that point to think where you may go with that.

MR. JEFFRESS: It will be on our regulatory agenda for next year and that agenda will be published sometime next month. We do not project doing an advance -- even getting so far as their advanced notice next year. I think there's a lot of research that needs to be done out there. You all have supported NIOSH doing research. We have supported that as well. I would expect that in the next year we would have some stakeholder meetings on ergonomics and construction and be collecting information and have people talk about it. But I would not expect to get to a notice or a proposed notice next year. ACCSH COMMITTEE PROCEDURES AND GUIDELINES

MS. WILLIAMS: Thank you. That would lead into my comments. These certainly are not offered as criticisms. Please understand that in thinking about this question because, as a public person, it really is difficult for me to put this in perspective for all the people that I like to think about. But I wonder if this could be an issue that might be considered as negotiated rulemaking with the industry advancements and material handling the logistics of the field as well as current knowledge from NIOSH and everyone else I'm thinking that the whole process of negotiated rulemaking which I truly do believe. And I may not agree with all the outcomes of them, but I truly believe in it. I think a group of people like that could certainly augment your staff bringing some of these issues to a group, sitting down to focus on that, more than relying on volunteer participation at a workgroup meeting. So I offer that just as a personal comment from having visited with the solicitors and have this process explained to me.

But having said that --

MR. JEFFRESS: Can I respond to that before you go on?

MS. WILLIAMS: Sure.

MR. JEFFRESS: Having worked with the steel erection group, coming in late after SENRAC thought they were finished, and then my coming in and wanting to add my two bits worth, I've learned a lot about negotiated rulemaking and a lot about the expectations that go into negotiated rulemaking. And I come out, I think, an advocate and a fan of negotiated rulemaking like you do.

I also recognize though that it takes something like steel erection which is a small part of what construction is overall. Getting all the interested parties in one room was possible. There are a few folks that didn't get in that felt like they should have gotten in. But you still ended up with the negotiated committee of -- Steve, how many people are on that? Twenty people on the negotiated rulemaking committee. A committee of 20 folks to get everybody to talk out their views and come to consensus is a challenging task. To take on something like ergonomics in construction it boggles my mind how many groups we'd need to have represented in the room to have a negotiated rulemaking committee, if we tried to represent everyone with an interest in it.

And I'm not sure that a subject that big lends itself well to negotiated rulemaking. But it is clear to me that the stakeholder meetings we had around ergonomics in general industry. Now, we are very important at coming to some kind of place where we could go forward to the proposal. So even if it is a negotiated rulemaking committee, I would see some kind of significant participation by the industry and the process leading up to whatever comes out.

MS. WILLIAMS: One of my thoughts was that that type of a group could also help you in the key areas in which you might want to pursue stakeholder comment and help bring those issues together.

Having said all this, I do have a concern though. When I went back and looked at the history of the two years, and I looked at confined space, which I was delighted to see it's finally going to stakeholder comment, but knowing that that came out in 1995 and -- just to that point, and having read the report on the seven workers being killed in a sewer, it really made me focus on where we are sitting with a lot of our standards that we critically need.

The other one that I firmly believe in is lockout/tagout. That came out in 1995 and is not even being worked on at this time. Yet, 17 percent of our total work force is being -- construction work force is involved in electrical process. We have one little paragraph on that. So that is one I feel is very critical that we need to start paying attention to.

You've addressed the recordkeeping, I think everyone is waiting for that because I think that would really lend you some credibility to your ergo process that you're looking for and it might give us some finite numbers, if we will.

The safety and health programs, that one has been sitting. I would really like to see us get moving back on that for the simple reason, I believe it was in your March of '98 presentation where we identified that 84 percent of our fatalities are occurring from small business, and because of their impact by professional support we are not doing anything. And I think a mandatory safety and health program for everybody, regardless of size, would certainly bring down the 6,000 number that we keep floating around all the time.

Steel erection, you've addressed that one. And you know that I am going to end with sanitation process, 7.5 million workers being affected by it. Not having clean toilets. Number one on the bottom of the list is young people to go into our industry. And I just can't help but wonder. If we don't do something with some of these issues, and especially sanitation, I don't know who OSHA is going to be monitoring, because we are not going to have a work force. And the one that we do have is going to be so minimal. And we are going to be paying them so much that I'm concerned our employer profits are going to be reduced even more so. And we are not going to be able to progress construction at all as well as the infrastructures that we truly need in my opinion.

I do want to point out on the sanitation. I thank you for the response to President Clinton's letter that I wrote. I didn't know that was going to end up back with you, but I have learned the system a little bit better because of that. You did ask in your concluding paragraph if we could come up with any viable options to please present them to you. Needless to say, my option letter writing was beginning. But I would like to take a minute to tell you that I do appreciate your commitment to sanitation and to all of us here.

Noah stopped me yesterday and volunteered how hard he had been working on the advance notice. I know Joel has been a great help to Mr. Swanson's staff. And that's the kind of harmony I like seeing between ACCSH and Mr. Swanson's staff and your staff, of course, to inform me because I modified all my comments based on that one conversation from Nilla. Because now I feel more informed that something is happening and it's just not sitting there because I don't have that type of feedback.

So these are not critical issues. But I am real hard pressed to really look at ergonomics for construction other than the guideline and speculative -- when I see all of these other critical issues pending priorities that I certainly would like to see our priority resources be able to get these critical ones out first and then I'll help you run your ergo.

MR. JEFFRESS: Thank you for that.

MR. BURKHAMMER: Thank you, Jane.

Marie.

MS. SWEENEY: Good morning, Charles.

MR. JEFFRESS: Good morning, Marie.

MS. SWEENEY: I don't mean to pile on --

[Laughter.]

MS. SWEENEY: -- but there is an ANPR for hearing loss prevention or noise in construction sitting somewhere in an area I don't have a clue, but --

MR. JEFFRESS: Actually, it's moving at light speed. We first started talking about this two years ago.

MS. SWEENEY: Well, that's light speed. But I wanted to encourage you to please move forward on that. Hearing loss is something that it's probably not apparent to most people, but it affects almost every construction worker young and old in comparison to their counterparts. Within five years you have hearing deficits in young construction workers. So I would like to move my vote. And actually, Filipe and I are heading the workgroup and the workgroup is waiting breath abate for the ANPR.

MR. JEFFRESS: You know, in response to these two and probably other folks, it reinforces my sense that the area most in need of OSHA to work on is standard setting; that there are so many expectations out there and so many promises OSHA has made, and such a slow process to deliver that we've simply got to find a way to devote more resources to this. You all are saying very clearly to me, get the job done, and get them all done at the same time. And it's -- you know, we've got to find a way to put more into this effort.

MR. BURKHAMMER: Steve?

MR. COOPER: Marie, I can help you out. I understand that Jane Williams is going to start a column that's called "Write Jane". So if you have some noise pollution problems you can drop her a line.

I certainly agree with you, Marie, we do have a lot of noise problems that I'm one of the recipients of that -- construction that I have lost a lot of hearing. Now, a lot of people would like for me to lose the other side and quit talking.

