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U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)

VOLUME 2

Room C-5521
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C.

Friday, September 3, 1999

P R E S E N T

Advisory Committee Members Present:

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

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

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

Felipe Devora
Safety Director
Fretz Construction Company

Owen Smith
President
Anzalone & Associates

Harry Payne, Jr.
Commissioner
North Carolina Department of Labor

Danny Evans
Chief Administrative Officer
OSH Enforcement Division of Industrial Relations
Nevada Department of Business and Industry

Jane F. Williams
Safety & Health Consultant

Michael Buchet
Construction Division Manager
National Safety Council

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

Advisory Committee Members Not Present:

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

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

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

Robert Masterson
Manager, Safety and Loss Control
The Ryland Group

Staff Present:

Bruce Swanson
Sarah Shortall
Bob Biersner


 
A G E N D A
AGENDA ITEM: PAGE

Musculoskeletal Disorders Document
227
Construction Certification and Paperwork Reduction Document 269

Remarks
Charles N. Jeffress, OSHA Assistant Secretary
288

ACCSH Business
334
P R O C E E D I N G S

8:05 a.m.

Musculoskeletal Disorders Document



CHAIRPERSON BURKHAMMER: We are two minutes late.

We are going to start this morning with the MSD document. So if the committee would take out their marked-up copies that they marked up last night.

(Pause)

CHAIRPERSON BURKHAMMER: The co-chairs of the workgroup asked for them.

VOICE: You've got the soft chairs today.

CHAIRPERSON BURKHAMMER: Yes, nice and comfortable.

(Pause)

CHAIRPERSON BURKHAMMER: What I would like to do is once the co-chairs get their motion developed, we will start with Larry and ask each member if they have any comments or questions of the workgroup chairs.

So if you would just hang in there a minute, Larry.

MR. EDGINTON: I don't have any questions. I guess my comment would be is that I impressed by the work. I think it is every bit of everything we had hoped for and perhaps then some. And I can only congratulate them on the good work that they did.

CHAIRPERSON BURKHAMMER: Thank you, Larry. I appreciate that.

Danny.

MR. EVANS: I have nothing to say. No comments, Mr. Chair.

CHAIRPERSON BURKHAMMER: Jane.

MS. WILLIAMS: Well, I also am very impressed with the work. You can see that there has been a great deal of time, effort, and thought process going into the entire document.

I still have to just go on record that I am extremely cautious that this document is going to be used as examples for enforcement practices.

I acknowledge that it has been stated that it would not. I am wondering if there is any way to put something in, an intro to this document that it is very clear that that would not happen.

So again, I think it is a great effort. I think it is certainly going to help the worker, but I do have to say I have extreme caution in this document going through the Department and being misrepresented at some point in time.

(Pause)

CHAIRPERSON BURKHAMMER: Thanks, Jane.

I think there is a lot of people on the committee that share your comment that it does -- its use is an information usage. And that is why the line 1819 part of 20 was put in there. We will let the chairs respond to your questions.

(Pause)

CHAIRPERSON BURKHAMMER: Michael and Marie, Jane reinforced the concern that she has. And I think she speaks for a lot of us that it does -- this document does become an informational document in a form of a brochure, a pamphlet or something like that that OSHA has generated in the past and not be construed or used by the agency as an enforcement tool.

Would either of you like to respond to that?

MR. BUCHET: In a couple of ways. One is as you, Mr. Chairman, mentioned yesterday, the introduction was a collective effort from the workgroup which certainly sends the message that this is to be an informational product or series of products. And we describe the various possibilities of the series of products.

The second thing is as you will see in the motion itself, the lead off is that the materials and these meeting notes go to OSHA as the foundation for the document that will be created which is to be an informational product or series of products.

I do not know how else we can do that except further along, as you will see, we move that OSHA continue to work with the workgroup to -- in partnership as these things are being created.

And I trust that the workgroup will certainly make sure that the message gets delivered at the meeting that should be informational and not enforcement.

Thank you.

CHAIRPERSON BURKHAMMER: Mr. Devora.

MR. DEVORA: Mr. Chairman, I would also echo those comments from my colleague here about the quality of the work product that these two folks have put together for us.

Last night in reviewing this, I kept having issues and questions raised that I said, you know, this is just something that we can't -- that I personally could not just, you know, deal with overnight or in a few hours at night or a few hours this morning.

But out of respect for my colleagues that worked so hard on this, you know, I wrestled the issue of whether or not to make a motion to table this for the next meeting.

That would have been my first choice, but I don't know that that is going to happen. But out of respect to them, I am not going to do that because they worked so hard on this.

But I do have some problems. And I think it is obvious to everyone in this room that was here yesterday and saw the gentleman that did the Strategic Plan that OSHA has already revised their Strategic Plan based on an appropriations that was -- an appropriations rider that was removed.

So there is no doubt in anyone's mind. And I do not think anyone in this room is naive enough to think that OSHA is not going to proceed with a standard on this issue.

And I hate to see this work product turn into something else.

It is obvious that they are going to do it. There is no question in my mind. I would just hate to see the informational and educational work that this group has done to become something else that is not going to be user friendly, that is going to get a lot of flak from a lot of folks.

And I just really fear that they are going to miss -- take a good thing, an educational product and they are going to put the standard stick behind it. And it is going to cause all kinds of problems.

Because I can assure you in my mind, this is one of those issues that if OSHA parks in front of the paint shop, they are going to open it up on Sunday night. And they are going to paint this bad boy. And it is going to come back to us as a standard.

CHAIRPERSON BURKHAMMER: Thank you.

As the committee knows, ACCSH is charged to produce documents from workgroups and vote on those documents and pass them onto OSHA to do with as they see fit.

But I think the way the motion may be presented and the wording in the document clearly sends a message that the committee totally supports this product to be an informational document and not an enforcement document.

But once it leaves our hands and goes into their hands, it becomes their product. And they can do with it as they see fit.

Michael.

MR. BUCHET: Mr. Chairman, I recognize the nervousness here at this meeting and can only say that it was thoroughly discussed in the workgroup.

The introduction, again, as you said yesterday, states clearly what the workgroup felt should be the limits of the use of what we are turning over to OSHA.

But in addition to that, OSHA has made no bones about its desire to go ahead with ergonomics. And as unsettling or as abrasive as the presentation was yesterday, so far that signal has said that they were going ahead, we are not going ahead with construction for the following reasons. And many reasons have been enumerated.

What this, what the workgroup's product provides and what I hope the motion would send onto OSHA is a chance for the industry to send some very strong substantive signals to OSHA on how far it should go with construction, that we appreciate the partnership effort, that the industry is committed to reducing whatever these injuries and illnesses are, but that we do not want to get stick in an enforcement quagmire.

I think to do nothing is not going to stop OSHA from going ahead. What doing nothing will do is allow OSHA to go ahead without any guidance from the industry.

CHAIRPERSON BURKHAMMER: Thank you, Michael.

Marie.

DR. SWEENEY: I just want to ask, it will allow OSHA to go ahead without guidance from ACCSH. And people who understand and know construction and understand and know musculoskeletal disorders.

CHAIRPERSON BURKHAMMER: Owen.

MR. SMITH: Well, I was at the workgroup. And I thought that the statement that was made, the draft was pretty much something that we had agreed to and that it would be good if this goes forth as an informational type thing.

I think at least as a painting contractor, we don't want anything that is going to harm our people. In fact, we are looking for ways to make things easier.

And generally what happens to me these ergonomics things and that seems to be a bad word for it, really end up as being labor saving devices.

And if you look at our industry, that is what happens. We kind of brush and it was easier to put it on with the roller. And we would roll it. And then, it was easier to put it on with the spray gun. And we used to climb up and down ladders. And it is a lot easier to use the pole, you know.

For us, it is looking for an easier way to do our job. And we really do not want anybody to be too hard. But the problem that I have with the ergonomics issue and in fact if it ends up as a regulation or a rule of some kind is the cost because on my best day of an 8-hour work day, we get about six hours.

And if you look at every regulation that has come out of here, we have always come up with another guide that is not working, you know.

You got a competent guide for this and a rule for that and a competent guide for that. And if you put all that together, I wonder if maybe we will be down to four hours.

And I know that generally when the government knows things, you know, they look at it as a stand-alone issue, but for the guy who writes a check, these things are cumulative. And they take a big chunk out of that dollar.

And when the day is done, you don't have much left. And that is the thing that bothers me more than anything else.

The other issue is my guys are going to find the easiest way to do the job. That's simple. And if it hurts them, they are not going to do it, you know.

We used to put the stuff on, you know. I did personally. And I just don't like to work hard. I will find the easiest way to do it and so does everybody else.

And having said that, I'll stop.

CHAIRPERSON BURKHAMMER: Thank you, Owen.

Hearing -- Michael.

MR. BUCHET: Mr. Chairman, in the packet that we hope to send onto OSHA are the workgroup meeting notes.

And I'm just going to read this to show that a number of people, contractors as well as a number of others discussed the same consideration that Owen has just gone over.

And the notes read, a crucial consideration for OSHA and for use of these concepts in this brochure is to focus on real life financially, practically doable suggestions.

So we made an effort to capture all of these concerns and transmit them in these documents to OSHA.

Thank you, Mr. Chair.

CHAIRPERSON BURKHAMMER: Thank you, Michael.

MR. DEVORA: Mr. Chairman.

CHAIRPERSON BURKHAMMER: Felipe.

MR. DEVORA: Mike, I understand those comments, but going back to what Owen said, I think we are talking about a condition that exists. And it seems to me that once again we are rolling towards monitoring human behavior.

And I think that the only way as an educational tool that this is going to work as an awareness tool.

The folks that -- and I'm talking about enforcement here because obviously in whatever form or shape it takes, the standard takes, once again they are going to be trying to force or regulate human behavior again.

And I just don't see the mandate of regulating the science of ergonomics in construction.

Owen touched on it. It is things that we have been as contractors and employers worked very hard all the time, at least the employers that truly care about the safety of their workers.

Now, if we think that we are going to in some form or fashion -- our efforts should be in some form or fashion to educate those that aren't on that bandwagon.

And if you think enforcement is going to mandate it, I think we may be in a situation where the cure, the big stick is going to be worse than the option of education.

CHAIRPERSON BURKHAMMER: Thank you, Felipe.

Prior to the motion, is there any other comments?

(No response.)

CHAIRPERSON BURKHAMMER: With that, I will turn it over to Marie and Michael to make a motion.

(Pause)

DR. SWEENEY: I think as long as I can --

(Laughter)

DR. SWEENEY: Can you hear me if I turn my head?

We move that OSHA produce informational products, incorporating materials from the document titled "9-1-99, Preventing Musculoskeletal Disorders in Construction Workers" and that the products be in the format described on page 3 of 4 of the Musculoskeletal Workgroup notes dated 8-31. And you have that in our packet.

This is a four-part motion. Please bear with us.

Second, that OSHA follow the other recommendations outlined in the notes, Musculoskeletal Workgroup dated 8-31-99.

Third, that OSHA in collaboration with the workgroup complete and disseminate the products in the next calendar year.

And fourth, that OSHA and the workgroup continue to solicit and collect additional input from stakeholders and the Musculoskeletal Workgroup.

End of the motion.

CHAIRPERSON BURKHAMMER: You have a four-part motion presented.

Is there a second?

MR. DEVORA: I second.

CHAIRPERSON BURKHAMMER: The motion moved and seconded.

Further discussion on the motion?

MR. DEVORA: Question.

CHAIRPERSON BURKHAMMER: Felipe.

MR. DEVORA: Question on the motion, you talk about you address the 8-31 meeting notes ion two places in the motion. Where does the draft -- oh, there it is, the 9-1-99.

CHAIRPERSON BURKHAMMER: That is the title document.

DR. SWEENEY: That you have in your hand.

CHAIRPERSON BURKHAMMER: That's this one. Okay. That's from their packet. Okay.

Jane.

MS. WILLIAMS: Would the co-chairs consider on part one of that motion that those informational products come back to the workgroup for a review before they are issued?

MR. BUCHET: That was the sense of our discussion was that OSHA would work hand in hand with the workgroup and with ACCSH as this thing progresses.

CHAIRPERSON BURKHAMMER: Did you pick that up?

MR. BUCHET: Work hand in hand with ACCSH before whatever the final products are go out and that we continue to look at them.

DR. SWEENEY: Excuse me, Mr. Chair. Would you prefer that we add that onto the motion, a more specific issue?

CHAIRPERSON BURKHAMMER: What I would like to do is handle the motion in parts. So we will start with part one.

If the committee doesn't have any objection, I have no objection to adding that to that motion as an amendment.

VOICE: Second.

DR. SWEENEY: So moved.

CHAIRPERSON BURKHAMMER: Second.

Jane, do you have the wording how you would like to change that?

MS. WILLIAMS: I move to insert and return to workgroup prior to issuance at the appropriate place.

CHAIRPERSON BURKHAMMER: That's in part one, Marie.

MS. WILLIAMS: Yes, part one.

MR. BUCHET: That, what you are asking is included in the meeting notes. And I will read to you on page --

MS. WILLIAMS: Mike, I understand that, but I would like to see it in the motion for the formal record.

DR. SWEENEY: Jane, what exactly, what words did you write? And return to the workgroup?

MS. WILLIAMS: For review prior to issuance.

CHAIRPERSON BURKHAMMER: OSHA has to return it to ACCSH who in turn could return it to the workgroup?

MS. WILLIAMS: Yes. Thank you.

DR. SWEENEY: Prior to ACCSH.

MR. BUCHET: Prior to ACCSH for review prior to issuance.

MS. WILLIAMS: Thank you.

CHAIRPERSON BURKHAMMER: Does the second agree with the amendment?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Okay. Any other comments on number one?

Felipe.

MR. DEVORA: Can we address this document in the first motion, the 9-1 document?

