The Advisory Committee met in the Frances Perkins
Building, DOL Academy, Room C 5521-5523, Washington, D.C.,
at 9:00 a.m., Knut Ringen, Chair, presiding.
JOHN B. MORAN
WILLIAM C. RHOTEN
LAUREN J. SUGARMEN
JOHN A. POMPEII
ANA MARIA OSORIO
JUDY A. PAUL
Knut Ringen, Chair
Report from the Assistant Secretary
Subpart M and Subpart R
CHAIRMAN RINGEN: Good morning. Welcome to this third meeting of the reconstituted Advisory Committee.
There have been some changes in the membership of the committee since the last meeting. First of all, John Moran resigned as he took a job at the Department of Energy, but through an agreement with the Department of Energy and OSHA he has agreed to serve as a participant unofficially in this committee so that we have some continuity in terms of his services and we appreciate that very much. And we hope as we go along that we will get such participation from other federal agencies as well.
Ted Webster sent me a letter saying that he had to resign because of other time commitments that made this impossible to continue so we are right now short of one employee representative and one employer representative, and we expect that those slots will be filled by our next meeting.
Diana Porter from NIOSH called me yesterday and left a message saying that she is sick and is unable to attend. This is the second time, the second meeting in a row that we've not had any NIOSH participation or representation or involvement with the committee. I think that's unfortunate, but hopefully we can get that straightened out.
The schedule shows that work groups will meet this afternoon, and they will report back tomorrow. Note the schedule on the second page of the agenda, because we've staggered these workshops to avoid overlap. So not all of them start right after lunch. Some start later in the day.
For those of you who are from the public here, please sign in. There is a sign-up sheet. And we will have public comments. If there are public comments we will have them immediately following Mr. Dear's presentation this morning and immediately before lunch. And we would like any questions that you have in writing ahead of time.
Tomorrow we will hear back from the working groups. We will be done by noon tomorrow. That I can assure you. So those that have plane arrangements to make and so on can do those.
The first order of business is approval of the minutes from the last meeting. Are there any comments on those meetings? Would you like more time to review them? Perhaps we can approve them a little later on in the day. Maybe after Joe has made his comments.
Or is there a motion now to approve these minutes?
MR. BURKHAMMER: I'll move.
CHAIRMAN RINGEN: Okay. Is there a second?
MS. PAUL: Seconded.
CHAIRMAN RINGEN: Any discussion? Excuse me? Okay. The motion was made by Mr. Burkhammer. This was seconded by Ms. Paul. Any discussion?
All in favor? Okay. The minutes are improved.
The second order of business. Three matters were referred to OSHA from the last meeting. The first was the recommendation that a joint ACCSH/NACOSH advisory committee be held. That was felt by OSHA to be premature and we'll probably get back to that at some point. We'll hear more about perhaps the issue of ergonomics this morning.
The second, the Haswell accreditation, a public meeting was requested to collect information there; likewise with the gender group. OSHA because of some issues with regard to budgets and also other things that are coming from higher authority regarding obtaining public information and so on by agencies is holding off on its decisions on those matters, so we'll hear about that by the next meeting again. But those requests that had been made have been forwarded and are being considered.
We have a letter from Mike Silverstein to me that discusses the formerly called Standards and Planning Process, which is now the Priority Planning Process. They are developing a work plan and they will send it to this committee as soon as it is ready.
It is not ready yet, so we won't hear anything about that today. But we may talk either today or tomorrow about having a working group to deal with the issue of the priority plans that they come up with, in the event that they are completed before our next meeting so that we can have that discussed and maybe a recommendation made by the next meeting.
Now, I want to welcome Joe Dear who in spite of the very many excellent changes that you've made here since you've arrived certainly face some difficult times, and I guess that's what we're going to be hearing about this morning.
MR. DEAR: Thank you, Mr. Chairman. Members of the committee, I would like to bring you up to date on various OSHA activities, particularly in the area of enforcement, the focus construction inspection program, our budget, and I'll be happy to answer your questions about the most recent Congressional developments, since they run faster than our ability to prepare vuefoils for description, and then whatever other issues, information, you'd like to have.
So if I could ask Holly to start, we'll begin at the beginning, which is the problem that OSHA, industry and labor continuously confront, which is the huge toll of preventable injury, illness and death in America's workplaces. And these are just the summary numbers, the first two from the Bureau of Labor Statistics, 6,200 fatalities last year from traumatic injury, 6.7 million injuries and illnesses. That works out to about one every five seconds. And according to the National Safety Council for accident costs alone a burden on the economy in economic terms of $112 billion.
We can do a lot to bring this down, and that's our purpose. The Chairman mentioned the challenge here, and this chart illustrates that in terms of the staff that OSHA has provided through the budgetary process and compared to the number of workers who have a right to a safe and healthy workplace under the Act. If we added the data point for 1995 there'd be a flat line there.
This gap continues to grow and it presents the challenge and the drive for our efforts to reinvent OSHA, to change how we do business, to move our focus from activities and processes to results in terms of impact producing injury, illness and death in the workplace.
It's often asked, does OSHA have any effect? The rate of fatal injuries in the country has declined almost continuously since OSHA's existence. >From the inception of OSHA it's declined by half. The last two bars show an increase, but as the box, which is hard to read from this distance, would indicate, the change represents a significant improvement in the accuracy of the reports prepared by the Bureau of Labor Statistics.
Those were the first two years that the census of fatal occupational injuries was conducted by the Bureau, and so I do not believe that it represents an adverse trend but simply a more accurate depiction and census, in fact, of fatal occupational injuries. But it can be said, literally, that OSHA saves lives.
The specific example of how standards contribute to this effect is with respect to the trenching and excavation standard which was updated in 1990 and rolled out with a large public education campaign aimed at construction employers and construction workers, facilitated through our state plan partners. Trenching and excavation deaths dropped 35 percent after the standard took effect.
I think it's important for us to think about OSHA standards and OSHA program in terms of results because there's so many stories being used today to belittle the program and to attempt to portray it as one that's not focused on significant threats to worker health and safety, and somehow stories of interesting, sometimes apocryphal enforcement action get lost behind these numbers. Again, it can literally be said, OSHA saves lives.
Now, some of our critics will grant that well, maybe rates of fatal injuries have declined, but overall nationally the rate of occupational illness and injury as measured by BLS has shown a small decline. This chart segments that data into industries that have been the primary focus of OSHA enforcement inspections compared to those that have not.
The first three pink bars on the left represent the incident illness rates in construction, manufacturing and oil and gas extraction industries in 1975. The yellow bars represent those rates in 1993. They are all lower, particularly in construction and oil and gas extraction. Those three industries received 84 percent of OSHA's compliance inspections during the 1975-1993 time period. OSHA enforcement inspections do reduce injury, illness and death in the workplace.
It's an interesting contrast with the remaining industries, which have all shown increases during that same period of time. Now, I am not suggesting that there's nothing more that can be done to improve our impact. Far from it. But I am attempting to demonstrate to you that the programs we do conduct do make a difference.
I'll turn now and just talk about recent trends in enforcement at the federal and the state level and pay some particular attention to the construction industry.
This is the overall OSHA federal inspection trend. It declines from 1985 through 1993, and a slight upturn in 1994. You heard me describe last time our decision not to set an express inspection number goal as an organization goal for 1995 because I'm unconvinced that the number of inspections is directly related to a result in terms of injury and illness reduction. But these are interesting numbers to take a look at.
The state plan comparison is somewhat similar. A decline in the number of inspections from a peak in the mid-80's. Again, this is something to look at and consider. It's not meant to be a definitive discussion of what's happening with respect to impact.
If we look at construction inspections we can see at the federal level that just over half of our total number of inspections are conducted in the construction industry. The state percentage is somewhat lower, but it is also relatively constant.
If we could take a look at the next chart, please? If you count numbers of inspections, the construction industry at the federal and the state level consumes nearly half of the total effort.
This chart represents the inspection for the first quarter of fiscal 1995 in red compared with the first quarter for 1993 and 1994. And you can see a substantial drop. Now, I said we removed the goal of number of inspections as a primary organizer of the agency's attention, and it dropped. I have assured the executives in OSHA that we'll look at the number, but I won't react for a while as we attempt to see if by relaxing number of inspections as a goal we can achieve greater emphasis on impact in terms of the inspections we do. But given that the agency's history has always made a lot of the number of inspections, I suspect that somebody will say that there's been a big drop, and that's of course numerically accurate, but we're trying to see whether the focused inspection program can explain any of this change.
The focused inspection in construction program is aimed at the largest source of fatal injuries construction workers reported to OSHA. Falls, being struck by, being caught between, being electrocuted, and other. We want with this program to create an incentive for construction employers to develop and implement safety and health management programs and to have competent persons in charge of those plans at each construction worksite. When those conditions are met and OSHA compliance inspection will only look at those four principal killers of construction workers.
The program began on October 1, 1994 and as of mid-February 178 of the 3,000 some construction inspections had met the focus criteria. It's too soon to draw conclusions from 178 except for me to say that I would have hoped that the number would have been higher by now. Now whether this is a question of OSHA's criteria for what is a satisfactory plan with the knowledge of employers of what it takes to develop a satisfactory plan, or lack of enthusiasm in certain parts of OSHA to promote and use this concept, I can't say at this point, but we are, and I have asked Deputy Assistant Secretary Jim Stanley to give promotion of this program his full attention to attempt to increase participation in it.
Well, now, let's take a look at some larger enforcement issues. This is a comparison of the number of egregious cases. These are our large penalty cases where we multiply instances of willful violation times the kind of exposure, the number of workers who are exposed.
The program was created in 1986 and the first big year was 1987, and you can see that there were 30 total egregious cases in that year. The number in parentheses above, 20, represents the number of egregious cases which were recordkeeping cases, so two-thirds of the first year of the program were recordkeeping cases. The percentage declined in 1988, but still over a third of the egregious cases involved recordkeeping violations. Half of those in '89 and about half again in 1990. And then a falling percentage, only 2 of 15 in '91.
But you can also see the use of the egregious case was declining until it bottomed out at 5 in 1993, with one recordkeeping case. We began an increased emphasis on this program for 1994. The number increased by three, which was a healthy percentage increase but we're working off a small base. But there were no recordkeeping egregious cases in 1994. And to date in fiscal 1995 there have been 10 egregious cases. Again, none in the recordkeeping category. If we keep at this pace we'll clearly have reestablished the egregious penalty case as a significant enforcement tool. Now, this is a product of the nature of the investigation, so you can't set a target number. These are extremely resource intensive because of the detail that's required to review them, but I am pleased that our attention has been focused on significant penalty cases, and this perhaps stands as one explanation for the decline in the overall number of inspections conducted.
Another category of significant penalty cases are those cases with large dollar penalties, large being defined as greater than 100,000. In fiscal 1994 there were 68 of these cases, and that includes the eight egregious cases. Through early February this year there have been 51 significant penalty cases, including the 10 egregious cases. You can see, again, that our emphasis on trying to find worst hazards and worst actors and use appropriate enforcement tools in those circumstances appears to be having an effect in terms of the number of large penalty cases which have developed.
Most of these large penalty cases involve willful violations. I thought it would be interesting to look at the trend of willful, and you can see for federal OSHA they peaked in 1990. In 1991 the Congressionally mandated increased penalty schedule took effect and it appears to have had some impact in the use of willful penalties. Willful penalties are also associated with egregious cases, so as the number of egregious cases declined, willful citations also declined, and as egregious cases pick up, you can see they are picking up each year.
The state data, which is next, shows a similar trend. The bars are higher here but the scale is a little bit different, on the left. But, again, a fall-off in the use of willful penalties, in part probably because of the change in the penalty schedule and then a slight pickup in '93 and '94.
The last bit of information I wanted to portray concerns OSHA appropriations. This chart illustrates our appropriation history. The yellow line is staff and the red line is dollar budgets. The fact that the red line is going up at all is extremely significant. The proportion of funds available for federal domestic discretionary programs continues to decline under the deficit reduction that the President proposed and succeeded in getting passed in 1993. So all agencies as they begin their appropriations process start with less money. And OSHA's held at the same staffing level and received additional funds, both for 1995 and 1996. If we can look at the next one. And this is the last chart. The President has proposed, the fiscal 1996 budget requests of $346 million for OSHA. That represents an increase of $34 million over our appropriation for fiscal 1995, and an addition of one FTE and staff. This is the largest increase proposed for OSHA since the budget proposed for fiscal year 1982.
