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UNITED STATES OF AMERICA

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DEPARTMENT OF LABOR

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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

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ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH

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FRIDAY, JANUARY 25, 2008

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The meeting came to order at 8:30 a.m. in room N3437 of the Frances Perkins Building, 200 Constitution Ave, NW, Washington, DC. Linwood Smith, Chairman, presiding.

PRESENT:

LINWOOD SMITH, Chairman
FRANK L. MIGLIACCIO, JR., Employee Representative
DALE DAVID HAGGERTY, Employee Representative
ROBERT KRUL, Employee Representative
EMMETT M. RUSSELL, Employee Representative
THOMAS L. KAVICKY, Employee Representative
MICHAEL J. THIBODEAUX, Employer Representative
THOMAS R. SHANAHAN, Employer Representative
DANIEL D. ZARLETTI, Employer Representative
DAN MURPHY, Employer Representative
KEVIN BEAUREGARD, State Representative
STEVEN D. HAWKINS, State Representative
ELIZABETH ARIOTO, Public Representative
MATT GILLEN, Federal Representative
STEVEN F. WITT, Designated Federal Official

CONTENTS
Opening Remarks

3
Post-Frame Construction Presentation

4
Discussion on Post-Frame Construction Presentation

18
Concrete Masonry Unit Construction Safety Presentation

38
Discussion on Concrete Masonry Unit Construction Safety Presentation

72
PortaCount Presentation

80
Discussion on PortaCount Issue

85
Housekeeping and Closing Remarks 98

P-R-O-C-E-E-D-I-N-G-S

8:32 a.m.

MR. SMITH: Good morning.

(Chorus of "Good morning")

MR. SMITH: I think everyone's, I believe I saw Thomas earlier. Tom Broderick had to fly back home last night or this morning. Thank you Veneta. Okay. Excuse me. Thank you very much. As I was saying, we've got Tom Broderick's not here, he had to leave and Thomas, I think he's here, he just -- he'll probably be back in just a second.

First, did everyone had a good time last night? It was a lot of fun. I think everybody enjoyed it. And even Stew probably enjoyed it. He's not big into that kind of thing, but I think he enjoyed it.

We'll go straight into our presentation this morning. Opening remarks, I don't have a lot other than to welcome you. And our goal today is maybe to finish a tad earlier, earlier than the agenda if that will not make anyone upset.

We don't want to upset anyone now, but that will be our goal. So we'll move right along and move right into our opening comments by the National Frame Builders Association and I'm going to ask you if you would please introduce yourself and look forward to your presentation.

MR. KNIGHT: I sure will. My name is Tom Knight. I'm president of the National Frame Building Association. We're headquartered out in Lawrence, Kansas.

And just on behalf of the industry, yes it's shining right in your eyes there, we certainly appreciate having the opportunity to address the committee this morning and appreciate you having myself.

To talk a little bit about the post-frame construction industry, post-frame construction is likely, I would think, an industry that might not be on your radar screen. It might be a little obscure to you out there.

So, when I tell people I'm with the National Frame Building Association, they kind of look at me cross-eyed. Does that mean picture frames or what does that mean? This is a very unique type of construction.

And so I'd like to show you a little bit about that as we go through this presentation. Some of you have seen this before, so please bear with me. But again, we are the National Frame Building Association.

We're relatively a young organization founded just in 1970 because this industry is actually fairly young. In fact, the first patent on post-frame construction was given in 1949, so it's just not that old.

Our industry organization is vertically integrated. We represent builders, industry suppliers, distributors, et cetera, everyone in the industry. To give you all an idea of what post-frame is all about, it really -- you might have heard that term pole barn somewhere in your history.

Basically, the post-frame construction industry grew up on the farm, building barns, livestock storage. We used to call it shade and shelter on the farm a barn, machinery storage, things like that.

Today, the old pole farm has evolved into what is today called post-frame construction, highly engineered structure compared to the first buildings that were built around pre soaked poles like a telephone pole, you know back in the '40s.

And today, when you driving certainly in the rural landscape most of the buildings that you see on the farm, et cetera, our post-frame construction. This industry pretty much controls the ag construction marketplace.

You know, again, barns, livestock storage, machine storage, workshops, the like. Okay. And that's really the new method of choice on the farms. And, excuse me, that remains a primary markets served by the industry today.

Now, I mentioned that the post-frame building, the first pole barn was patented and 1949. Now the reason, that this type of construction evolved in the first place was because Congress in World War II came down with an edict that demanded that or set forth their rule that you could not build a barn that was greater than $1,500 in cost.

So some innovative guys in Illinois tried to figure out how they could do that and they started putting poles in the ground to which a sidewalk and a roof truss system in that time rafters were attached. And that became a pole barn.

So that's how the that's where the industry really came from and it has evolved from there. But today, post-frame resembles residential construction albeit a simpler method of construction, typically pretty simple buildings.

The vast majority of these buildings are, they're wood framed, number one, they are wood framed buildings, they are single story, they are built on grade, they have no basements and are very similar, again, to residential homes although these designs, again are generally much simpler than a residential home.

This is a typical example in this picture right here. This would be a suburban garage. And that represents a large part of the industry today as well.

Okay, I mentioned that these are wood framed buildings. And you can see in this photo that these are vertical wood columns that act as the main structural component of a post frame building.

These posts are embedded in the ground, four or five feet below the frost level and spaced anywhere from six to 12 feet apart in to which the side walls and roof system are attached.

So, it provides a non-conventional foundation. Again, there's no concrete foundation. There's concrete in and around and underneath these posts, but we have the absence of an absolute foundation.

Lots of these buildings too don't even have a floor in them. You know, they're just built on, you know, dirt and earth, if they're for that type of storage, machinery storage and that type of thing.

So, in post-frame again, these horizontal, what we call walled girts are attached to wood posts at regular intervals around the circumference of this building and that provides the primary structural component to which the roof trusses are also attached.

These buildings feature pre-manufactured wood trusses and so forth in the vast majority, probably 99 percent of the cases and roof purlins give stability to trusses and so forth.

Typically, as you can see in these pictures, people work from ladders on these buildings. They are not excessively high off the ground et cetera. Again, these posts extend to the full sidewall height of the building, roof trusses attached to those posts and so forth. And the wall cladding and roof cladding complete that building envelope.

This is kind of a step by step. The building perimeter's laid out by hand, posts are pressure treated to prevent decay and insect infestation, holes are dug by power auger and the posts are generally set in concrete or on a pre-cast concrete block.

And there are a number of alternative types of foundations today that are also utilized in post-frame construction but they all involve a post or a column in the ground. That column sometimes is -- and could be concrete.

Roof trusses lifted by crane in some cases. This is a home, a post-frame home going up. I mentioned that horizontal girts generally two by four conventional lumber attached at regular intervals to the pole height at the sidewall that you can see and then roof purlins provide that stability we've talked about before.

Roof trusses are generally 412 pitch or less in post-frame construction and crew members are typically not more than eight to 12 feet above the ground. These are small crews. I want to emphasize this.

These are typically three and four person crews that come in and build a building and this building is probably erected in a week or less in the majority of cases.

So it's very efficiently or quickly constructed. Very much unlike a home in that regard, very much simpler.

These are examples of homes here. And again, constructed in just a few days. More elaborate buildings such as this one, obviously are going to take more time, but again, you can see there's a lot of resemblance to a residential home here. Single story, that type of thing, pretty simple roof system et cetera.

But today, post-frame has moved off the farm. And they're being selected as a construction method of choice in a wide variety of light commercial buildings.

These buildings again, are economical, they're efficiently constructed wood frame, these are adaptable to an enormous variety of architectural styles, they're durable, they're appealing et cetera. They're not only economical to erect, they're economical to operate because they're very easily insulated and that type of thing.

So we're seeing an increase use of post-frame construction in a variety of markets that weren't there 20 years ago when we were just building on the farm. So today, we are certainly in light commercial construction.

We think when we get into larger buildings that certainly conventional fall protection, you know, should be employed. When we're talking about up to 100 foot clear spans in buildings, you're obviously going to be working at a great heights when you're at the -- not only at the eave but at the ridge line of those kinds of buildings.

Well, few people would suspect that this country club is a post-frame building. What I'm saying is, when you go down this road today, many of the buildings that you previously didn't recognize and you would never recognize perhaps, are post-frame.

You might think it's another type of conventional construction, stud frame, you know, masonry, whatever it might be, but these are post-frame buildings and they're increasing in use around the countryside today. You're seeing more and more of them and you probably just don't recognize them.

Well, in these cases, conventional fall protection is difficult if not impossible to create. And it's a unique nature of post-frame, it presents -- works with exactly the same challenges that are faced by workers in the residential home construction industry.

These are small companies. These companies are -- the backbone of the industry will probably be a company that does $1 million of business a year. We have maybe a half a dozen companies that do 50 million or more, but the vast majority of them are small a million, less a million to 2 million, that type of thing.

So they're building lots of these buildings very quickly and moving on to the next job. There are today, over 8,000 post frame contractors and about 35,000 employees involved in the post-frame construction industry.

It is about a $12 billion industry in the United States today. So it's a lot, even though it's obscure and people don't recognize it, it's a lot more industry out there then you might realize.

But what we have found in our statistical studies and our organization represents about 1,000 companies of the 8,000 that are out there, but the reason we don't represent more is that those other 7,000 are, if you will, a fellow with a pick up and a ladder and a couple of crew member helpers.