DR. SWEENEY: it is.

MR. DEVORA: Right. But I have a question on it.

CHAIRPERSON BURKHAMMER: Yes. Go ahead.

MR. DEVORA: In reading through it, well, actually in reading through page 1 through page I guess 15, I think we have a section here where it is very informational, very educational. I think there is a lot of good information there. It looks like an awareness document from there.

But I think that the problem I had in reviewing this draft that it -- it is page 16, line number 9 where we talk about the elements of a good safety and health program.

I didn't see the word "economics" -- not economics "ergonomics" there in any of that. Well, musculoskeletal disorders, there again.

I think we are claiming something that to me that is an element of a safety and health program.

And it kind of seems to me that we have gone beyond the scope or it does not necessarily specifically detail musculoskeletal disorders other than these six elements. I mean, they are pretty broad except for line 17 of that page 16.

MR. BUCHET: Mr. Chairman, the workgroup --

CHAIRPERSON BURKHAMMER: Go ahead, Michael.

MR. BUCHET: Let me back up a second with the process. The workgroup has met for a year and some now. What is included in the draft -- and unfortunately you haven't gotten copies of it in front of you, but for the ACCSH members who have, the material that is in this document comes from material that was submitted to the workgroup by members of the workgroup.

Although my co-chair and I actually wrote the thing, we didn't particularly create it. We massaged stacks and stacks of information that had been turned over to the workgroup.

The elements of a good program were offered as useful, let's say, analytical tools for looking at a job site and helping to make a job site more worker safe.

The -- getting to page 16 as Felipe indicates, before that is largely informational. There is background information sort of recognizing what people commonly consider musculoskeletal disorders. Whether you agree with it or not, these are the commonly thought of terms.

After that, we got into the practical things that again, these are anecdotally successful strategies, tools, tips, and actual work practices that were offered to the work group and selected.

There is a lot more information that the workgroup has. And we charge OSHA and the workgroup to continue to collect these useful tips from the industry and use this mechanism to pass it back out to, as Felipe said, those in the industry who are not doing such a good job already in an effort to reduce musculoskeletal disorders in construction workers.

MR. SMITH: Mr. Chairman, may I?

CHAIRPERSON BURKHAMMER: Owen.

MR. SMITH: What I understand is the first part is what you say it is, it is okay and the rest of it seems like it is a program. The first item is informational.

MR. DEVORA: Right. This topic is definitions, introductions, the things that may cause. But then, when we get to page 16, we start talking about things that sound like standards or sound like a skeleton of a standard, things like assigning a program responsibilities, authority to run that program, identifying and reporting risk factors, hazards, signs, and symptoms.

Then, I think we are starting to go beyond the -- in my mind, we are starting to go beyond the scope of educational, informational stuff. And we are providing the skeleton for a standard.

MR. SMITH: I would agree.

DR. SWEENEY: Mr. Chairman, may I respond?

CHAIRPERSON BURKHAMMER: Marie.

DR. SWEENEY: I think there is two issues, one, Mr. Jeffress asked us to put this in.

Secondly, there are every time that we put -- I'm using sort of the academically -- put something out that talks about disease disorders, people want to know how do you change it. How do we fix the problem?

And part of fixing the problem is put together some activity where you can identify the hazard, identify the disorder, and then go about changing the work place.

So we have a couple of things in here where you can start fixing the problem. One is through the development of a program.

Now, you know, programs can be little. They can be big. They can be tailored to your own work site.

In addition to that, in the back of the document after page -- on page 39 -- is it page 39? On page 39, there are a list of things that can be done to alleviate some of the stresses that are related to doing activities on site.

And then, third, on the back beyond that are lists of things, different kinds of equipment, we call them solutions, that in fact may be used to alleviate to some of the problems associated with, you know, heavy lifting, vibration, what have you.

So we are providing what one might call awareness education and then ideas on how you might fix and prevent that problem.

And I think without both of those parts you only have half the story.

MR. SMITH: Mr. Chairman, may I?

CHAIRPERSON BURKHAMMER: Owen.

MR. SMITH: I think that is really the crux of it because what we have here is that the construction people that have to live and work with this thing and pay for it every day, being able to embrace the first portion of it.

And when I say that, the input that I have gotten both in the organized and unorganized sector that they like the first part.

It is informational. It is something that everybody can work with. They give their support because it is something that is useful.

But beyond that, it appears just as Felipe says that what we have is a regulation and a checklist that is going to be terribly expensive.

And like I said before, you know, if we are only getting six hours a day on an 8-hour day, now we have another thing, you know, that this checklist.

It is a program and so far as I can see a regulation. I would suspect that OSHA could take this just the way it is written and put a number by it and it is a regulation, you know. I do not think there is anything missing.

The first part is good. The last part, we can do without.

CHAIRPERSON BURKHAMMER: I think when some of us may be mixing up information versus enforcement again.

And when you read page 16 and start with -- this is my opinion. And you start with the elements of a good safety and health program and if you read down through the breakdown of these, starting at 19 and so on and so forth back to where each one of the six elements, they are broken down in the context of information on how to develop key points of your program related to musculoskeletal disorders.

Now, you can take out the words "musculoskeletal disorders". And you put anything else in there, scaffolds, cranes, respiratory protection, confined space.

And it does not matter what you are targeting, as how you want to fix it. You have to have some semblance of guidance to fix anything.

And I think the context of the workgroup put this was from that perspective of sharing with contractors again information of how they can this and build a program if they so choose to help them reduce work-related musculoskeletal disorders.

The checklist which starts on page 25, again, if you look at it in the context of an informational tool rather than an enforcement tool which has been stated over and over again as to what this document is, this is again information for a contractor to take and utilize as they see fit or not utilize as they see fit. Information means you can take it or leave it.

If you go to page 34, again, there is some more information on how you could help yourself or help your company a MS program or take a look at musculoskeletal disorders.

And then, on page 39 are the solutions pages that the industry has come up with of things that work.

So looking at this, again, in the context of information and not ion the context of enforcement, it is a complete tool for an information document.

Just giving the first 15 pages does not really satisfy what an employer would need to know to help them in this regard. So you need to have all the parts of this information, not part of the parts and guess what is missing.

Felipe.

MR. DEVORA: To respond to that a little bit, Stew -- Mr. Chairman. I'm sorry. The problem that I have with that is give me the first part, give me the employer, give me the first part, give me the education. Okay.

But the second part, let me see how that fits my company. Let me see how that applies to a painter. Let me see how that applies to a concrete contractor. Let me see how that applies to a drywall contractor.

But I do not think that we can standardize the fix. And as I said earlier, out of respect for the hard work that my colleagues have done on this document, I am sorry to call it cynical or whatever I have seen in the past.

But you are absolutely correct that you can take these titles here and you can plug in respiratory. You can plug in confined space.

The elements are there, the hazard awareness identification, the job analysis, the medical management, the program evaluation. It's all there.

And that is the rub I have with the second part of it. I do not think it is flexible enough to address the variety of tasks that are in construction.

I know it is a good effort. It is a great effort on the educational part of it. But I don't -- I see this as a company issue that employers or even associations or industries are going to see as the best way to fit the task to the education that they have provided here.

CHAIRPERSON BURKHAMMER: Marie.

DR. SWEENEY: I guess in response to Felipe, I have heard all this many, many times. But I have also heard the question, what can I do? What is within my power to do it?

Are there other suggestions?

I mean, I am not trying to rewrite the document, but I think what we need to do is sit down and think about what are the other parts that need to go in here to help employers, labor representatives, the employees know how to identify the problems on the job and fix them.

And, you know, that may take many iterations of this document. I think it's kind of -- to throw that part out in terms of analysis of your site, understanding the hazards, identifying the hazards is really throwing the baby out with the bath water because you have really only given a part of the story.

MR. SMITH: Mr. Chairman, may I?

CHAIRPERSON BURKHAMMER: Larry is next, Owen.

Mr. Edginton.

MR. EDGINTON: Mr. Chairman, I -- as I sit here and I listen to this, I think to myself, you know, we ought to spend more time being out on job sites and watch construction workers leave the job site at the end of the day, particularly construction workers that are 45 and 50 years old.

And we ought not to forget that the problems that we are talking about are real problems for working men and women in the industry.

If we look at the nature of the industry, injuries in this industry, those that are attributable to musculoskeletal disorders are significant. And they are not going down. We are struggling with it.

And I think what we are talking about here is for both workers, unions, and employers who have an interest, but not necessarily the knowledge in which to begin to seek out ways to improve this, to reduce the injuries.

That is what we are trying to do with this work product. We are not telling anybody this is what you have to do, this is what you should do.

What this document is designed to do as I see it and understand it is to begin to give people some help.

That is all we are doing with this. It is not a prescription document. It does not say that you have to do this. It says if you have an interest, here are some ideas. And I think we ought not lose sight of that.

CHAIRPERSON BURKHAMMER: Thank you, Larry.

Owen.

MR. SMITH: Well, I think the document is perfect really. And the issue really is not whether the document is good and can be used, but whether or not OSHA is going to use it to formulate a regulation.

And the fact is no one really trusts OSHA. And just figure that once this -- if the whole thing is there that it is going to end up as a regulation.

I do not think that there is any doubt in anybody's mind that everything in there is useful. And if it were just informational, if there were some area of comfort, if you will, that that is all it was going to be, there would be no objection whatever.

CHAIRPERSON BURKHAMMER: Thank you, Owen.

Larry.

MR. EDGINTON: Mr. Chairman, that is what I am struggling with here. Are we saying that we want to deny information to people that can help them because we have a concern that the agency is going to do a regulation because if we are, that's wrong.

We ought not to be saying that because people need help. People are getting hurt. And, you know, the handwriting is on the wall. The agency is moving forward with regulations whether we move this forward to the agency or not.

And I am not unappreciative of concerns that my colleagues expressed, but again, I am concerned that we are losing sight of what the goal of the workgroup was which was simply to get information out that could help people.

DR. SWEENEY: Mr. Chairman.

CHAIRPERSON BURKHAMMER: And again, just to remind the committee what you already know. ACCSH's charge is to make recommendations and suggestions to the agency for their benefit and use.

We are not here to determine enforcement versus information. We are here to supply information to them for them to determine that.

So even though we all may have that concern, it is really not a concern that the work products that this committee generates.

Marie.

DR. SWEENEY: I think --

CHAIRPERSON BURKHAMMER: Oh, Harry. Good morning. You snuck in on me there. It's good to see you.

MR. PAYNE: Mr. Chairman, thank you very much. We have gone through the process in North Carolina of making rules for ergonomics standards for enforcement for construction and non-construction industry.

And we are not through yet. And it is a fairly bloody war.

But one thing that has stood out to me over the last two years in the political process that has evolved is that if we change the word "ergonomics" or "stressors" to whatever the most recent chemical we declare war on or some other hazard, the discussion would go away.

Any other thing that caused in our state one out of three worker's comp cases or more than 33 percent of the recordables, if we did not act on it in some way, be it regulatory or educational, people would be screaming why aren't we doing our jobs?

And yet, we are successful in passing rules on exotic chemicals that may be affecting a very small percentage of the working population.

It is true that there is no one size that fits all. But if you go to too vague, people say, too vague, you are not telling me what is expected.

Our standard is one and a half pages in North Carolina. It was in response to business really coming forward and saying one size doesn't fit all, just give us the expectations and give us the tools. We have tried to do that. And now, it is too vague.

I applaud the effort to reach out. I think you will get not only to the good companies who have programs and like the folks represented here know the problem and are dealing with it, but you will get all such of the next tier and create a consciousness amongst those construction companies that maybe do not understand the problem or maybe are concerned about it in perception and really haven't really dealt with it.

I do not think it gets to the folks that know there is an issue and simply are not dealing with it. And that is up to the compliance side.

I hope that we will not hesitate to send out knowledge to good people who want to change out of any fear that it is going to be a regulation.

I think if companies deal with it, it would decrease the probability of the regulation because you will see some improvement.

I applaud the group. This is one area of my last six and a half years in this that I have been surprised at the resistance.

Almost everything else I can understand, but on ergonomics, it has become a litmus test for whether you appreciate the free enterprise system or not. And that is an inappropriate I think measure of that.

CHAIRPERSON BURKHAMMER: Thank you, Harry.

Felipe.

MR. DEVORA: Well, I agree that the educational information here is grand. And I do not want to represent anything that I am saying. There are companies that need this. I want to be very clear on that issue.

I have no problem with the document in its form. And maybe, I am on the wrong battlefield right now, but basically, obviously, you know, history, historically speaking, we are going to take -- if this does come and our battle has to be fought on the enforcement side or with OSHA, our quarrel is not with education of the industry at all.

Our quarrel is not with the free enterprise system. And I am not even sure that it is a quarrel, other than it just may be a misconception.

But I think it is only going to be a matter of time. And it is obvious. I mean, the writing is on the wall in some form or fashion. It is going to be here. I am not that naive to think that it is not coming.

But my questions are, this is all fine, fine and well, but at some point, the STD exceptions like 3.1, we will have to have an exception for residential folks because of ergonomic issues.

We may have to have an exception for some other people, you know. That is the writing is on the wall, but -- and I'll get off of the subject.

But we are anti-education. We are for anything that will prevent injury and illness in construction. That is not the message we are trying to send.

My only concern with this document is that it will be in some form or fashion at some point a rubber stamp that ACCSH approved this in a regulation form.

So I will get off of that, but that is my only concern.

CHAIRPERSON BURKHAMMER: Thank you.

Last comment on this question number one from Marie.

DR. SWEENEY: Maybe, it is only appropriate, but the workgroup chair gets to talk last.

The one comment was that people are afraid of OSHA. But let me put my public health hat on. OSHA has a very powerful voice in this country when it comes to work place safety and health.