The funds in this increase are to enable us to increase our compliance assistance and outreach programs. It includes additional funding for the consultation programs funded through what we call the 7C-1 programs, an increase in grants to the state plan states above the inflationary adjustment, an increase of $5 million for targeted training grants. It also includes money to enable us to continue improving our information technology systems and our data initiative to improve our enforcement targeting and data available for evaluation of program impact.
And finally, this appropriation request contains funds to help streamline the organization to train our folks on new ways of working so that we can reduce the number of layers in the organization and increase the teamwork and overall effectiveness of the organization.
Somebody may ask me what I think the prospects of this budget are. We had a hearing last week. The hearing was scheduled the evening after the Appropriations Committee proposed elimination of the entire increase we received for fiscal 1995. So they've already proposed cutting our present budget by the exact amount of the increase. That would take us from the $312 million level you see for fiscal '95 to $296 million. So one would say that the trend is unfavorable at the moment for an increased appropriation.
That's the formal part of my presentation. Let me just add one other note, since one of the committees you have working on concerns ergonomics and you'll be meeting later today on that, since the last time we met we have decided that it would be useful for the development of a good ergonomics proposal that we take the work as it stands to date, parts of the regulatory impact analysis and the analysis of the risk, the regulatory text and some of the appendices which are developed to help employers implement an ergonomics program without having to hire an expert and ask the people who helped us fashion this standard what they think of our work to date.
When I say people who helped us develop this, the ergonomics team did a number of field visits. I participated on three of those, to Milwaukee, Minneapolis and Atlanta, where companies got together with us to share their experience with ergonomics programs. So we're going back to those three cities in March to show this work to them and ask for further comment to see if we've heard what they said, whether the proposal could be refined further to improve it.
We will also have meetings here in Washington, D.C. with a number of organizations, and that includes a panel of representatives from the construction labor and construction management side also in about that same time frame to see if what we've come up with will in fact help deal with this continuation and the escalation of injuries and illnesses associated with repetitive motion and cumulative trauma.
I would hope that the committee would take this into consideration and think about as you meet today how you could further assist us in this effort. The Secretary of Labor has reiterated his request that we address the problem of work-related muscular-skeletal disorders, but we do so in a way that proposes a standard which is sensible, which is balanced and which fully recognizes both the costs and the benefits associated with the prevention of these injuries and illnesses, and I hope through this further effort to involve the labor, the management, the scientific and the safety and health communities in the development of the standard. We will develop one which will meet his criteria and that we can then send over to the Office of Management and Budget for further work.
That's my report, Mr. Chairman. I'd be happy to take your questions.
CHAIRMAN RINGEN: A couple of quick comments. On lost time injury rates we've seen an almost unbelievably dramatic decline since 1990. Between 1990 and 1993 we saw a 25 to 26 percent decline in the rate of lost time injury and illnesses in construction, from about 6.5 to 4.8 per 100 full-time workers, which is remarkable. Now, these rates fluctuate to some extent with the business cycle, and we've had a very severe recession during those same periods, but that cannot account for this whole decline in the rates reported to the BLS.
The second issue is that we've had some informal discussions about what you said about the muscular-skeletal disorders problem, and it is different in construction, as we've said, than it is in general industry. It's more acute. It's more related to things like lifting and so on than it is to repetitive motions. It's more unpredictable than it is in industry and so on.
And what we have suggested, if this is what you might be interested in, is to refer the matter back to our ergonomics work group, of which Stew Burkhammer is the Chairman. And have them consider by the next time we meet to come up with a framework, perhaps something even more than that that will meet what we think here on this committee, the labor and management and public participants, are a framework that the construction industry will generally support. Then we can certainly go ahead and do that.
MR. DEAR: I think that would be an excellent way to approach this, and I would very much appreciate the committee's assistance along that line.
CHAIRMAN RINGEN: Is that okay with you, Stew?
MR. BURKHAMMER: Fine.
CHAIRMAN RINGEN: All right. My final question has to do with the budget. Assuming a rescission, which I think that they've put forward of $16 million in your budget this year, which really means a $32 million rescission by the time, you're half-way through the fiscal year already now.
MR. DEAR: Well, the dollar amount stays the same, but if you calculate that in percentage terms, a five percent cut operationally is a ten percent cut since it's taken over the six months.
CHAIRMAN RINGEN: Right. Exactly. Which is just about an impossible, it is an impossible cut to absorb over a small, over the budget level that you have without reducing both personnel, I would think, and a whole lot of the items that most people would welcome, like consultation and this kind of thing. That isn't...
How do you think you could do that?
MR. DEAR: It's too soon to predict what will happen with respect to OSHA's onboard staff, but clearly that is an extremely important concern. But I can tell you this in terms of impact. The $16 million that was new money was designed to help make OSHA more effective, and to deal with the constructive criticism that I've heard from members of Congress, from industry representatives and from labor representatives.
So I find it ironic to say the least that the very means that the Congress provided to us to address those issues, improving organizational effectiveness, better targeting of our resources on the worst hazards, increasing compliance assistance to employers, are those which are immediately up for adjustment and the like of this budget action if it is sustained all the way through the process.
The alternative to that is in our enforcement program, because that consumes the bulk of our resources. The data I presented to you this morning and other research currently indicates that if fewer inspections are performed, fewer injuries will be prevented. So the choice OSHA faces with this budget cut, if it stands, is either to stop investing in the things that will help us be a better partner and a more effective organization or to stop doing the very thing we're supposed to do, prevent injuries and illnesses, with the attendant economic and human consequences of that action.
Clearly, the Secretary and I are doing the most we can to persuade members of Congress that in fact this is a false economy, to save $16 million out of the OSHA budget is to impose far higher costs in terms of additional injury and illness that will be sustained by the private sector, and I am always optimistic so I hope that we will be able to persuade the members that in fact this is an action that can be reversed. But if it is not, then our choice is simply to not do those things which we think will help OSHA become more effective or to stop doing the things which we know, do fewer of the things that we know make a difference.
CHAIRMAN RINGEN: Stew.
MR. BURKHAMMER: With regard to ergonomics. Would it be possible to get someone from Barbara's team to come to the ergonomics workgroup this afternoon?
MR. DEAR: Yes. If that hadn't been planned, I'll see that that...
CHAIRMAN RINGEN: I think Barbara is going to try to be there, isn't she?
MR. DEAR: I would hope, yes, that she would be there.
CHAIRMAN RINGEN: But it may an item that you may want to see if we can get a little staff support from OSHA on developing, because this is going to be a fairly...
MR. BURKHAMMER: I figure it's going to take between now and the next meeting to draft this, probably. A minimum of two, and maybe four workgroup sessions, actually hands-on workgroup sessions to develop this thing.
MR. DEAR: I do appreciate your willingness, and the committee's willingness, to take this on. It's clear from the work we've done to date that with respect to risks in the construction industry that the standard is going to have to take account of those in ways that may be distinct from service or manufacturing industry exposures, so the committee's willingness to help do that is greatly appreciated.
CHAIRMAN RINGEN: Any other questions or comments?
MS. PAUL: There was an analysis of current legislation in our materials.
MR. DEAR: Yes.
MS. PAUL: What's your feeling on what's going to happen with that?
MR. DEAR: HR 450 is the bill which would impose a moratorium on federal regulations beginning November 20, 1994 and extended to December 31, 1995. The bill was passed by the House of Representatives yesterday. Excuse me. It passed last week. And they were working on another regulatory bill yesterday and today. It was amended on the floor to extend the moratorium for firms with fewer than 100 employees an additional six months, to June 30, 1995.
OSHA has seven standards that are presently in development. If these standards are delayed for a year, our estimate is that an additional 431 lives will be lost. An additional 24,000 injuries will be sustained, and something like an additional 32,000 illnesses will result as a consequence of this delay.
The standards involved include the powered industrial trucks, which deals primarily with forklifts, respirators, glycol ethers, methylene chloride and I'm afraid I'll have to add for the record the others, but that number does not include the indoor air quality proposal or the ergonomic standard, so we just listed those standards which are I think pretty much seen as regular OSHA health or safety regulations and tried to estimate the impact of the delay.
The administration has taken a position against the regulatory moratorium. Last week the President addressed a group of cabinet secretaries and agency heads like me to explain the Administration's position, which is we support reform of the regulatory process to improve its effectiveness so that it is less costly, less meddlesome and moves responsibility back to the hands of businesses and workers. But we do not support a rollback of the environmental, safety or health protections that the Occupational Safety and Health Act, the Mine Safety and Health Act and other laws provide to workers and consumers in this country.
So we're working as the Administration to improve our programs. And you've seen from OSHA's priority planning process our own efforts to do that and our desire to consult on matters like ergonomics to improve the standards, the impact of that effort to improve the regulatory process. But clearly delay means that protections will not be in place, and the consequence of that will be increased injury, illness and death.
MS. PAUL: Thank you.
MR. DEAR: If I might add, there is another bill which is up for a vote today in the House. The number changed over the weekend. I think it's now HR 1022, or 1023. Somebody will correct me if I misspoke. And it was HR 9.
This is a more fundamental change in the policy regarding how risk assessment and cost benefit analysis is conducted by OSHA and other regulatory agencies. There are portions of this bill which make, address issues which are important, such as the quality and the use of the science which goes into determining the risks that are proposed to be regulated and the quality and the accuracy of the information on economic costs and benefits used to determine the justification for those standards.
It's important for the committee to understand that OSHA has always used quantitative risk assessment techniques, that it has used these in great detail, particularly after the Supreme Court decisions involving benzine and cotton dust. In addition, we evaluate for technical and economic feasibility of the standards we propose.
OSHA does not in the area of health standards adjust the levels of protection to workers' health based only on an economic evaluation of costs and benefits. The change that is being proposed by the House of Representatives would in cases where the new legislation conflicts with the underlying statute, have the new statute supersede. The effect of that would be to fundamentally change the section of the Act dealing with health standards and to negate 25 years of case law with respect to OSHA standards.
I think it's extremely important that if Congress wants to do that it should be done in the context or review of the Occupational Safety and Health Act itself, and not through a backdoor means that tends to sweep away a process which works and which is developed after some careful review by the judiciary, one that people are familiar with.
Again, the Administration position is, we want to work with members of Congress in ways that will improve the regulatory process and there's a huge effort underway, both with respect to how standards are developed and how they're enforced to do that but the Administration does not support a rollback of the protections that OSHA, MSHA and other laws provide.
CHAIRMAN RINGEN: On that, I may just add that I had the misfortune of coming to Washington in 1978 to be Study Director at the National Academy of Sciences to look at whether the Delaney Clause should be abandoned and substituted with a cost-benefit, risk-benefit system. And while I don't think that, in spite of what many people say, that the science, so-called science of risk-benefit analysis, has improved very much since then, simply because it's impossible to do a scientific comparison of non-commensurate values.
This will always be political and subject only to scientific balancing where the risks are very large and clearly stated. Otherwise, they will generally lose out to cost estimates, which are easier to measure.
MR. DEAR: It's a fascinating field, in that there are important issues. I think our knowledge of how to develop standards has increased, that there are tools which are coming into use which extend the, add to the toolbox, if you will, of risk assessors and risk managers.
I think it's clearly desirable that assumptions which guide the policy decisions be explicitly stated, both for the decisionmaker, like me, and the people who will occupy my job in the future, and for those affected by the regulations to see, and I think that's a reasonable statement. But I'm afraid that lost in this interesting policy discussion of quantitative risk analysis and best estimate and some of the things that go into the detail here is the fact that risk assessment is not a science. It is what we do when the science available does not give us a definitive answer with respect to risk.
Therefore there will be policy judgements, as the Chairman said, that are always a part of the decisions, to regulate or not to regulate, or how to approach that. And that we will be asked if some of these policy changes come about to give greater weight to economic rather than other considerations with respect to our regulations, and this is a perfectly legitimate debate to have. But it ought to be had on the merits with respect to the statutes that are being addressed, and not as part of some one size fits all solution to concerns about regulation that may have their source in other statutes administered by other agencies to deal with other problems.
CHAIRMAN RINGEN: Any other questions? Comments?