And we're not going to get that guy to get organized and get involved in the organization. We do, however, reach that audience completely because we have two industry publications that go to 35,000 people every single month.

So we know who they are, et cetera. We survey them as much as we possibly can. And what we have found is that we have virtually a complete absence of injuries from falls.

We do have -- we can't trace any fatalities from falls. If anybody has any different information, we'd certainly like to hear that, but we can trace absolutely none.

The injuries that we're having are cuts and abrasions and pulled muscles and backs and that type. These guys are working with sheet metal and that type of thing. So those are the types of injuries that we're encountering.

We certainly talk about and try to educate our people on fall protection at every opportunity, but most of that 8,000 again are people that are not necessarily going to industry events, conventions and trade shows and regional meetings and that type thing.

So, we have to try to educate those people through our publications and via our website and that type of thing. But the emphasis is that these are small companies out there.

So in summary, again, post-frame is wood frame construction, it features posts embedded in the ground with a non-traditional foundation, quickly constructed by three to five man crews, single story structures, the feature of these buildings feature pre-manufactured trusses, three and 412 pitch roofs are the rule in these particular buildings.

Workers are generally only eight to 12 feet off the ground and we just feel that post-frame should come under the residential fall protection guidelines and exemption.

Here's a problem we have, in post-frame we have some area offices that apply the commercial construction fall protection rules and in the next county, another office will be applying the residential rule.

So, we've got a lack of uniformity that we would certainly like to have addressed at the same time. And that's really another message I really want to give you here. I think there's confusion in the field among area compliance officers and area offices about what standard should apply to this type of construction.

For many, many years, again, this type of construction was obscured. These guys were building on the farm out on the north 40 they were invisible. They were never seen. Today that's changed and we're building, you know, we're building, you know, strip malls and churches, McDonald's restaurants, you know, post-frame.

And so they become, you know, certainly more visible. And we don't argue the fact that in those, you know, larger commercial projects, there's no question, conventional fall protection has to be employed.

This is another example, so we're striving to have the same fall protection guidelines that apply to residential construction apply to us, see these guys working off of ladders. And then in these larger buildings, you know, they're going to have a man lift and so forth.

Again, I would emphasize that a lot of these buildings are built on a regular grade on the farm, so it's somewhat difficult to have a man lift and so forth, you know, take these people up and down on the side of a building. But this kind of gives you a pretty good idea of how these -- some of these buildings are going up.

This happens to be a little bit larger building here. All of these are post-frame buildings, these are homes. And so again, many of them rurally, you know, rurally situated post-frame homes.

Okay. So, again we're asking for this and would like for the committee to make a recommendation to OSHA include us in the definition of what is residential construction. That's what we're asking. But we're asking for it in limited situations. Okay?

And these are what we have come up with that we think is justified. And those would be buildings that would have an eave height of 16 feet or less or that are 4,000 square feet or less or that feature residential roof system, very simply, okay? Those things.

And you know, we just feel that when buildings certainly become larger than that, higher than that, et cetera, then certainly conventional fall protection should and must apply.

But these buildings, these guys are coming in and working there days on a building or four days and then they're moving on to the next, and they're raising trusses in many cases by hand with guys on a ladder and setting it up, you know, without even the benefit of a crane or a job site, it's very, very difficult for them to employ conventional fall protection systems.

And we're just not seeing accidents and injuries and certainly not deaths from falls on this type of construction. So that's the message.

MR. WITT: I have a question, clarification. You are suggesting that if one of these three criteria apply the residential fall protection directive should apply in the situation or all three criteria?

MR. KNIGHT: Yes. Any one of the three.

MR. WITT: Any one of the three?

MR. KNIGHT: Either or. Either or is what we're suggesting to you. Thomas?

MR. WITT: So if it's 4,000 square feet or less to be that large building, two slides before, that was going to be about 20 to 25 feet high?

MR. KNIGHT: Yes. That would --

MR. WITT: How would you consider that one residential?

MR. KNIGHT: Yes. About a 50, you know, 50 by what 80, 80 foot length, 50 foot wide, that would be a 4,000 square foot building. Many of these buildings are just rectangular building, you know, they're not going to feature a lot of wings and that sort.

MR. SMITH: For my clarification, Mike and Thomas, your subcommittee report yesterday and the motion that we passed on residential fall protection, does it address this issue?

MR. KAVICKY: No. We only talked about the definition.

MR. SMITH: Okay. Did you all come to a consensus in your workgroup on post-frame?

MR. THIBODEAUX: I just have some questions if I may.

MR. SMITH: Okay, sure.

MR. THIBODEAUX: Okay. Mike Thibodeaux. Why are you proposing 16 feet or less an eave height when you said the guys normally don't get up above eight or 12 feet?

MR. SMITH: Well, again, when they're setting something at 16 feet, they're on a ladder at probably at 12 foot high, you know, and four feet high they're putting the truss on.

MR. THIBODEAUX: Okay. So, what are they doing now when they're building a building like this? Are they still working off ladders and why is that --

MR. SMITH: They are. They are. That's exactly what they're doing, they're working off of ladders.

MR. KAVICKY: The concern -- Tom Kavicky with the Carpenters Union.

MR. SMITH: Yes.

MR. KAVICKY: The concern that I had was what we're doing is we're going in there and we're reopening it up because in the directive, Steve, please correct me if I'm wrong, but it talks about a small attachment to a building, to a structure, a commercial structure like an entrance way roof or something like that.

We're talking about a whole building now being covered. So, you know, we addressed it in the workgroup, we are taking a look at it, but we're not ready to make any recommendations right now.

MR. SMITH: Okay. Okay. It seems to me that, you know, I mean, the gentleman has a good discussion item on the fact that it is residential type of construction. You know, that would be hard to -- hard for me to dispute anyway. Daniel?

MR. ZARLETTI: This is Dan Zarletti at County Construction. Two questions or two points. One is I think your issue on how OSHA is handling the compliance issues based on what standard and what county is the way I think you put it.

MR. KNIGHT: Yes.

MR. ZARLETTI: Like across county line, one office can see it represented differently than another.

MR. KNIGHT: Right.

MR. ZARLETTI: I think that's an issue between you and the RA that handles both of those counties or if in fact the state line draws a line between two RAs I think that needs to be resolved between them because that's a compliance issue.

And if they're not seeing it eye to eye, then they need understand why not and then if they come to an agreement and your compliance should be equal for either side of the county line.

MR. KNIGHT: Right. Okay.

MR. ZARLETTI: So that would be just one suggestion. The other is, the way I work on this kind of a thing is I always try to look for feasibility. You know, does fall protection make sense? Well, let's ask that question, but let's ask if it's feasible, let's ask if it creates a greater hazard to have it than not to have it.

Those are the kinds of things that are going through my mind when you were speaking. There are products that we probably all have seen, you know, at various times where there are products out there that are designed specifically for providing anchorage points so that fall protection can be afforded on buildings under construction.

I'm just not sure how much you've exhausted that because you didn't bring that part up.

MR. KNIGHT: You know, I heard a presentation day before yesterday from the Home Building Industry Contractors from Arizona and so forth that was pretty enlightening. Because we have struggled with that -- this question.

How do we provide fall protection on these structures. It's been a major issue and one that nobody's been able to really solve. That was a very enlightening presentation and you know, I think that has an awful lot of merit and so forth.

It's something we can explore. The problem that I'm going to have is that, again, with those thousands of builders out there that are, you know, doing all of those buildings, reaching those guys and teaching them about that, we'll do the best job we can, certainly if we can come up with some -- and I'm hoping to get some more information on that system from these guys.

And we'll certainly share that as much as we can. But the education process I think is very difficult for us because these guys are so obscure in many cases and hard to reach and so forth.

And then getting them to change the way they've done things for 50 years, you all know what that's all about too. Very, very difficult for us to do.

MR. KRUL: Bob Krul with the roofers. Tom, you know, I understand the problem you're having and I think Dan's suggestion to you is probably a very sound one, but, you know Emmett and I were just looking at the difference between residential and light commercial is clear.

I mean, residential is residential, light commercial is light commercial and if the point that Steve made that any one of those three criteria would apply I could see the whole fall protection standard getting turned on its head just because there's a residential type roof on a building.

I mean, we could be talking about a huge commercial structure that just because it has a residential roof on it is now exempt from fall protection coverage.

I understand the dilemma you're facing because of this new type of construction and entering the market, but it would be -- I could see it being very -- I think that's why Steve asked this question.

It would be very, very difficult to -- I mean we would be making exceptions to the fall -- the current fall protection standard that would probably create more confusion out in the field than doing solving.

MR. KNIGHT: Well, perhaps the criteria that we've come up with is just too loose and needs to be tightened up. We're certainly amenable to looking at that, absolutely. I happen to think your point is a good one.

MR. SMITH: Okay. Thomas and then --

MR. SHANAHAN: Yes. Tom and I understand what you're trying to -- I'm sorry. Tom Shanahan. Tom, I understand what you're -- the gist of this whole thing too. I think it definitely merits discussing it.

I, the question I had for you is just to clarify to follow up on Steve's question is, so when you said -- and the three criteria there is or, so in other words, if you had a 3,000 square foot building that was, you know, 75 feet off the ground then it would still fall under residential? Just to try to be extreme about it.

MR. KNIGHT: Well, I guess you could, you know, that would probably be a good point. It should be and.