Charles, back to sanitation. And I know you've got a lot of standards, and one, noise, just popped back up. And you've been trying for a couple years now to get those out. And ergo is another big concern. When I go out in the field and I talk to a few other safety directors in the construction industry from the international unions and those from the companies, we've got some construction workers that say, tell those guys up in Washington that we would rather have a place to wash our hands and we'll worry about this muscular stuff later. You've got to understand, a lot of construction workers don't go to spas and aerobics because they are in pretty good shape to begin with. So that may be their concern about ergo and construction. But we still get some of the largest complaints from the field when they ask what a regulatory agency, or what we're doing, or what they are doing for us. As we want a place to wash our hands.

I know that sanitation fits somewhere on the regulatory agenda; as ergo comes into our construction industry a lot of stuff is going to be set aside. It seems to me that the sanitation issue and the proposal of the work groups that worked so hard which you said a few minutes ago on these issues -- Jane and I are co-chair of that committee. That standard has been on the books 51. That standard has been on the books and it can't be enforced because of various problems with the standard.

Has anyone talked to you about emergency temporary standard?

MR. JEFFRESS: We talked about the emergency temporary standards in a number of different areas. For problems that have been longstanding, the courts have been very clear. It's not an emergency. The Agency not having done its work does not constitute an emergency. An emergency is going to have to be something that has come up all of a sudden and it's a surprise that people are just learning about. But the courts will not sustain an emergency temporary standard for a condition that has been a chronic condition.

MR. COOPER: It would seem to me that it would be much easier. And you're not creating a standard such as we have, just an old standard on the books that's being revised is something that we don't want to have it drop off a cliff and never hear about it again. But I'm sure you've heard that from us every time you show up here and in the halls and elsewhere, and I know that it's on the list somewhere.

MR. JEFFRESS: I think at one of my first meetings with you I told you this issue of paying for personal protection equipment would be a small thing, easy to do, and we would sail right through. Three years later I'm still saying the same thing. And it's been much more difficult to get these things done than I expected.

MR. COOPER: In closing, Mr. Chairman, in my comments, at least, I do appreciate yourself and Bruce's foresight in requiring some excellent expertise in the director of construction. I'm speaking of Bill Smith, as a qualified safety person, that I know that you could get.

MR. JEFFRESS: Appreciate you saying that.

[Laughter.]

MR. COOPER: I am very sincere. In fact, an ex-safety director from the operating engineers. He knows the business, he's very good, he's basically in that expertise. And I think that's a good, excellent choice.

MR. JEFFRESS: Thank you, Mr. Swanson.

MR. BURKHAMMER: I wish you could have heard yesterday the presentation -- I'm sorry you weren't able to -- from Kevin Beauregard, and Harry and Tom Marple on the transmission tower erection and the concerns and the fatalities that have occurred in that arena that's just booming all over the United States. And as Kevin shared with us, they go up so fast, 18, 10, 15, 20 days and they're done and moved on to the next one; that they're very hard to locate and they are very hard to cite because we don't have enough of the correct standards to cite when building. Steel erection doesn't really apply to transmission tower erection or existing towers where they go up and put disks on or some type of communication device. And there are so many companies, as we discussed yesterday, merging and coming together to build these things. And the rates are just phenomenal.

Going back to Mr. Cooper's comment on emergency standard. There might be an area where an emergency standard could fit because its springing up so fast in the last two years, its tripled. Over the next five years, it's going to magnify by three or four hundred times. And as Mr. Cloutier said yesterday, when the person's cell phone doesn't work and they're on the phone to AT&T or Nextel or Verizon or whatever, a new tower goes up pretty quick there in that particular area where it didn't work. So I might challenge you to think about using an emergency temporary standard to give us some opportunities to slow down the fatality rate in these tower erection scenarios.

Felipe.

MR. JEFFRESS: That's a good suggestion; I appreciate that. I have talked to one of the executives in this industry about these tower erections and are they really going up that quickly. He says, we make a decision. And if the contractor we talk to can't put it up in three weeks from the time we tell him we want it we go somewhere else. And it is just exactly that, just like that.

MR. BURKHAMMER: There's a saying that I shared with them yesterday. All of these companies -- and we're doing a lot of work in this area now around the United States and even overseas, it's called tying the market. And it's got to be just like that. I mean, they let a contract and those towers had better be up within nine, 10, 12 months, and three or four or five hundred of them in that span of time. And when you look at pouring a mat and throwing up a tower, and not even pouring a mat, and just drilling and throwing up a three, four, five, six, eight thousand foot tower, you can get one of those things up and out of there within 10 days. And that's what they look at. And if you can't throw up a tower in eight to 10 to 20 days, start to finish, they'll get another contractor. So it's a difficult business at best.

MR. JEFFRESS: Yes, it is.

MR. BURKHAMMER: Filipe.

MR. DEVORA: I'm intrigued by the comments you made earlier about SENRAC and the negotiated rulemaking process. And it came up again. You said the final version and it sounded like you had some angst about this final version. Is there anything with the final version that you have with negotiated rulemaking process, how it ended up, or anything you can share with us on that?

MR. JEFFRESS: Well, two things or observations from that process. One, I think people who went into the negotiation rulemaking, into the SENRAC, felt like once the committee agreed on what the text of the rule should be, the work was done. And I've talked with SENRAC members about the text being 10 percent of the work, and 90 percent being after that. So that created a real unhappiness that once the Committee agreed on the text that there wasn't -- we couldn't put out the proposal the next day.

And then the negotiated rulemaking law says that the Agency has the final decision, that the Agency cannot delegate to the negotiating committee the final decision. Yet, when the Agency said, well, give them what we heard at the hearing, or given our review of what SENRAC did, we believe some modifications are necessary. It was almost an insult to the Committee that the Agency was exercising any judgment. And I think that's, in terms of how we set up the next on, whether it be cranes, or whether it be ergonomics or whatever it is, there probably ought to be more discussion over what the expectations are at the outset I think would be helpful.

MR. BURKHAMMER: Michael.

MR. BUCHET: Mr. Chairman, Mr. Jeffress, in fairness to the Agency and having or still participating in the shipyard negotiated rulemaking on fire protection, the agency in our case took great pains to bring the solicitor's office in and other people to explain the process, and that though our work was voluntary and extremely well thought of, it gave you a bunch of paper which then had to be refined many, many, many times. We were asked to help create some of the information that goes into the preamble and the explanation, and we spent many discussions trying to figure out where the ownership of it was and how much the Agency would do with it.

And I think, speaking for that Committee, we probably felt a little better, though also frustrated.

MR. JEFFRESS: Right. And the time frustrates everyone. But perhaps these negotiation committees could take responsibility not just for the text but for more the preamble like you all ended up doing. And that would both take some of the burden off the Agency as well as speed the process. That's one of the things we ought to talk about with future groups.

MR. BURKHAMMER: Marie.

MS. SWEENEY: One more thing, Mr. Jeffress. My co-chair on the musculoskeletal workgroup and I would be willing to take the workgroup on the road to other parts of the country to raise awareness on musculoskeletal disorders in construction work.

Another thought just back of the thumbnail -- back of the envelope calculations. When Kevin Beauregard was talking yesterday, he mentioned that there were six fatalities in the last two years in North Carolina -- last three years. You have 50 States, six times 50, that's 100 deaths a year in the past three years. And it probably will go up if we don't do anything quickly.

MR. BURKHAMMER: Any other questions, comments? Jane.