Thank you very much.
MR. DEAR: Thank you.
If there are any questions from the audience we will take them at this point.
I was wondering if we could, concerning the question of whether we need a work group for the, they don't call it the standards and planning process any more, it's now the priority planning process. And if we get a draft before the next meeting which we could put before a work group like this, my own feeling is that probably the safety and health programs workgroup could handle that issue for us, if that's agreeable with you.
MS. PAUL: It's agreeable with me if it's agreeable with other members of the workgroup.
CHAIRMAN RINGEN: Okay. So that if we get something from that group then we will send it out to you before the next meeting. You can review it and give us a report back.
And the other thing that you'll consider, Stew, in addition to the factual issues that come before you with regard to the ergonomics is the sort of muscular-skeletal disorders, I think we should call it, is the kind of logistical support that you're going to need for this effort. So we can hear that tomorrow.
MR. BURKHAMMER: On the ergonomic committee, currently we have Bernice and John and Bill Smith, with an advisory member of Scott Schneider from the Center and Peter Huddleston from Lawrence Livermore Labs. Looking at the scope of the task for us, I think we need to make sure that all the members of the workgroup are going to be able to come, at least two, maybe three, all-day or two day work planning sessions between now and the next meeting, and maybe anybody else on the committee that would like to join this effort. We ought to talk about that.
CHAIRMAN RINGEN: Okay. The members now are Burkhammer, Smith, and Jenkins. John's serving ex officio and will continue to do so. Any other members of... First of all, those members, do you have any problems participating in this at the level?
MS. JENKINS: When is the next meeting?
MS. NELSON: May 24th and 25th, I think.
MR. BURKHAMMER: The 24th and 25th.
MS. NELSON: Yes.
MR. BURKHAMMER: I figure at least two working meetings, depending on how much we get done. Scott Schneider has a lot of material already done, so that's a big plus for us.
MS. PAUL: Here?
MR. BURKHAMMER: Yes. Here. Here somewhere. Bill is here. I'm here. Bernice is the one that's got to travel, Pittsburgh.
MR. SMITH: And a conference...
MR. BURKHAMMER: We can just fax you, and you can mark up and fax it back.
MS. JENKINS: I can come here...
MS. PAUL: I would like to be involved with this.
MR. BURKHAMMER: All right.
MS. PAUL: Okay?
CHAIRMAN RINGEN: And Judy?
MS. PAUL: Especially when you said that we could maybe fax back and forth a little bit, because that's a really long way for me to come, but I'll come here anyway, but I could probably for sure make one. But if we can fax back and forth I would really like to be involved.
MR. BURKHAMMER: All right. Good.
CHAIRMAN RINGEN: The recorder has asked, if you don't mind, to talk into the microphones.
MR. BURKHAMMER: Will you be able to come to all of them? Okay.
CHAIRMAN RINGEN: Any other volunteers for this activity? Any other external consultants or advisors to this workgroup that you think you need at this time, Stew?
MR. BURKHAMMER: Yes. If anybody would like to be an advisory member that has a background in ergonomics, is interested in ergonomics, who would like to make a contribution to the committee we'd certainly take into consideration your request if you'd like to join.
CHAIRMAN RINGEN: I'd like to make a point about this, that when people think of ergonomics they think of repetitive motions, and we're thinking about something more extensive or more limited, depending on how you look at it, than that. And it would be good also to look for people who have a background in things like manual material handling, which is probably one of our very big issues, and the kinds of things that result in back problems, shoulder problems, even knee problems, which are not caused necessarily by repetitive motions in the way that most people in the ergonomics community who have been working on general industry issues think of it.
MS. OSORIO: I was just going to volunteer to do a paper for you, because that's an awful lot of meetings for me. Because I have to come all the way from the west coast. But I'm willing, if you set up an agenda for the forthcoming meetings and you feel you need somebody who can just provide overall occupational medicine input, including some of the stuff that Knut was talking about, I'd be more than happy to help out, and then maybe I can make one of the meetings. But it's an awful lot for me.
I can also give you recommendations if I can't go, other people who would have a similar background. With a little bit of advance warning.
MR. BURKHAMMER: Yes. I think that's important that we have someone with an occupational medical background because we're going to be talking a lot of structural body movement type things that we really need expertise on. Yes, that would be great.
CHAIRMAN RINGEN: I'm sure we can also get somebody from one of our collaborating groups up at the University of Lowell or at the University of Iowa to participate in this. They're doing a lot of work. And the University of Washington.
Can you get data from the workers' comp system in California to characterize muscular-skeletal problems among construction workers, if we give you the ICD codes?
MS. OSORIO: Yes. It can talk to... Our problem is that we're not like Washington where everybody goes under one system. But I can talk to our primary workers' comp group which is a state plan which does the high hazard industries, and I can talk to people there.
MR. BURKHAMMER: Also, I think Jack or Al, one of you could be kind of a fax member of this thing so we could draw upon your expertise for the state plans.
CHAIRMAN RINGEN: That's great. Anything else?
Okay. Ross Eisenbrey is still not here, but Jerry Reidy and Bob Whitmore are here to talk about the standards process. I think Bob is here; at least Jerry is here. And if you're ready, you can go ahead and then we'll catch Ross afterwards.
MR. REIDY: Good morning. I'm Jerry Reidy, Director of the Office of Construction and Civil Engineering Safety Standards. First of all, before my presentation on Subpart M and Subpart R, I'd like to make a statement for the record.
On February 3rd, Tom Shepich, the Director of Safety Standards Programs retired. On February 6th, the Deputy, became the Acting Director of Safety Standards Programs.
On Subpart M, fall protection... If any member has not got a copy of the Subpart M standard, we have some copies here for you. Just indicate a need and we'll pass them out.
As you know, it was effective on February 6th, with one exception, there was an action filed in the 3rd Circuit U.S. Court of Appeals by the five member companies of the National Erectors Association. I believe subsequent to that time NEA itself joined the action. And also they filed a petition with Mr. Dear. The end result is that OSHA has delayed for six months the fall protection provisions of Subpart M with respect to non-building steel erection. Concurrently, SENRAC, which is our acronym for Steel Erection Negotiation Rulemaking Advisory Committee, took up the discussion of the scope of the proposed Subpart R steel erection and have identified numerous steel erection activities which they intend to include in the future revision of Subpart R.
OSHA has taken the position that we will not be involved in what we call dual rulemaking. Which is to say we will not have SENRAC working on areas of scope in steel erection at the same time using those same areas under Subpart M. Therefore, although we announced in the January 26th notice of the stay of M that we were going to reopen M for comments, we are at this point holding back the reopening because we have to determine what will the scope of R be when the committee arrives at a consensus, hopefully by June of this year.
That concludes Subpart M, unless you have some questions.
I'll move on now to Subpart R. To date, just for historical background, SENRAC has held seven meetings. Just for the record, Bethesda, Maryland, Denver, Boston, Washington, D.C., St. Louis, Washington, Virginia, and our next meeting is scheduled for April 17, 18, 19, and it's scheduled tentatively and it will be confirmed, I hope today, for the Hyatt Dulles Hotel by Dulles Airport. That's where they had the last one in February.
A number of tentative agreements were reached on the scope, and if you wish I can read them out to you for the record.
"Single multi-story buildings, industrial buildings, commercial buildings, bridges, metal floor, roof decking, stadiums, auditoriums, gymnasiums, arenas, space frames, penthouses, hangers, atriums, skylights, curtain window walls, sound barriers, miscellaneous ornamental items, steel billboards, scoreboards, highway signs and canopies, steel monorail and conveyor systems, and metal sidings on buildings" covered by Subpart R.
Coverage for towers is undetermined pending clarification of existing coverage of various types of towers, including electrical transmission, communication, water and light towers.
Early in January a workgroup met in the Department of Labor and began drafting a proposed revision by compiling all the recommendations that the committee had agreed upon. These included recommendations by various committee workgroups, as well as the American Institute of Steel Construction and the Steel Joist Institute.
At the February meeting the committee came to preliminary consensus on several portions of the draft, including innovative provisions for hoisting and rigging, anchor bolts, joist and double connections, that will help to minimize collapses and employee exposure to falls and overhead loads.
The fall protection issue has not yet been resolved, although much progress has been made toward eliminating the major reasons for falls through engineering controls and better work practices. The committee tentatively agreed to make a recommendation on allocation of responsibility to OSHA. This recommendation will be outside the committee's charge to revise Subpart R. However, the committee felt it was an important issue that needed to be addressed by OSHA.
Parenthetically, the allocation and responsibility discussion involved whether or not such persons as owners, general contractors and others be charged with the responsibility for the safety and health on the construction site. And whereas there appeared to be a consensus that this was desirable, the concern was that they do not want it only applied to Subpart R, but across the board to all construction.
Several workgroups are planned between now and the April meeting to address some remaining issues and clarify several items. In addition, workgroups are currently interacting with each other and committee staff in fleshing out substantive ideas and language for the working draft standard. That is ongoing as we speak.
That covers Subpart R. Do you have any questions?
CHAIRMAN RINGEN: I have one question. The charge, or the scope of this as you listed this in terms of sort of what comes under it sounds broad compared to what you envisioned originally when you set up the SENRAC process.
MR. REIDY: Well, the scope is still within the confines of steel erection. So in those terms, within that parameter, it is becoming... And also, understand one thing. The end product of SENRAC is a proposed rule arrived at by consensus. They have not come to consensus on the scope at this point.
CHAIRMAN RINGEN: But the scope of applicability for it, the kind of work that it will cover, more or less you've agreed on?
MR. REIDY: I wouldn't say that agreement has been reached, no. There's a great discussion going on about the question. I would defer to Bill Smith, who is on the SENRAC, if he has any comments.
MR. SMITH: Yes. Actually, that list makes it more definitive than what it was by listing everything that is covered, so it's put in black and white, not gray, is really what the purpose of this was. To make it more definitive and not as broad by covering what is steel erection. And that's how it was started. What is steel erection?
But as Jerry said, there's no agreement and a consensus yet.
MR. REIDY: Thank you.
CHAIRMAN RINGEN: Thank you.
MS. NELSON: No. Let's do Ross.
CHAIRMAN RINGEN: Okay. We'll scramble the agenda a little bit if you don't mind, and go back to Ross Eisenbrey and give us a legislative update, and then we'll get back to the recordkeeping, the industrial trucks and the priority planning process, of which there's actually nothing more to say, right?
MR. EISENBREY: Good morning.
CHAIRMAN RINGEN: Good morning.
MR. EISENBREY: Was I...? I was told 10:00. Was that right?
MS. NELSON: We just had some extra time, so we moved ahead.
MR. EISENBREY: Okay. I hoped I wasn't scrambling here, your order.
I will be giving a summary of what has been going on.
There's a lot happening legislatively right now and I've passed out a summary which is already slightly outdated. It doesn't mention a major bill that's been introduced that we haven't analyzed yet, that Senator Kassebaum introduced on OSHA reform. But I've divided this update into three areas. One is the regulatory reform bills that are moving in both the House and the Senate. The second is appropriations activity, and the third is reform of the Act itself.
Holly, or anybody, how much time would you like to spend on this? How detailed I should go into it?
CHAIRMAN RINGEN: I think you should take time to go through this in some detail.
MR. EISENBREY: Okay. The first regulatory reform bill that I've mentioned here of real import to OSHA is the moratorium bill, HR 450, which passed the House on Friday by a large margin, 276 to 146, which is short of a veto-proof majority. The President has not said that he will veto this bill, but various agencies are recommending to the President that he veto it.
It says essentially that any regulation or any regulatory action taken since November 20 and up to the end of the moratorium period, which is December 31st, or the passage of bills requiring cost-benefit analysis and risk assessment, whichever comes earlier, during that moratorium period any regulatory action is ineffective. Further regulatory actions are prohibited, and ones that were taken, rules that were issued would be ineffective until the end of the freeze period. And this applies in the House bill no matter how small the dollar impact and basically regardless of what kind of a bill it is.
It has an exemption, it says, for imminent, for regulations that have an imminent effect on health and safety. And it was made clear that at least as far as regards OSHA rules like ergonomics, there is no exemption there. They have said specifically in the committee report, notwithstanding that OSHA says 300,000 people might be hurt, and those injuries might be prevented by the issuance of a rule on ergonomics, no work on the ergonomics rule can go on during this moratorium period, if this becomes law.