MR. SHANAHAN: Right. So I want to make sure that's clear --

MR. KNIGHT: It should be and.

MR. SHANAHAN: -- I think because I think that's confusing as you look at the whole thing. I think you meant and.

MR. KNIGHT: That's certainly not what we're looking for.

MR. SHANAHAN: Right.

MR. KNIGHT: We're looking for this single story.

MR. SHANAHAN: So, and just the idea that you're amenable to us looking at that --

MR. KNIGHT: Oh, absolutely.

MR. SHANAHAN: -- I mean that's what we want to do.

MR. KNIGHT: Certainly, absolutely.

MR. SHANAHAN: I just want to clarify that.

MR. SMITH: Steve?

MR. HAWKINS: I would just like to say that I think it would benefit our committee here if you would go back and look at your and take the CPL for residential fall protection and set it aside and look at the requirements for the standard.

Because in a vast majority of the state planned states that Kevin and I represent on this committee, there's a large number of those who haven't even adopted that CPL.

So what you'd be, you would be buying your members one thing on one side or getting for them for just about half of the states and the other half of the states are not going to follow that. So I think you would be best served to try to look at this approach from the standard.

And when you go to the standard, you're going to see that it's going to ask you to look at the feasibility of fall protection. I don't think there's anyway that this group and I don't want to speak for everybody I'll just speak for myself.

There's no way that I would consider your request without having some evidence of feasibility like Tom said and Mike said. So, put the CPL aside because it could change. As you know with OSHA, it's much more likely that it could change than the actual standard itself could change.

So, put that aside and look at the requirements of the residential exemption for conventional fall protection when it's in feasible and then you work under a plan.

If you could develop a play because these buildings are different shapes and configurations, but I personally have built pole barns myself with my father in law. So, it's not rocket science, it's pretty straight forward honestly.

And I think there are lots of opportunities and having done that myself where you can use fall protection. So perhaps you could also narrow your focus to the areas or the time -- those times in that construction process when you can't use conventional fall protection and try to narrow that down.

Because what you've asked for, I think from my standpoint personally would be overly broad and at this point couldn't really be justified because you haven't given us any evidence that somebody's taking a real meaningful look at the feasibility of conventional fall protection.

And you saw the presentation. Difference between conventional and then feasible is your knowledge of what's available. And you know, you think something's impossible and then you see a presentation like we saw in our workgroup that obviously, you know, there's a lot of products out there and if -- I tell contractors sometimes pretend like somebody was paying you to tie off, what would you do?

You know, sometimes that kind of gives them something to think about.

(Laughter)

MR. HAWKINS: And there have been a few occasions they said well, yes, if they're paying me I could do it. And I said well you probably shouldn't have said that, but now --

(Laughter)

MR. HAWKINS: So, that would be my recommendation and I do appreciate your presentation, it's very important.

MR. SMITH: Okay. Kevin?

MR. BEAUREGARD: I just want to add on what Steven Hawkins said. This is Kevin Beauregard from the North Carolina Department of Labor. I think that you could also probably get some assistance.

I know if you had members in North Carolina or even if you don't have members in North Carolina, if you contact our technical assistance bureau, they'll be glad to help work with you to look at feasible approaches to fall protection.

And I'm sure OSHA or the other state plans probably have a similar type of service. So if you indeed want to look at whether or not its feasible, we'll be glad to take a look at it.

MR. KNIGHT: Okay. Well, I appreciate that.

MR. WITT: Now let me add to what Dan's already said. This is Steven Witt. OSHA, we have 68 area offices across the country and 10 regional offices.

If there are questions about consistency of enforcement of the fall protection standard, or feasibility of means of fall protection, we have compliance assistance specialists in every one of our area offices that would be more than happy to work with any of your members or non-member companies about fall protection and what is feasible.

MR. SMITH: What we're going to do, and we thank you very much for your presentation, but what we're going to do at this point is just refer this back our subcommittee.

We appreciate them taking the time to look at this and they'll also be willing to work with you and if they have any recommendations for the full committee, we'll consider them. But we'll refer it back to them.

And we would, any recommendations on this subject will come through the subcommittee. Okay?

MR. KNIGHT: Thank you very much. I appreciate it.

MR. SMITH: Thank you very much. Very good presentation.

MS. SHORTALL: Can I add something here?

MR. SMITH: Sure.

MS. SHORTALL: I just wanted to add that OSHA workgroups are always open to any member of the public to come and participate in the meeting. And to the extent possible, those meetings, if they're going to be concurrent with an ACCSH meeting are announced in the Federal Register Notice announcing an ACCSH meeting.

MR. SMITH: Okay. Okay. Talking about ACCSH meetings has everyone given their schedule to -- everybody's shaking his head. Now if you would, try looking at your calendars this morning and --

MR. WITT: Excuse me. Just to clarify a little what we asked for yesterday. When you look at your schedules and you give your availability to Michael Buchet, if you look at the last two weeks in April and the first three weeks in May, that is the first three weeks before Memorial Day, we'd like -- it's very difficult to coordinate the schedules of the 15 members and make sure OSHA's available to support the committee.

So if you would look at the last two weeks in April, first two weeks in May, it is our intention to have a meeting during that five period -- that five week period. Thanks.

MR. SMITH: Okay. Also, just a little bit of housekeeping here. The posters in the back of the room that Stew was given last night as retirement, most of us have already signed it, but if by chance you're in the room and you haven't signed it, we would like for you to sign it. Just wondering if you would. We would appreciate that. And try to say something nice.

(Laughter)

MR. SMITH: We appreciate it. He's got -- remember he's got grandchildren and they might look at it.

(Laughter)

MR. SMITH: So keep it family related. Thank you. But look at -- take a minute and look at your schedules if you would. Let's go ahead and do that if you can, if you have that accessibility with you. Because once we get back, we'll get busy and it will take two weeks to get that information in.

MR. MIGLIACCIO: Let me ask a question.

MR. SMITH: Okay.

MR. MIGLIACCIO: Are we looking at Wednesday, Thursday, Friday or it doesn't matter?

MR. SMITH: Just whatever days you're available.

MR. MIGLIACCIO: Okay.

MR. SMITH: During those weeks.

MR. SHANAHAN: This is Tommy. Do workgroups always meet before or do they meet separately?

MR. SMITH: Yes.

MR. SHANAHAN: Okay.

MR. SMITH: Yes. Yes. We would let the chairmen of the workgroups plan those meetings and the times. Everybody knows what year it is right? Yes, sir Thomas?

MR. KAVICKY: Mr. Chairman, I just have a point of clarification. I'm a little confused as to what happened in this specific issue here.

MR. SMITH: Okay.

MR. KAVICKY: When someone comes to OSHA and asks about residential fall protection, exemptions, things like that, they're normally funneled through the workgroup, in this case it was funneled into the workgroup and put on the full ACCSH committee meeting. I was wondering why.

And if somebody comes to me, I want to make perfectly clear that I give them the right direction. So if you could clarify that for me. I'd sure appreciate it.

MR. SMITH: I want -- I'll give you my thoughts and then I'll defer to somebody else. But being the -- being we have a workgroup that is meeting on this subject then I, you know, and you all heard the presentation, you all gave a report and had an opportunity to -- and I'm sure ask more questions and discuss it more extensively than we did.

And you also heard other presentations that may or may not impact and the other discussions may or may not impact. So it's my belief that, you know, being you're specifically looking at these issues and you're, you know, you're the one that changed the definition on residential fall protection that, you know, I would personally defer, you know, to your recommendations on this subject.

But now, how that works as far as the whole committee is concerned, could you give us some clarification?

MR. WITT: There's no, Tom, there's no hard and fast rule. There was a lot for the residential workgroup to do this time. We thought it would be helpful for everyone to hear this, maybe it should have gone to the workgroup first.

I didn't believe that there would be -- that the committee would react and be in a position to make a recommendation or move forward on this. This is just a short general presentation.

It's now referred to the workgroup. I'm not -- it may -- even if we did present to the workgroup on Wednesday, I think we'd be in the same position today. So it's subjective.

MR. KAVICKY: Okay.

MR. WITT: In retrospect, maybe we should have put it on the workgroup. But we knew we had the other presentation and the workgroup had other significant work they were going to consider.

MR. KAVICKY: Very good. Thank you.

MR. SMITH: Thank you. Thank you for the hard work that you did. Good question. Any other questions or comments at this time? Is anyone else ready at this point? Okay.

MR. CARNEY: Let me set up here.

MR. SMITH: Super. Who's he? Stonesmith Patented Systems? Okay.

MR. CARNEY: Someone needs to get their face out of the picture.

MR. SMITH: If I move you'll be in good shape. At this time, we have another presentation from Stonesmith Patented Systems, Incorporated on concrete and masonry unit construction safety prevention.

And we appreciate your being with us today, and if you would introduce yourself please.

MR. CARNEY: My name is David Carney, I'm the General Manager for Stonesmith Patented Systems, Inc. And we developed and brought masonry products to the masonry industry with the idea of focusing on innovation and safe work practices.

And so the presentation today has to do with safety and injuries, accidents in the masonry industry. So I have copies of the presentation on your desk and some information, product related information in the back where you registered.

Okay. I'd like to spend just a couple of seconds to focus on the opening and then I'll go into the main body of the presentation. Let me go back here.

MR. SMITH: Well we can leave -- turn the ones in the back on.

MR. CARNEY: The construction industry, especially masonry industry, is a very physically demanding profession. And nothing that we're going to discuss today will be new to you, and I think that's what the real issue is.