MS. WILLIAMS: Mr. Jeffress, I want to thank you for --

[Simultaneous conversation.]

MR. JEFFRESS: Yes, indeed.

MS. WILLIAMS: [Off mic.] And I was asked to -- if I seem to be the one making the presentations to you -- this is a candid moment with you and Mr. Cooper --

[Laughter.]

MS. WILLIAMS: Aren't we cute?

[Laughter.]

MR. BURKHAMMER: Mr. Cooper?

MR. COOPER: Mr. Chairman, I have also a picture. Charles, probably I should run this through you before it goes to Swanson. It's a picture of Mr. Swanson wandering the halls of this building, I suppose, employed by you, carrying a lady's purse.

[Laughter.]

MR. SWANSON: It's amazing what they can do with computers.

[Laughter.]

MR. BURKHAMMER: That may surface somewhere down the line.

MR. JEFFRESS: I think Steve had something.

MR. BURKHAMMER: Steve?

MR. CLOUTIER: Mr. Jeffress, as fellow North Carolinian, I certainly appreciate your support of this Committee. I've been on this Committee a number of years and I think you have seen that we have demonstrated in the last three years that you've been here that we crank out the work as you noted in your earlier comments, we roll up our sleeves, we've taken on tough issues and developed sound, clear information back to the Agency. And I encourage you to continue to take that and grind it out through the process and we can see the --

The Chairman talked about the time to market on the wireless communications explosion that's going around the United States, and as you are aware, we have had some pretty ugly incidents in North Carolina and we are not the only place that that has happened. And I too support an emergency temporary standard because if we don't put a stop to it, it's going to get uglier and uglier and we're going to continue to see the fatality rate in that particular industry go up. And as you recognize in talking to some of the key players, it's time to market bang, bang, bang. And you look around Charlotte, you look around Raleigh, you look around anywhere in this country, the towers are going up and it's scary the way that they install them.

We also have problems with maintenance, repair, and painting of these facilities. The big incident that was talked about yesterday was a mom-and-pop-type operation. It was a husband, wife, son, and a friend of his son. But I don't know how we're going to get to those people anyway. We've got to do something to champion the right way of doing business, the way that these towers can be erected safely and induce the carnage that -- and I want to say that I sincerely appreciate your support to this group. I know we have put you in the hot seat a number of times, and you've weathered that, and you've come back and you continued to put us in the hot seat as well. But I appreciate that. There has been prior administrations that have not been willing to take the stances that you have, and I certainly would like to speak for myself as well as my colleagues completely. We appreciate your sincerity to making it a safe and healthful work environment for all workers and employees throughout this great country.

MR. JEFFRESS: Thank you, Steve, appreciate that.

MR. BURKHAMMER: Harry?

MR. BUCHET: Charles, it's always good to see you. And I join the others in my gratitude for your service and your support of this Committee.

There is one area that came up yesterday in the discussion by inference that it was difficult to obtain information from the FCC or from the -- well whomever it is that does airports anymore, the FAA, yeah, about getting information about planned and scheduled construction towers that they obviously have a list and a permitting process, otherwise the pilots would not know where to not go. And this is to ask through your offices that some expiration be made of obtaining that list of some -- whatever information that is out there. We're challenged by knowing where and when and somewhere in the heart of government lies the knowledge of both of those things, otherwise they wouldn't allow pilots up in the air close to them.

MR. JEFFRESS: I appreciate that comment. Surely with respect to the FAA there ought to be some long-range plans that we ought to be able to help people find out about and get a hold of.

But with respect to the FCC, I'm curious so many of the towers that I'm hearing about and seeing are locally permitted by local licensing boards or zoning boards or whatever.

I'm curious to what extent FCC might have any nationwide plan that would talk about expansion. Has anybody got any background in that area that knows for sure, Stu?

MR. BURKHAMMER: The larger, in our case anyway, in Bechtel's case, are Telecom's group receives a contract from Sprint or AWS or Nextel or Verizon or Winn or one of the many names that they go by and they are all combinations of one or more companies. And the land acquisition is done locally in the State where the towers are going to be erected. There does, however, have to be a plan submitted to the Commission to get permission to build the towers because of the waves and because of the transmission linkage. And so there is a commonality there among them all.

So, I think you could go there and get at least pointed in the right direction, if that's not the right direction.

I think yesterday one of the things we talked about when Kevin was making his presentation, and I think Mr. Cloutier brought it up, was the owners of these companies the Nextels, Sprints, Verizons and AT&Ts have you all know where they are putting these things and the know who patterns and the know the sequencing and they know the timetable. And I think it would be in the best interest of OSHA and also the owners of those companies to share with you their building patterns.

MR. JEFFRESS: Is there any concern about competitive advantage and not letting people know about the expansion plans?

MR. BURKHAMMER: The only thing we found in the trade secret part of it is in the transmission portions of it and how they are going to lay the lines and how they are going to use the transmission, or how they are going to voltage it.

MR. JEFFRESS: But where they're building where they are expanding, you don't think it's --

MR. BURKHAMMER: It's not a big issue, because a lot of times one tower, all five of the competitors will buy space on the one tower and all have their own disks on it. So, the tower is an irrelevant issue. It's the disks and the tuning and the voltage where the trade secret portions lie.

I think going to the Sprints, the AT&Ts, the Nextels, the Winns, that type of mergers would be happy to share with you where the towers are going to be built, because that has nothing to do with their process.

MR. JEFFRESS: Good suggestion. Thank you.

MR. CLOUTIER: Mr. Jeffress, the FAA gets involved at 200 feet or higher. That's when the red light has to go on in a lot of communities that set there, and having their standards that they want the tower less than that so they don't have the blinking red light, not in my backyard mentality.

I can tell you the folks that I've dealt with come in and they've got a plan and they can show you the umbrella areas where they're moving to. The Sprints the Alltels again they are going to hang three to five systems on every tower. They don't want to have five towers at one time.

I think FCC is definitely involved in twisting some arms to bring some of these players to the table, and I think you can bring some stakeholders in and say, the carnage is going out this isn't acceptable. You guys are going to get the bad PR. You've got the deep pockets and were going to go with --

MR. JEFFRESS: Okay. Thank you. Good suggestions. Thank you.

MR. BURKHAMMER: Any other questions, comments.

[No response.]

MR. BURKHAMMER: One thing I would like to leave you with, and Harry bought it up and Steve bought it up. I can speak for myself, and I've been around ACCSH now 10 years in one role or the other, and I know Mr. Cooper has been around since Moses was a pup.

[Laughter.]

MR. BURKHAMMER: And Steve's been around a little bit longer than I have. And I think when you see three Assistant Secretaries who we've been through -- four for some -- half a dozen acting assistant secretaries back in the early days of ACCSH -- I have shared this with you in the past and the other assistant secretaries -- ACCSH in the past has been somewhat perceived by OSHA as a stepchild or a burden to the Agency. And I think you've given new meaning to what ACCSH has been able to do; you certainly challenged us with some meaningful meat to produce an I think we've responded in kind.

I hope that at time progresses, and the millennium moves on, and some of us move on that ACCSH continues to grow, it will be looked at by the agency as a valuable resource, and not fall back again to where it was years ago.

And I want to thank you personally for what you've done for the Committee and how you've allowed us to grow and contribute.