An amendment was adopted that extends the moratorium period for six months with respect to any rule affecting businesses with 100 or fewer workers. The only exception for the agency, the only kind of work that it can do is work on risk assessments or cost-benefit analysis. So the entire regulatory staff under the House bill would have to sit on their hands for the entire moratorium period. They would not be allowed to work on any of these rules.
The Senate bill is being marked up today, and it is a less drastic measure, and rather than applying to any regulatory action at all it says it has to be a significant action, the sort of thing that's normally noticed in the Federal Register, and it applies only to major rules; those having an impact of $100 million or more. Or at least this is the amendment that Senator Nichols, the sponsor of the bill, has agreed to offer in committee this morning.
So if the Senate bill progresses in that form it's a very different bill from the House bill and there will be a conference, and it's not clear how the President will react if the bill is finally passed.
The second very important bill which is on the House floor today, was on the floor yesterday and will be on the floor again today, is the risk assessment, cost-benefit bill, HR 1022, which is part of the Contract With America. And the most important change that this... This bill requires a very radically different process for agencies to analyze and promulgate regulations, and I'll go through it in some detail for you.
The most important change for OSHA is that it reverses the Cotton Dust decision with respect to health standards. It would no longer permit sort of a health-based approach, a purely health-based approach. The Cotton Dust decision said the agency first has to establish that there's a significant risk, that a regulation would reduce that significant risk, and then if it can show that it's technologically and economically feasible, the rule should go forward.
Under the bill, that would be superseded. The decisional criteria for health standards would be superseded and the agency would have to show that the rule is justified, that the benefits justify the cost without a standard for what that means, exactly, that the benefits justify the cost.
And in addition, it would have to show that it was the most cost effective alternative, and the alternative that provided the most flexibility to the regulated businesses. So it's a much more difficult standard to meet, and it introduces a lot of uncertainty. Whereas, after 15 years or so of working with the Cotton Dust standard people know how it works. I think it's clear that this is going to engender a lot of litigation to determine whether something does justify a rule, whether the costs are justified by the benefits.
When the agency did its own analysis it looked back at some of the rules that it has issued and it feels pretty sure that it either wouldn't have been able to come up with the kind of detailed justification that the bill requires, or that it would have taken years of additional time to come up with the kind of analysis that's required by the bill.
The second part is a rigid set of requirements on risk assessment. And I'll read a little bit of it, just to give you a flavor of what it's requiring of the agency that is not required by the law now. A significant risk assessment document which is required for any regulation that has a $25 million impact "shall contain a discussion to the extent relevant of both laboratory and epidemiological data and as appropriate differences in study designs, comparative physiology, roots of exposure, bio-availability, pharmacokinetics, and any other relevant factor." The document has to "present a representative list, an explanation of plausible and alternative assumptions used, inferences and models, explain the basis for any choices, identify any policy or value judgments, fully describe any models used, and the assumptions incorporated in them, and indicate the extent to which any model has been validated by or conflicts with empirical data."
Now, what's important about all of that is that if the agency fails to do any of those things, the rule can be attacked. There's judicial review over these analyses. So if somebody wants to challenge whether the agency properly studied bio-availability or pharmacokinetics in the toxic effects of a chemical, it can, and a court would have to review that and make a judgment on the science and how well the agency had done its analysis.
It requires a separate analysis for every separately identifiable population of workers, which will require a lot more information gathering by the agency from the industries covered. And it requires that every substitution risk be analyzed. And apparently that a separate risk assessment be done for each of the substitution risks.
So, for example, in glycol ethers where there were 21 substitute chemicals that were identified, that would have required 21 separate assessments, and by the agency's estimate would have added seven years to the rulemaking for who knows what benefit.
And then, every risk assessment has to be peer reviewed by, in the case of rules that have $100 million impact a broadly representative peer review panel, which -- and this is a source of a lot of debate in the House -- would include, but could not preclude, members of the peer review panel being from the industry or from the actual company producing a product.
There is no longer a conflict of interest rule. It specifically says that you could not keep someone off a peer review panel because they have a financial interest in the outcome of the peer review.
Today there will be an amendment offered on the floor that says in addition to this every rule that any agency has ever issued in the past will be subject to reopening by petition. Any person could come forward with a petition to the agency and say, "I don't like the Cotton Dust rule. I don't think the risk assessments were done according to the rules now under this law. I don't think it was done with the proper cost-benefit analysis." And the agency has 90 days to respond and say either yes, it was or no it wasn't, and accept the review. If it accepts the petition for review, which is itself, a denial is judicially reviewable, it then has a year to act on a petition.
So if this amendment is adopted, which was accepted in committee but was not included for, by the rules committee when the bill came to the floor that required it to be offered separately, it would permit people to keep the agency busy doing nothing else but reviewing past rules for the foreseeable future.
OSHA estimated, without really guessing at what would happen with this petition process for old rules, it estimated that the bill would add $9 to $16 million to its budget and require between 114 and 195 additional FTE.
The Democrats offered a substitute yesterday which was defeated by about 70 votes that would have allowed much more flexibility, change this rule about conflict of interest on peer review panels and specifically provided that underlying statutory decisional criteria would not be overcome, would not be superseded by the cost-benefit analysis and risk assessment provisions of the bill.
The third bill, the Paperwork Reduction Act, passed unanimously in the House. It passed probably something close to unanimously in the Senate. It has some uncertain effects on the agency. It specifically overturns the Supreme Court decision that exempted from the Paperwork Reduction Act and exempted from OMB oversight rules that didn't require information from an employer to the government. It required an employer to provide information to employees. In that case it was the HAZCOM standard, and a specific amendment was offered to delete that provision. That amendment was defeated in the House.
The implications of the bill are not really certain. It depends on who is at OMB and what their attitude is toward regulation. Because the bill sets a goal for the whole government of reducing by 10 percent per year the paperwork burden, the information gathering burden on industry and the American public, OMB is required to direct the various agencies to give them paperwork burden caps, and to direct them to only add so much or to decrease so much from the paperwork burden they impose. So if the agency favored OSHA in a particular administration it might be gentle with the caps or, if not, it could be harsh and require such low limits that the agency would be unable to do paperwork and information intensive standards like a comprehensive safety and health program standard, or ergonomics with recordkeeping requirements, or new requirements for OSHA log recordkeeping and so forth.
So that is, of all of these bills, the one that is likeliest to become law. The Administration is not opposing it and I expect that within, perhaps within a week, it will have passed the Senate as well and will be on its way to the President for signature.
The appropriations process got off to a rocky start with respect to OSHA. The Labor HHS Subcommittee, the appropriations subcommittee for the Labor Department in the House last week voted to cut the fiscal 1995 budget for OSHA by $16 million, which this late in the fiscal year translates effectively into a cut about twice that size. For OSHA it means that all the new money that was appropriate -- and this is how they picked this number.
All the new money that was an add-on in the 95 budget will be wiped out if this cut is capped, and that means that the enforcement initiative, the new technology initiatives that Joe Dear has, and the data initiative would all be blocked, or he'll be faced with the choice of cutting it somewhere else. Cutting it to the basic program in standards or enforcement, to meet this cut.
It's not clear what the Senate is going to do. And it's not clear that this cut won't be deeper when it gets to the House floor. Any member can step forward and ask for an additional $10 million.
CHAIRMAN RINGEN: When is it scheduled for the floor?
MR. EISENBREY: It could be on the floor next week. I don't have a date yet, but the Appropriations Committee usually marks up and sends a bill within a few days to the floor.
The Secretary will be testifying in the Senate, soon, on the budget. Now, what's interesting is that the President sent up a budget with a $34 million increase, the biggest increase in OSHA history, but there's really no substantial likelihood that there will be any increase in the '96 budget in light of what the House has shown to be its inclination with respect to the current year.
Finally, there's OSHA reform, and there are a number of bills that have been introduced, and members who are working are bills. These are all bills which are being introduced by Republicans, and they all have the same basic thrust, which is to cut back on OSHA enforcement.
Senator Kassebaum has introduced a bill which I didn't mention here, but I think it will be, without having studied it I could guess that it's along the lines of the Ballinger approach, which is to reduce penalty amounts, to change the agency's thrust from being an enforcement agency to more of a consultative, educational agency, to do away with first instant sanctions. This seems to be common in all of the bills that we've looked at, and draft bills. Republicans want to put an end to first instant sanctions.
The Ballinger proposal that's in draft right now has a new notion of setting up an independent standards setting board, outside of OSHA, which I guess in his view would be more objective and do a better job than the OSHA standard setting has done. And his bill, the outline of his draft bill says both that NIOSH would be eliminated and its functions folded back into OSHA, and that the General Duty Clause should either be limited or eliminated as an enforcement tool. So these bills promise some drastic changes.
The first hearing on any of the OSHA reform legislation is tentatively scheduled for March 8th. We expect that Joe will be invited to testify, but an invitation hasn't been sent yet.
So there in a nutshell is what's happening.
CHAIRMAN RINGEN: Does 1022 apply to safety standards?
MR. EISENBREY: Yes. It does.
MS. OSORIO: You have your hands full. All the regulatory agencies do.
I have a question, though. Is there a legal precedent for the supermandate, whereby by this one bill you can make null and void all past regulatory efforts? I haven't heard of something like that. Is there some discussion about the legality of that?
MR. EISENBREY: Well, it's certainly legal. A later enactment by Congress, if this were signed by the President, would be law. So it would be a drastic revision and an unusual way for Congress to deal with a range of statutes, and there are dozens of environmental statutes that would be affected.
It isn't just OSHA. It's more particularly things like the Endangered Species Act and some other environmental laws that are purely health-based or have environmental values that Congress has decided on and says, you know, the agency will regulate to accomplish a certain end regardless of any particular decision about cost and benefit. Because some things are just inherently difficult to value. How do you value the disappearance of a species?
MS. OSORIO: I guess my point -- and I'm not a lawyer, so I apologize -- was that if a mandate of EPA, if a mandate of OSHA is to protect worker health and safety, environmental health and safety, and by one feel swoop you're eliminating regulations that you know are going to result in X number of morbidity, mortality cases, there seems to be some sort of inherent conflict in that. And so I'm just wondering if there was any discussion.
MR. EISENBREY: Well, there isn't. I think the legality is so clear that what the Congress giveth the Congress can taketh away, you know. And if Congress passed all those laws it could wipe them all off the books in one enactment if it wanted to. And some people are saying that this is getting pretty close, undoing 25 years of environmental regulation, as you say, in one fell swoop.
CHAIRMAN RINGEN: Any other questions? Comments?
Thank you very much.
Bob, if you don't mind, can we take a ten minute break? That would be great. Thank you.
Be back in about ten minutes.
(Whereupon, a brief recess was taken.)
CHAIRMAN RINGEN: Okay. Let's be seated, and get started again.
Bob Whitmore has been waiting patiently, to say the least, to talk about the on-again off-again subject of recordkeeping which has been with us for many years, I think, but is about to come to a conclusion. Right, Bob?
MR. WHITMORE: Right. It is coming to a conclusion, I have a feeling.
Thank you, Mr. Chairman, and committee members. I'm glad I was here, actually, because I was interested in some of the overheads that were shown by Assistant Secretary Dear, and then Ross Eisenbrey's uplifting discussion of things.
Actually, when you think about it, between the regulatory moratorium and the reduction in paperwork, coupled with cutting back on enforcement, I don't even know why I'm here, at this point, because I'm not sure that recordkeeping or the data initiative, exactly what the future is going to hold for us.
MR. BURKHAMMER: You are here so I don't have to talk.
MR. WHITMORE: There's probably some truth to that, Stew.
MR. BURKHAMMER: Thank you.
MR. WHITMORE: A couple of things. Again, we would like to state that we really appreciate the work done by the recordkeeping workgroup after looking at some general overall principles of our proposal. And so you'll know, that entire document that you all gave us as a result of that session is going to be put into the official docket, once we get an official docket. So that you'll know that. And we tried to incorporate a couple, you probably would consider minor issues, into our latest proposal, but several of the issues that were presented we're just having some trouble putting it together in this package. And so we're going to be coming back to this committee, as well as the construction industry and labor groups at large, once we get this proposal out on the street.