But it's not new, it's been around for decades. And while we made some significant improvements that have been made in safety, particularly in fatality prevention, the masonry industry continues to face the same issues that they have for decades.

And if you go back through the injury and illness data, you'll find that for years we have faced these same issues. And it's not necessarily restricted to the masonry trades, most of the construction trades are the same.

But it's perhaps because the masons represent such a small portion of the construction industry or because they predominantly learn their trade on the job. There are apprentice programs, but the majority of the masons learn their trade on the job from their boss, their mentor.

It seems that innovation in work practices and safety practices that alleviate the exposure to injury has been sort of not been on the top of the heap from an innovation perspective.

If you look at advances in products, if you look at advances in safety equipment, the masonry industry has had few and it's pretty much done the way it's been done since the pyramids have been built.

But it's only been in recent years that we've seen a lot of significant improvement that would ease the mason's burden. And now that we've begun to see some inroads into innovation and product development, we find that adaptation is painfully, painfully slow. And no pun intended on the pain.

The construction industry, as you well know, has the highest injury accident rate of all industry sectors and has the most fatalities of any sectors, up 6 percent from 2005.

One area that is becoming prominent is the number of injuries and illness to Hispanic workers in the construction injury, it's up by 7 percent since 2005 and fatalities among Hispanic workers in 2006 is the highest that's been recorded since the reporting started in 1992.

Now, one anomaly of that, depending on how you like to look at data is that the rate is lower. And the reason the rate is lower is the population in the construction industry is much higher.

Some of the workgroups addressed this, excuse me, Wednesday in terms of culture and diversity, but language and cultural differences significantly impact communication to workforce safety and impact insurance costs.

Had an interesting opportunity to talk with some of the Latin American countries about products. And their basic question to me was, let's talk productivity, we don't need to bother with safety. If we need more people, we go get more people.

Another anecdote is one I really enjoyed. My wife is with a company, they went over to the Mediterranean area and were doing some work in the Mediterranean area when it became too dangerous for the back hoes and the cranes to work, they put people in the trench.

Equipment's expensive, people aren't. So as we get an influx of multi-cultural workforce, not only do we have a difference in language, we have a difference in culture and a difference in value of people and value of safety of people.

So as we do our training and work on areas like that, we really need to look at the cultural differences as the workforce begins to change. Another area, and I know we've gone one in here that's addressed in his work light is the lack of warm-up, muscle warm-up.

And I'm going to come back to that in a moment. Musculoskeletal disorders, if you'd like to look at the injury data, which I'm going to present some of it, musculoskeletal disorders are muscle tendons. They're basically aches and pains that you and I have every day and they're not associated with acute events.

So we don't have a traumatization of the workforce, we don't have to deal with the grieving family who just lost a parent, a father, a husband. They just nag at us day after day.

And while they decreased a little bit in 2006, musculoskeletal disorders cost us two days greater in the media and lost time and injuries.

What's not included when you look at the musculoskeletal disorder data is if a person is transferred from one job to another because they had an injury, so today they are a mason, tomorrow they're driving a truck, those don't get counted or they have restricted activities. So 40 percent of all injuries are MSDs.

When we take a look at the injury and illness data within the construction industry verus the masonry industry, the mason industry has done well in the fall fatality area.

Protruding rebar has always been a major issue, it's been an exposure not only to masons but anyone not on the work site through slips, trips and falls. You don't have to fall from a very high level to have an impalement from an exposed rebar.

The rebar caps certainly limit the amount of fatalities and in some cases they increase in size the whole when you fall. The lost time injury case, we're doing much better in that area, but within the masonry industry, masons still continue to be above the overall construction case rate at 6.1 in 2006 versus 5.9.

Now they've closed the gap a little bit, they were at 7.5 when the industry was at 6.8 in 2003, but the new data out shows that they're closing the gap.

Liberty Mutual does a great amount of work with injury and illness data and presented that chart. It's not a minor matter that we're dealing with when we talk about injuries in the workplace. It's a $50 billion business, has been a $50 billion business for the last several years.

The same three causes of injuries and illness, overexertion falls in the same level and bodily reaction. And I'm going to come and talk about bodily reaction here in just a moment. They have been the same top three. And the top 10, while they've changed in relationship a little bit, have been the same since `98.

When you think about a $50 billion business a year in cost to the industry, then you have your employer cost that can make that up in the 80 or 100 billion. That's actually more than A-Rod makes in a year and so it's a fairly significant amount.

The other thing that I think is interesting and it may not be a question that we want to ask, but maybe something of interest to NIOSH, is this is the annual cost. When you look around the room here we're all moving toward a period in our life where we're not going to be working. The effective cumulative trauma disorders and musculoskeletal disorders that nag and nag and nag at you is what happens when we end up on Medicare.

What's the life cycle cost of musculoskeletal disorders? They're not as exciting to investigate as fatality. They're really annoying on the workplace. But what is the life cycle cost of a musculoskeletal disorder.

And when we look at insurance costs to the industry, and this comes from the State of Washington within the masonry industry, the insurance rates were going up at 23 percent.

Industry and talking to the insurance companies because we believe that if we do some more safe work practice and get the multiples down, the insurance costs would be a huge savings for contractors.

The insurance perspective of those that I talked to had been yes, you can bring your multiple down, it's a three year average so it's going to take a while to pull your multiple down and during that same period, even though your multiple is going down, the cost of insurance is going up, and so the contractor may not see a decrease in insurance rates because the annual costs are going up.

What they see is they don't spend as much and if you don't reduce the actual bill you pay each month, then the contractors often don't see that as a savings and they look for other areas than safety and reducing the multiple as ways to save on their construction costs.

When I take a look at industry comparisons between masons and the rest of construction, masonry fatalities are disproportionately to population. Now, I said a few minutes ago that the fatalities have come down significantly but they're still 3 to 4 percent while the population represented is only one and a half percent of the construction industry.

So, almost double, their representation in the population in terms of fatalities. They're the highest risk group for non-traumatic musculoskeletal disorders in the back arms and legs and they have the highest loss time rate of anyone in the industry.

I often thought that it had to do with well, we're bringing in lower salaried people and this is a nice entryway. So I did project the wages and they're right in, the median wages are right in line with other skilled workers.

But we have a lot that come in through the vocational tech schools and coming in as mainly helpers. With the rise in the Hispanic workforce, in 2006 the Spanish workforce represented over 40 percent of the overall construction, excuse me, 40 percent of the masonry workforce and that was up from 29 percent just three years ago.

So we looked at the impact of the changing diversity of the masonry workforce with a segment of that population that has a higher accident illness injury rate, that the ability to continue to pull these numbers down over the long haul may in fact reverse itself and it may begin to go back up.

So I wanted to talk about work products that the masons work with. Four basic products, the block, the rebar, the cement and the aggregate. And this gives you an idea of the weight that they have to deal with on a daily basis, eight inch block is 40 pounds.

I was able to bring enough copies of the presentation for each of you, but I was not able to bring enough blocks for each of you. So, in order to have you get a sense of what the mason has to face everyday and I know a lot of you that have handled this yourself, the mason has to handle, this is an eight inch block, this is the little one.

So, I'd like you to pass that around and just get a sense of both the feel of the block and the weight of the block. Then after you move it along a little bit --

MR. THIBODEAUX: You're assuming I'm strong enough to lift it.

MR. CARNEY: Yes. After you move it along a little bit, just put the glove on. Now let me show you just before you pass it on, let me show you the proper way to --

MR. KAVICKY: If I hurt my back who do I -

MR. CARNEY: You lift it by the web. So, and if you don't want to lift it by the web that's fine. But, the point of the demonstration is lift it by hand and then lift it with the glove, you will feel a difference between lifting with the hand and lifting with the glove and I'm going to come back to that because that contributes to injuries.

The second thing that the masons deal with is rebar.

MR. ZARLETTI: We get the idea, you don't have to do this.

MR. CARNEY: The other thing that they deal with is rebar. Now this is one of these rebars known as little bar, not used in nearly as much as number five bar. If you were handing a 16 foot rebar, number four, this would only be 10, 11 pounds, but you're dealing with it at the, usually at the end of the bar as opposed to the middle.

Now when I showed you a slide about bodily reaction, that's fairly key. It's a simple sort of thing, you go up and you say to your helper, go get a rebar. And most of us are at an age where we remember pick up sticks right?

So the forklift loads it, and dumps it into the lay down area and we have a pile of rebar similar to what we see. You send your helper to get one, he goes over and he picks up the top one. But, and again, I'll send this for tactical reasons, the ribbing, the ribbing catches and what he thinks he's doing is pulling out a rebar very simply and it doesn't move.

And you've got a strong pull on the muscles and now, I'm exerting not -- I'm not picking up a 16 pound object, I'm dealing with an extremely strong resistance to that object. Again, just to get the feel because a lot of the injuries will come off rebar.

And when you hold it, you can pass that around, the concrete is -- cement is 94 pounds and if you're not dealing with aggregate --

MR. BUCHET: Let's go Frank.

MR. CARNEY: -- delivery and handle by wheelbarrow, you're dealing in 50 to 100 pounds. So, now if you need to understand that, Frank, what rebar is, we can talk later.

MR. MIGLIACCIO: I'm not sure what it is, I just like it.

MR. CARNEY: So the issues that I want to talk today are splice overlap, working around rebar, repetitive motions and lifting because this is what costs the industry money.