MR. JEFFRESS: I'm glad to have done that. I do think that once a Committee like this establishes a practice and reputation for producing what you produce and an expectation of being involved and producing it that it will survive this particular group and will continue. I think you've set that terrific precedent for the future.

And just let me say personally to you, Stu, you're stepping in and serving as acting chairman for much longer than you or I ever expected at the outset. Thank you very much for what you done for the leadership here for this group.

MR. BURKHAMMER: You're welcome. Thank you.

Thank you very much.

MR. JEFFRESS: Thank you.

MR. BURKHAMMER: With that, let's take a 10-minute break and come back at a quarter till and maybe we can wrap up early today.

[Brief recess taken at 10:36 a.m.]

MR. BURKHAMMER: Mr. Buchet.

MR. BUCHET: Mr. Chairman, thank you. In light of the discussion and the horrendous catastrophes that we have seen and will continue to see in tower erection, my co-chair and I would like to -- this is not from the workgroup, but we would like to offer the following motion: that ACCSH recommends to OSHA that it promulgate with all possible speed an emergency temporary standard for communication tower erection to reduce worker injury and fatality.

MR. BURKHAMMER: Do I hear a second?

MS. SWEENEY: Second.

MR. DEVORA: Second.

MR. BURKHAMMER: Moved and seconded. Discussion?

MR. SWANSON: Yeah, let me.

MR. BURKHAMMER: Mr. Swanson.

MR. SWANSON: I am not interested in speaking against the motion. I would like to point out that even before there was a directorate of construction -- in fact, as far back as when SENRAC was initially meeting -- some responsible companies in the tower erection industry -- and there are some -- came to SENRAC meetings to see whether or not they could get tower erection some way shape or form included in the issue of steel erection.

They quickly ran into a brick wall or a steel wall there, and were told, no, your issues are not welcome here. They sat down and they talked with OSHA about, well, we need a standard. And they were told how long it would take to develop a standard and they said that's going to be way too long.

We are going to put up X thousands of towers in the next half dozen years, and we need some guidance from the regulatory agency as to how to deal with this and a standard would certainly help us. And how about an emergency temporary standard. And this is about 1995 or 1996 we were having this discussion and the solicitors at a time, and I think up to and including the present the solicitor's office, said you don't stand a snowball's chance of getting an emergency temporary standard through that would sustain legal challenge.

Although the conversation has been reopened here this morning, and like I say, I don't want to stifle the motion if that's what this group wishes to do, but, we also talked about expectations when we talked about negotiated rulemaking, you should have some realistic expectations. This ground has been plowed four or five years back. Again, not to say it shouldn't be attempted again, but this is not a new concept. Thank you.

MR. BUCHET: Mr. Swanson, can you give us some instructive pointers why the solicitors office said we didn't had a chance? If conditions change. I guess that's the second part of that questions.

MR. SWANSON: Well, I can do better than that. We had a solicitor present.

MR. BIERSNER: An emergency temporary standard is typically considered when we have a sudden catastrophic situation arise where there are extremely serious injuries or death. One might analogize it to an epidemic, a sudden serious epidemic that occurs. And this situation has been long-term cannot be classified as a suddenly arising situation that needs immediate control.

Now, consider this. I mean, this is an argument that we would use only if somebody petitions us for an emergency temporary standard. It is up to OSHA whether or not it wants to consider it to be in emergency temporary standard. We don't have to. If it calls it that way, that's the way it is going to be. This is the argument you use if somebody petitions you that you have to do it. And to my knowledge, no court has ever forced OSHA to, even though we've been petitioned on several occasions, to invoke an emergency temporary standard. No court has forced that condition on us, because the arguments are typically those that it was not an acute, a sudden epidemic type situation.

MR. BUCHET: The question comes to mind then, if you have a chronic condition which escalates to an epidemic is that considered sudden?

MR. BIERSNER: Yeah. If it was a low-level chronic condition that suddenly peaks, suddenly takes off.

You have to realize that the ETS, or the emergency temporary standard provisions of the law, is an unusual provision in that it only gives us six months before we've then have to come out with a permanent standard. So that characteristic in and of itself should tell you what kind of situation it was meant to address.

So, that means that we would have to engage in all of the effort necessary to come out with an emergency temporary standard, and almost immediately, thereafter, come out with permanent standard.

MR. BURKHAMMER: Marie.

MS. SWEENEY: Mr. chairman, haven't NATE and OSHA been discussing guidelines and directives for a couple of years now; which means that there's probably some language in there for rulemaking or at least the basis for language?

I think we're dealing with an issue here that if we or OSHA does not do something about it now we're going to have a lot more fatalities occurring today and tomorrow, and it is incumbent upon this group or some other group to tell OSHA that they need to do something about it and it needs to be an immediate action.

MR. BURKHAMMER: Larry.

MR. EDGINTON: Thank you, Mr. Chairman. My sense of what I'm hearing from my colleagues is that it was clearly demonstrated that there is a problem on what we have heard with respect to the continued growth of the industry both near-term been long-term. If the situation continues as is we can expect more and more reports of death more serious injuries. One of the things that has concerned me greatly is, if you look at where some of these towers are now being constructed, you know, for the longest time they were in sort of remote areas, but increasingly they are next door to you, increasingly what we see is many public entities selling access to these providers where these towers are literally now being constructed in schoolyards and other similar venues.

I think that the time is right, I think that the essence of what is been said to the agency is that this committee believes there is a strong need for. If the Agency can figure out how to do it, we think they should do it and I think that's really the intent of the motion.

MR. BURKHAMMER: Thank you, Mr. Edginton. Further discussion?

MR. RHOTEN: Could you repeat the motion?

MR. BURKHAMMER: Could you please read the motion again?

MR. BUCHET: ACCSH recommends to OSHA that it promulgate with all possible speed an emergency temporary standard for communication tower erection to reduce worker injury and fatality.

MR. BURKHAMMER: Mr. Cooper.

MR. COOPER: Mike, I'll do what you need to. Mr. Rhoten when he made his motion. Shouldn't we also? Maybe we don't have to have it in this motion. OSHA should contact, as our Chairman promoted and Steve promoted, should contact those groups that are putting up the towers and get the locations. Or do you feel that that is necessary? That's one way they will find jobs.

MR. BURKHAMMER: Mr. Rhoten.

MR. RHOTEN: Just on the question. Didn't I or did I misunderstand earlier? Weren't we informed that you can't implement an emergency standard on this basis, or did I misread that advice?

MR. BURKHAMMER: No, I think the solicitor shared with us the view of how we one --

MR. RHOTE: I guess my question is, are we making a motion on something that OSHA can't do? That's my question.

MR. BURKHAMMER: No, I don't think we're making the motion on something that they can't --

MR. RHOTEN: Can they proclament an emergency safety ordnance.

MR. BURKHAMMER: They can certainly pursue doing something in this arena.

MR. RHOTEN: Right. But can they get accomplished what the motion suggests, is my question. I guess I ought to direct that to Bruce or counsel. I'm sorry. Maybe out of the room. I apologize.

MR. SWANSON: My point earlier is that this issue has been visited in the past. I do not wish to leave anyone with the impression that I'm suggesting that we don't revisit the issue and see whether or not we can have an emergency temporary standard.