If I could, before I get into the specifics of what's the next step for recordkeeping, just very briefly for my own sake I'd like to make a couple of observations.
One of the overheads that we looked at talked about egregious cases, and the fact that recordkeeping was the easy one that was done in '87, '88, around there, and '90, and then suddenly after 1990 I think you have a total of maybe three instances. I'm not sure what that says. I'm not sure what the point of the slide was other than to possibly say that everything's fine with the records out there, and we can't find any problems with recordkeeping so we haven't had any cases. That's one interpretation you could make. I would challenge that interpretation.
The other interpretation is it's just paperwork. It's not real hazards. It's not serious hazards. I would tend not to challenge that observation, that OSHA is trying to focus on real hazards. And I think all along we should have been doing that. The records are only important if they relate to a problem in the workplace, i.e., a need for a safety and health program or addressing an issue.
What concerns me with, when you look at recordkeeping, and right now recordkeeping and the data initiative, the use of the information by this agency to target programs, where we go, who we contact, who we consult with, if that's all we're going to do is consult, knowing where to try to direct our resources. If that's related to the height or depth of the numbers and you're not doing any kind of systematic verification of the records -- and we are not, we never have -- the numbers are going to go down. They are going to go down.
Now, what bothers me is now the agency is going to measure its effectiveness based on these same numbers. So there's a perverse incentive linked to this. That wasn't true in 1982, when we did records checks. The agency didn't measure its success or failure based on the numbers; we did it based on an activity measure, which is how many times did you got out and inspect and how many serious cases did you find?
So I just throw that out for food for thought, for people to be thinking about it. If the records aren't important, be careful how you use them. Unless you're willing to invest the time and energy, and that's what we're pushing for, in verification of the records.
With regard to recordkeeping since we last met, I think Joe had said something about we hear you when you say let's move forward, but we want to do it right and we want to make sure we have covered all our bases.
Well, since that time, OSHA leadership has decided to contact the Keystone Center once again. They were involved in recordkeeping back in 1988 and '89. And they are going to facilitate an OSHA meeting of stakeholders scheduled for, I believe its March 7th and 8th. There will be approximately 40 participants from labor, industry, government and the private sector. It is going to be a closed meeting.
What we have done is, we are sharing the entire proposal with this group. They should have had it by now. Stew got his today. Stew is on the committee -- oh, not committee. I'm sorry. That's the last thing. It's not a committee. This is a group of individuals. They are representing themselves. They are not there representing any groups or companies. They are there as individuals to express their reactions and ideas.
Stew is going to be one of the participants. Suie Howe is going to be there, and Steve Coy, from the Center to Protect Workers' Rights.
The agency wants to conduct two such meetings: one on recordkeeping and then in April, I believe the 3rd and 4th, I'm not sure about the dates on that, on the data initiative. So clearly we're linking recordkeeping with the data initiative activities, and that's why my comments prior to this discussion now.
What we hope to do, our goal -- my objective personally -- is to have this group look at the document and alleviate any fears that some people out there might have about bogeyman in the closet. Once you see the entire proposal I think while there will be disagreement and certainly sometimes vehement disagreement on particulars, hopefully the approach will carry forward to a point where these people will make a clear recommendation to our front office to go forward into the public notice of proposed rulemaking. To allow everyone a fair shot at commenting on the document.
And that's right now I think where we stand, is Joe wants to hear that kind of a signal that once this hits the street we won't get blown away.
Like I said, all these things that Ross Eisenbrey talked about could make all this moot very quickly. And so that's kind of in a nutshell where we're at. We're no further than we were when we last met. However, I would argue that because of what you all did and the pressure, the clear message you sent about getting this thing out, I think that precipitated this effort, this latest Keystone-facilitated effort. And hopefully it will bear fruit, and we'll get something out there for everybody to contribute to.
And if there are any questions on any recordkeeping issues. Stew?
MR. BURKHAMMER: I kind of disagree with you, that we're no farther than we were when we met last. I think we're a lot further than where we were when we met last. We had that meeting with Peg and Pete Lorrey and Bill Arndt, and some of us sat down to talk about the Keystone meeting. But I think in the efforts that we've done behind the scenes we've kind of got a pretty general agreement with labor and management, not only in construction but in the industry, that we're on the right track and we've got a pretty good document to start with. And hopefully when we finish Keystone on the 7th and 8th we'll be able to hit the street with a notice of proposed rulemaking for public comment.
One of the things that I am pleased about is that when we sent our ACCSH recommendations in the last time, when you get to see the proposal, there's pretty much everything we've talked about in one form or another. I think that's a real testimony to where this committee has come and how OSHA is using us to help. You know, you don't win everything in negotiations. You win some things, you give -- the baseball players ought to take heart. But I think...
CHAIRMAN RINGEN: And the owners.
MR. BURKHAMMER: No. I think we've come a long way. I'm really pleased with the document. I think Steve and Bob have done a tremendous job in taking all of the material that's being sent to them and reading it and condensing it and putting it in a document. I think when you guys see it you're going to be very pleased with what you see. And we've come a long way and we're going to...
CHAIRMAN RINGEN: Bill.
MR. SMITH: As Stew was saying, there's been a lot of work, and I think there's been a lot of cooperation. He and I were just talking again about some of the issues that we had had, and even though Ross said what he said about we're still going forward with what we have to work with. But some of the questions that we still had, and we talked about it earlier, and you kind of highlighted it when you said in your opening statement about some method of verifying, or verification.
And part of what we wanted to say that, I think it still either has to be worked on, and maybe worked on on the 7th and 8th and then if not, publicly it will be commented on, is we're trying to go to a shorter log just so we can get more concrete information on a one-page kind of a deal, which makes it better for the employer. And in knowing when an OSHA inspector hits a job site one of the things he should look for is the OSHA logs to assess what's been taking place there prior to him getting there.
And in that verifying effort my question to you, I guess, in directing this, and one of the avenues we're trying to work out so that we can assure that the information is as correct as correct can get, since there will be basically no verifications done, I think, from the OSHA inspector at the job site, for the most part, is that when an employee is injured at the workplace, and the employer fills out everything on that log now, and it says Bill Smith and his occupation, what he's doing and his wages might be in there and stuff like that, and then there's going to be a short description of the accident in that case.
To verify the fact that that is as accurate as accurate can get on a brief description, as they do in Florida, we suggested that it should be an avenue that the injured employee, if he's off of work when he comes back, or he doesn't ever come back, the employer should at least get the employee to initial off in that line, saying that yes he agrees that the statements are true and correct. And that to me is the only avenue that you should take, or we should take, to verify that in the simplest form what was put down there was true and correct.
To the extent that Bill was an ironworker that fell eight feet, not a laborer that feel three feet or slipped, kind of a deal, in the documentation of really what was taking place. And I think as far as we're concerned that's the only avenue I can see where the OSHA inspector can then justify the fact that there was some verification done, and it was done by the injured person.
And really the thing I am concerned about is that, granted there may be pressure applied to that individual. When I say, "I wasn't a laborer, I was an ironworker." "No, you was a laborer. You want to come back to work, you was a laborer." And he may initial off to come back to work. And that's the real world we're going to live in. But there will be some individuals that will flat out say, "I was not a laborer. And I'm not going to initial that off. And you can do what you want to do."
Now, when the OSHA inspector sees that it's not signed or initialed off, then he's going to question the fact that it's not verified by the individual that was injured. And why not? And what's going on? Because to me that's the only avenue you can work with. Fix what's broken in the system. Okay?
MR. WHITMORE: I hear you. This whole idea of employee notification is kind of what we're talking about. That is discussed in the preamble. It's been moved from part of the regulation into the preamble. That's a question. And it really, it's presenting the kinds of questions that you're asking. What's the best way to verify that this is accurate information? That's one way.
I would argue another way is mandatory audits. That corporate mandatorily audit the books of its establishments. Okay? That's another option,
MR. SMITH: Which is a bigger expense and a more time-consuming effort. I'm talking about trying to fix what we think is broken in the most realistic and most practical way.
MR. WHITMORE: I think -- okay. I think a third way might get at either of those, unless people only do what they are made to do. If that's your starting point and ending point then I think we're in trouble.
What we've tried to do is, we have what's called a responsible company official certification to the accuracy of the law. This is going to be very controversial. I think if I'm the corporate person, let's say, in a corporate structure, and let's say Stew has to sign the logs for all of Bechtel sites around the country, there's a certain amount of pressure being applied on Stew.
Now, Stew can look at us as, you know, we run various sites for Stew and he can say, "Well, I know you guys wouldn't lie to me, right?" "Right, Stew. Don't worry about it." And Stew can take that. Or Stew can say, "Well, it's not a matter of lying. I just want to make sure that everything is being done consistently. And so I'm going to institute an audit protocol. Or I'm going to institute an employee check-off or sign-off."
There is an employer use column that you can do whatever you want in that column. And we still fit the whole log on an 8 1/2 x 11 piece of paper.
It's not a dead issue what you're raising. Employee notification is certainly not dead. It just got moved to a... We didn't get the kind of support yet from the labor side for that, and actually there were fears raised by people in labor that, hey, you do this, and you're going to put those workers right between a rock and a hard place.
MR. SMITH: That's one of the questions. You're signing off to a description that may be not as full as you need to...
MR. WHITMORE: Right.
MR. SMITH: For compensation purposes.
MR. WHITMORE: Or, you know, are you going to be -- the old argument -- are you going to be the guy that brings that banner down? The banner of a hundred gezillion days without a lost time accident. Are you going to be the one that forces me to write that on the log to bring that banner down?
MR. SMITH: But that's secondary, because you're still going to have to put something on the log if you're following the letter of the law due to an injury or an illness.
MR. WHITMORE: And to me that gets back...
MR. SMITH: You can forget about the safety incentive...
MR. WHITMORE: Right.
MR. SMITH: ...that's taking place in the workplace, that everybody gets belt buckles for. There's no accident of injury. Forget about that.
MR. WHITMORE: That's why I'm concerned. Because now we're going to get "belt buckles" as an agency over these same numbers. And that's why -- to me, you can't have recordkeeping. I really don't care how the recordkeeping changes or this data initiative process without a commitment to verifying in some way these records. And so that's kind of where I come up.
MR. SMITH: And if you need labor support for that on 7th and 8th and in the public, you'll get it, because really I'm just saying that you said one statement which is true. People, industry, will only do what they're made to do.
MR. WHITMORE: Some. Some.
MR. SMITH: Yeah.
MR. WHITMORE: I know a lot of people who are doing a lot more.
MR. SMITH: But see, the good guys in that sense, even if they're around this table, the good guys will do more than they are asked to do in most cases. And that's not where your problem is at.
MR. WHITMORE: That's right.
MR. SMITH: Your problem is not in the fact that he'll send you a letter verifying the abatement, that the problem was fixed, and then you want to get more documentation from him because he does it. Your problem is in the people who don't do it at all.
MR. WHITMORE: Right.
MR. SMITH: That's where the problem is at.
MR. WHITMORE: I hear you.
Any other questions or comments? Yes, ma'am.
MS. JENKINS: I just think the verification could be between the employer's first reported injury, because that employee has to see his name and his craft and what the description of the injury is. And then when there's a change of status, this all goes into the Bureau. So somehow or other there's got to be a...
MR. WHITMORE: Well, in those situations where we could, the perfect world might be if you had the OSHA log information for an employer and then right alongside of it you had the workmen's comp information, as well as insurance information. If you were able to have those three columns, you'd be able to do a heck of a job on verifying the accuracy of the OSHA 200 law. Unfortunately, we don't have that kind of access. In Maine, we do. In a handful of states we do. In most instances we don't.
CHAIRMAN RINGEN: Bernice, can you just repeat what you said? Because I don't think that they caught that on the recorder.
MS. JENKINS: I think some verification could be made with the employer's first report of injury because the employee gets a copy of that. He sees his name, his craft, a description of the accident, and when there's a change of status that information is sent to the insurance company, to the Workers' Comp Bureau. So there should be some correlation between the OSHA log and that employer's first report.
MR. WHITMORE: I agree. I agree.
CHAIRMAN RINGEN: Al.
MR. MEIER: The problem there is you have different reporting requirements on workers' comp.
CHAIRMAN RINGEN: You've got to speak into the microphone, Al.
MR. MEIER: You have different waiting periods, reporting requirements from state to state. You're comparing apples and oranges.