The type of movements, and again, these are not necessarily restricted to just those of masons, the type of movements are the bending and the stretching, lifting and pushing heavy weight, twisting and working in awkward positions.

And that affects the carpenters, it affects the air conditioning folks, it affects the plumbers, but gripping and pinching and that's why when I pass the block the glove's important because it takes more pinching power if you're using a glove, significantly.

The physical positions are measured by OSHA in terms of positioning hands above the head, elbows above the shoulders, a back bent by more than 30 degrees. So if you're talking about a mason picking up a block, or a carpenter picking up lumber, and it's usually time and intensity related. The same thing with the neck bending, kneeling and squatting and pinching.

It's an amazingly light amount before you begin to get an impact pinching two pounds of weight, we have a 40 pound block. If that had been 12 inch block, it would have been 55 to 60 pounds. Gripping 10 pounds and lifting heavy objects, 75 pounds once a day, and that generally comes out of the nursing industry, a 55 block, 55 pounds more than ten times a day.

While most companies would go broke if a mason only did 12 inch block, 10 block a day, 25 pounds above the shoulders and below the knees and that's where the masons work is above the shoulders and below the knees in many cases.

So, again, if they're limited to 25 pounds not a lot of money to be made. Lack of muscle warm-up and I know you see this on the construction sites that you're on. What happens with the worker? He drives up in his pickup right, jumps out and I was talking with the roofing, grabs a bundle of shingles, throws them on his shoulder and he runs up the ladder.

Masons have been sitting in their truck waiting for work to start, jump out of their truck and stage block. Immediately start lifting heavy objects. No warm-up. On a morning like this morning, you're staging your materials.

Think about the NFL games the other day, what would have happened if those guys had to play with no warm-up? What would the injury rate have been in the football games? Athletes spend a lot of time warming up.

And I know, at least one company has imposed a five minute warm-up period before the start of work. Five minute warm-up period after lunch. That's a fairly forward-looking sort of thing. It sounds silly, it -- masons are a pretty macho bunch as are construction. Why do we need to warm up? We're young studs.

But you don't find many at 55, 60, 65 still lifting block. They've long since -- it's a young person's game, much like sports is a young person's game, but they don't make 23 million a year because they have a short life work expectancy.

In a typical mason's work day, if he were able to lay 200 block a day and most of them don't, I think the standard up in Chicago was 150 that they would like to get to, most of them are lifting in the range of 130, you'd be lifting over five tons a day.

We don't think much of it at 40 pounds a lift, but when you're at the end of the day, you've lifted five tons or more. If you do your own staging, you're closer to 16 tons that you lift. At five tons, that's more than an NFL lineman works, lifts when he is in full preparation to the season.

Other issues have to do with splice overlap. Now certainly, there is a structural piece to the splice overlap and my attempt today is not to address that, it's just the physical side.

But on the structural side, if you don't get a correct splice overlap, you have insufficient length, you can have longer but not shorter splices, and inadequate splice lengths lead to structural failure.

Most of the splice overlaps are eyeballed. Very seldomly you see them kneeling and doing the measuring are as they are in the left hand picture. So you affect the tensile strength, which then leads to over design needs in order to compensate for the expectation that you might short the overall splice.

That's certainly a significant issue in California where preventive seismic concerns are. Splicing is very manpower intensive and it takes two hands, usually has a helper. And then we get into the injury rate.

Splicing is usually accomplished with either a tie wire, you take the tie wire and you bring it around the bar and many of you have seen it, and you use a twister, a tie twister and you have the wrist action, or you have a reel of wire and you're twisting your pliers.

And the studies that have been done and they're NIOSH studies and they measure the mean velocity of the wrist in all planes. When you're twisting, you are way outside of the velocity rate for wrist safety.

The reason I asked that you grip the rebar, is gripping the hand action, again, is hand injury. When you get into tying above the waist or stooping and mending you're into the other musculoskeletals.

When you work with rebar, I think the upper left-hand picture is not an atypical work site. I go to lots of work sites and photograph the ones that I can when I'm there. Now you notice that your -- the bar cap, the caps aren't there so they're already in violation.

But a lot of the job sites are like that. Twenty-seven percent of the non-fatal injuries come from slip, trips and falls in that area. The interesting thing is particularly as we work with more seismic related areas, eight percent of the non-fatal injuries are to eyes.

When you think about rebar set at four foot on center, you've got a little bit of work room. When you put them at -- in every other cell, you're really getting your face right into the bar as you approach the end of the bar.

Poking and apparel snagging are 12 percent of the non-fatality injuries. What's not counted there, because it gets counted in another category is the human body reaction when you snag your clothing or you poke yourself and you jump back or you pull back, which may lead to a slip, trip or fall.

So, you're naturally going to react to the snagging and the minor scrapes, cuts and abrasions, which everybody deals with, represent over 10 percent. And most of the minor cuts, scraps and abrasions as you all know, never get reported. They're not considered injuries that you would tell your boss about.

In looking at the repetitive motion, I mentioned the hand and the plane and the middle left-hand side is the gripping and squeezing with a glove. It takes significantly more force, even though the gloves protect the hands from other sorts of interference with materials.

But the gripping and the twisting all lead to injuries. The hands represent about 13 percent of the masonry lost time injuries. When you get into the lifting, you get into the lifting sequence where your muscles stretch, tighten, compress then you get it at the rotator cuff and the upper arm strength.

So I want to look at this same slide from a muscle group. The ligaments, the back ligaments, the disc, herniated disc, the back and peck area, this just shows the back side of the muscle group that is most prone.

The rotator cuff area while you're holding block at an angle above your head with elbows above hands and above shoulders and the upper arm when you are holding block fully extended.

So the lifting cycle, you start with stretching, you start with twisting and we start with something that didn't translate from 2007 to 2003, tightening and compressing and stretching. But I believe it printed out correctly on your slides.

Twenty percent of them are back injuries and the upper arm is 27 percent. So what are we to do about that? One of the things is to look at the masonry culture. This is not uncommon throughout the industry, 24.5 percent of all masons are self-employed, 25 percent have 10 or fewer employees and 39 percent have fewer than 20 employees.

We are in the small business arena. Some of those self employed do have employees, so you can't exactly add those numbers up, but we're in the range of 60 to 70 percent based on reported data and of course, a lot of the small businesses don't report.

But, we're dealing with the one person, truck syndrome that we've talked about in several of the workgroups already. It's not out of line with the rest of the industry. The rest of the industry is almost 65 percent have five or fewer employees, 26 percent have five to 10 employees industry wide.

So as OSHA is dealing with safety issues, if they don't get down to these small companies, it's very hard to reduce the injury rate. Within the industry, work practices are learned on the job, although there are some formal training.

It's always been that way as the norm, and when it comes to bidding, innovation is risky. And injury is part of the job, it's all in a day's business. The unsafe work practices get accepted as the norm and passed on.

So, we think about this in practice, if we don't get to leaders of the small organizations and get them safety oriented, their tradesmen will learn their skills.

I think about it in terms of sanitation, they used to do a lot in the sanitation area. It's great to give a lecture on sanitation, and then the chef comes in to taste the soup and he tastes it with the ladle and puts the ladle back in the soup. All training is lost.

When the boss comes on the work site and he walks past a safety problem and asks the worker about how the production rate is going, all safety lectures are lost because the boss just walked past a safety hazard and didn't make it be corrected on the spot.

So, leadership of organizations, even if it's a two person organization, cannot ignore the safety issue because the tradesmen learn from their boss or their mentor.

Within the masonry industry, a lot of the injuries are not reported. And as we change the ethnicity and the diversity, it becomes more of an issue. You don't want to be labeled accident prone. Real masons don't get hurt.

And if you get hurt on the job and it's a musculoskeletal, maybe it's not the result of today's job, but a year ago's job or two years ago job. And it just happened to get caught and reported on this job.

There are a lot of times, there are economic incentives in the contracts for days injury free, well, you certainly don't want to report an injury and if you're a two or three man shop, you want to get your economic incentive.

And there's also some concern in reporting that if you report the injury you get your head above the grass and your immigration status and employment status might be challenged. And as Marty mentioned, that multiples often decrease slower than the rising cost of insurance.

Within the small business and masonry culture, it's highly competitive and there are very few barriers to entry. And maybe there should be. There was some talk in the workgroup about how does one get a license, maybe it's in the licensing area or the permitting area or the design area, but there is no barrier.

If you can afford a pickup truck, you can get into the masonry business just by going and getting your business license, and in our state it's $50 and you're in business.

Often times, the masons are concerned about carrying other masons on their payroll, get them all trained up, treating them like an apprentice, giving them great skills because as soon as they get skills they break away and become one of the 24.5 percent self employed, they know all the customers, they know all jobs and they immediately go and bid their former employers jobs.

Because typically, like most construction crews, you staff up for the task at hand and you lay off. Only the big companies have the ability to carry the overhead of slack work, where you can redirect your employees to either training or other functions within the workplace.

When it comes to bidding, you don't want to bid innovation if it might cost you more because you don't know that everyone else is. So if you go out on a limb, you can get underbid. Most of the self-employed and small firms are multi-task. They work on the job site today, tonight they go home and work on the books, they work on their reports.

And as most of you know, small businesses struggle to make payroll, they struggle to get their taxes filed on time, they struggle to make administrative reports, and if they have to go back home and do a hazard analysis where they need to get on a Web site to Google around and find safe practices and innovations, not likely to do that. Six-pack abs have a different meaning in the industry.