And in terms of reducing musculoskeletal disorders, we can use the mouth piece of OSHA to expand construction education and knowledge about musculoskeletal disorders not only from the big, large companies, all the way down to two guys in a truck.

And I think we should use their resources to get the information out as well as we possibly can. And it really has not gotten down to the small contractor. We've got the availability of OSHA advisors now.

Hopefully, the ACCSH, the construction home page will be up. And we can even put that on there. I think we can use that, not only use fatalities, but, you know, talk about musculoskeletal disorders and how we can prevent them.

Let's use their mouth piece as I think about them as the large fist.

CHAIRPERSON BURKHAMMER: Thank you, Marie.

Michael, would you read the question one more time, please, for the motion?

MR. BUCHET: That OSHA produce the informational products incorporating material from the document titled "9-1-99 Preventing Musculoskeletal Disorders in Construction Workers" and that the products be in the format described on page 3 of 4 of the Musculoskeletal Disorders Workgroup notes from August 31st of 1999 and return to ACCSH for review prior to document issuance.

CHAIRPERSON BURKHAMMER: Thank you.

Being that this is such an important issue and it has been debated heavily both in the workgroup and in the ACCSH, we are going to vote by individual.

Starting with Mr. Edginton?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Mr. Edginton for Mr. Cooper?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Mr. Evans?

MR. EVANS: Yes.

CHAIRPERSON BURKHAMMER: Mr. Rhoten?

MR. RHOTEN: Yes.

CHAIRPERSON BURKHAMMER: Ms. Williams?

MS. WILLIAMS: Yes.

CHAIRPERSON BURKHAMMER: Mr. Devora?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Mr. Masterson?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Marie?

DR. SWEENEY: Yes.

CHAIRPERSON BURKHAMMER: Michael?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Owen?

MR. SMITH: Yes.

CHAIRPERSON BURKHAMMER: Harry.

MR. PAYNE: Yes.

CHAIRPERSON BURKHAMMER: Unanimous. Pass number one.

Question two.

DR. SWEENEY: That the OSHA follow the other recommendations outlined in the notice of the MSD Workgroup dated 8-31-99.

CHAIRPERSON BURKHAMMER: Do I hear a second on that one?

MR. SMITH: Second

CHAIRPERSON BURKHAMMER: Seconded. All right.

Any comments or questions on number two?

(No response.)

CHAIRPERSON BURKHAMMER: All right. Mr. Edginton?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Mr. Cooper?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Mr. Evans?

MR. EVANS: Yes.

CHAIRPERSON BURKHAMMER: Mr. Rhoten?

MR. RHOTEN: Yes.

CHAIRPERSON BURKHAMMER: Ms. Williams?

MS. WILLIAMS: Yes.

CHAIRPERSON BURKHAMMER: Mr. Devora?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Marie?

DR. SWEENEY: Yes.

CHAIRPERSON BURKHAMMER: Michael?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Owen?

MR. SMITH: Yes.

CHAIRPERSON BURKHAMMER: Harry.

MR. PAYNE: Yes.

CHAIRPERSON BURKHAMMER: And Mr. Masterson?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Unanimous. Two passes.

Three.

DR. SWEENEY: That OSHA in collaboration with the workgroup complete and disseminate the products in the next calendar year.

CHAIRPERSON BURKHAMMER: Comments and questions on that one?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none.

Larry.

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Cooper?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Evans?

MR. EVANS: Yes.

CHAIRPERSON BURKHAMMER: Rhoten?

MR. RHOTEN: Yes.

CHAIRPERSON BURKHAMMER: Williams?

MS. WILLIAMS: Yes.

CHAIRPERSON BURKHAMMER: Devora?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Sweeney?

DR. SWEENEY: Yes.

CHAIRPERSON BURKHAMMER: Buchet?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Owen?

MR. SMITH: Yes.

CHAIRPERSON BURKHAMMER: Harry.

MR. PAYNE: Yes.

CHAIRPERSON BURKHAMMER: Unanimous.

Four.

DR. SWEENEY: That OSHA and the workgroup continue to solicit and collect additional input from stakeholders and the MSD Workgroup.

CHAIRPERSON BURKHAMMER: Questions, comments, concerns?

MR. DEVORA: I have a question. And in what form would that be, collect comment and additional input from stakeholders in the hearing, in the workgroup forum?

MR. BUCHET: That people could submit it the ACCSH meeting.

DR. SWEENEY: ACCSH to the workgroup chairs, the workgroup members would submit it the chairs. Anyway that we can get it.

MR. DEVORA: Okay.

CHAIRPERSON BURKHAMMER: Any other comments or questions?

(No response.)

CHAIRPERSON BURKHAMMER: Larry.

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Cooper?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Evans?

MR. EVANS: Yes.

CHAIRPERSON BURKHAMMER: Rhoten?

MR. RHOTEN: Yes.

CHAIRPERSON BURKHAMMER: Williams?

MS. WILLIAMS: Yes.

CHAIRPERSON BURKHAMMER: Devora?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Masterson?

MR. DEVORA: Yes.

CHAIRPERSON BURKHAMMER: Sweeney?

DR. SWEENEY: Yes.

CHAIRPERSON BURKHAMMER: Buchet?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Smith?

MR. SMITH: Yes.

CHAIRPERSON BURKHAMMER: Payne.

MR. PAYNE: Yes.

CHAIRPERSON BURKHAMMER: Unanimous.

Thank you very much.

We appreciate all the hard work of the workgroup over the years in getting this on the table.

Mr. Swanson.

MR. SWANSON: Yes. Let me thank you, ACCSH, on behalf of the agency for the work that went into this for the work product that you delivered.

I think the product appears to meet the request that the Assistant Secretary came forward with to you last year and asked for your assessment and input on this issue.

For those that have fears that this will be rubber stamped, put back on the street next week as a regulation, I am sorry that Mr. Cooper is not here to address the issue of how well our rubber stamp works.

(Laughter)

MR. SWANSON: It is my understanding that in no way, shape or form is that OSHA's intent.

You were asked to give us best practices of the construction industry and share that with the construction industry. And we will continue to work with this body to do exactly that.

And I thank you.

CHAIRPERSON BURKHAMMER: Thank you.

Prior to the Assistant Secretary addressing us, I know he wanted to hear a little about the paper work reduction process we've been going through.

Jane, do you want to start and address your motion to the committee and any comments you wish to make?

Construction Certification and Paperwork Reduction Document

MS. WILLIAMS: I have prepared for you each and you have in front of you a copy of the report that I presented yesterday.

(Pause)

MS. WILLIAMS: There were extra copies.

(Pause)

MS. WILLIAMS: Jim, would you like to give one to Mr. Jeffress?

(Pause)

MS. WILLIAMS: Stew, before I give my remarks, I would like to thank Mr. Swanson's office, Camille, who literally went and cleaned a room and set up a computer and made everything available to me that I could type this last night. I do appreciate that.

I am not sure that I need to read the report again. I will start with the conclusions and then go to the recommendations.

The conclusions of the ACCSH co-chairs in our workgroup are that the existing certification documents represent good practices and employer proactive compliance, especially the training documents.

The training documents specifically establish a worker's mind set that training is a vital part of their safety awareness.

We question if the certification was eliminated, that this would send a message from OSHA of no accountability.

The elimination would deter the employer's opportunity to demonstrate proof of training and compliance. And the most significant was the concern for the employee safety awareness.

The elimination of such documents could easily deter employers from training activities and no documentation would be required to demonstrate their compliance.

In response to that, a scenario was briefly given to me that I will offer to the committee before we get into these recommendations.

If you look at the fall protection standard and one of the items requesting to be reviewed for elimination was the fall protection certification.

I think it goes without saying since the inception of that standard, there has been an incredible amount of training on fall protection.

And we have seen the results of that primarily because they know that there is a document that has to be demonstrated. And it holds small business as well as all employers accountable. They have to produce it.

Compare that with the issuance of the latter standards, stairway and ladders. There is no certification document required in there.

And I would guarantee that you could ask almost class at the beginning which I do, are all ladders the same? And they say, yes.

So I think the effect of having an accountable measure really speaks for itself.

In looking at the recommendations, I think they will keep to the practices that we just went through, the measures if we can.

And I will read each one. And then, we can discuss that and move on.

The first recommendation on your page 2, that the ACCSH recommend OSHA develop and issue an acknowledgment form to be consistent for all standards requirements.

This workgroup would assist or take the lead in this effort if requested with commitment from OSHA to process the developed form.

The intent on that issue basically is to try to standardize a form to reduce the paper burden that we recognize is self-imposed by the employers of which they are attributing that paper burden to OSHA in many cases.

(Pause)

CHAIRPERSON BURKHAMMER: Why don't you read them all, Jane. And then, we will take them in the parts.

MS. WILLIAMS: Very good, sir.

That ACCSH recommend to OSHA to reaffirm to the CSHOs to interview employees and employers when unsafe employee acts are observed and if permitted to do so by contract agreement so as not to presume the lack of training or that the training was ineffective which could effectively reduce the unnecessary citations.

The CSHOs should be encouraged to highlight their observations so that employers can evaluate if refresher training is in order or a more effective disciplinary measure.

That the proposed certification record reduction for the transport of explosives and cadmium continue if the elimination process involves the rulemaking notification process for stakeholder comment.

That ACCSH recommend OSHA's evaluation to require in future revised or new standards a training acknowledgement form to demonstrate worker awareness and employer compliance with minimum paper burden.

That ACCSH recommend to Policy that the certification of workgroup co-chairs continue to work with Policy at their request to offer our construction input on policy initiatives and activities where such input was deemed to be beneficial.

And last, that the ACCSH accept the co-chairs recommendation to oppose the elimination of the certification records at this time and present this recommendation to the Assistant Secretary for the reasons presented.

CHAIRPERSON BURKHAMMER: And you have presented these recommendations in the form of a motion?

MS. WILLIAMS: Yes, sir.

CHAIRPERSON BURKHAMMER: Second.

MR. RHOTEN: Second.

CHAIRPERSON BURKHAMMER: Seconded.

Discussion?

MR. SMITH: Yes, I got a question.

CHAIRPERSON BURKHAMMER: Owen.

MR. SMITH: What happens in an area, like in my area?

We don't believe that -- well, we set a standard at least in southern California for almost everything that OSHA would -- well, probably everything that OSHA requires.

And issue -- we do all that training, all of it at our training center, both journeyman and our apprentices. And we keep all that paper work there so that the employer doesn't have to handle it all.

How would that practice fit with what we are doing here?

CHAIRPERSON BURKHAMMER: Jane.

MS. WILLIAMS: With the items on your attachment, I copied for you those items that were being proposed.

Basically, if this were adopted and if these were eliminated, you would not have to maintain the specific eight certification records.

But again, what we see that is occurring is that to cover our bases, we are inflicting more burden of paper on ourselves for many requirements to demonstrate that we have effectively done it which is the reason for the acknowledgment form recommendation to keep it minimum and to be consistent so we do not over kill our own selves.

MR. BUCHET: Mr. Chairman.

CHAIRPERSON BURKHAMMER: Michael.

MR. BUCHET: This is a question. What we are recommending here is not going to affect how the employers actually keep the records.

So if they want to have an administrative -- centralized administrative system, we are not attempting to affect that?

MS. WILLIAMS: That is correct.

CHAIRPERSON BURKHAMMER: Hearing no further discussion, let's take each paragraph individually.

The first paragraph, Jane, do you want to read again?

MS. WILLIAMS: That ACCSH recommend OSHA develop and issue an acknowledgment form to be consistent for all standards requirements.

This workgroup would assist or take the lead in this effort if requested with a commitment from OSHA to process the developed form. Of course, it is understood with their comment and expertise.

CHAIRPERSON BURKHAMMER: All in favor, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Passed.

Two.

MS. WILLIAMS: That ACCSH recommend to OSHA to reaffirm to the CSHOs to interview employees and employers when unsafe employee acts are observed and if permitted to do so by contract agreement so as not to presume the lack of training or that the training was ineffective which could effectively reduce unnecessary citations.

The CSHOs should be encouraged to highlight their observations so the employer can evaluate if refresher training is in order or more effective disciplinary measures.

We understand that it may be in the firm now that compliance should be doing that, but it was evident by discussions that that is not occurring, resulting in an assumed guilt issuance of citations, and then the burden on the employer to have to bring all the records, demonstrate that it's there, and hopefully to have the citations dismissed.

And we are hoping to try to work with the CSHOs if they see it, let us know, but not to assume guilt before it can be demonstrated.

MR. RHOTEN: And that was my question. I assume that it was the practice that if the contractor was cited for a failure to train, he had already interviewed the person involved in the incident. Is that correct?

MR. BUCHET: Yes.

MR. RHOTEN: So are we then suggesting that they take on a policy that they already taking on?

MS. WILLIAMS: That is why we said here from the discussions of many of the people that was not happening.

MR. RHOTEN: So it is not happening?

MS. WILLIAMS: It is not happening. I can tell you of the two processes I was directly involved with, that did not happen.

The citation came out. We went to the office. We demonstrated everything. And that item was in fact dismissed.

So we would just like to have a reaffirmation to compliance that this is already what you are supposed to be doing and would you please do it. And this might help save time.

CHAIRPERSON BURKHAMMER: I guess I have two comments. The first one, you are centering on unsafe acts and you don't address conditions. And conditions also require education and training to improve or fix.

So you might, somebody might consider making an amendment to add conditions.

And the last sentence from an employer's perspective bothers me because I don't need a CSHO to tell me that I need to implement disciplinary action on my employees.

And I don't need them to tell me that they have observed the employees nor do I think that it is right for them to tell an employer that they have observed an employee committing an unsafe act.

That is my job as an employer and my people's job. And then, it is up to me as an employer to determine if I want to either educate and train the individual further or the problem he was observed in was so bad that it would require a disciplinary measure to the employee.