MR. WHITMORE: But you're not even getting a full box of apples.
MR. MEIER: Yes. But every comp injury should be on your OSHA log. And if they aren't... You can go that far. But you don't have a lot more entries on your OSHA log than you do on your comp reports, that you can tell if they're skipping around easily if you have a workers' comp comparison.
CHAIRMAN RINGEN: Any other comments about this?
So if I understand you correctly, this is going to go before this Keystone thing. After the Keystone thing you're going to take into account the comments that have been made during that. You're going to revise the proposal based on that.
MR. WHITMORE: Yes. It kind of depends. It's almost like an ANPR of sorts, since we never went through that process. What we're there is to hear 40 different individuals give their individual reaction to the entire document, and certainly if we come back from there and there are areas where there, you know, we're off, we screwed up, we're going to go back and fix it.
CHAIRMAN RINGEN: And if there are a major changes that you make in that process, are you going to bring that back to this committee?
MR. WHITMORE: Oh, I'm sorry. The one thing I didn't mention -- good point -- on March 9, after the meeting is over, the document, the NPRM, will be made available to anyone who requests it. So we certainly want to make sure that Holly gets a copy for distribution to this committee, the advisory committee. And we will, yes, we will be working with you all, letting you know what changes or whatever takes place.
CHAIRMAN RINGEN: Right. Anything else? Thanks, Bob.
MR. WHITMORE: Thank you.
CHAIRMAN RINGEN: Okay. Is Dick Sauger?
MR. SAUGER: Yes.
MR. SAUGER: Mr. Chairman, members of the committee. I'm here representing the Office of Safety Standards Programs. We have developed a proposal for the training of powered industrial truck operators. We want to first explain our position as far as this training requirement is concerned and explain why we didn't bring it to the Construction Advisory Committee before this time, and that's that within the last two to four weeks the decision was made by the agency, since we were going to propose a requirement for, if you pardon the use of the vernacular, for forklifts and forklift operator training, that it should include all industries, to include the maritime and the construction industries.
So what we have done is, we have put together a package to include these training requirements for all of these industries. Now, the decision was made and it was a very, almost a political decision, that we would not include the agricultural industry simply because of the lack of use of forklifts in that industry. We felt that there are not many forklifts that are used out on the farm and the accident record was such we decided to just leave that out. However, we believe that we have sufficient justification to propose to require that all forklift operators in general industry, the maritime industries and the construction industries would be required to be trained.
Now, I can give you a laundry list of facts and figures about how many forklifts there are and how many operators there are and how many accidents and injuries we have tabulated, and if you wish me to do that I can do that. However, I'd rather forego those type of details because of the fact that it is not that important as far as the regulation is concerned. We believe, like I said, there is sufficient justification.
Now I'd like to talk very briefly about the elements of the proposed standard. The first paragraph that we have in the standard deals with the qualifications of potential operators. Basically this says that the employer has to ensure that every potential operator of a forklift can perform the duties that are required of a forklift operator.
The second paragraph deals with the conduct of the training. Basically this says that the employer has to implement and conduct training of all forklift operators and that only those operators that have been trained will be allowed to operate the forklifts. Now, there is a proviso in there and we have made an exception saying that the trainees under the direct supervision of the trainer can in fact operate a forklift provided it's done in a controlled environment and away from excessive employee exposure.
The third paragraph that we have in the proposed standard deals with the content of the training program. We have given a laundry list of items that are primarily broken down into three main subject areas.
The first of those subject areas is that the employee must be trained about the forklift itself. The second one is that he has to be trained about the hazards due to the workplace in which the forklift would be operated. And the third one is that he has to be trained in the requirements of the general safety standards. And I say that in plural because the consensus standard and the standard that we're proposing -- and I'm talking about the B56.1 and this, the B56.1, pretty well track each other.
There are some minor variations between the two of them, but for all intents and purposes they are very similar. So this is something that industry has looked at and has basically seen the need for it and has put an end to the consensus standard.
As I said, the content of the training provision of the standard has a laundry list. It talks about such things, as I said dealing with the forklift itself, the warnings and precautions, and other measures that might be contained in the operator's manuals, that might be contained on the stickers on the vehicles themselves. That type of information. It also would deal with such things as steering, the operation of the power plan, the maintenance that's required on the forklift and so on.
The second of those that I mentioned was the work environment itself. Obviously, the hazards, and we'll take construction as an example, the hazards in the construction industry where you're operating on mostly unimproved or semi-improved terrain are a lot different than when you're operating on a concrete factory floor or operating in a high rack area. Stability in the construction industry becomes much more of a concern than it might be, again, say, in factory or on a wharf or something like that.
All right. The fourth paragraph that we have in the standard is the evaluation of the training. This requires that the employer evaluate the performance of the operator to ensure that he is in fact competent to perform those duties. Then we talk about refresher or remedial training.
In the proposed standard we're going to require an evaluation of each operator on at least an annual basis. Any time you have, say, a change of equipment, you have a change of procedures, or you determine that the operator is not competent to perform the duties that he's required to perform, then you must conduct remedial or refresher training.
Then the last two paragraphs deal with certification and avoidance of duplicative training. Certification is simply the recordkeeping part of the requirement. It's not a record; it's a certificate. And there is a subtle difference, and I'm sure you people have heard about these differences many, many times.
In the avoidance of duplicative training, this paragraph actually says that if an operator or a potential operator has previously been an operator, maybe for another employer, that you are required to perform an evaluation of his performance and in those skills, knowledge and abilities that he has that he can actually demonstrate that he can use, then you do not have to retrain him. You would simply have to retrain him in those elements that are required to be trained where he is not proficient.
And that's basically what the standard is all about. Or the proposal.
Now, Mr. Tipkin, my supervisor, has put together a bunch of copies. I think he said there was about 18 of those pages from this proposal that cover the general industry part of it, the 1910 part of it, and it also covers the construction part of it so that you can see we're talking the same message in both of them.
Now, if adopted, we are proposing that this requirement be put into 1926 602, paragraph D, which would be a new, additional paragraph, as to what's in the 1926 standards right now.
I know it's kind of thrusting a lot on you very quickly. If you have any questions I'd be glad to try to field any questions that you might have.
CHAIRMAN RINGEN: This is the proposed standard that this committee has to review. Is that correct?
MR. SAUGER: Yes, sir. I'm not sure about your procedures. I have had very little contact with your committee. I would assume that, yes. All right.
Unfortunately, because the decision was made at such a late date to include the construction and maritime industries, what we are asking you to do is individually or as a committee, which -- in fact, in both ways -- that you would provide input into the record itself. We are seeking to get maximum participation from interested people so that obviously the final statement that we come out with, we'll be able to reflect everybody's opinions and views and so on.
CHAIRMAN RINGEN: And how fast are you looking for a review of this? What kind of time frame are you looking at?
MR. SAUGER: I just got notified this morning the Federal Register had returned the document to us to make some final, minor corrections. We are hoping to have this thing published in the Register maybe next week. And what we're asking for is a 90 day comment period.
Now, what I'd like to stress is, and this has always happened in the past, that people who have asked for extensions on the comment period and the the agency has literally always given them. When we first started in the program of promulgating standards we had initially asked in some cases for just 30 days, which the law says we're supposed to. And since that time we have expanded and expanded that comment period.
CHAIRMAN RINGEN: What we'd like to do is to ask for some clarification from the Solicitor's Office. It is my understanding that any proposed standard that relates to construction should be reviewed by this committee before it's published, and it's a requirement of law, in fact, as we understand it. And we'd like the clarification of the Solicitor's Office for that purpose.
If we are to review it, which we are, obviously, then I would suggest that we have a work group that has been set up for essentially similar purposes with regard to crane operators. That could probably cover this subject as well, and many others. But our next meeting is scheduled for May 24 and 25, and it would normally be the case that that workgroup would review this proposal and make its recommendation to the full committee here at its next meeting. And that the full committee would then after deliberation make a decision about whether any changes were required or the recommendation to the agency with regard to that.
I think in general the committee feels that to have sort of an ad hoc review by individual members getting back to OSHA does not constitute an adequate review, because the committee being together has to be able to discuss the viewpoints of different members before the committee as a whole makes a recommendation. So we have a process that we would like to follow as well.
Before that, maybe you can give us some wisdom
MR. JONES: You are basically correct in your statement of the committee procedures. The only thing I would interject is that since the crane workgroup is meeting this afternoon, they might be able to do some work which would facilitate a committee discussion tomorrow so that there would not be the need for deliberation at the next meeting.
But that is not any more than a matter of information for you to take into account. And it doesn't change the fact that any proposal which is intended to address construction employment is required by law to be submitted to this committee for its formal recommendations and whether that recommendation is provided before the document is actually published or afterwards, it is a matter that we do intend to satisfy and to make sure that any further proceeding after the proposal or towards the finalization of the rulemaking takes into account the formal recommendations of this committee.
Unfortunately, there have been precedents where a document has been published and we have come back subsequently and we have obtained the formal input from the committee. Abatement verification was a recent example of that approach. So I guess whatever could be done today or tomorrow would be appreciated, but if it has to be dealt with at the next meeting then certainly we would want the crane operators workgroup and the individual members to do what they can to be prepared to deal with this at that meeting.
CHAIRMAN RINGEN: Any comments here? Bill?
MR. SMITH: In answer to your question, Steve, I think we can look at it, and we can even probably come up with some questions to be asked just by this draft. But if I'm going to look at a thing that's that thick and come up with some recommendations so that we can avoid the next meeting, watch or no watch, Bruce, it ain't going to happen this afternoon. But I think we can still look at it.
MR. SAUGER: Ninety percent of this document is... I mean, if you're interested in reading the accident data and the justification for the standard. The package that you should really look at is the proposed standard we're talking about.
MR. SMITH: And we will. And if we can come up with stuff, we will. Because there's a lot of questions in here, Dick, and I think... And you and I sit on the B-30 together, so I know we do a lot of work together, and I know you've been involved in this for years now.
MR. SAUGER: Yes. Let me explain. The relevant portion, the part that you people should really concern yourselves with, is approximately 20 pages.
MR. SMITH: That's good.
MR. SAUGER: All right. It's not 220 pages. It's just 20.
MR. SMITH: I just... There's a lot of questions I think this committee is in their own minds asking about the fact that there's a new proposed standard coming out and we know what the avenue, or what the flavor is going to be for Congress on any new standard, but the standard, I think, like all of them, just in the gray area, it falls short of the fact of it sounds theoretically a good idea, to make sure people are trained, to make sure that they understand this and make sure they understand that, to give them a list of what they should be trained in, and then to evaluate that training in that sense.
And to me an evaluation can just be an observance of the individual and me as a company, I evaluated you because I observed the fact that you operated the thing in to me a satisfactory manner. Because there's no minimum level to go by as to what standard that should be. And that falls short, and the fact that we're going to ask employers to do something, and it could be all across the board of doing something. It could be a 15 minute videotape that covers everything in your list that needs to be covered, without any written test, comprehension or anything, to determine whether the guy grasped any knowledge, and then you're going to go out and evaluate the individual.
And what is the evaluation done by? Is it done by a written test? It could be. But it could be done by just an observance. The fact that he signed in to the fact that he was in that classroom is evidence that he was there, and the observance of him running it, if you want to do it that way, is it evidence that I evaluated that individual? But that's all it means. Case closed.
Does that mean it's going to stop any of your accidents and injuries? I don't know. Because I don't think it goes to the extent you want it to go. Which is, to provide a method of training and make sure that people are trained and qualified that they should be running that equipment. And to me, to evaluate that individual you've got to somehow test the comprehensive level of what you're given him in the training. Somehow.
MR. SAUGER: Bill, I'm not disagreeing with you. And the problem that both of us face is that you have not access to this document before this time. What I'm hearing, the concerns that you have, I think we've answered.
MR. SMITH: Okay.
MR. SAUGER: In that document. What I'd like to propose at this time is that... In fact, I'll pass out the documents that I mentioned to you people. All right?
UNIDENTIFIED VOICE: If I may, Mr. Chairman?
CHAIRMAN RINGEN: Come and identify yourself, please. Use the microphone.