I thought when the Assistant Secretary was sitting here and heard the suggestion that he thought it was certainly worth taking a look at. I'll take my guidance from that. If he wants to look at that issue it is going to be relooked at. And after we deal with the issue of the emergency temporary and the motion suggesting that OSHA hurry up and promulgate one after we deal with the motion, we can maybe come back to talk some more about having a standard, of course. And I think that Kevin Beauregard from North Carolina would agree with this. Having a standard on the books by this afternoon is not going to do a whole lot to change the rate of fatalities in this business.

What we need is access to the construction sites where these towers are going up. And they go up so quickly as we've heard from our own chair. They go up so quickly that you have to know with precision what time of what month are they going to be on the construction site, and then you get out there and you use whatever you had. If you have a standard that was promulgated precisely for this activity we are better off than we are today. We don't have good standards for this, but we could still have a heck of an impact on the fatality rate using the standard and the tools that we have, if we can get to those jobs sites in a timely manner.

And that is something that I'd like to continue to hear from the Committee, suggestions, guidance and your best advice as to how we can do that. Several great ideas have come up here just in the last couple of days.

MR. RHOTEN: Thank you for clarification.

MR. BURKHAMMER: I think we would be remiss as a group if we didn't proceed with a motion addressing this issue. We all recognize the problems. We all recognize that people are getting killed currently and in the future if nothing is done.

And I agree with Marie's assessment. The math is pretty simple. If you had X numbers in X months, and there are five times more towers going up than there were when we've had the few that we had, if there's no changes made, we're going to have five time the fatalities. And if we sit here and all agree with that and don't do anything, I think we are remiss in our position as an advisory Committee to OSHA. Mr. Cooper.

MR. COOPER: Michael, I agree with the motion. And whether OSHA can do ETS on this issue or not is probably beyond the question. OSHA should understand and have on the transcript that the advisory committee is warning them that there are some big problems out there and they would wish that they would address the problems.

MR. BURKHAMMER: Mr. Buchet.

MR. BUCHET: Thank you, Mr. Cooper. And certainly the intent of the motion is for OSHA to use the fullness of its resources to work on this issue, continuing to work with NATE. Somebody came up an offered to me yesterday that there is an ANSI standard on. I believe it's cooling tower erection that might have some possible translation in this arena and investigate all possible avenues.

Is it the sense of my second that we should change this in any way or are we perfectly happy with leaving it the way it is?

MR. SMITH: Can I ask --

MR. BURKHAMMER: Owen.

MR. SMITH: Is it you just want OSHA to do whatever it is that they can do as fast as they can? Is that the issue?

MR. BUCHET: That's it, but that is so broad.

MR. SMITH: But we understand that their hands are tied to some extent, but you want them to do whatever they can do as fast as they can do it.

MR. BUCHET: Unfortunately if we make a motion like that we simply --

MR. SMITH: Well, you have your motion but that is the intent of the standard.

MR. BUCHET: Yes.

MR. BURKHAMMER: Maybe if you broadened it a little bit to say, emergency temporary standards, OSHA, directive, or equivalent to address the issue.

[Simultaneous conversation.]

MR. BUCHET: Local emphasis and national emphasis.

MR. BURKHAMMER: Yeah, something like that. I'll give you a few minutes.

MR. BUCHET: Give me a few minutes and this motion is going to be --

MR. BURKHAMMER: Okay. We'll move on to Jane, and the next agenda item which is the ACCSH committee procedures and guidelines.

MS. WILLIAMS: Thank you, Mr. Chairman, for adopting this next item. That was a joke. You all have in your packet the revised, revised, revised guidelines that we have changed the title now to procedures and guidelines for ACCSH.

I'm assuming you have all read it, so I am only going to highlight for you a couple of items that changed from the fax that you received about a week ago. And I would also like to clarify in your original document there was the clarification document 29 CFR 1912 that was attached to it. You should put that item with the current one that you have received in your packet. If anyone need an additional copy I'm sure Mr. Boom, or myself, would be glad to get that for you, but you already do have one.

From the original one that was faxed to you about a week ago, the items that have changed briefly or have been added, if you would look at page 2, ACCSH meeting, (B) Welcome. We added a copy of Robert Rules of Order, newly revise, be at the meeting. And Mr. Boom does have that so that will be taken care of.

We clarified under typical agenda that the Chair will declare the time to reconvene her public notice, which is what you document reads. We took out "that the Chair cannot change the time." It's not relevant whatsoever. Probably noticed the intent is that whatever it says is what we are going to reconvene at.

On page 3, there is a heading you'll see, meeting responsibilities not else where referenced. There was the question about these items contained here and repeated on other areas so that that heading should take care of it. In attendance, the Assistant Secretary or his or her designee shall grant, we say will grant the request provided for the reason for absence.

There was a paragraph that stated, "At the discretion of the Assistant Secretary, the number of requested proxies for any particular meeting will not be so numerous as to impede materially the deliberations of the advisory committee. That's been stricken. There are other issues in here that states that he has the prerogative of postponing a meeting, visiting with the designated federal officials, so that takes care of that that issue.

Mr. Cooper is telling me that what was passed out to you do not coincide, so I'll just give you some headings and you guys can read it. We deleted that also, because under our system if a member gives their proxy to another member then the voice is at the meeting so they would in fact be a quorum for the voting purposes. So it really truly was not a relevant item.

There was a couple of changes typographically, if you will -- I'm not going to go into those -- and one other change under workgroup meetings where we stated that prepared notes may be placed on the ACCSH web site so forth. It just now reads prepared notes, reports, et cetera, there are various documents that could possibly could go on the site.

With meeting preparation for the directorate of construction we just inserted that one of the responsibilities the directorate which they are doing, arrange for the location of ACCSH meetings and workgroup meetings when requested by the workgroup chairs.

And throughout the documents the DOC will confirm that date time and location via their appropriate means of doing that.

In the introduction package for new members we had the word layout of Department of Labor buildings. It came to my attention that "layout" has a different meaning to some folks than what a construction meaning in my mind was. So we just have a general overview. We weren't asking for a plan that somebody could figure out how to blow the building up. We just wanted a map of what was north and south, so that has been change.

And the process for air travel used to say hard ticket, or e-ticket, there's no longer a choice when you fly for these meetings you will use an e-ticket, so that was changed. And also under the Office of Public Affairs we deleted the paragraph that states, "ACCSH members will return to the Office of Public Affairs any ticket or travel authorization that is not used as a result of a canceled meeting or refund process." That was already stated under the ACCSH member travel, so, it really wasn't relevant to repeat that again.

So, the I believe that included all of the comments and it's in the final form in front of you. I would like to thank those of you who helped me, responded back with the comments. It has been a two-year process also and I would like to thank my co-chair, Mr. Cooper, as well and Mr. Swanson, for those very last issues that we will be talking about.

Mr. Chairman, I move the adoption of the guidelines as distributed in the packet.

MR. COOPER: Second.

MR. BURKHAMMER: It's been moved and seconded to adopt the guidelines. On the proxy issue the question has come up I think we need to address, and that's if a member gives his proxy to another member he's giving that proxy so that member can either vote or discuss on any issue or any item in the absence of the person who gave his proxy. We had a situation a while back where an individual had to leave early and he gave his proxy to another member only to vote on a specific motion instructed him how to vote on the motion. That is not a proxy.