From an employer's perspective, two might be better without the last sentence in my opinion.

Any other discussion?

Michael.

MR. BUCHET: A question. What is the intent of the phrase "and if permitted to do so by contract agreements"?

MS. WILLIAMS: It is my understanding -- and I could ask the other gentleman here to tell me if I am right or wrong.

But in working with Mark, it was my understanding that are some labor agreements where you will not have specific conversation with the employee, that it would have to go to the steward or other person.

CHAIRPERSON BURKHAMMER: Absolutely not.

MS. WILLIAMS: That is not true?

MR. RHOTEN: That is not in the agreements that we have.

MS. WILLIAMS: That was actually brought up in our --

MR. RHOTEN: I will need to try to pass that on the floor.

(Laughter)

MS. WILLIAMS: That was brought. If that is not -- and I mentioned the fact that that was not how I understood it.

But if that is not the case, certainly strike that out totally. That is the only reason that that was in there.

CHAIRPERSON BURKHAMMER: Okay. So there is a -- so you are amending to strike out?

MS. WILLIAMS: Yes.

CHAIRPERSON BURKHAMMER: Bracket to bracket?

MS. WILLIAMS: Yes. And "if permitted to do so by contract", take that out totally.

CHAIRPERSON BURKHAMMER: Does the second agree with that?

Michael.

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: Okay. Is there any other amendments to number two that anybody would like to make?

MS. WILLIAMS: Mr. Chair, then I have no problem in removing "more effective disciplinary measures". You do raise a good issue.

The intent of the other one, other part of that sentence was that usually when these things are resulting in citation is because compliance has in fact witnessed it.

We were trying to have more of a working relationship with the CSHO that he would reference this, have a discussion on it, but not go to the formal citation process with the employer.

It is assumed that if the employer was aware and that was his responsibility, the condition would not have been there for the CSHO person to see anyway. So that was one of the concerns that we had an open dialogue with this person.

CHAIRPERSON BURKHAMMER: Bruce.

MR. SWANSON: Yes. Mr. Chairman, as you know, I try not to involve myself in the discussions of the merits of what the committee is doing.

But as a federal official here, we have a burden when we are on the job site to establish a violation. The language in here about observing an unsafe act and therefore the compliance officer will presume anything is somewhat disturbing to me.

If we are going to issue that citation, I would hope that there will be an interview of the employee and such other steps that are necessary to ascertain what training he has had, he or she has had.

And again, a lack of training must be proven. And it would be import that some training has been presented in the employee's vicinity, but the burden is to train the employee and not just make training available.

Our burden is heavier than the language of presumption might apply to the careless reader.

MS. WILLIAMS: Nicely said, Mr. Swanson. That is not the case.

(Laughter)

CHAIRPERSON BURKHAMMER: Jane has offered to remove from the last line there "or more effective disciplinary measures".

Does the second have a problem with that?

MR. BUCHET: No problem, Mr. Chairman.

CHAIRPERSON BURKHAMMER: All right. Let's strike "or more effective disciplinary measures" from number two for the employee.

Any other comments on two as amended?

(No response.)

CHAIRPERSON BURKHAMMER: All in favor of approval of number two, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Approved.

Number three, Jane.

MS. WILLIAMS: That the proposed certification of record reduction for the transport of explosives and cadmium continue if the elimination process involves the rulemaking notification process for stakeholder comment.

The reason that was put in there, those last two items if you look at them, we felt were being covered by either DOT or other type of agency requirements. And this was not in fact to the best of our knowledge being accomplished at all.

However, we were not truly versed. At least, I was not nor was my co-chair and the people at our meeting of the specifics of explosive transport.

So we felt that it appeared to be very good to proceed with that elimination. However, it should go through the formal process so those who are involved would have an opportunity to offer their expertise.

CHAIRPERSON BURKHAMMER: Discussion on three?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none, all in favor of three, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Approved.

Four.

MS. WILLIAMS: That ACCSH recommend OSHA's evaluation to require in future revised or new standards, a training acknowledgement form to demonstrate worker awareness and employer compliance with minimum paper burden.

Again, we just referenced the fall protection and how successful that has been in protecting the workers.

And we would like to recommend that that form be simplified and used in all future revisions to help us achieve that level of awareness for the worker.

CHAIRPERSON BURKHAMMER: Comments or questions on four?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none, all in favor of four, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Approved.

Five.

MS. WILLIAMS: That ACCSH recommend to Policy that the certification of workgroup co-chairs continue to work with them at their request to offer construction input on policy activities where they would deem that to be beneficial.

Our meeting was very productive. And it came up that we had some experience and comment that we could offer that could really help them understand some issues.

And we certainly volunteered to help them whenever we could when they thought it would be beneficial.

CHAIRPERSON BURKHAMMER: Yes. I would suggest, Jane, that you change Policy to OSHA.

MS. WILLIAMS: That's fine.

CHAIRPERSON BURKHAMMER: And construction to ACCSH.

MS. WILLIAMS: Would you make those changes accordingly?

CHAIRPERSON BURKHAMMER: Does the second have a problem with the changes?

MR. BUCHET: I have no problem, Mr. Chairman.

CHAIRPERSON BURKHAMMER: All in favor of five as amended, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Approved.

Six.

MS. WILLIAMS: And the last, that ACCSH accept the co-chairs recommendation to oppose the elimination of certification records at this time and present this recommendation to the Assistant Secretary for the reasons presented.

CHAIRPERSON BURKHAMMER: Discussion on six?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none, all in favor of six, signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Approved.

Thank you, Jane.

We will submit both of these documents to OSHA as amended.

With that, we welcome the Assistant Secretary this morning. We are a little early, but he was kind enough to come and join us and listen to some of our debates.

Well, we want to thank you for these nice ergonomic chairs you have provided the committee.

(Laughter)

CHAIRPERSON BURKHAMMER: We wanted to give you one of those black ones, but we didn't want to be accused of causing you to have a worker's comp case, so we didn't.

MR. JEFFRESS: And I have spent too meetings on chairs like that. So I appreciate that.

Remarks

MR. JEFFRESS: I thank all of you all for your service. Some of you have been here for four days, struggling with issues, giving advice to us and things that we are dealing with.

And it was a sacrifice for many of you to come and take time away from your businesses and your -- the work that you do to come and talk to us and consider the same kinds of things we are struggling with, but I need you to know that it is a very important part of the process for us in terms of evaluating how we go ahead with construction policy, what kind of actions we take, what kind of policies we adopt.

I am sure that it is somewhat frustrating to you all sometimes that you sit and debate and come to a conclusion among yourselves as to what it is you believe that OSHA should go ahead with and make a recommendation to OSHA.

And if it is a recommendation on a standard, probably neither you nor I will be in our current positions when that standard is finally adopted.

And there is some frustration at how long it takes for some of these recommendations and some of the advice you give to be acted on by OSHA. You are not alone in that frustration. I want to reassure of that.

But secondly, I want to assure you that if you do not do this, if you do not spend this time getting the process started, it might never get started.

And I want to ask you to tolerate the time it takes an agency and the bureaucracy and the country to respond to the advice that you give, but understand that it is essential that that advice be given. It is essential that you take your time and in getting the ball rolling in several steps in this process.

I will assure you that the things that we can act quickly on, we will. The recommendation that you all made on our employer, multi-employer policy, we moved on that quickly.

The applications of best practice information or guidance information like you do on MSDs, those kinds of things can be done quickly.

It is the recommendations on standards that take longer, that the process requires an extensive period of review and analysis and public comment.

But I assure you that we will be continuing to work on all the advice that you give us.

Will I accept all the advice you give me? I reserve the right to modify it, listen, and apply my own judgment where appropriate, but I will not proceed without your advice.

And so I need you all to keep doing that and appreciate your tolerance and your patience in making sure that your advice is given and that the agency is responsive.

I welcome your asking me where we are on things that you gave advice to us on last year or the year before or the year before that. It is absolutely appropriate that you ask where we are in following up.

But I want to assure you that we are working on that and I do need your advice. And I appreciate the time and effort that you take.

In terms of my comments this morning, where we are, I want to talk a little about what the department is doing overall.

And there is Labor Day coming up. It is the opportunity for the Labor Department to kind of sit back and reflect on where we are with respect to honoring and protecting and advancing the interests of workers in this country.

I will also talk a little about where we are with the Congress and then come back to OSHA and talk a little about the standards and where we are with some standards issues.

With respect to the department, we have issued yesterday the Future Work Report.

Did everybody get a copy of this Future Work Report? Copies are in the hall for people in the audience who may be interested.

This is the department's assessment, the Secretary's assessment of as we enter the 21st century what kind of issues and challenges are confronting workers, what kind of opportunities we have to create and improve work places, what kind of things we should be thinking about in terms of issues for the next century.

It is a broad brush. It is not a series of recommendations as much as it is kind of an analysis and overview of what confronts us.

This is the summary of the longer report. There is a chapter in the longer report on occupational safety and health that is not in the summary. You will not find information on occupational safety and health in the summary.

The longer report will be available probably the middle of the month. We will get you a copy of that.

There is a chapter on that on occupational safety and health challenges of the 21st century that I would be interested in your perusing and your responding to us individually as to whether you think that assessment is appropriate or whether you see other challenges ahead in the 21st century that the department ought to be thinking about and preparing for.

But I commend that to you, that Future Work Report. You will be hearing more about that I think through the media and through other sources in the next few weeks.

With respect to Congress, I guess there are two major issues in Congress that affect OSHA at this point. One is the budget and one is ergonomics.

There are a number of other bills in Congress that we can talk about if you are interested. I do not intend to cover them in my initial presentation today, unless you want to bring them up.

With respect to the budget, the numbers that are -- the mark-up in the House and Senate committees is current scheduled for next week.

The House is scheduled for mark-up September 8th. The Senate is scheduled for mark-up September 9th to make a recommendation to the full House and Senate on what the budget should be for the Labor Department, including OSHA.

The numbers currently being used by the leaders in the appropriation process, the money that has been set aside for the Labor and HHS budget, less what would be required to fund the tax cut that is being proposed would require a 32 percent reduction in domestic programs.

If that budget as currently being proposed a tax cut as currently being proposed were to apply across the board, you would see a one-third reduction in the domestic program, OSHA and others within the Labor Department.

The attack on employment programs on worker protections, on many other social programs is not a direct attack.

There is not a confrontation, if you will, by the opponents of these programs trying to amend the laws or appeal the laws or get public policy changed as to whether these are appropriate actions for government.

It is an insidious attack instead to try to starve the programs for money and cripple their effectiveness by eliminating the funds necessary to care for the programs.

If you take the budget proposal that is currently being proposed by the majority in Congress over the 10-year period, at the end of the 10-year period, assuming again that the Social Security and the Medicare and the interest on the debt and the defense spending stay constant, at the end of the 10-year period, you will have a 50 percent reduction in OSHA and other domestic programs. That is the nature of the debate going on in Congress.

It is trying to be framed in the content and context of returning money to taxpayers. In fact, it is a very insidious attack on domestic programs and the kinds of work protections that OSHA stands for.

It is a very serious debate going on. If the Congress marks up and passes the bills the way they are currently proposed by the majority, you can assure -- I will assure you the President will veto them.

And we are in for a very ugly confrontation I think in terms of the direction of this country with respect to domestic programs.

I guess the good news in all this is it is not a debate about OSHA.

(Laughter)

MR. JEFFRESS: It is not at attack on OSHA anymore. It is an attack on domestic programs across the board, but it is a very serious frontal assault on the kinds of things that OSHA stands for.

And it is pretty sobering to be standing here, looking at your head and knowing that there is a potential.

Some folks believe that the kind of things that we stand for should be cut by half over the next 10 years.

When I look at the needs out there in terms of occupational safety and health, you know, if I were to look at the level of funding that is provided for OSHA today, we are -- compared to European countries, we are funded about 10 percent of what European countries fund their government safety and health programs for on a per employee basis, you know.

EPA has 20 times the budget that OSHA does. They spend more in three weeks than OSHA spends all year.

Even on a per employee basis, if you look at our sister agency in the Labor Department, MSHA, MSHA has funding on a per employer or per establishment basis six times as high as what OSHA has.

So the scale of the challenge before us, the way the country and other countries have responded to these needs illustrate to me that rather than cutting OSHA by 50 percent over the next 10 years, if the country is serious about protecting workers and we are serious about worker protection, we ought to be looking for an increased effort to provide resources to this effort.

And I do not mean resources just for enforcement. I think it is important to maintain a strong enforcement program. But what you will see from the President's request, we talked about it at your last meeting, the biggest part of the President's request is for additional education and training on occupational safety and health matters.

This is not a fight over more OSHA inspections. This is a fight over whether we believe in protecting workers from harm, whether we believe in saving lives in the work place, and the budgets where that fight can be played out.

I would rather have an up or down vote on OSHA. That is not to be.

So as you see and hear and listen to the debate next week and over the next month on the overall tax cut and the overall budget, it is important you understand for an agency like this what that means for our future.

The second area of congressional interest, congressional scrutiny has been ergonomics. You have read the press.

You know the close House vote, the 217, the 209 saying that OSHA should not proceed with an ergonomics standard until another study is completed by the National Academy of Sciences.

That issue now moves to the Senate. There is a similar bill that has been proposed in the Senate. It could come up for an up or down in the Senate. I do not know that it will.

It is more likely that in the appropriations process, there will be an attempt this year as there has been past years to write language in the appropriation bill to accomplish the purposes of this Blunt bill to keep OSHA from adopting a rule or even proposing a rule until the National Academy of Sciences finishes their study in the year 2001.

And, you know, in 2001, there will be another bill or another study. And it is just a continuation, if you will, of those folks who do not think that OSHA should regulate.

This is apparently only -- or I should say, this is the major vote this year on labor and employment regulations in Congress. There have been no other votes on any other employment issues.