MR. TIPKIN: My name is Joe Tipkin, and I'm the Director of the Office of Electrical, Electronic and Mechanical Engineering. It's the mechanical part in which the standard was prepared. Actually, it was prepared based on resolutions in both the Senate and the House that OSHA go forward with this standard, and it was the impetus that these resolutions added that caused us to move forward.
The standard, what we're going to be asking you folks to look at is really between, it's about 24 pages. But it's also made up of two appendices, A and B, which are non-mandatory. One dealing with stability criteria. Another one dealing with actually implementing the standard itself. So if you remove Appendix A and B, the actual standard is just a few pages. So it's not that bad.
What I'm going to be handing out is really the portion of 1910 and 1926 so that you folks can just make a comparison if you want to. What we've done here is just carried along those requirements of 1910. And the basis for a lot of this stuff was our consensus standard and B-56.1. And so those of you who are familiar with the A and C standard 1, industrial trucks, forklifts, I think you'll recognize a lot of our requirements in here, and I think they'll be very... There should be no surprises at all.
CHAIRMAN RINGEN: Any other questions or comments?
MR. CLOUTIER: Mr. Chairman, it's been a past practice of the Advisory Committee to always have two week notice of documents that are going to come forward, and it's not fair to the committee, the workgroup or its members to get a document today, work on it this afternoon and try to come back tomorrow with clear, concise guidance or recommendations to the full committee so we can go forward.
CHAIRMAN RINGEN: I agree with you. I think there's also a broader issue here that's worth considering. And that is that we get training requirements and certification requirements in many different forms and ways in various standards, and while the internal content of this particular proposal may be entirely fine in terms of what it's proposing to do in terms of training, there is also the broader question of, is there a framework where this fits in that gives guidance to workers and employers out there, so that there is some similarity between what's required, for instance, in the future for a crane operator and what's required here for a forklift operator?
And if we don't have things across the board, a systematization, I think, of the training, the processes that lead to mandatory training and certification is in everybody's interest and it's something that we ought to be looking at. I don't know to what extent you all have considered that issue.
MR. TIPKIN: When 1910, when the standard was actually kicked off it was to fill a section of 1910 178 dealing with industrial trucks, paragraph L. This paragraph actually addressed training in a very simplistic way. Actually, there were only two sentences and it was quite deficient. And people recognized this deficiency and it was actually Congress that had urged us to move forward and add more to it. So that was the genesis of our industrial truck operator training standard.
The most recent development, as Dick had indicated, where we've expanded it to cover the three standards of maritime and then 1926, and these have been done, and that was just to, if we had something here that could be helpful, based on B-56.1, then presumably it could be used in other areas. So the training was predicated with that in mind.
We recognize we do have other standards with other training in there. We do try to keep them somewhat similar. We have no requirement for a licensing approach here, and it is, we never considered it in relationship to cranes. We will be addressing cranes. It may be that there are a number of problems there that are so vastly different that we may be concerned about. Since there is such a variety of industrial trucks, the training is predicated on the type of truck, the job that that truck is going to do, all training of operators will not necessarily be the same. And when the training is finished then it will be what we're assuming is to again keep paperwork to a minimum, the testing will be by observation after the training is finished, that yes, this operator does indeed operate properly.
CHAIRMAN RINGEN: If I could add one more note before you go.
MR. SAUGER: ...advised, and as the next compliance officer I haven't yet been able to figure out what those two sentences meant.
CHAIRMAN RINGEN: I don't think anyone here in any way is denying the importance or the need for this standard, or that anybody in this room would want to be obstructionistic in terms of helping the agency accomplish what it needs to do. At the same time we have established a committee that is very serious in its work and that we want to respect its rights to do our job properly.
And so my recommendation will be, unless there is some objection to it, that we refer this document to the crane operator workgroup, that it looks at it carefully between now and the next meeting and that we get recommendations back from the workgroup well in advance of the next meeting that we can then make decisions on, which will be May 24 and 25.
Is that a reasonable approach to everybody?
We decided at the last meeting that we weren't going to do these shotgun decisions where we have a workgroup meeting one day and then draw a conclusion or vote on it the following day. So if there are no objections, that's how we will proceed.
MR. SMITH: Do you have them to distribute to us?
MR. JONES: Yes. What we will do in this case is just give you 1926 and the other standards, 1915, 1917, 1918, 1910, will move on. And I think that what the Chairman is saying here is that your comments are addressing only the 1926 portion, if I'm not mistaken. If I'm correct, that's what this committee is authorized to do.
MR. TIPKIN: That's correct. I understand that. I understand that.
CHAIRMAN RINGEN: Stew?
MR. BURKHAMMER: I agree with Steve except for the parts that in 1910 that they're going to make applicable to 1926. The parts of 1910 that are applicable to 1926 are also going to be reviewed by the workgroup. Correct?
MR. JONES: That's correct. And I didn't really quite catch what you're saying about the applicability of 1910.
MR. BURKHAMMER: If there are parts in the 1910 standard that are going to be applicable to 1926 construction, those parts of 1910 should also be reviewed by the workgroup.
MR. JONES: That's right. Any regulation, whatever part gets published, then, would be subject to this committee's consultation.
MR. SMITH: So in response to that, is there parts of 1910 that are identical to parts of 1926...
MR. JONES: Oh, yes
MR. SMITH: ...that if we would change them in 1926, would you change them in 1910? Or would OSHA want two different standards for the same type of industrial truck or same industry, in that sense?
MR. SAUGER: To answer your question, the position at the agency has been that we work toward having the same standard for every industry.
MR. SMITH: Right. And that's why I understood that...
MR. SAUGER: What the agency is talking about is that they are talking about going forward with the proposal for the other industries, getting public comment, taking your comment, putting it right into the record along with the other comments, and then coming out eventually with the final rule that would cover all industry and have the same rule for every industry. We don't see where there's a difference because it may be a rough terrain forklift in general industry or in construction that we have that need for different rules.
MR. SMITH: So all we're saying is 1926, but everything in the body is the same as what you have under 1910.
MR. SAUGER: That's right. 1926.602D is exactly what we're proposing to put into 1910.178L.
MR. SMITH: Okay.
MR. SAUGER: All right? And the same thing with 1915, 1917 and 1918. We don't see where there's a need to have completely different standards, or even a dissimilar standard.
CHAIRMAN RINGEN: Any other discussion?
MR. TIPKIN: What I will actually leave with you is the 1910 portion as well as the 1926 portion, so that if you care to you can just see that they are similar.
MR. SAUGER: They're the same.
MR. TIPKIN: They are. Yes.
MR. SAUGER: They're the same.
CHAIRMAN RINGEN: Thank you very much.
The next item on the agenda, called priority planning process, we've already covered. That is, we don't have anything to talk about until they come back with their work plan, which will be sometime between now and the next meeting, and that will be referred to the safety and health programs workgroup for its discussion.
A final point before lunch is the issue of enforcement and the focused inspections in construction, and I think a great deal of that was covered already in Mr. Dear's opening comment.
MR. SWANSON: Can I make a comment?
CHAIRMAN RINGEN: But it would be nice to hear more about the specifics about what the Construction Office thinks of this.
MR. SWANSON: Actually, you can see on the agenda that Roy Gurnham was going to make this presentation. Appropriately so. The guidelines and the program was put together in Mr. Gurnham's shop as part of OSHA's compliance shop. I think Roy was so overwhelmed with the fact that the Assistant Secretary said everything that Roy could have said that he got up and left the room.
I'd like to go back over a couple of those figures, though, and fine-tune them. I notice that a couple of people around the room, whether at the table or not, were taking notes on those numbers, so just to put everything in perspective. Joe used a construction inspection total of 3133 and a focused inspection number of 178. Both of those should maybe be explained.
Because of staff work, not because of the way Joe gave the numbers -- he gave what he was given -- but the 3,133 is really the first quarter of this year's total inspections for the construction sector. I can update that number. Year to date would be 4,300 inspections in the construction industry. 178 is a more complicated number to explain. In one sense it's a very simple number. 178 means that there are 178 construction sites in this country year to date that have received a focused inspection.
Statistically, we have between three and four subcontractors per site, so it should really be, if you want to compare apples with apples, you should take three and a half times that 178 for whatever that is, 700 approximately, inspections that that is a substitute for, if you follow me.
A construction site last year or before we had the focused inspection, if we had gone on ABC contractor site there would have been typically four subcontractors. Four contractors -- the general and three subs. We would have counted that as four inspections. We go out there today and make that inspection, if they qualify for a focused inspection we count the site once. That's a focused inspection site.
Now, like everything else that the government does, that takes an asterisk. But if one of those subs also receives a citation, they will be counted as a focused inspection also from this point forward.
Have I lost everyone yet?
But the figures, for comparative purposes of what Joe Dear was talking about this morning, year to date in the construction industry we have inspected 4,300 contractors using the old way of counting. Of that 4,300 number, 178 of those were focused inspections. That would have accounted for three and half times more than that, times the 178 had we not had a focused inspection policy.
All right? That's fairly simple.
So that number of 4,300 is an understatement of what it would have been by last year's counting methodology.
When Joe Dear said that he's disappointed by the low number of focused inspections, I think many of us are. But the focused inspection policy which was supposedly in effect the 1st of October, October and most of November we weren't making many focused inspections. We were training people, we were getting with the rhythm of it. December we started making focused inspections and then, don't you know, they threw a Christmas at us again that month. So January and February we've been making more focused inspections and I would assume that number will go up.
For those of you who compare numbers, take the 178, compare it to a 4,300 divided by four, typically. If you want to compare construction sites with construction sites, we've been to approximately 1,000, maybe 1,100 construction sites, of which 178 were focused inspections. So it is a more successful program than it appears at first glance.
That's not to say that Joe Dear ought to be satisfied with the numbers that we're producing here. But they're not as bad as they appear at first glance.
For informational purposes to the committee, I'd like to hand out the guidelines that we shared with our regional administrators on guidance for exactly how this focused inspection program ought to be conducted, and you'll see we have made a couple of amendments. It's a living document. We've made a couple of amendments to it so far this year.
The second one has only to do with trying to work the glitches out of our recordkeeping so that we can in the future produce the numbers that we want to produce for focused inspections. We want to know how many sites received focused inspections. We'll want to know how many contractors were subject to a focused inspection, controlling contractors will of course be the same number as the number of sites, subcontractors who receive a citation as a product of that focused inspection will be counted as focused inspection contractor subcontractor. And then there will be a total number of contractors which we'll also be able to recover in the future that will tell us how many contractors, sub and controlling, were on a construction site that received a focused inspection.
Now, if there's still someone in the room that's not confused, I'll go on.
CHAIRMAN RINGEN: Jack.
MR. POMPEII: For clarification, what you're telling me is that the three and a half subs per that site all qualified for a focused inspection?
MR. SWANSON: No, sir. We go to a construction site. We are interested in, is there a controlling contractor, does the controlling contractor have an effective safety and health program and do they have a qualified person there to effectuate that safety and health program. That site then qualifies for a focused inspection. And if we don't run into any information which changes that determination, that will be a focused inspection.
The three and a half -- obviously, there are very few half contractors in business out there. The statistical number of three to four is empirical data on what there normally is on a construction site in America. A total number of contractors, controlling and sub. So we will do a focused inspection on a construction site if the controlling contractor qualifies for it, regardless of whether his or her subs do or not.
CHAIRMAN RINGEN: Mr. Meier.
MR. MEIER: I see bookkeeping problems. What happens if the controlling contractor has a program. Then there's 20 subs running around out there and ten of them have all kinds of violations. How do you write up the citations on the subs and not count them as separate inspections, if you have only one focused inspection?
MR. SWANSON: In the hypothetical situation that you lay out, Al, it probably would not be a focused inspection. If the KOSHO thought that the controlling contractor qualified for a focused inspection and then got out onto the job site and found that, to use your words, there were a lot of subs with all kinds of violations, then we start that over as a comprehensive wall-to-wall inspection that's not a focused.
MR. MEIER: What if it's only one of the subs with three violations? You still have to write them up.
MR. SWANSON: That's right. You still have to write him up. And if the controlling contractor has no violation, one of the subs on the job site has three violations, and that does not push the COSHO's judgement into backing off from a focused inspection, fine. You issue three citations to that subcontractor.