So, I think when we look at the terms in here that you used, D request that another ACCSH member representing the same interests be permitted to proxy vote on matters. Maybe we need to expand that a little bit because the proxy covers more than just voting.

MS. SWEENEY: I asked that of two parliamentarians and I was told -- and certainly our solicitor may help me here -- but the response from each of those independently was that a formal proxy conveyed in appropriate manner would in fact allow the voting person to vote either on all issues for that meeting of attendance or it could be instructed as a particular way of voting on an item.

So, that's why I worded this in the manner that I did. If that is certainly not correct, sir, I'm talking with our solicitor. You can offer that and I will change in again.

MR. BURKHAMMER: One thing I was thinking about, Jane, is a quorum. If we have eight people and one leaves to give us seven, but gives his proxy, does that still count as having eight people?

MS. WILLIAMS: I was told by these two, that's the question I had asked because we were so concerned about a quorum and I was told that it did constitute a quorum. So, again, asking for clarification from you guys.

If it cannot, then we need to say a quorum of those present and voting which is what we do not say.

MR. COOPER: You've got me down here as co-chairman and I want to point out that Jane did all the work on this. In case there's anything wrong, it's her fault.

[Laughter.]

MR. COOPER: I would suggest though on a quorum to the counsel, to my knowledge, in this area a proxy cannot be utilized to make up a quorum. But as far, as I know a proxy can be utilized, given under the proper procedure to another member for any or individual use. For instance, if a motion was made such as we just made on towers, and the person who gave the proxy was not here, how would he know how to instruct the other person on that how to vote? So my knowledge of the issue is that a proxy cannot be used for a quorum and a proxy can be given to another member and request the other member to vote on one particular issue or all particular issues.

MS. WILLIAMS: Mr. Chairman, that was the intent. If you'll notice, we took out the reference to quorum and we did not address it because I was of the opinion that that was included in 1912. But I can't remember that. So either we need to insert the issue of a quorum and address the fact that the proxy would not contain it, but that the proxy and the person present could vote on all matters. And that I am pretty comfortable, as Mr. Cooper says, is in Roberts.

MR. BURKHAMMER: Might I suggest to Jane and Steve that -- and I think what is muddying the water here is permitted to vote. Why don't we just refer to proxy as is written Roberts Rules of Order and let the Roberts rules declare right, wrong, indifferent.

MS. WILLIAMS: Okay.

MR. BURKHAMMER: So if we could take out and just say, request that another ACCSH member representing the same interest have the proxy, per Roberts Rules, in brackets. Can we do that?

MS. WILLIAMS: We can do that with one clarification. Roberts would address the proxy vote process on the matter, but it wouldn't say "representing the same interests."

MR. BURKHAMMER: No. I said leave that in.

MS. WILLIAMS: Leave that?

MR. BURKHAMMER: Yes, leave that in. Because I'm not too sure Mr. Cooper would give his proxy to Mr. Cloutier if there was some "iffy" items come up during --

MR. CLOUTIER: But we have done so in the past.

MR. BURKHAMMER: That would give a labor vote to management. But anyway.

MS. WILLIAMS: I will revise that paragraph according to Roberts.

MR. BURKHAMMER: Okay.

MS. WILLIAMS: My second question then would be, being as I am going to do that, do I want to also address Roberts statements regarding a quorum?

MR. BURKHAMMER: You know, we have been awful touch and go here recently because of the number of members that have dropped out. And quorum has been an issue about the last four meetings. So, Jane, maybe if you could, maybe we should have a section on quorum.

MS. WILLIAMS: Well, it could very easily fall under attendance and we could just address the issue.

MR. BURKHAMMER: You could just address it there. That's right.

MS. WILLIAMS: And what I think I might do is call our solicitor and ask for his guidance in writing that quorum language based on 1912, which is what charters us to begin with because I wouldn't want to word any conflict.

MR. BURKHAMMER: I think that would be fine.

MS. WILLIAMS: Or Mr. Swanson, I'm sure, would help me.

MR. BURKHAMMER: Based on Mr. Jeffress' comments this morning about the reconstitution of the advisory committee prior to the next meeting, I think we are going to need this document to pass out to those new members. So if there are not objections from the Committee I would recommend that we pass this without objection with Jane's amendments to it that we talked about, the quorum and the Roberts Rules, and then pass it on to Mr. Swanson so when the new members come on at the next meeting we have a document to give them.

Larry?

MR. EDGINTON: One thing I was wondering about. If the document talks about activities that occur within workgroup meetings, but it says nothing about how a workgroup is created or constituted, and I was wondering if it would be appropriate to simply add a statement under responsibilities of the chair to appoint workgroups?

MS. WILLIAMS: Larry, we took that out of one of the original drafts because that was addressed in the 1912, I believe. It states that you will have subgroups --

MR. BURKHAMMER: Could use. Yes.

MS. WILLIAMS: Yes.

MR. BURKHAMMER: That's why we took it out, Larry. Steve.

MR. CLOUTIER: Jane, you and Steve have taken many painstaking hours to develop this document. I think we have by oversight missed one thing under the ACCSH member travel, and we talked about prompt reimbursement.

[Laughter.]

MS. WILLIAMS: I'm not going there.

MR. CLOUTIER: One definition somewhat closer to less than six months, nine months, or a year -- within 60 days?

MS. WILLIAMS: Steve, I asked that of public affairs and my response was that this committee could not or should not put time elements in their document to control functions of other government activities.

MR. CLOUTIER: Well, maybe we can have a separate 8(a) that says float or tote the note.

[Laughter.]

MR. BURKHAMMER: Marie?

MS. SWEENEY: Mr. Chairman, I believe it's federal regulations that reimbursement is within 10 days of submission of the travel voucher. That is the way in our agency.

MS. WILLIAMS: That would mean, Mr. Swanson, the office is going to jail very quickly.

MR. SWANSON: I'm sorry. What did I miss?

[Laughter.]

MR. SWANSON: That one sounded important.

[Laughter.]

MR. BURKHAMMER: Marie, would you bring that up again?

MS. SWEENEY: There is a federal regulation, at least in our agency -- there at least is an Agency regulation that all travel vouchers must be submitted within seven days of travel return, and then the voucher must be reimbursed within 10 days of submission to the travel -- to whoever is doing the voucher. So I recommend -- I don't know what the Department of Labor -- their official stand on it is, but I would think we probably should adhere to those. It should be closer than six months. I would even think within 20, within 10 day, probably that too.

MS. WILLIAMS: If Mr. Swanson could clarify or find that out and let me know quickly, I will put it in. I know -- and I don't mean to say it's the director's office that was doing this, but I received my air reimbursement one year and one month after an activity occurred and then I was paid twice. So if there is an issue --

[Simultaneous conversation.]

MR. SWANSON: Which part are you objecting to?

[Laughter.]

MS. WILLIAMS: I had to write a check and do a lot of additional activities to repay that, which was very interesting. So if that could be clarified by someone to me, I would be glad to put that in. But I don't know that --

[Simultaneous conversation.]

MR. BURKHAMMER: Mr. Cooper.

MR. COOPER: Since this committee is formed under the Construction Safety Act and other asundried regulations, Mr. Counsel, do we fall under Roberts Rules of Order?