So when it comes down to a vote on ergonomics, the debate in the House, very little substance of ergonomics. It was a very clear choice, you know. You are going to vote with labor. You are going to vote with business.

And I think that makes it -- it is an unfortunate occurrence. It makes it difficult to get the issue of, you know, how do you keep workers from getting hurt. It keeps that issue from being discussed.

And the politics unfortunately overwhelm the substance of the discussion. You hear it, you know.

You have a microcosm of that when you deal with how do you put out best practice guidelines on MSDs? You end up worrying about, gee, is this really preparatory to regulations? Is this political folly?

And that is the same thing that happened in Congress. How do we go about proposing positive safety and health protections? How do we talk about those without getting in the middle of a labor/management conflict. It is very difficult.

But that is where we are. And I expect that it will be very brutal fight wherever this comes up, probably in the appropriations process.

The President, when the House considers the bill, said that he will veto. And if it comes out of Congress that restricts OSHA from going ahead with an ergonomics rule over the next month. And my guess is it will probably be the appropriations process some time in September or October when all this comes to a head.

Those are the congressional issues.

Let me talk a little about the standards issues that are before us. And you all have given some advice on as well as others.

At our last meeting, we talked about the steel erection. I am very pleased that the process that the agency is going through to address the comments to take seriously our responsibility to analyze them and analyze the impact and make an assessment of the validity of the kinds of comments we have and what we should do.

And I have been back to some of the folks that are on SENRAC, the Negotiated Rulemaking Committee, and said that we will finish our analysis this fall.

We will come back to SENRAC and discuss our analysis with them before we go forward with anything on that, but that process continues I think in a very helpful manner.

We have put out a notice for comments on fall protection, looking for people's views on whether what we are addressing are the right issues and what we ought to specifically address as we look at the fall protection rule.

There was a request for an extension of time for comments on that. We granted that. Just for the record, not all the delays come from OSHA. You have folks outside the agency that want more time to process as well.

So we are happy to grant that extension of time and provide more opportunity for folks to give comments on the things under consideration.

And the chairman mentioned that I wanted to hear some of the discussion on the revocation certification. And this is the last one I am going to mention before giving a dialogue or take questions or comments from you all.

This paperwork reduction revocation certification process that we are looking at within OSHA, it is not yet a proposed rule.

It is driven by a couple of things. And I would appreciate hearing a little more from some of you all about your reactions about these things I am about to say.

In writing our rules, we frequently require some type of documentation from the employer that some action has been taken, whether it be training, whether it be, you know, crane maintenance, whatever, some documentation from the employer that some action has been taken.

And that documentation is part of what OSHA is attacked on requiring paper work of employers.

In talking to compliance officers about how we use that documentation in enforcing OSHA's rule, many compliance officers say to me, you know, it really doesn't matter what is written on paper.

If the standard requires training and the employees cannot tell me what the hazards are they are facing or what their appropriate response is or what spill occurs, then effective training has not been done. And the employee should be cited for ineffective training.

The existence of the paper documentation is not determinative in a compliance officer making a decision whether appropriate maintenance has been done, whether appropriate training is applied or whatever.

It is something that can be cited and is cited, but it is not the measure, if you will. It is not the test. It is not the proof of whether employees are protecting themselves and are being protected by the employer.

That being the case, why should OSHA take the hit for requiring something we do not use or something that is not useful in enforcement activity?

So that is part of what is driving this thought maybe we should just eliminate the documentational requirement. Continue to require the training. Continue to require the maintenance. Continue to require whatever is out there, but not require the documentation.

That is one thought that is driving this. And I know the subcommittee discussed it. I appreciate hearing more from Jane and hearing from other s about that thought.

The second piece of it that I have heard and that I value as well is that OSHA by requiring the documentation, even though we do not use it, by requiring it to occur in the work place, it gives some reassurance to the employees that the right maintenance has been done.

It is affirmation that there is some responsibility for the employer to do the training and that it is very important that even though it only takes, you know, two minutes for the employers, only two minutes for the paper work for the employer, it is an important two minutes that has repercussions far beyond the amount of time it actually takes to record the activity.

I respect that. I see some value in that, but I would be interested in whether people affirm that as a value.

As Jane said in her presentation, the arcane way that the government accounts for paper work, you know it only takes two minutes to report the documentation, the paper work.

The way that the Office of Management and Budget counts paper work, every minute or every hour that you undertook a task which you then document in your two minutes of paper work, every hour you spend in that is counted as paper work.

So if you are spending 10 hours training somebody and then two minutes recording that you trained them, the paper work burden is not two minutes. The paper work burden is 10 hours and two minutes.

So that is an issue I have with OMB, an issue I am going to change with OMB. But it is an issue in terms of how OSHA counts its paper work.

So these are some of the concerns that are, you know, in my mind and in OSHA's consideration as we think about how we approach the paper work issue, acknowledging that we are pushing ahead with safety and health program requirements as this committee has recommended in the past.

We are pushing ahead permitted by Congress with ergonomic programs that we are also required programs.

We are pushing ahead with things that will require more activity and more documentation, acknowledging that I am interested in seeing are there ways that we can reduce some documentation that is currently required.

If you all would give me a little more of the benefit of your thinking and reaction to these two or three thoughts that are in our minds as we look at this, I would appreciate it.

CHAIRPERSON BURKHAMMER: One, before I let Owen talk about paper work --

(Laughter)

CHAIRPERSON BURKHAMMER: We appreciate your opening comments about the value you see in ACCSH. For years prior to you and my being on ACCSH which is eight years now, there was a perception among a lot of people, the public and the Congress and even within OSHA that various NACOSH and ACCSH committees have little value to the agency.

And I think that has greatly changed over the last years. And one of the reasons it has changed, and I want to share with you is the participation in the workgroups.

I remember workgroup meetings where you are lucky to get one person to come. That was probably the ACCSH member that was chairing the committee.

(Laughter)

CHAIRPERSON BURKHAMMER: This time we had 15, 25, 30 plus people in the various workgroups representing labor and industry and contractors and management and others.

And it helps to deliver a better product when you have that big of a cross section of interested parties participating.

I know it makes the chair's job a lot easier to have a lot of input rather than just give you a document or give the agency a document that one person has written himself because nobody else came.

So from that standpoint, we really appreciate and thank you for your sharing your thoughts with us on the value that you see in us.

MR. JEFFRESS: Yes.

CHAIRPERSON BURKHAMMER: Owen.

MR. SMITH: This is on the certification. Speaking for my industry, sometimes it is kind of hard to tell whether I am sitting on the bench beside the labor side.

(Laughter)

MR. SMITH: But the fact is we do not have a problem with issuing a certificate. And in fact, it is useful, you know, because the guy got a certificate and he can show that he has had the training.

And we want to control the training and make sure that it is uniform and we keep the record.

Our problem occurs because that when OSHA requires a certificate for something, the states come right along and impose a fee for it.

(Laughter)

MR. SMITH: So we do the training and send the guys down, but in order for it to have any value, even though we issue a certificate, that certificate, it is no good, you know. We then have to produce paper work and pay a fee to a state.

And I understand that this happened because I hear a lot of complaints. And if there were some way that we could get around that fee, that would be fine.

We do not have a problem with having an outside person coming in even and evaluating our training because we do that in some cases.

But to have to spend all of the money that we spend and then come up and spend some more money, we find it very objectionable. And that is just not right.

MR. JEFFRESS: I am just curious. Of course, California is different from anywhere else.

MR. SMITH: Right.

MR. JEFFRESS: Where do you pay a fee?

MR. SMITH: For the lead, for instance.

MR. JEFFRESS: Yes.

MR. SMITH: We will do the training and because OSHA says there should be. We will send the guys through. But in order for it to be worth anything, then you've got to have that state certification because you guys require it.

There is no problem until you said there had to be a certification. And once that came along, then the state came in. And they sent the whole agency and the whole bureaucracy. And we do the work and mail it in. And they send us back the thing, you know. And it is every year.

And the Deal Well had funded the IBPAT to do its training. They went across the country and they did all of this training. And we fell right in line.

But having done that, we spent more and more money. And it is only this year. We don't have a problem with sending you guys back, but that is a lot of money that we are taking from things that we could use for other purposes. And we are paying for a card where we do all the work.

CHAIRPERSON BURKHAMMER: Michael.

MR. BUCHET: I may Schneider help me explain this, but as I remember when I was at the carpenter's, putting on my old hat, the EPA-drive training programs for lead and asbestos were given to states.

The states were allowed to set up their own certification processes. And it is two steps as I understand it almost in every state if not in every state.

You have to pay money to certify your training program and your instructors. Then, depending on the state, there is a certification fee for each certificate you issue for each trainee.

MR. SMITH: Yes.

MR. BUCHET: And I've been out of that business for awhile. Is that the way it is?

MR. JEFFRESS: That is not necessarily in OSHA, but it --

MR. BUCHET: OSHA is getting blamed for that.

MR. JEFFRESS: OSHA gets blamed for all kinds of things.

(Laughter)

MR. JEFFRESS: Add to the list.

CHAIRPERSON BURKHAMMER: Jane, do you want to talk a little bit about paper work reduction or --

MS. WILLIAMS: I think I will take the opportunity to respond to you in writing with a lot of these thoughts. In that way, I think you could have them before you.

But I think overall, the importance that we were trying to stress is that as we heard in the small business forum that was conducted in March, many of the comments came down to, if it's not in writing and I don't have to show it, it costs money and I have to put a priority somewhere.

And we really see that this document that is requiring is quite a leverage point for small business who is experiencing the bulk of the fatalities to our workers, and injuries, that it is really a very strong tool.

However, in saying that, we certainly can demonstrate the over kill that we have burdened ourselves with by dotting every I because nothing was really there.

So I will take the opportunity in writing to really explore with you the ideas of this acknowledgement form that could possibly be something we all could develop and have it, be presented in a way that the confusion from the employer who would be imposed with all this additional paper could possibly be eliminated with a very meaningful document that not only will work for a demonstration and accountability, but might also help have a more meaningful tool for you to see that employers are in compliance that those issues are not taken for granted.

So I will pursue all three areas with you and send that information to you.

MR. JEFFRESS: Thank you.

CHAIRPERSON BURKHAMMER: Felipe.

MR. DEVORA: I just had one comment. I want to go back to the ergonomics for just a minute and make a general comment on that.

(Laughter)

MR. JEFFRESS: By the way, you all got started early. There are some folks who didn't know we were supposed to start early. Three or four comments in the hall were we missed the ergo wars.

(Laughter)

CHAIRPERSON BURKHAMMER: Well, that kind of speaks to the issue.

(Laughter)

MR. DEVORA: In terms of a war -- I think, first of all, in terms of perception, the lines have been drawn. And this is an issue where a segment of the construction industry is not interested in protecting workers. I think that is a big misconception that has to be eliminated.

I think we are both on -- obviously, we have one thing in common. And that is to reduce injuries, MSDS injuries in construction. We have no problem with that.

But I think a segment of that industry is going about it a different way is really where the issue lies as I see it.

And I think we have a common goal. I just think we are butting heads on how we are going to get there.

And the comments that Stew made about this ACCSH Committee and the comments that you heard this morning, I think in every debate, there is a healthy back and forth of these kinds of issues.

And that is why one of the reasons this morning, my vote, you know, obviously, I changed the way -- in my mind, I changed because of the way the motion was versed.

And that has to do with respect for my colleagues on this ACCSH Committee and the hard work that they do.

So the issue of consulting with ACCSH back again or having some back and forth with the agency is very important to me in finding a compromise and finding how we are going to reach that goal without tearing each other's heads off by the time it is all said and done.

MR. JEFFRESS: And I assure you, I take your recommendation here for this information as an educational piece and as the best practices.

And any steps we take toward regulation comes back to you and we would not go forward in any way with a regulation without this group looking at it and giving us your advice. What you have recommended to me now will not take as a pattern for a standard.

But I am a little troubled at the -- because I think what is in this advice really is good advice. And I think it is an attempt to be broad and to be flexible and not require a particular way of thinking for every particular employer, every particular trade.

And to the extent that the comments you have made or others have made that suggest that appears to be a one-size-fits-all or it appears to lack the flexibility, I would greatly appreciate your thoughts on how do you write something that it is flexible.

How do you put in writing the kinds of flexibility that you are asking for because I think the agency generally believes as you do that no one solution is going to work for employer and every trade. And they have to be tailored. And a standard has to be flexible enough to allow that tailoring to occur.

CHAIRPERSON BURKHAMMER: One of the things that you did not comment on was our friend, Mr. Enzi and his OSHA bill. And he is getting a lot of free dinners, going around the country putting on his little speech.

(Laughter)

CHAIRPERSON BURKHAMMER: I have heard it several times. And I guess it changes when he gets something new to throw in to add to the bill.

Where are we on that now from your perspective?

MR. JEFFRESS: The bill that Mr. Enzi has produced has been passed by the committee in the Senate. It awaits floor action.

A similar bill introduced last year was also passed by the committee and never got time on the floor. It is not at all clear that this bill get time on the floor either.

There are a number of different problems with the bill that I guess there were 17 or 18 different amendments that were prepared for consideration during the committee deliberation on the bill.

There were all rejected by the same vote. They said there was not a lot substantive consideration of the issues there.

Still, the biggest difference probably remains and the issue of the use of private consultants.

The deferring to a private consultant the authority to immunize someone from OSHA penalties troubles the Justice Department in terms of deferring a public purpose to a private person.

It troubles me in terms of the richer employers, if you will, being able to buy immunity from OSHA penalties. And smaller employers never being able to do that. And OSHA becoming an agency that only fines larger -- only fines small employers.

There are some folks that are concerned about the appearance of impropriety if an employer can pick and choose a consultant that he or she wants to give them immunity. There is no question about how objective that can consultant might be.