They also have limited budgets for training. And one of the areas that again you all may affect is safety and fines and penalties for a violation are frequently smaller than the penalty for delay of product delivery.

So if you hold up the construction site because you want to be more safe and you have to pay a delay penalty or assess the delay penalty, that may be a better risk.

In looking at some of the open literature, Ohio had a very good guidance for safe work environment. And I think if any of us were to sit down and write a plan, it would look a little bit like that. Real change starts at the top.

We need to develop good company rules, we need to get all the supervisors and safety coordinators and employees together, get their input, get their buy-in then we need to train all the employees, we need to develop and implement written safety plans.

I think almost any organization you go to, you'd find this guidance, it's good guidance on how to develop a safety program. But 24.5 percent of all masons are self-employed. Another, or 24.5, 25 percent have 10 or fewer employees and 39 percent have 20 or fewer employees.

How often have you seen a one to five person company have a written plan that they review with their employees. We need to get it down to where it's pragmatic for safety to be a practice.

There have been some industry efforts, I have mentioned that innovations are coming a lot faster. The adjustable scaffolding really does a lot to put you in the optimal lifting range. The optimal lifting range, as you know, is between your knees and your pecks.

One, you get higher productivity out of that range, you also get fewer injuries. It's a capital cost. It's more expensive than standard scaffolding.

The industry has come up with A and H block, open end CMUs to address lifting over rebar. Lightweight CMUs, ultra light block have come along arrogated, concrete block and two person lift teams that several states have imposed, particularly the State of Washington.

And then this is where the parochial thing can come in, there's another new product called the BarTarget and we have -- I can talk to that about later.

The interesting thing about the lower right-hand picture is women constitute only 1.6 percent of the masonry workforce. A lot of it has to do with the lifting weights. I believe it's three of the last four years women have won the Spec Mix 500 Bricklaying Contest, they are good masons, they handle brick extremely well, they've been sort of kept out of the block business because of the weight.

And most of the 1.6 women in the masonry workforce are in the block -- or in the brick world. If you don't have to lift over your shoulders, you open a whole new workforce.

And those of you who look at the masonry workforce and you see it also in your workforces and the other trades, we're an aging workforce. As we age out and get into the 50's and 60's, we've got to find new sources of employees.

This is just a quick commercial on how to build a wall without rebar. You put it in, you build the wall, that's the mason's view then you insert rebar like that, that's the inside view. Then you can pour your grout and continue to build on. And I can talk with anyone who's interested later about that.

What we've found, and I opened with is that adaptation of innovation has been slow. "We've always done it that way" culture, the cost of innovation usually rests with the masons and that's a cost barrier to buy-in to something like scaffolding that's adjustable.

There's a lack of confidence that there will in fact be the productivity gains that are claimed. And if you're not sure anybody else is using the new stuff, you're not going to use it.

There was a study done by Dr. Jennifer Hess at the University of Oregon that thought that one-third of the workforce must adopt a new practice before it begins to take hold in the industry. That's a lot in any industry to take one-third of your industry.

And there's little -- most of the small companies have limited time to invest in learning new practices. So the reliance is on engineers to drive and architects to drive from the spec top down. It's too hard to push from the bottom up.

I got a call the other day from a guy who wanted some help. He said, I can't pour grout until the inspector look at my joints, my lap joints to see how I've tied them. What can you do to help me to get where I can pour before he gets here.

I said, I'm not sure I understand the problem. There should be no fear of looking at your lap splices before you pour. And good on that inspector because the lap splice length is important.

But he sat down with his engineers and his inspectors and his architects and after several hours, they came to some agreements, but it took time that he wasn't out with his crew. Change pushed from the bottom up is hard.

So in summary, from the masonry trade perspective, the multiple musculoskeletal disorders, the lifting, the repetitive motion and lifting over rebar are the dangers they face.

It's hard work, never going to eliminate physical stress, but we can significantly reduce it. And if it's true that our -- in our industry that people are our most valuable resource and in other construction industry, then we shouldn't expose them to the risk.

It really impacts masonry recruiting because I can go to McDonald's for almost the same price as I can become a masonry helper and ask if you want fries with this and not expose myself. So it's a recruiting problem as well when the injury rates are up.

We can take time to warm up. The youngsters are used to warming up for sports, why not let them warm-up for work. And then I believe that the real process is to drive safety adaptation from the top down by the industry leaders.

If we're going to get to the small companies, we need to institutionalize and reward and have the big firms, the A&E firms to spec safety or work enhancing products as part of their design and build safety into the design when we license and permit, require safety to be part of the qualifications for being in the industry.

With that, I thank you very much. I have added at the end, the references because I rely heavily on the Bureau of Labor Statistics, their open database is wonderful, which you all know, NIOSH reports and then some of the others.

I did not do it in an academic bibliography type list, but I did want to get credit to where I had draw. Thank you for the opportunity to present, I'll answer questions.

MR. SMITH: Thank you. Very informative. Yes, Dan.

MR. MURPHY: In your -- Dan Murphy with Zurich. In your analysis, you had 10 or fewer or 20 or fewer employees and that was a large percentage of the workforce. Was there any difference in the makeup of that workforce? Was there more, for example, Hispanics in 10 or less or did you look at that?

MR. CARNEY: We did not do a heavy analysis of that, but you're seeing the Hispanic workforce all the way through. But the small companies are very oriented that way.

MR. MURPHY: Okay. Thank you.

MR. CARNEY: A lot of the small companies are multi-culturally diverse.

MR. SMITH: Dan?

MR. ZARLETTI: Well, I would be the first to tell you that I'm the new guy on the block here so I'm a little bit confused as to the intent here. I didn't hear you ask the -- this committee anything to consider doing toward the assistance of your concerns in your presentation.

So, you didn't really drop the sales shoe. I'm still waiting for the -- I got the pitch, I just didn't hear if I want to buy it.

MR. CARNEY: Well I think there are two things from the industry. One, musculoskeletal disorders and cumulative trauma disorders aren't the jazzy thing. They're there every day. And I believe that often they get short shifted because of that.

It takes a lot of work to get marginal decreases in this area. And as you do your funded research, as you do your safety training, I think musculoskeletal disorders and bodily cumulative traumas warrant the same type of emphasis as fall fatality, arrest protection.

So my request to the committee would be, don't relegate that off and say this is too hard, this is world hunger. I think you need to keep the emphasis on the kinds of things that are trades based every day and not relegate that to a less important.

MR. ZARLETTI: Well, I would agree with that --

MR. CARNEY: I think that's one request. The second request I believe is for the ACCSH and the construction directorate to champion the specifying of safety products, work enhancement products that take less of the strain from the body.

And I think it can only be driven from the top down from an organization such as this. The local A&E's aren't going to do it.

MR. SMITH: Tom? Thomas?

MR. KAVICKY: Tom Kavicky with the Carpenters Union. I guess I would ask the question as how would you rather than, you know, we all know the exposures, we all know the MSDs, we've got the iron workers tying their rebar, we've got the carpenters working on form work things like that, the masons doing their thing.

I guess more importantly is, how would you build a wall without the protruding rebar, without the lifting, without the snagging? I would almost expect a new way of doing the job rather than, you know, what we already know.

MR. CARNEY: Within the masonry world, there is that capability to have less exposure. There are a number of ways to achieve the splicing, there are a number of ways to achieve the reduced lifting. And those often are left to choice.

There are ways to use delivery systems at the cost of the bid. I think those kinds of things could be specified. Grout handling systems, mechanical delivery systems. Those do not get left to the bidding contractor as their choice of handling.

You have the same thing in the carpentry industry in terms of material handling. If safe handling practices were allowable costs and encourage supported cost, they would become the cost of the product.

And I think those are things that in the project proposal, the management plan, the safety plan, those can be required. And then everybody bids to use that equipment.

MR. SMITH: Okay. Steve?

MR. HAWKINS: Mr. Chairman, I think the answer to Dan's question is we're being requested to consider an ergonomic standard for the masonry trades, is that correct?

MR. CARNEY: I think an ergonomic standard would be a good thing to have. But ergonomics is not -- doesn't always play well in its pundit support.

MR. SMITH: Okay. Dan?

MR. ZARLETTI: If I might. I watched your slide presentation and you were showing slides that you were explaining to be non-compliant. You know, rebar's not -- rebar not covered, housekeeping not right.

So I'm looking at this and saying that most jobs are understaffed, non-compliant and they're under reporting injuries to stay above the watermark and I'm wondering if you're asking the folks at OSHA here to come up with the ergonomic standard or to look away?

MR. CARNEY: No, I did not intend to imply that most jobs are non-compliant and under standards. I believe what I was trying to say is that the nature of this industry and not necessarily in isolation of this industry is that the day to day grind on the body, there are ways to minimize that and we should do that.

Certainly the picture I showed of the rebar not being capped, I would hope is the exception as opposed to the rule. I would hope that a compliance officer would catch that, I would hope that a foreman would catch that or a lead mason would catch that.

My intent was not to imply that all work sites are unsafe and you ought to -- OSHA ought to look away. What I was trying to suggest is that there are practices that exist in goods and they exist well, generally in large firms who really focus on this have the safety officers, have the site reviews, bring inspectors onsite.

But you're only touching the tip of the manpower. You're certainly hitting the most of the dollars. That's where the big money is and maybe the little guy doesn't -- may not be able to afford a fine. And if he gets fined, he closes and opens under another name, I don't know.