MR. BIERSNER: I really don't know. I mean, I don't see any reason why you should have to fall under Roberts Rules of Order. You can adopt them. But there is no federal regulation that requires you adopt Roberts Rules of Order.

MR. SWANSON: Nor is there one that prevents you from adopting Roberts Rules of Order if that's what you --

MR. BURKHAMMER: Most chairpersons of any committee should be running that committee meeting on Roberts Rules of Order.

MR. SWANSON: They're vague enough that they work.

MR. BURKHAMMER: Yes, they are.

Okay. We have a motion. We have a second on the table regarding the acceptance by ACCSH with the amendments we've discussed today of our committee procedures and guidelines. Is there any further discussion?

[No response.]

MR. BURKHAMMER: All in favor of moving this forward after Jane makes the corrections that we discussed today signify by saying aye.

[Chorus of ayes.]

MR. BURKHAMMER: Opposed?

[No response.]

MR. BURKHAMMER: So moved. Jane, if you would just make the corrections and then forward it on to Bruce so we can have it for the reconstitution of the committee by Mr. Jeffress.

Mr. Buchet?

MR. BUCHET: Very briefly, with heartfelt thanks to my colleagues, Mr. Rhoten and Mr. Cooper, I would ask that my second on the previous version of the motion for an emergency temporary standard on tower erection be withdrawn so that we can amend the motion or rewrite it?

MR. BURKHAMMER: Marie?

MS. SWEENEY: Second.

MR. BURKHAMMER: Second withdrawn. Okay. proceed.

MR. BUCHET: Then we would like to make the following motion. ACCSH recommends that OSHA place a communication tower erection standard on its regulatory agenda as a top priority and speedily exercise its considerable array of options to address the rapidly escalating work/injury/fatality rate as well as number in this booming industry.

MR. SWANSON: That's a lot better.

MR. BUCHET: Thank you for the help.

MR. BURKHAMMER: Do we have a second on the motion?

A MEMBER OF THE ACCSH COMMITTEE: Second.

MR. BURKHAMMER: Motion seconded. Discussion? Mr. Cooper.

MR. COOPER: I was listening you say "in this industry." You mean in the tower industry?

MR. BUCHET: Yes.

MR. COOPER: I mean, it's apparent?

MR. BUCHET: Yes.

MR. BURKHAMMER: Any further discussion?

[No response.]

MR. BURKHAMMER: All in favor of the motion as read and seconded signify by saying aye.

[Chorus of ayes.]

MR. BURKHAMMER: Opposed?

[No response.]

MR. BURKHAMMER: Motion approved.

Michael, please submit that --

Mr. Swanson?

MR. SWANSON: Yes. Thank you, sir. I would just like to share with the committee a couple of significant additions to DOC. And I think after the discussions of the last half day they don't come as a surprise, but I would like to go on record with them anyhow. And pardon me if these sound like wedding announcements, but I will read them rather than just do it off the cuff.

OSHA director of construction is pleased to announce that we have recently brought Mr. Bill Smith aboard as safety and health specialist in the Office of Construction Services. Mr. Smith is a crane and heavy equipment operator with 23 years of construction experience and knowledge in all aspects of the industry.

For the past eight years, he has served as the safety director and subsequently as the construction training director for the International Union of Operating Engineers. As chief lobbyist for the building construction trades in the State of Maryland, Mr. Smith worked with legislator and regulators to develop and pass bills and standards to protect workers.

Bill is a member of several national committees instrumental in developing construction industry standards and guidelines, including the ANSI B-30 for cranes and A-10 committee for safety standards in construction.

He served on SENRAC as well. We are going to forgive him for that.

Bill is a Commissioner with the National Commission for the Certification of Crane Operators and in fact is a former member of this body, ACCSH.

Mr. Smith's construction world experience and construction contact on a national level we feel will be strong assets for DOC.

And another one that we haven't heard as much comment on from the members of this panel, also an addition just this past week, is Dr. Richard Reinhart. And Rick Reinhart has completed his doctoral work at Harvard School of Public Health over the last four years focusing on occupational epidemiology.

During this time he designed and conducted the first phase of an epidemiological study among road pavers and roofers exposed to asphalt.

From the initial design phase of the project through its implementation he worked closely with labor and industry representatives at the international and local levels to make the study possible. He has contributed to the efforts of other researchers and policy activities related to asphalt within academia and other governmental agencies, most notably NIOSH.

Rick previously attended Harvard from '90 to '92 as a masters student in industrial hygiene and became a certified industrial hygienist in '93. He has worked with NIOSH in Cincinnati, and HUD, and EPA on lead hazards in construction and residential housing.

He hopes that in his new role as an epidemiologist within DOC he can continue to building on those relationships with individuals and groups outside of OSHA interested in uncovering the factors that increased the risk of fatalities, injuries, and diseases associated with our construction industry.

We welcome both these additions to DOC and hope that the ACCSH group recognizes our continuing efforts to build upon our expertise base.

MR. BURKHAMMER: Thank you.

Speaking on behalf of Bill Smith, about five or six years ago Bechtel was working on rebuilding some of its safety and health program elements, and we invited Bill Smith to come and help us from a labor perspective to do that and present some real world -- some of us haven't been in the field for a while, so we needed somebody that knew what it was really like to work and so we brought Bill in. And he was a terrific addition to us. He added a lot of value. Some of the products that he helped us put out on the street are still there today, and we really appreciated what he could do. So I think he's going to be a big addition to your staff and, again, bring some real world expertise to you that will help you guys in your efforts.

Jane.

MS. WILLIAMS: Mr. Chairman, if I could just briefly read something I think it will answer all of our questions we had a moment ago. I just found where the language came that's in here was taken from, so I think we should stay with it. And this is in the 29 CFR 1912 on the Advisory Committees. It addresses the attendance by members and it addresses a quorum. So I think what I should do is just copy this.

On the issue of quorum it states: "A majority of the members of any advisory committee, including the Construction Safety Advisory Committee, shall constitute a quorum so long as there are present at least one member who is a representative of employees, and one member who is a representative of employers. In the absence of its Chairman, the Committee may designate a member to preside at any meeting thereof. So that establishes -- this is the 1912 that was given to me by the solicitors as the guideline to put in our guidelines, so we had not conflict, and which governs all advisory committees.

MR. BURKHAMMER: I would put it in as written with reference.

MS. WILLIAMS: I will do that. And then on the issue of attendance. Again, it's quite clear. It says: "Any person appointed by the Assistant Secretary to an advisory committee has a right to be present at any duly-called meeting. If a person representing the interest of employers, employees, or the States is unable to be present at a duly-called meeting, he may notify the Assistant Secretary or his designee and request that another member of the committee representing the same interests be permitted to vote in his place on all matters coming for the advisory committee" -- excuse me -- "on any matter coming before the advisory committee in that particular meeting. The request may be oral or in writing and shall be accompanied by a statement of reason for the anticipated absence.

"The Assistant Secretary or his designee shall grant the request whenever he is convinced that the reasons for absence are valid and that the number of request proxies for any particular meeting will not be so numerous as to impede materially the deliberations of the advisory committee." So that's where that language came from and I think I should put that directly back in as stated here.

MR. BURKHAMMER: I agree. Copy that with reference.