The new thing that has came up and I don't know if it has come up in the hearings you had, a number of private consultants have suggested that they do not want to see that bill pass.

They have come to realize that they as a consultant, they sign something, that gives him immunity from penalties. And if action occurs and somebody gets hurt, the worker cannot sue the employer because worker's comp generally precludes lawsuits.

But some consultant signing something saying there were no problems here is a likely target for a lawsuit and the concern about the liability applications of that. So work on that debate has caused some second thoughts.

CHAIRPERSON BURKHAMMER: Danny.

MR. EVANS: If I could, Charles, going back to the paper reduction proposal, a lot of times when being in charge of the enforcement group in Nevada, the inspectors will ask employers if they have been trained. And if they are caught doing something they shouldn't be, the first thing out of their mouth is, no, I haven't been trained.

MR. JEFFRESS: Yes.

MR. EVANS: And as soon as you present a piece of paper that you retrieve from the employer showing the guy was trained on this and what day it was and what they covered and all that, then their memory returns.

(Laughter)

MR. EVANS: So it is kind of like being in amnesia. And that is one reason Jane and I discussed yesterday for awhile about this. I think it is important for the employers.

And I actually, during the course of settling citations, encourage employers to document as much stuff as they can because that is the only thing that is going to get them away from the citations and penalties if they have employees that cannot remember.

A lot of the times, they have been trained, properly trained. And the employers documented it. And these guys just take short cuts because it is easier or quicker or whatever.

I think it is still important for employers to maintain records of that.

CHAIRPERSON BURKHAMMER: Those are the fine ergonomically sound chairs that are out in the audience.

(Laughter)

CHAIRPERSON BURKHAMMER: They are causing problems.

Owen.

MR. SMITH: I would just like to make another comment about the ergonomics. I think that what OSHA is going to have to do is redefine the issue. And, you know, this is a center of word masters.

And I think that if you do that, a lot of the problems are going to go away. The name ergonomics brings up a lot of ghosts. And I do not know how real they are, but they are there.

And I think if you guys can find a way or another word and if you can redefine it, then you are not going to have the same problem because I think everybody wants the same thing.

MR. JEFFRESS: One of the comments that was made to me a couple of weeks ago that I think is accurate and I have some responsibility of helping to change the tone of the debate is, we have used ergonomics both to talk about a problem and talk about a solution.

And when the public hears of ergonomics right now, what folks do not know is that bad or good.

(Laughter)

MR. JEFFRESS: And it would be helpful for us and really for the country if we could really define this debate in terms of MSDs are the problem. It is the disease, it is the injury that is the problem. And ergonomics is a solution.

I do not know if that gets away or it gets towards the issue of, you know, let's focus on MSD. Let's focus on what is hurting people and try to remove the taint from ergonomics as being a problem because ergonomics is a solution to the problem.

CHAIRPERSON BURKHAMMER: Jane.

MS. WILLIAMS: Mr. Jeffress, I have heard that there is a possibility that the construction regulatory agenda may be delayed. I would like, if you could comment on that.

But more importantly, and you know I've got to ask, if that is true --

MR. JEFFRESS: I cannot believe I have forgotten this.

(Laughter)

MR. JEFFRESS: That is selected memory.

MS. WILLIAMS: But I have to go there.

MR. JEFFRESS: Yes.

MS. WILLIAMS: How are we working on the sanitation issues?

MR. JEFFRESS: And I am unaware of any of the reason for the construction agenda to be delayed. Our regulatory agenda is really one agenda that encompasses all the activity of the agency.

It is really an agenda for the Department of Labor. OSHA is a piece of that. And construction is a piece of the OSHA one. So there is one agenda.

There is some thought that OMB is just collecting it now from the agency. So an October publication date by OMB of all the agency's regulatory agendas may slip a little. That is not a Labor Department or OSHA issue. It is really an OMB issue.

But there is unified regulatory agenda with respect to the things that you all have recommended to us. They are on the agenda. The sanitation issue and the traffic safety issue, both are on the agenda, both things that we will be addressing next year.

MS. WILLIAMS: Thank you.

MR. JEFFRESS: Let me reassure you of that. And the publication date that OMB has does not affect the fact that we are going ahead with it. MS. WILLIAMS: Thank you very much, sir.

CHAIRPERSON BURKHAMMER: Mr. Rhoten.

MR. RHOTEN: If I could just a comment to you, Mr. Jeffress. In regards to the safety and health training, I do not think there is enough going on in this country at all, never has been.

I have that radical opinion myself. I have tried to impress here that I think that everybody before they go on a construction site should have at a minimal that 10-hour safety and health OSHA training.

And I think that will do more to save lives and injuries than all the enforcement that they are doing. I really believe that.

So I encourage everybody here if I can the next time we vote on it to submit to you that concept. And I think that is the best protection for the workers, the union and non-union.

MR. JEFFRESS: I would like to see OSHA invest much more heavily in having the assistance available to folks who want to do the training.

I agree with you. I think the training is essential to give folks the skills to protect themselves and to -- and I do not think we do enough as an agency to support that.

MR. RHOTEN: I can tell you, too, that we are expanding that program in our association. We got about 300,000 members. And more than half of our locals now are teaching it. Probably, in a few years, they all will be teaching that course.

And I can tell you, too, that the members who take the class are not going to go down there voluntarily. We can get the apprentices in the class, make the 3-hour program part of that training program.

But the real reason that they will go to that class is if the industry demands they have the 10-hour safety course before they come on the job site.

And I think the industry is missing the boat because all they really have to do is ask for that. It is not a cost item for the contractors. The pay issue is not there. All the unions are going to be ready to get the people to that 10-hour course.

So all the industry really has to do is just make that part of the bid specifications for union and non-union, that you have that, that a worker has a 10-hour safety and health card in his pocket from OSHA.

And it is free. It is absolutely free to the employer.

MR. JEFFRESS: One of the issues with this paper work is over the past few years as things have become standard business practice and happen in business and will continue to happen even if OSHA really were to eliminate the rule, for instance, these documents for the certification that people have done training.

Most prudent employers are going to keep them anyway. If OSHA were to eliminate the rule, probably for most folks, it would not stop them from having some kind of evidence that the training was done.

But over the past few years as it becomes standard business practice, we have said, well, that is standard business practice, now it is not really just because OSHA requires it that it is occurring. It is not going to stop if OSHA were to go away.

So from my point of view, there is a lot of what was originally attributed to OSHA, product safety and management, for instance, were a lot of standard business practices to the point where people document their maintenance.

And they do their maintenance. And it is no longer an issue of OSHA requiring it. People realize it makes good business sense to do it. And they are doing it. And it should not be attributed to OSHA.

But yet, a lot of those hours are still counted toward OSHA. And there is still some question about whether OMB is going to let us state that these are now standard business practices and no longer should be attributed to OSHA.

If we can make progress in saying that things that have become a part of common business practice no longer should be attributed to OSHA requiring it, then there is some room and some flexibility for OSHA to move ahead with more training requirements because we need to go forward in this country with worker protections.

We've got to go forward. If we go forward and as we forward, we are going to acquire more documentations in the nature of the best.

And the view that government should require less paper work instead of more is in direct conflict with it seems to me progress, not only in OSHA but lots of other fronts.

So from my point of view, we need to be able to mark off those things that have come institutionalized and no longer charge them against OSHA in order to make room for progress for new training issues or other issues as we go forward.

CHAIRPERSON BURKHAMMER: Following up on Mr. Rhoten's comments about training, one of the things that bothers me, and you go around the country and you talk about training a lot.

And you look in the OSHA's standards and there is a lot of discussion about training, but there is no discussion about quality of training. And a lot of employers consider training as being a guy comes in the gate, signs this paper work.

One of the papers he signs is a list of five or six or seven safety items that they expect to wear a hard hat, you know, that kind of stuff. And that is what they consider safety training.

And even taking that a little bit further and Felipe and I have had this discussion, I think they talked a little bit about it in the Diversity Workgroup is the fact of the literacy rate in this country.

And you get a lot of craft workers who put an X on the bottom of their sign-in page. Well, it ought to be pretty obvious to the employer that if a guy signs his name with an X, he is going to struggle reading the 10 items that are on the sheet that he signed with an X.

So he goes out in the field and he goes to work. And he really does not understand. He has not been properly trained. There has been no quality of training.

And part of the documentation purpose I think if it is done correctly is to enhance or solidify the fact that the employee got some type of quality in that training. It was not as you pass through the gate, pick up your hat and put an X next to your name.

And I would like to see OSHA in some of their documents and some of their information stuff use the word "quality" before the word "education" and "training" because there is a major difference in the interpretation of training and the quality of training.

MR. RHOTEN: Well, if I could maybe just to reiterate my point. It seems to me like the people who take the OSHA 500 course, you know, have been at least deemed qualified.

And, again, that OSHA card will have some credibility to it, that it is not being -- that the course is not being taught by somebody that took -- at least has had the basic safety and health course and understands how to teach it. I think that course would not be well for somebody right off of the street.

But if you take somebody with five years of construction background like that is required and run into that course that is already an instructor, that would at least have some credence to it.

And again, the OSHA card I think is where we should be heading because it is --

CHAIRPERSON BURKHAMMER: I certainly agree with that. I mean, you and I have debated the 10-hour issue for years. And I told you yesterday, I rolled over and died. And I'm trying it on a couple of jobs.

(Laughter)

CHAIRPERSON BURKHAMMER: But, yes, something like that.

MR. RHOTEN: We want 15 next year.

(Laughter)

CHAIRPERSON BURKHAMMER: I know. Take the two I'm giving you this year.

MR. JEFFRESS: All right. I think the card is a sample that you have gotten some type of quality in your training.

And the more of these paper work issues that we eliminate, and Jane talked a lot about it when she presented this, that is the documentation I think for the employer that there has been some quality put into these various things.

And if you just eliminate all that stuff and you do not require the employers to keep it anymore, they are not going to keep it, you know, because they do not have to. I am not going to do it.

But you lose something in doing that. And I know Danny talked about selective memory by employees. Well, employers have selective memory, too, sometimes when they like to. It works both ways.

But I think Jane's recommendations are solid. I think she did an excellent in this workgroup. And I hope that you take some of these to heart.

What I hear a number of you saying is that, you know, some paper work is good, it is important. I respect that.

I might ask you all to pass that beyond me onto some other folks on occasion as well.

(Laughter)

CHAIRPERSON BURKHAMMER: We would be happy to.

MR. JEFFRESS: There might even be some people in the room behind me that I need to pass that along to.

(Laughter)

MR. JEFFRESS: And they know who they are.

CHAIRPERSON BURKHAMMER: Larry.

MR. EDGINTON: Good morning, Charles. Sort of shifting gears as we are floating between topics here, something my organization has been struggling with is the powered industrial truck, lift truck rule.

MR. JEFFRESS: Yes.

MR. EDGINTON: And I guess I sort of have two questions. One, could you update us on what is going on with maritime in regards to that and whether or not that may have other implications to other industry segments?

MR. JEFFRESS: The powered industrial rule, as you know, is final. And it is out there. We are writing -- have written a compliance directive that instructs our compliance officers how to enforce that rule.

The maritime industry, some representatives from the maritime industry have raised some questions about the application of the rule to some specific requirements and specific uses in their industry.

We have had a number of discussions, a number of meetings with representatives of that industry over a period of time.

I guess I would have to describe it as we continue to see things differently. And I do not know that that issue is going to be resolved short of a lawsuit.

I think the truck rule is well written to the extent there are areas of difficulty in terms of how it applies. I think we can deal with those through a directive.

But the industry seems to believe that the rule itself ought to be changed. And I guess I am not yet -- I do not yet believe that --

MR. EDGINTON: I mean, I can tell you that my own organization, we are currently training thousands and thousands of our members. And we have been seeking interpretive guidance from the agency for a period of about three months now.

MR. JEFFRESS: Right.

MR. EDGINTON: And have yet to receive a response.

MR. JEFFRESS: I sent --

MR. EDGINTON: I think the questions we are asking are fair questions.

MR. JEFFRESS: I think they are fair questions. And I have signed that directive and then held it up pending some discussions of the maritime industry.

It appears that those discussions are not going to go any further. So we will be getting the responses out shortly.

MR. EDGINTON: Okay. Thank you.

CHAIRPERSON BURKHAMMER: Any other comments or questions or --

(No response.)

CHAIRPERSON BURKHAMMER: No.

MR. JEFFRESS: Thank you.

CHAIRPERSON BURKHAMMER: Thank you very much.

MR. JEFFRESS: I appreciate and look forward to your written advice on this and whatever additional you all take today.

Again, thank you very much.

CHAIRPERSON BURKHAMMER: May I have a minute before you go on, Bruce?

MR. SWANSON: Yes. I don't want to hold you up, boss. I don't want to hold you up. You can listen if you like.

(Laughter)

MR. SWANSON: Yesterday, I made some comments about an allegorical paint shop. And this morning, there were two guys from the Department of Paint Office in my --

(Laughter)

MR. SWANSON: And suggesting that standards were being held up because of their inaction in the paint ship. It is an allegory. It was not intended to apply to the Department's paint shop.

(Laughter)

MR. SWANSON: Nor to any other shop that could be identified. There is a frustration. And you heard it from Charles that things are not moving as fast as we would like them to move, but there is not fault downstream.

What there is is priorities change, priorities from OMB and the rest of the alphabet that you could come up with. And rather than substitute offices or letters, I used the paint shop.

Let the guys in the paint shop know I won't do that again, please.

That's it.

CHAIRPERSON BURKHAMMER: Maybe, before we talk about anything anymore, we ought to have a disclaimer upfront that allows us to talk about parts of the agency, but not reflect the parts of the agency.

(Laughter)

CHAIRPERSON BURKHAMMER: Let's take a 10-minute break. And then, we will come back and conclude with the ACCSH business.