But, when you look at the numbers of people, they're in the little industries. And we need to do something to encourage them to be as compliant as the big industries who have time to develop programs. It may be the GC that develops the programs.

MR. WITT: Let me ask a follow-up question. Since one of the principal roles of this advisory committee is to make recommendations and to advise the Assistant Secretary in the area of construction in this country, what advice do you believe this committee should consider making to the Assistant Secretary in the area of masonry construction?

MR. CARNEY: The advice that I would suggest is where based, proven ergonomic factors can reduce the exposure to lost time injuries and illnesses that those be a requirement in design and construction planning.

And that small industries have some established injury requirement, whether it's in the licensing process where -- to enter the industry, you may have an OSHA training course that they should go through and maintain an awareness, just to be a qualified contractor or a qualified tradesman.

MR. SMITH: Okay. With that, we will thank you for your time being here with us and for your presentation.

And we're going to take a 10 minute break and let's try to keep it to 10 minutes if we can, come right back and we'll have another -- discuss the PortaCount issue.

(Whereupon, the foregoing matter went off the record at 10:03 a.m.
and went back on the record at 10:19 a.m.)

MR. SMITH: Could we get your attention in the back of the room please, so we can start? In the back of the room. Thanks. Thank you very much. Okay. We're going to talk about the PortaCount issue. Would those folks come forward?

And also, the sign-up sheet in the back, if any of you publicly want to make a comment. I didn't see the names on it. If anyone has signed it, please let us know. Or if anyone wishes to be heard, now's the time to sign up.

Thank you very much. Do you want to preface this, Steve?

MR. WITT: There was a presentation yesterday by John Steelneck on PortaCount. You have copies of the transcript language from last October's meeting related to this issue and you have a copy of the Federal Register Notice.

I'll ask John Steelneck and Bob Biersmer from the Solicitors office to take a couple minutes just to summarize the issues and what we like from the committee are any recommendations, any suggestions and a reaction to the Federal Register Notice and then get a sense of the committee on this issue as we move forward. John?

MR. BIERSMER: Can I introduce myself first?

MR. WITT: Sure.

MR. BIERSMER: I'm Robert Biersmer, B-I-E-R-S-M-E-R and I'm the project attorney for this PortaCount effort.

MR. STEELNECK: Good morning. I'm John Steelneck, I'm the project officer on OSHA's respirators team. I gave the presentation yesterday on the two new -- two proposed revised PortaCount fit test protocols.

What these are, are two new protocols that TSI, Incorporated, the manufacturer of the PortaCount fit test instrument has requested that OSHA consider for adding to the existing PortaCount test protocol that's already part of the OSHA respirator standard.

We have in Appendix A of our respirator standard, mandatory OSHA approved fit test protocols that have been evaluated and validated. And those are the ones that employers and respirator wearers need to follow when they perform respirator fit testing.

For new fit testing protocols there is a procedure and a standard to allow for Section 6.b.7 notice and comment rule making for adding new fit test protocols.

We really intended it for totally new unique ways of doing it, but it's also been used to adopt new protocols or change -- slight changes to existing protocols. It's already been done for the controlled negative pressure fit test.

We have what's called a CNP Controlled Negative Pressure REDON fit test, which is an alternative protocol that was proposed and we went through public comment and has been adopted and is now part of the OSHA standard.

We have a new Bitrex abbreviated fit test protocol that has been requested by the manufacturers 3M, the manufacturers of the Bitrex bit test protocol that we presented to the advisory committee back in October of 2006 that is now currently out for public comment, with public comment due by February 25th of this year.

And we have now two new protocols for the TSI PortaCount that PortaCount has requested that we take a look at. They have done what is required, they have done a peer review, industrial hygiene article on the evaluation of three new fit test protocols for the PortaCount.

They've only requested that two of those protocols be included. We have protocol one, which is the one, the first protocol that I talked about and a second protocol performs very well, it meets all of the ANSI Z8810 fit test criteria for evaluating new fit test protocol.

It meets and exceeds all the minimum criteria for a new fit test. The first protocol, protocol number one has a problem in that for sensitivity it's 91 percent when 95 is the minimum passing value.

That raises a question for us and we have included that question -- those questions as part of our public announcement, as part of the notice of proposal that will go that seeks public comment. We've raised that as a question and asked for public comment back on how that problem should be addressed and should we possibly reject.

You know, how should we look at this first protocol and see what it -- see whether why it doesn't meet the ANSI criteria. That, in part it's because in doing these new types of protocols, they don't do an extensive amount of testing.

They do the minimum amount of testing that ANSI requires for their -- for doing the evaluations. But in the past, they have done much larger fit test protocols when we evaluated the original PortaCount, the original Bitrex and others. They were really 10,000 samples and more, a lot more sampling.

In these cases, you're down to a much smaller numbers of tests that were done. And the problem with that is it makes even one false positive very hard to overcome. It will kill your statistics when you do your evaluation, and that's what it's done for the protocol number one.

But we -- what we are proposing to do is to bring them here before the advisory committee and seek your comments and then we will do the clearance process within the Department of Labor to send it over to OMB once we have your approval to go ahead.

And that's what we're looking for is to have you evaluate it and give us your comments and tell us to proceed. And then we will proceed to go over to OMB, have their -- them look at it before we publish it as a notice of proposed rule making to seek public comment in a similar fashion as to the way we've done with Bitrex.

And depending on what we get as public comments, will determine whether or not OSHA will ultimately either adopt or not adopt these protocols.

MR. SMITH: Thank you. Comments or questions from committee? Bob?

MR. KRUL: Bob Krul with the Roofers. And I will throw this out as a comment, not in the form of a motion, Mr. Chairman.

The first thing that strikes me about what's being asked of us is there's only a few of us sitting around the table I think to make what amounts to be a snap decision regarding these tests and protocols. I don't include myself in that group.

The memorandum that was given to us by Dorothy Dougherty, has in its key issue on the second page, the key issue to be addressed in this rule making is whether the proposed PortaCount fit testing protocols would identify poor respirator fits at least as well as the OSHA accepted quantitative fit testing protocols already listed in Part 1C of Appendix A to the Respiratory Protection Standard.

And I see two serious issues that I don't feel the majority of this committee could make a decision on without professional and expert help. One is the shortened testing period that's being requested in the protocol. And two is the failure and borderline failure as was mentioned in two of these tests.

Now, my understanding is that when an issue is presented to ACCSH that the committee has at least 90 days and an extension through a written request of the Assistant Secretary if more time is needed to act on these matters.

And my suggestion right now would be, I would not put it in a formal motion until everybody has a chance to speak on this. But my suggestion would be that those of us on a committee can consult with the experts at NIOSH, with the experts at the center.

I'm sure the state agency representatives have experts that could look at this NPR and bring it back to the next meeting where after at least reason discussion with experts and processionals, this committee could make a better decision as to what the recommendation could be regarding the NPR.

MR. SMITH: Thank you. Other comments? Kevin?

MR. BEAUREGARD: Yes, Kevin Beuregard, North Carolina Department of Labor. I concur with what Robert said. Back in the document that we got that is dated October 11, 2006, back then when a protocol was being considered there was one that had a 15 second time limit.

And some of the stakeholders that I represent had some concerns at that time, it wasn't enough time for the people that have a higher sensitivity to go through that test and perhaps find a problem.

And I think when you look at the revised PortaCount protocol one, which is 30 seconds I believe, what you're seeing is you're seeing a failure in the sensitivity area at 30 seconds. You're not seeing that in the revised protocol number two.

And so I would say I still have concerns about that area and I think some of these statistics are kind of leaning towards that area as well. But there may be an issue with shortening the time even to 30 seconds.

MR. SMITH: Okay. Other comments and/or concerns? Yes, Dave.

MR. HAGGERTY: David Haggerty with the International Brotherhood of Boilermakers. Kind of to echo what Kevin says. I also have a concern about shortening the time period.

We all know if you've done or been involved with respirator fit testing over a period of time, people who are doing that test and find ways to short cut this. We already shortened this up to 30 seconds, then what are -- what kind of test results are you going to get for those people who are wearing a respirator.

The other thing that I have a question about too after reviewing this is the fact, the people, the number of tests that they perform to come up with the stat is a concern of mine. I think that that should be a larger group that is tested before they -- we actually look at these results.

I agree with Mr. Krul, I don't think we have some people on this committee who do have the expertise to review this data and to see if it is and give us a recommendation whether it is appropriate or not.

I think over, looking and reviewing this, overnight period is not enough time to review this.

MR. SMITH: Okay. Matt?

MR. GILLEN: Matt Gillen. I just would actually like to say that NIOSH has subject matter to just work on respirator issues, International Personal Protected Technology Lab. And I had a sidebar with John and he indicated that NIOSH is preparing some comments.

So I, you know, I would feel more comfortable hearing from our NIOSH folks before I took a position on this as well about the underlying technical issues.

MR. SMITH: Okay. Tom?

MR. KAVICKY: Thank you Mr. Chairman. Tom Kavicky with the Carpenters. I have to agree with Bob and the rest of the committee that has spoken already. I went on record in October of 2006 saying that the 15 seconds was too short.

I have done fit testing and sometimes they don't break the seal until 45 seconds into it or longer. And I would feel much more confident with recommendations coming -- and studies done from NIOSH than I do right now. Thank you.