MS. WILLIAMS: Yes. And this document I will make sure is attached for Mr. Swanson to distribute with our procedures and guidelines that would refer to this -- the federal document.

MR. BURKHAMMER: Bill. Steve, nothing; Jane. Nothing. Okay. Marie.

MS. SWEENEY: In reference to what Mr. Swanson was saying, I want to thank the DOC for all the time and effort that have put into getting an epidemiologist on staff. Because I know it's been a hard haul over the last couple of years, and I think the addition of Rick Reinhardt who did work for NIOSH for a couple of years will be a very valuable addition to your staff, and might I add, any assistance that you need from me as an epidemiologist, I would be more than happy to help. But we appreciate your effort.

MR. SWANSON: And I appreciate your comments, Marie. And it was quite easy to do actually. But it was three years, not two years.

[Laughter.]

MR. BURKHAMMER: Larry?

MR. EDGINTON: Thank you, Mr. Chairman. I guess I've had good news and bad news over the last couple weeks starting with the bad news and that was Bill Smith leaving our organization. The good news relative to that was he went to a place where he can still make a real difference in terms of workplace safety and health. The other good news I had is your hiring of Rich Reinhart which I didn't learn about until earlier this week.

I've had the very good fortune to work with Rick over the past couple of years in the Harvard School of Public Health and some research projects we've had involving Rick. And his commitment to worker safety and health, if you know Rick, you spend time with him and you learn of his activities, not just here in the United States, but other parts of the world. He is really a good guy. He has worked a lot with our local forum in Boston. And Rick and his crew, if you can believe this, they convinced our members to pee in bottles and let them take blood out of their arms at 5:30 and 6:00 in the morning alongside the road. I mean, he's really a great guy and I congratulate him on that. It's the right thing to do and, two, you've got a great guy.

MR. SWANSON: Thank you, Larry.

MR. BURKHAMMER: The last thing on the agenda is to plan the first meeting in 2001. So I would like to go ahead and pick the dates for that. I've talked to Charles and he said it's appropriate that we go ahead and do that even though some of us may not be at that meeting, but we can certainly pick the date of the meeting. So, if you get your calendars out.
PLANNING SESSION

MR. BURKHAMMER: We picked the last time we were here and for those of you who missed it, --

MR. BUCHET: Mr. Chairman, would it be appropriate to think about early February because the Construction Safety Council conference in Chicago, Rosemont? It's earlier this year than it has been in many other years. It is like in the first week of February.

MR. BURKHAMMER: Okay. Let's hold that for a minute. The December meeting is the week of December 4th. Committee meetings 4th, 5th, 6th, ACCSH 7th and 8th here at the Department of Labor. Hopefully we won't get bumped, but we got bumped to a very nice place with Starbucks coffee, donuts, soft drinks, and cookies. So if the director of construction wishes to continue to have our meetings outsourced outside the Department of Labor, we would certainly be more than happy to --

MR. SWANSON: For the record, it's still a mystery to me how that coffee ever showed up.

MR. BURKHAMMER: Michael? You said early.

MR. BUCHET: Yeah, I've got to look for the exact dates, or I can make a phone call or you can just approve it in principle and we'll get you the dates unless people are already --

MS. WILLIAMS: What month are you talking?

MR. BUCHET: February 2001.

MR. BURKHAMMER: If you remember, this year the Committee met in conjunction with the Chicago Safety Council.

That's a good point. We could look at Charleston and meeting at the UA training center, and we could take a look at the welding processes for --

MR. RHOTEN: We would be happy to arrange that or at least getting everything set up for that. I think that would take a day to go to the school if the whole Committee was interested in looking at that demonstration.

MR. BURKHAMMER: I think Charleston in March is a little better than Chicago in February. Maybe it's just me, but --

MR. RHOTEN: No, it's not.

[Laughter.]

MR. RHOTEN: Charleston in March is just fine.

MR. BURKHAMMER: Any other offerings?

[No response.]

MR. BURKHAMMER: The only problem with March it moves us kind of -- we've been doing the first meeting January-February, but we are going to meet in December, so March is okay.

MR. RHOTEN: I would also suggest that we've got a training center that is equally equipped in Palm Springs.

[Laughter.]

MR. RHOTEN: That is true enough. So we would be happy to set the same demonstration up in Palm Springs, California, or just a few miles out of Palm Springs. And we could do that in January, February.

MR. BUCHET: And we can try and find a government rate at the Carpenters Resort Hotel out there.

MR. RHOTEN: There you go. We could actually get some very good rates there. I think from Palm Springs its probably an hour or 45-minute ride to our training facility. We would be happy to do that.

MR. BURKHAMMER: We're getting warmer.

MR. BUCHET: We also could talk to the carpenters about maybe getting some millrights to show you how you weld with a ballpeen hammer.

[Laughter.]

MR. BURKHAMMER: What about if we look at the week of March 5th?

MR. RHOTEN: In Palm Springs? I'm actually serious.

MR. BURKHAMMER: I have no hang-up with Palm Springs if nobody on the Committee does. Hearing none, I think Palm Springs sounds like a good request. We can request that of Charles like we did Hawaii a few years ago and got turned down. But I think Palm Springs gives us a better option. We have a reason for going. The hexavalent chromium workgroup would be the big benefit there, and we could also put on the other workgroups out there like we did in Chicago this year. And I think we could get some takers from the California/Arizona area.

Why don't we put that in as a suggestion. The week of March 5th, Palm Springs, at the UA training center. Bill, if you could make some arrangements, or, Michael, if you could look into a very low hotel rate at the Carpenters Resort and Golf Center.

MR. RHOTEN: When we work out the details, I think it might be helpful if we figured out some kind of a van or transportation probably from Palm Springs to the training facility. And then we can set up lunch out there and the whole thing.

MR. BURKHAMMER: Well, in Chicago, didn't we have some kind of arrangement made to take people to the training center that wanted to go to DesPlanes? Right?

MR. RHOTEN: Yes.

MR. BURKHAMMER: That worked out, right?

MR. RHOTEN: Right.

MR. BURKHAMMER: A little mini-bus or something. I think Jim did a great job of supplying transportation in Chicago.

Okay. The week of March 5th, Palm Springs. Bill, if you and Michael could let me know as soon as possible the arrangements so I can get them in to Bruce.

MR. BUCHET: Would you like to fall back to Chicago if --

MR. BURKHAMMER: Yeah, I think the fallback would be Chicago.

MR. BUCHET: It's the week of February 5th.

MR. BURKHAMMER: February 5th.

MR. BUCHET: Which promises to be warmer. But I'm not giving you a reference point.

MR. BURKHAMMER: March 5th we have a conflict with one of the big associations conventions. So let's take a look at the week of March 12th.

So the week of March 12th. The week of the 5th, Michael? In Chicagoland, Chicago.

Okay. I asked yesterday if there was any public comment. We had one person that wished to comment, but he's not here. So, if there is anybody present that would like to comment, I'll be happy to entertain you doing so.

[No response.]

MR. BURKHAMMER: Seeing no hands, that means there is no public comment.

With that, I think our meeting is completed and our business is finished. I want to thank you all very much for all the work you've done this week and hope to see most of you back in December. If not, it's been great working with you.

[Whereupon, at 11:40 a.m., the meeting was adjourned.]