(Whereupon, at 10:05 a.m., the meeting was recessed.)


AFTER RECESS
ACCSH Business

CHAIRPERSON BURKHAMMER: We are back in session to conclude our week's activities. The things we will put on the table first is the February meeting in Chicago.

VOICE: And why Chicago, Mr. Chairman? Why not Florida?

CHAIRPERSON BURKHAMMER: Because we are having the meeting in conjunction with the --

VOICE: I understand.

CHAIRPERSON BURKHAMMER: -- Chicago Safety Council.

MR. BUCHET: It is indoors. It is really indoors.

VOICE: I could not help that comment.

CHAIRPERSON BURKHAMMER: I appreciate that. Thank you.

We need to decide as a committee how we want to do the workgroups in the meeting. Broderick's session is Tuesday, Wednesday, and Thursday basically, right, Michael?

MR. BUCHET: Yes.

CHAIRPERSON BURKHAMMER: So we can have the workgroups Monday. And we can meet as a committee on half a day Thursday and maybe half a day Friday so everybody can get out of there and go home, whichever they are going, east or west.

So if we have one day of workgroups and, say, a half a day Thursday and a half a day Friday of ACCSH, how does that sit with everybody?

Michael.

MR. BUCHET: One of the things that Tom Broderick and I were talking about is maybe integrating some of the workgroup sessions amongst his sessions so that people who attended the conference would have the ability to come and see how ACCSH and the workgroups work.

And I do not know that if Mr. Bloom has talked with any of his --

You have talked with his planning staff?

MR. BLOOM: I am trying to work around your activities. We do not want to take away from your show. I think as Stew suggested Monday.

MR. BUCHET: Sure.

MR. BLOOM: That will give you the opportunity to visit if you wanted to come in early and at the same time not take away from yours. But it is something I have not really talked to the boss about. I am just looking for ideas right now.

CHAIRPERSON BURKHAMMER: Yes. I think some of the workgroups -- Cranes, I know Larry has got a big agenda of his the next workgroup meeting. I think Felipe and Bob do on the fall protections got a big agenda at the next meeting. I think Jane and her Diversity Workgroup.

So there is three workgroups that have solid probably four, six or eight-hour agendas for their workgroups.

Bill Rhoten and Cloutier are going to have a safety and health program/training and education workgroup session.

MR. RHOTEN: Yes. As I recall, the only thing left on the safety and health programs is the issue of training.

And from what I heard yesterday, it is going to be a year or so from now before there is any firm action from OSHA on any recommendations we make anyway.

So I would be happy to have that meeting. And again, it seems to be like the only topic left is to address the issue of training in a work place program because everything else has been submitted some time back.

And we have had hearings, pretty extensive hearings with a lot of input. And I think that we probably -- that document that we submitted some time back has everything in it except for the training.

So I would suggest if we have it, that workshop meeting that we define it or confine it strictly to the training issue.

CHAIRPERSON BURKHAMMER: Okay.

MR. RHOTEN: Maybe take other comments, but at least not debate them any longer. We have already debated them for two, three years.

CHAIRPERSON BURKHAMMER: All right. That might be one, Jim, that would fit in and, Michael, would fit in as part of an hour or, you know, an hour and a half workshop where you can get a lot of people in to supply information to the workgroup chairs.

I think Jane's and Larry's and Felipe's need pretty much a day or at least a half day anyway.

Jane.

MS. WILLIAMS: On that safety and health program, at the last meeting, did not Steve submit a document that was referred back to the committee because it did not include all the items that Mr. Rhoten just mentioned?

MR. RHOTEN: That is correct. Unfortunately, I was not at the last meeting.

CHAIRPERSON BURKHAMMER: Steve's got that. So get --

MR. RHOTEN: Oh, he's got it. Okay. We will coordinate it, yes.

CHAIRPERSON BURKHAMMER: And you can use that as kind of the basis for the training part of the meeting.

MR. RHOTEN: Yes. And I would think if we are going to have a meeting there, we probably should have copies of what our proposal was.

CHAIRPERSON BURKHAMMER: Right.

MR. RHOTEN: To hand out or at least have a copy so somebody can look at it.

CHAIRPERSON BURKHAMMER: Okay. Michael.

MR. BUCHET: We have also in musculoskeletal disorders talked about having a debate panel at the February meeting to talk about other options, sort of stretch and flex programs, whether they are valuable or not valuable. And that we could do as an hour and a half presentation.

CHAIRPERSON BURKHAMMER: That is gutsy, a debate.

MR. BUCHET: No. We are going to invite the panelists to talk to the workgroup. And then, we will just say, thank you, that's it. And then, we can work on what they provide later.

DR. SWEENEY: Show and tell.

MR. BUCHET: Yes.

MR. BLOOM: You are talking about workgroups on this three -- third session or on Monday?

MR. BUCHET: I think we can do it during their session and keep it as short as the session so that it would not draw too much.

CHAIRPERSON BURKHAMMER: Is there any other workgroups that want to have a meeting in Chicago?

VOICE: Data Collection.

CHAIRPERSON BURKHAMMER: Data Collection.

MR. BUCHET: Well, Data Collection and the 170 will probably need a number. But do we need to meet there or can we wait a month or two?

MS. WILLIAMS: Well, we are going to meet hopefully in November. And then, we will meet in December. So if we did do anything, it would probably be minimal.

MR. BUCHET: Well, Data Collection is going to continue forever.

MS. WILLIAMS: We would need your input probably in November.

MR. BUCHET: Okay. December.

MS. WILLIAMS: That we talk in December.

MR. BUCHET: November. Okay. So then, we don't do a Data Collection.

MS. WILLIAMS: 170, there is a possibility.

MR. BUCHET: Yes.

MS. WILLIAMS: If the form is not completed. Maybe, it would be.

CHAIRPERSON BURKHAMMER: If Multi-employer gets their document back from Noah, they probably will want to meet also. And I would say that would be a two to four-hour session.

MR. BLOOM: Say it again.

CHAIRPERSON BURKHAMMER: If Felipe gets the multi-employer document, the revised one back from Noah, I would think that he would want to have a workgroup meeting in Chicago also.

So I would say Cranes, Diversity, Multi-employer if they have the document back, and certainly Subpart M would need time on Monday.

And then, the committee could meet a half a day, probably Thursday afternoon and Friday morning and combine our session into workgroup reports and maybe one or two special presentations.

I know the Assistant Secretary is going to be -- is planning on being in Chicago. That's my understanding. So --

MR. SWANSON: Mr. Chairman, would you expand a little bit on Felipe's subgroup meeting? We are talking February, he is going to have a meeting on the multi-employer document that he will have back from OSHA is what you said?

CHAIRPERSON BURKHAMMER: Yes.

MR. SWANSON: There is no if involved. OSHA will have a multi-employer document well before February.

CHAIRPERSON BURKHAMMER: Well, if that is the case and we get it then, Noah -- or Felipe could call a workgroup meeting. And they could review it at the time it is received, prior to February. And he could just discuss the workgroup's findings in February.

MR. SWANSON: Fine. Thank you.

CHAIRPERSON BURKHAMMER: Okay.

MS. WILLIAMS: Stew.

CHAIRPERSON BURKHAMMER: Jane.

MS. WILLIAMS: The only caution for Jim if it can be done, I have some really particular interests with cranes and other issues. So to have them all in one day, it is going to be tough.

MR. BLOOM: The sessions are six and eight-hours. It is going to be different -- or it is going to difficult to not have some overlap.

CHAIRPERSON BURKHAMMER: Well, let's just say four hours per workgroup. And we will have two in the morning on Monday and two in the afternoon.

MS. WILLIAMS: Thank you.

MR. BLOOM: Okay. So we are looking at four workgroups on Monday.

CHAIRPERSON BURKHAMMER: And then, the committee Thursday afternoon.

MR. BLOOM: With their activities, we are going to have two more safety and health and perhaps training and --

MR. BUCHET: MSD.

MR. BLOOM: MSD.

MR. BUCHET: MSD. And Tom Broderick and I have talked separately about a panel presentation by myself and some other people on the panel, possibly Bruce and possibly Stew, to tell his conference what ACCSH does.

MR. BLOOM: Okay.

CHAIRPERSON BURKHAMMER: And then, Jim, I think if we could do one with Cloutier and Rhoten on training and blend that in as a part of

MR. BLOOM: Part of --

CHAIRPERSON BURKHAMMER: Tom's, yes, Tom's session.

Is that all right with everybody on the committee?

(No response.)

CHAIRPERSON BURKHAMMER: Larry, is that okay with you?

MR. EDGINTON: Yes.

CHAIRPERSON BURKHAMMER: Okay. All right. Michael.

MR. BUCHET: Mr. Chairman, thank you. Yesterday, we had a couple of presentations that caused a number of people in the audience and some of us up here to think, why can't we do this?

At NIOSH, we had a presentation by Suzanne Kisner which had a recommendation buried in it that OSHA try and conform its current standards to the current Manual on Uniform Traffic Control Devices.

If you look at some of the OSHA standards, primarily 1926.200, 201, and 202, the reference is to a 1971 ANSI standard called the Manual on Uniform Traffic Control Devices.

The Department of Transportation has codified that manual. And currently, I think the edition -- and it is being revised, but I think the latest edition is 1996.

So OSHA is cited something that is over 20 years old and is not even using something that a federal -- another federal agency has basically forced all the states to adopt.

And then, we heard the presentation on doing changes, technical changes to the standards. So the thought occurred to a number of us, why can't OSHA simply do an editorial change from the 1971 MUTCD to the 1996 MUTCD.

And I asked the chairman if we could make a motion that ACCSH recommends that OSHA look into the possibility of doing that. And the motion would encourage OSHA to do that with all speed.

That is my motion.

MR. RHOTEN: Second.

CHAIRPERSON BURKHAMMER: We have a motion on the table moved and seconded for OSHA to take a look at the references that are included in the various 1926 standards and take a look at updating those references to current publications and current documents.

I know when I was chairing with Michael about five or six years ago, the agency's Ted Drukowski led a task force to do this. And Joe Adam and I were the workgroup chairs that worked with him on this issue.

And we took all the references in 1926 and looked at them. And we had a parallel sheet of ANSI, etcetera, etcetera, 19 whatever versus the newer version of it.

And we presented that to the agency. And I cannot remember. This is Danny's selective memory. But I am not being selective. I honestly cannot. It is a singular moment. I cannot remember what happened to that document.

Bruce, do you? Could you share with us whatever became of that or why we cannot do some of those things?

MR. SWANSON: Well, I cannot help you, Mr. Chairman, with either your memory or the document.

(Laughter)

MR. SWANSON: But the agency is looking at ways of expediting the entire standard on the promulgation process.

And you heard some of the Assistant Secretary's frustrations. Some of it is based on his being unable to get around the Administrative Procedures Act requirements.

On the motion in particular though that specifically we are looking at when it comes to MUTCD, the Solicitor's Office I know has been working for some time on the issue of a shortened, abbreviated, expedited rulemaking where we could move forward from 1971 with a very quick step rather than take the multi-year process.

It is just required by the Administrative Procedures Act. All the steps take forever to do.

I would like to perhaps the motion for ACCSH to applaud what OSHA is already doing rather than suggest that we initiate that which we have been doing for some time.

CHAIRPERSON BURKHAMMER: Would the maker of the motion like to consider that in his motion?

MR. RHOTEN: What about my second first?

CHAIRPERSON BURKHAMMER: Would the second like to consider that?

MR. RHOTEN: Sure.

CHAIRPERSON BURKHAMMER: Okay. Mr. Rhoten agrees.

MR. RHOTEN: Certainly.

MR. BUCHET: The motion is that ACCSH applaud?

(Laughter)

(Applause)

MR. SWANSON: That was not thanks.

CHAIRPERSON BURKHAMMER: Is that ACCSH is appalled or ACCSH applaud?

(Laughter)

CHAIRPERSON BURKHAMMER: Do we want to make a revised motion?

MR. BUCHET: In light of what we have just heard, I don't think it's necessary.

CHAIRPERSON BURKHAMMER: The second withdraws?

MR. RHOTEN: Yes.

CHAIRPERSON BURKHAMMER: Motion withdrawn.

Harry.

MR. PAYNE: Is there anything to be learned in this for other standards where they reference specifically a document that is already done in essence?

Could we not suggest to OSHA that in their rulemaking that they consider a proviso where it is -- where if another organization, for instance, goes through a rulemaking process that they reference and approve in advance subsequent modifications to that document and leave open OSHA's privilege of saying, no, and passing a rule to that effect so that you will automatically incorporate future iterations of the same document by the same process which it was first evolved?

Otherwise, we are going to do this in any kind of new chemistry or any kind of new risk that is out there. And we will be forever, three to four years behind.

I don't know what motion that would take, but I think something to encourage OSHA to not reference a particular iteration of a document.

CHAIRPERSON BURKHAMMER: Is there a second?

MR. EDGINTON: Second.

CHAIRPERSON BURKHAMMER: Second.

Discussion?

MR. SWANSON: Yes. If I may address that. And then, perhaps Mr. Biersner from the Solicitor's Office would like to step in, seeing as how it has been 30 plus years since my administrative law course in law school.

The problem is when you incorporate by reference, when you as a governmental body incorporate by reference someone else's work product, even another governmental body, you have to name and identify a document indeed under the notice requirements.

So anybody who wants to know what your legislative action is, they can identify it at that time when you adopt that standard, regulation, or whatever it is.

You cannot give a blank check to say and that we will two years from now also incorporate by reference your as yet unwritten modifications to this. That fails on the notice requirement.

But like I say, it was 30 plus years ago, Mr. Biersner.

MR. BIERSNER: Bob Biersner, the Solicitor's Office.

That is correct. The problem here is that the public both management and labor have to be given notice that we are adopting a specific reference or citation. And the content of that reference or citation will vary across years.