MR. SMITH: Okay. I think, we probably got a consensus that we don't feel qualified at this point to give you significant comments. I mean, you've heard some comments, but basically we're going to need some time to look at this and address it at our next meeting.

MR. BIERSMER: Bob Biersmer, I think that's fine. If you go ahead and during the interim period have people look at it that you want to look at it and come back to the next meeting prepared to give us your comments, we can do that. There's no problem.

MR. SMITH: Well, we'll be glad to and we'll certainly have that as an agenda item at the next meeting hopefully and be more prepared to give you information at that point.

I think in the future, we would request too that you, you know, maybe give us more time to look at areas if you could because we do need significant time to discuss this with our constituents, our stakeholders and talk to them about these issues and hopefully facilitate the purpose.

Can you give us a more of a sense of where the industry is?

MR. WITT: John, and you'll report back to the director or the sense of the committee on this issue?

MR. STEELNECK: Yes.

MR. WITT: Thank you.

MR. SMITH: Thank you very much.

MR. STEELNECK: Thank you.

MR. BIERSMER: Yes, thank you.

MS. SHORTALL: John and Bob, will you be available during this interim period to answer questions from members of the committee about the proposal?

MR. STEELNECK: Yes.

MS. SHORTALL: Okay.

MR. BIERSMER: Please direct your questions to John on that subject matter --

(Laughter)

MS. SHORTALL: Well, I should have said John and Dr. Robert Biersmer, which is the fact.

MR. SMITH: Okay. Tom had a question.

MR. SHANAHAN: Tom Shanahan. I just had like a process question being the new guy. Is it because they've gotten this far with the whole thing, there's a draft of notice. I was just wondering, does it have to wait until then?

I mean can we have an assignment to get this done within a month and -- because I'd like to go to -- we have a long standing relationship with CNA insurance company and they have sense of IH department I just wondered if maybe we had to wait until the next meeting.

MS. SHORTALL: I need to answer that. Probably the most important purpose that ACCSH serves and established in the construction safety act many years ago was that this committee before OSHA can publish a proposed rule affecting the construction industry, has to come before this body and present it and allow you an opportunity to give your recommendations on that.

You'll notice in other proposals that we've done, there's always a section in the preamble that explains how did ACCSH react, what kind of recommendations they have, maybe additional questions they might want to have asked.

So that is your single most important purpose. Not only does a Federal Advisory Committee act, but also the regulations governing this particular body requires that meetings be on the record.

And so, even if we were to do something away from this meeting, it would have to be trasncripted, minutes would have to be drawn up, it would have to be made available for the public to come listen, which is a requirement of the Federal Advisory Committee Act.

So trying to do all of that by a phone system would be almost impossible. So the reality is, you really almost have to do it in person. Okay.

MR. BEAUREGARD: Linwood I have --

MR. SMITH: Okay.

MR. BEAUREGARD: -- I just have one question and I promise that will be it.

(Laughter)

MR. BEAUREGARD: We got the memo from the directorate, we have a draft document that says do not say or quote so I'm assuming that you don't want us to disseminate that to folks as well. Do we have a copy of the study that this is based on or the draft references a journal article.

But I'm not a respirator expert, but I'm assuming when I bring these back to my people, they're going to want to take a look at some information of how you arrived at these numbers.

MR. STEELNECK: Well, if you need the article, I have copies.

MR. BEAUREGARD: So John, you will make copies available to the members of the committee.

MR. WITT: Ok, I'd like to ask --

MR. STEELNECK: We'll make copies and try and have that to the members before we leave this meeting.

MR. WITT: Thank you.

MR. SMITH: Okay. Good. Thank you. Any other questions or comments?

MS. SHORTALL: I have one in response to Kevin Beauregard. Because the draft proposal was formally given to the committee during an open meeting, we have had to make arrangements to put it into the docket.

So technically, persons who would want to will be able to view that as well as the memo. We're not going to put the transcript in, or I'm not going to put the transcript in because all the transcript is, is a small segment of something that's already in an earlier ACCSH docket.

MR. SMITH: Thank you. Thank you very much for your time and effort. We appreciate it. We look forward to seeing you next meeting.

(Laughter)

MR. STEELNECK: Thank you.

MR. KRUL: Mr. Chairman?

MR. SMITH: Yes, Robert.

MR. KRUL: Just for purposes of the minutes, would you like the tabling of this until the next committee as an official motion?

MR. SMITH: Yes, sir. It sounds good.

MR. KRUL: I would so move that we table this with the members of the committee using their own resources to get insight and input from experts and professionals on this and have it as an agenda item at the next meeting.

My only question to Steve is, that the proposed meeting date may go beyond 90 days does that -- or to Sarah, does that pose a problem?

MS. SHORTALL: There is no requirement that says that you must have 90 days or anything like that.

MR. KRUL: Oh, okay.

MS. SHORTALL: That may have just been -- historically what has happened, you just must be given the opportunity to get a proposed rule to supporting information regarding that, that would give you enough knowledge to make a recommendation and during the course of a meeting, be allowed to make that recommendation.

MR. KRUL: Okay. I so move Mr. Chairman.

MR. HAGGERTY: Second.

PARTICIPANT: Second.

MR. SMITH: Motion and seconded. Any more discussion? I've read this in the book, I was going to read it to you if I could find it. About the 90 days.

MS. SHORTALL: Oh, well then I'm wrong.

MR. SMITH: Ninety days is in the book, I believe.

MS. SHORTALL: Well, I guess another thing you can say is since you haven't received -- since you haven't at this point received all the information necessary on which to base it, the 90 days has not began to run.

MR. KRUL: Super, thank you.

MR. SMITH: Thank you.

(Laughter)

MR. KAVICKY: That's an attorney's answer.

MR. SMITH: Okay. We have a motion and second. Thanks for saying that Bob. All in favor say aye.

PARTICIPANTS: Aye.

MR. SMITH: Thank you. All opposed?

(No response).

MR. SMITH: Motion carries. Okay. That -- I think commits to the agenda. We've got a couple of housekeeping items I think and any other comments that you all want to make.

MS. SHORTALL: I would like to at this time enter into the record for this meeting and into OSHA docket OSHA-2007-0082 Exhibit number 0014, which is a presentation by the National Frame Building Association on Fall Protection for the Post-Frame Construction Industry.

And as Exhibit 0015, I would like to enter the Masonry Safety Presentation by Dave Carney from Stonesmith Patented Systems, Incorporated.

MR. SMITH: Okay. And I need to ask one more time, anyone from the public sign up to speak? I don't see any hands so I'm going to assume they did not.

Okay. We have a few minutes, we're running early. I'm sorry.

MR. STEELNECK: Copies are coming.

MR. SMITH: Okay. Copies are coming. Anyone on the committee like to make a comment at this time or have a question or recommendation? Now's the time to speak.

MR. BUCHET: I have one that I just wanted to ask, this may be more of a health thing, it's not really a recommendation I guess. Just personally I like to study, you know, prepare for things.

And I just wondered, and I realize the nature of the meeting this time was protracted because of all the other things going on, but I was wondering going in the future, if we could get things a little earlier and I would be happy to help.

If I just got the copy of it, I would be happy to distribute it out with, you know, use my staff or what because I know these guys are so busy. So anything that we could do, that I could do to help, I would love to do that to move it along.

MR. WITT: We note -- that's noted and we do intend to get things to the members as far in advance of a meeting as we're able, but we're dependent on the directives that are producing these documents and especially if we're relating to the presentation we just had in the Federal Register Notice. No, that's always our intention we intend to do that.

MR. BUCHET: Well if I could help --

MR. WITT: Appreciate that, thank you Michael.

MR. SMITH: Thank you. Anyone else? Yes, sir Dan.

MR. ZARLETTI: I just had a question as to after we've bended around with these dates, have we come up with a number or a date on the next meeting?

MR. SMITH: Have we come up with a date yet?

PARTICIPANT: We are going to do that before we leave, you know.

MR. SMITH: Yes, we'll ask the --

MR. WITT: In fairness to Michael Buchet, we'll look at the dates first.

MR. SMITH: We'll look at the --

MR. BUCHET: Well, first you have to read the handwriting.

(Laughter)

MR. SMITH: Has everybody responded that's going to respond?

MR. WITT: Please be pointing to me today, leave those dates with Mike.

MR. SMITH: Okay. We'll ask the directorate to get us that -- get us the meeting dates as soon as it's available so we can go ahead and book, nothing else books on top of it.

Okay. So we realize your schedules, that's the way it is today it might change. Thank you, good comments.

Any other questions about the order?

MR. MIGLIACCIO: Yes, the people sitting on the OTI subcommittee like to have, you know, a subcommittee meeting when we do plan this, when they come up with that date. And if we can, maybe Hank and them guys take, somebody from Hank's office we can maybe get that in here.

MR. SMITH: Yes, sir.

MR. BUCHET: Can we get requests like that emailed to us so that we can keep track of it?

MR. MIGLIACCIO: Yes, I just want to let everybody know here I was going to send you that, I'll make sure you get that.

MR. SMITH: Okay. Thank you. Anything else for our attention? If not we're going to call this meeting adjourned.

PARTICIPANT: I make a motion we adjourn.

PARTICIPANT: Second.

MR. BUCHET: Second.

MR. SMITH: Okay. I have it motioned and seconded we adjourn. All in favor stand up.

(Laughter)

(Whereupon, the above-entitled matter was adjourned at 10:44 a.m.)