And they have to be apprised of that, be given an opportunity to read what the new reference would be and what additional obligations, burdens, benefits might accrue from that. And it is subject to a rulemaking.

Now, if the reference is non-mandatory or included in a reference section for reading purposes only, that probably would not require a rulemaking.

But if it is a mandatory consensus standard or reference, that is going to require a rulemaking to adopt in order to give the public adequate notice to apprise themselves of what the new burdens or benefits are going to be as a result of the updated reference.

My recommendation here would be, I think it is a good idea. This is always a problem in OSHA standards, citing stuff that goes back I think to perhaps the turn of the century. I know there are some references that go to the 1930s, a lot in the 1960s.

One mechanism to do this is the standards improvement project. Now, we are in phase two of that project now where we do technical updates to existing rules. I would recommend that.

And I think that this will be completed within -- we will certainly come out with a proposal by the end of this calendar year and perhaps a final rule by the end of the next calendar year.

This is probably a little late in the game to try to get into that phase two, but I would certainly recommend that you suggest perhaps that this be a significant element in phase three of the standard improvement project.

CHAIRPERSON BURKHAMMER: Harry.

MR. PAYNE: My intention was to draw attention to a problem. I agree with the notice issues.

But there are I think if we could think outside the box of the rule that, for instance, if we referenced rules passed by another agency and they change those rules, if we would also have some index that we would change ours. And go through the same process at the same time and in essence piggyback.

I just know from a state perspective we are constantly confused. And I think it sends a different message to the public to reference an antiquated anything, you know, a manual that is not current.

We've got to I think rather than on this one occasion to think systemically about how we can improve the probability of currency in terms of what exposures are out there, what risks are out there, what the expectations are.

I know when we change the speed limit ion North Carolina, we do not have to rewrite everything that comes out of that. And somehow, we do not deal with the same thing for other kinds of safety issues.

But, Mr. Chairman, if I may, I will withdraw the motion with permission from the second.

I am not trying to create a legal problem, but point to an issue that is fairly constant.

CHAIRPERSON BURKHAMMER: Second?

MR. RHOTEN: Just a question. Couldn't I assume that all of those changes would really be noncontroversial because they have already gone through some kind of --

MR. BIERSNER: Not -- you still don't have the notice.

MR. RHOTEN: I guess what I am suggesting is if those rules change because they generally change after the consensus of the public comment or even on the standards maker.

So I guess my suggestion is, even if you have to notice people and rehear the issue, you could be pretty assured that it is a noncontroversial change.

Is that a fair assumption?

MR. BIERSNER: Yes, that is a fair assumption. I think in the phase one of the standards improvement project, we had less than 40 comments in total.

And that addressed a wide variety of technical changes and standards. And none of them were negative comments.

MR. RHOTEN: Yes. It would seem like even if you had to calendar these issues and notice the public, you would go ahead and go through that process.

It would not be too burdensome because there basically they would be noncontroversial and hearings have been held. I don't know.

CHAIRPERSON BURKHAMMER: Larry.

MR. EDGINTON: Thank you, Mr. Chairman. This whole subject is actually something that had also come up during the Subpart N Workgroup.

And we had representatives of our workgroup meet with the Solicitor's Office and received a similar answer.

I guess it seems to me and as we talk about standards improvement, I would hope that one of the things that the agency is considering doing is that in instances where we have standards or regulations which reference outside standards, whether it is ANSI or others.

For example, that a process be instituted where the agency monitors changes in those outside references and gives consideration to whether or not it is necessary or appropriate to modify their regulation in accordance with that because that seems to be some of what we are struggling here when we talk about references that are 20 years old which suggest to me that either nobody was looking or a decision was made that it was not necessary to update the reference.

CHAIRPERSON BURKHAMMER: Bob.

MR. BIERSNER: If you notice, a good example is the dip tank standard. It recently came out. All the references were outdated in that standard.

Now, in order to avoid claiming that there were substantive changes, we allowed people to abide by the old consensus standards, but we also included the updated NFPA and ANSI standards with regard to ventilation and other matters for dip tanks.

So, yes, we try to update the references at the same time. But if you don't want to -- if you don't want to have a contentious rulemaking, and this was supposed to just be a plain language revision, we had to allow people to comply with the old ventilation standards and what have you.

CHAIRPERSON BURKHAMMER: Thank you, Bob.

Bill, a second?

MR. RHOTEN: What was the motion again, Mr. Chairman?

MR. PAYNE: I think it was suggested to withdraw that motion that I described and I'll try to replicate that if I can.

Just having raised the issue and not suggesting particular specific action.

MR. RHOTEN: Okay.

MR. PAYNE: The advice was that it is possibly unconstitutional.

MR. RHOTEN: I withdraw.

CHAIRPERSON BURKHAMMER: The second withdrawn. Harry withdraws.

MR. RHOTEN: No. Yes, I don't want to make this in the form of a motion, but I would suggest as this conversation is leading to is they calendar these changes. And I am sure they are aware. Somebody is aware when those other changes take place with intent of making -- maybe making ACCSH aware of those changes.

CHAIRPERSON BURKHAMMER: I think we might have a revised motion that might satisfy Larry and certainly your --

MR. RHOTEN: I'll just sit here silent and wait for the motion, Mr. Chair.

(Laughter)

CHAIRPERSON BURKHAMMER: Mr. Buchet.

MR. BUCHET: Having consulted with my editor --

(Laughter)

MR. BUCHET: I hereby move that OSHA -- this is the motion, that the OSHA actively consider using the most current references when reviewing, evaluating, or developing standards.

CHAIRPERSON BURKHAMMER: Is there a second?

MR. DEVORA: Seconded.

CHAIRPERSON BURKHAMMER: Moved and seconded.

Any discussion?

MR. RHOTEN: When activating, reviewing standards?

MR. BUCHET: No. We have OSHA actively consider using the most current references when reviewing, evaluating, or developing standards.

MR. RHOTEN: Call for the question. Does that go far enough, I guess I would -- might suggest.

VOICE: Why don't you ask the director?

Would that allow --

MR. RHOTEN: It seems to me that that is for future -- I guess the question is, is it burdensome for this committee to be made aware of all of the changes that might be necessary to be considered?

VOICE: Well, I think the issue is really whether or not the agency can work with it. We should be asking them what they need so that they can do it.

CHAIRPERSON BURKHAMMER: Michael.

MR. BUCHET: Having consulted with my editors again --

(Laughter)

MR. BUCHET: That OSHA continue to actively consider using the most current references when reviewing, evaluating, or developing standards.

CHAIRPERSON BURKHAMMER: Does the second agree with the --

MR. EDGINTON: I agree.

CHAIRPERSON BURKHAMMER: The second agrees.

Further discussion?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing no further -- go ahead.

MR. SWANSON: No. I had no discussion whatever. Really, as I understand the motion, Mr. Buchet, it is totally in keeping with what OSHA is doing presently.

OSHA when it promulgates a standard wherein it is incorporating some other document by reference, it does use what then is the most up-to-date reference we can go to.

OSHA also is revealing the standards that are now in existence that are for many reasons out of date.

As you heard Mr. Edginton comment, the whole crane area is one of those where his committee is doing some work to go back and not only point out what is out of date, but discuss what changes OSHA ought to make.

And all of those are -- all those suggestions are good suggestions. It is like motherhood and apple pie. Everyone is in favor of it.

Once we get that done, however, and you give OSHA a list of your recommendations as to what standards out to be updated, you heard from a better source than myself this morning, the Assistant Secretary, that the time necessary to promulgate these changes is very frustrating. It takes years.

We are also looking at or rather the Department of Labor is looking at, the Solicitor's Office is looking at ways to get outside of the box, change the whole system, and find a way to shortcut it so these changes that everybody believes ought to be made, there is nobody standing up and defending 1971 flagging positions in an OSHA standard.

The frustrating thing is how do you quickly change it? And we have been talking about quickly changing for, to my personal knowledge at least, two and a half, three years now.

MR. RHOTEN: So if I am hearing you correctly, you do not need a motion at all, right?

MR. SWANSON: No, I do not.

(Laughter)

MR. SWANSON: I am not opposing it, but --

MR. RHOTEN: Well, you are already doing it. So --

(Laughter)

MR. SWANSON: Right.

MR. RHOTEN: We shouldn't tell them something that they are already doing.

MR. SWANSON: I think that is why the word "continue" is placed in my -- the motion.

CHAIRPERSON BURKHAMMER: So we have a motion and a second on the floor.

Further discussion?

(No response.)

CHAIRPERSON BURKHAMMER: Hearing none --

MR. BIERSNER: Can I make a recommendation? I would put revising somewhere in your language because that is the active process by which we update all standards.

Somebody said this sounded like the future. And it is.

If you are going with the past, you've got to put revised in there somewhere.

CHAIRPERSON BURKHAMMER: Please reread the motion?

VOICE: The revised motion.

MR. RHOTEN: We can withdraw it and nothing will change.

(Laughter)

CHAIRPERSON BURKHAMMER: Does the second wish to withdraw his second?

MR. RHOTEN: Well, I guess my question is, what's the point?

CHAIRPERSON BURKHAMMER: The second does not wish to withdraw. Therefore, we will vote on the motion.

The amended motion, please read it?

MR. BUCHET: That OSHA continue to actively consider using the most current references when revising, evaluating, or developing standards.

CHAIRPERSON BURKHAMMER: All in favor of the motion, the amended motion as read, please signify by saying aye?

VOICES: Aye.

CHAIRPERSON BURKHAMMER: Opposed, nay?

(No response.)

CHAIRPERSON BURKHAMMER: Passed.

Thank you.

Mr. Devora.

MR. DEVORA: A procedural issue, Mr. Chairman. Earlier, in the ergonomics vote, I misspoke myself when I was voting for Bob Masterson. I had specific instructions for Bob Masterson to vote negatively on that. I guess it is a procedural question if I can correct myself. I got caught up in the moment and voted incorrectly for Bob.

CHAIRPERSON BURKHAMMER: I was going to comment, but I didn't. But I was very proud of Mr. Masterson for stepping up to the plate --

(Laughter)

CHAIRPERSON BURKHAMMER: -- and voting, yes, on all of those issues, but --

MR. RHOTEN: Mr. Chairman, can we vote on whether or not he can change the vote?

(Laughter)

CHAIRPERSON BURKHAMMER: No. He has the right to. He has the right to vote as he requested.

MR. RHOTEN: We can vote on that.

CHAIRPERSON BURKHAMMER: So we'll let the record show that on the issues of the musculoskeletal disorders document that was voted on earlier today, the final vote is 11 yes, one no. and the one no is Mr. Masterson from the homebuilders.

MR. BUCHET: Mr. Chairman.

CHAIRPERSON BURKHAMMER: Mr. Buchet.

MR. BUCHET: What do we do about all the press that left the room with the unanimous vote?

(Laughter)

CHAIRPERSON BURKHAMMER: All right. Any other business that any of the --

Marie, I know you had something that you wanted to share.

DR. SWEENEY: Yes. I would just like to pass out a little pamphlet that NIOSH, my staff put together on preventing falls among roofers. And this is a draft I am handing out only to the committee.

If you would just mark it up, put it in an envelope, and send it back to me. The reason I am giving it to you is I would like your unbiased and critical review.

This is aimed at the audience is the worker. And this a long history. We have done a lot of work in the issue of hot asphalt roofing. And this, we are developing something to make people aware of the hazards associated with the application of hot asphalt roofing.

But one of the major problems with roofers or one of the major hazards is falls. So we thought we would put together this as a companion piece to probably a glitzier document than this on hot asphalt roofing application.

So please, mark it up, put it in an envelope. You have my address on the sheet.

CHAIRPERSON BURKHAMMER: Thank you, Marie.

DR. SWEENEY: Thank you.

CHAIRPERSON BURKHAMMER: Two final points of business. One, you have all hopefully marked your calendars for the next ACCSH meeting which is the 7th, 8th, 9th, and 10th of December. It will be here in Washington at the Department of Labor.

Secondly, it is a sad day for the advisory committee today because we are losing my choice of the agency that she represents, a valued member of our group, Marie Haring Sweeney. This is her last meeting with us.

She has been an unbelievable supporter for all of us on the committee that have had the opportunity to work with her and her intelligence and her enthusiasm and her tremendous work ethic have served this committee exceptionally well.

And NIOSH has made a decision that as Marie got promoted to the big time and she is up in the high-rent district and so she will no longer be with us.

And her replacement will be at the next meeting. And we want to take this opportunity to thank Marie for all her contributions over the years to ACCSH.

(Applause)

DR. SWEENEY: Thank you, Mr. Chairman.

CHAIRPERSON BURKHAMMER: Any further business?

Scott.

MS. SCHNEIDER: I just want to let people know to mark your calendars. Around August 1st next year, there will be a two and a half day symposium, international symposium in San Diego on ergonomics in the construction industry, people coming from Holland, from Finland, from South Africa, from all over.

And Mike MacCollum and I are organizing it. And there will be about maybe 25 or 30 presentations of different research projects and information on ergonomics and construction.

It is in San Diego. So it is fairly easy to get to. And I think it's probably going to be like August 1st, 2nd, and 3rd or July 30th and 31st, some time around there.

I will get more information to the committee as we get along with that.

CHAIRPERSON BURKHAMMER: Great. Thank you.

Yesterday, I asked if any of the public had any comments or if they wanted to present anything to the committee. And no one indicated that they wanted to do so in writing.

So with that, the meeting adjourned.

(Whereupon, at 10:55 a.m., the meeting was concluded.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the U.S. Department of Labor, Occupational Safety and Health Administration, Advisory Committee on Construction Safety and Health, Volume 2, held on September 3, 1999, were transcribed as herein appears and that this is the original transcript thereof.

SONIA GONZALEZ
Court Reporter