When you enter, you as a COSHO, when you enter your paperwork, you indicate that you inspected that job site, the same as always. You indicate that because of your exercise of your discretion it was a focused inspection, you enter focused on your sheet, the OSHA 1. And you indicate that there were, let me supply the number, three subs on that job, so behind the focused inspection there's a (4), four total contractors controlling three subs on that job site.
You also then will enter into your IMIS data that Meier Construction Company was a subcontractor on that job and received a citation, and he was a sub. You identify him with an "S" rather than a "C" to make sure that in the future, when we get printouts, we get runs, you don't count both Meier and whoever the controlling was, Ringen, as two controlling contractors.
When you look for aggregate numbers later out of your computer you can get three different sets of numbers. How many sites were there? How many "C"s in the focused inspection. How many contractors were affected by a focused inspection? All the "C"s and Meier Construction, an "S" that received a citation, is counted. And then for those who want to compare us with yesteryear, which personally I don't think is appropriate, but for those who want to compare our numbers with yesteryear's numbers, you can also have that arabic 4 entered in there, so you can see how had we counted inspections as we did the 1980's, how do these numbers match up? How many contractors are in the area when OSHA makes an inspection?
MR. MEIER: Would you have a file on the sub with the violations as a separate OSHA file, as you go into the field process?
MR. SWANSON: Yes.
MR. MEIER: Would he be under the controlling contractor?
MR. SWANSON: No. He has a separate file. Anybody that gets a citation is a separate file. That's the same way it is now. There's no change.
MR. MEIER: You wouldn't count him as a separate inspection.
MR. SWANSON: Wouldn't count...?
MR. MEIER: An asterisk kind of...
MR. SWANSON: That will give you a different number, Al. You'll be able to recover him. The 178 today, if we were using this latest methodology, the 178 -- and this is all now hypothetical. The 178 is an accurate figure, but those are only the sites. There might have been 20 subcontractors who received citations during the course of those 178 inspections. So you'd have 178, 198.
If you asked the computer the right question it would give you 198 and it might very well give you 756 as that third number, total number of contractors who were on those 178 sites.
CHAIRMAN RINGEN: That's clear throughout the agency?
MR. SWANSON: This will shock you. We're having some difficulty explaining that to some of the people in the field.
MR. MEIER: Our IMIS data entry operators are going to love you.
CHAIRMAN RINGEN: Do you have anything more before we get to questions?
MR. SWANSON: No.
CHAIRMAN RINGEN: Okay. Go ahead.
MR. SMITH: First. And picking up on what Jack said. Hypothetically, then, are we saying the general controlling contractors are the only ones that need the safety and health program? That if you are always going to be a sub of somebody, basically you don't have to have a safety and health initiative program and your company, that as long as you follow the rules of the focused inspection and look for the imminent danger and the national emphasis that you may not ever have to have a safety and health program in effect if you're going to be a sub? Because you're not looking for anybody's safety and health program as a subcontractor under focused inspection once the controlling contractor has one.
MR. SWANSON: Bill, we want everybody to have a safety and health program if they're a construction contractor in America. And that will be dealt with on a different path, with a standard for safety and health programs.
But as far as the focused inspection program goes, to qualify for a focused inspection we are only interested in whether or not the controlling contractor has that safety and health program. We know that that might influence some people to go the wrong way, as you've suggested, and if they are only going to be a subcontractor then why do they need the safety and health program? And for focused inspections, they don't.
MR. SMITH: All right.
MR. SWANSON: I hope that they can come up with other reasons why they need a safety and health program, such as their workers' compensation costs and whatever else. But only the controlling contractor is used to determine whether or not all contractors on a site will qualify for a focused inspection. Whether the site qualifies for a focused inspection.
CHAIRMAN RINGEN: Bill Rhoten.
MR. RHOTEN: Just a comment, and maybe clarification. Shouldn't it be part of the general contractor's safety and health program to ensure that his subcontractors also have a safety and health program? Is that correct?
MR. SWANSON: Indeed, it should. That's not a mandate right now.
MR. RHOTEN: Well, it would seem to me if a sub didn't have one and the general contractor in effect didn't really have one, if a plumbing contractor on a construction site, he didn't have a safety and health program and was required to by the general contractor, then it would seem to me that the general contractor in reality really didn't have a safety and health program that's adequate. Would that be correct?
MR. SWANSON: For enforcement purposes, that is not our interpretation at the moment, Bill.
MR. RHOTEN: Well, I would encourage you to head in that direction. If you're going to take a general contractor... I mean, he can't have in my mind a safety and health program unless he incorporates all those subcontractors on that job and oversees what they do.
Then I would encourage you to look at that, maybe, as a requirement for a general contractor to be accepted as having a safety program if he includes the subs. Require him to, even if you don't look at the subs.
MR. SWANSON: I thank you.
MR. SMITH: Picking up on that -- and maybe I'm trying to put too much common sense in here, which is kind of dangerous sometimes -- but the purpose of the focused inspection was to do just that. It was to say to the contractors, "Look. We're not going to harass you any more and we're not going to spend a week on your job. We want to come in, look for these points and get out."
Now, in doing that -- contractors should love that idea, the fact that let's put our safety and health program in effect and lets make sure that these four focused areas that they're going to look for are definitely taken care of so that they don't spend a week nitpicking us and come up with some citation, which they will. So in that sense I thought the common sense approach would have been to go to the general, make sure he's got it, start walking the job site and when you see a violation of a sub, you go to the sub for the focus and you do the same thing.
If you walk into the sub's trailer after you find the violation at the sub and you find out that he has no safety and health program, which the general had, then you can't do a focused at that point. You've got to do what you usually do, which is spend time with that subcontractor, because he's the one that's violating that focused inspection alternative to the general. So then you would focus on that subcontractor to make sure that everything he's doing under that contract is like you would do normally. Leave the general back out of it and leave all the other subs out.
But unless you do that I don't think you've created that environment of focused inspection when you've got six subs, or eight subs, underneath of that controlling general, when you find violations in four of those subs of the eight, because you've still got exactly what you've had in the past, except that you're trying to stay in this focused inspection mode.
My common sense would have been, the general has it and he makes sure that all of his bidders are aware of it so that we fall into this focus. And if you find any sub with any violation outside of that and then you walk in his trailer and the company has no safety and health, they're not on the focused inspection list, anymore, as a sub, even. Then you stay there for four days, or three days, and do everything that he is under contract, just as a sub. And then you can get away from him and go through the rest of them.
But maybe that makes too much sense. I don't know.
MR. SWANSON: Well, just for purposes of clarification, and not trying to be argumentative, Bill, the concept for the focused inspection started with fatalities in the construction areas, in the four areas. We want to go on to a construction site and see whether or not we have any violations in the four areas that are causing fatalities. If the site through its controlling contractor qualifies for a focused inspection, then the site will get a focused inspection.
We did not wish to get into a situation, rightly or wrongly, and I can understand that people disagree, but we did not wish to get into a situation where we were doing a comprehensive inspection looking for violations of the labeling and MSDS violations. We wanted to do those four areas and get on up the road and find the contractors that were killing people.
Had we put an alternative into our program where one sub could get the comprehensive violation, one sub would cause us to start looking for some of those other violations outside of the four subject areas, then we think that in many construction inspections in America we would be doing at least one sub the old way. We would not be maximizing the flexibility here that allows us to look for those four and get on up the road.
We recognize the same general thought that you have. We didn't take it to the same conclusion that you did. If the whole job site is so bad that it indicates that the general safety and health program does not work, then the whole site, including your hypothetical subcontractor, would get a wall-to-wall, or an old-fashioned comprehensive. You suggest, if I understand you correctly, Bill, you suggest that well, yes, we could have followed that same thing and put a nuance in there where only one of the subs would get that. And I agree with that.
MR. SMITH: And that still cuts down on your time. Because most generals may not even have employees.
MR. SWANSON: That's right.
MR. SMITH: So all you're looking at is a packaged plan that's covering the job site, but they don't have any employees exposed in a lot of cases because they're not doing any work. They're managing now. Construction managers is a better term than general contractor, but they're managing the job. That's who is controlling the site. So all the subcontractors are the ones that employees are given the exposures.
And all I'm saying is, even at that time you can still walk through and have no violations of the four and no sub ever have a safety and health. And that's still fine because there is no violations.
MR. SWANSON: We're very clear on our training for our COSHO's that there is no such thing as an effective safety and health program that a controlling contractor has that is only a stack of paper on a shelf in a trailer. An effective safety and health program is really what's going on on that job site. Which is why you can have a ten minute interview, we don't want our COSHO to sit there and go through 400 pages of a written program. He ought to have an interview with the controlling contractor's representative, agent, there. He ought to have an interview with the safety and health person whose responsibility it is to effectuate that program. Then they ought to get out onto the job site. And even if the controlling contractor doesn't have any other employees there other than that safety and health person, so what? We're still interested in the condition of that job site. He has -- that controlling contractor -- has responsibility for what that job site looks like. And that safety and health program better assure that that job site looks that way, that his subs are behaving that way even if the subs don't have a safety and health program the job site still has to be clean and still has to be safe. And that is the controlling contractor's responsibility.
Now, the citation, because of OSHA's, our own, history, the citation will go to that subcontractor when there's a violation.
CHAIRMAN RINGEN: Of these focused inspections that have been done so far, how many of them were started that way and then aborted? Of the 178. They were all completed, I assume.
MR. SWANSON: Yes. They were all completed. They were started that way and completed. We do not have any records as to how many were started as focused and were turned into comprehensive.
CHAIRMAN RINGEN: And how many of the 178 resulted in a citation for a sub?
MR. SWANSON: I can't tell you that at this time, either. You can see by the second sheet which we just sent out here in February we are going to bring our recordkeeping, at least our IMIS -- Information Management and Information System -- entries into line. Then we'll have to go back to the 1st of October on these 178 and manually update them. And we'll be able to tell you at some point in the future, we will be able to compare the "C"s, the 178, with the number of the contractors, "C"s and "S"s. The number of "S"s will give you the number of subs that received a citation. But I can't do that today.
CHAIRMAN RINGEN: And by our next meeting some of that you will probably have in place, as well as you'll learn something more about the specific experience that you've had on different work sites that's a little more specific or concrete.
Any other comments?
MR. CLOUTIER: Bruce, I hope we see the percentage rate go up on the focused inspections. We have had a number of inspections this year, have had some focused inspections. They have been successful. I've seen the time spent on the job site is going down, but yet they've looked at the falls or the struck-by's or the caught, and I hope we go forward with that. And as a contractor, an employer rep here at the table, I hope we see it up in the 35, 40, maybe even 50 percent range, that will maximize the Department's resources to get to as many job sites as we can and look at those four critical areas where we've been killing people in the industry.
Bill, I got some problems back and forth. I see where you're pushing on the safety and health plan, but I think the focused inspection wants to look at that controlling employer. If they had the plan, then everything else should fall into place. And I don't know how we're going to address the other, except maybe in the workgroup. And I hope you can come back, as Knut said, at the next meeting, and we'll see this thing. Maybe we've had 500 focused inspections half-way through the fiscal year, and let's see where we go. But so far it's been very successful, on the ones that we've been involved in.
CHAIRMAN RINGEN: If you get 35 or 40 or 50 percent of all inspections behind focused inspections, then you've got to start getting concerned about whether in fact the inspection program is reaching those employers who really need to be inspected, because...
MR. CLOUTIER: Well, we're going to have to see if the rates are going to go down, which is what the final impact is. We can't look at a three month period of time or a six month period of time to see whether fatalities have been reduced.
CHAIRMAN RINGEN: I don't think anybody here believes that 35 or 40 percent of the construction worksites in the U.S. today have an adequate safety and health plan by the controlling contractor in place. Do you?
MR. CLOUTIER: Oh, yeah. I think looking at the 1,000 sites that he's been to, it gets back to their original universe data. Are we looking at good contractors and good sites, or are we looking at bad contractors and bad sites, or missing an awful lot of the universe?
CHAIRMAN RINGEN: And that's a very important point. If you look at lost time injury rates in the U.S. construction industry, it drops incredibly fast when you get employers above 500 workers. And 500 to 1,000 workers you are down to lost time injury rates that are just about at the same level as finance. Now it's in the medium and small range of employers that you have very large injury rates, and that's where you want the inspection program more and more to focus.
MR. SWANSON: Addressing another assignment that this committee has, and a workgroup that you have working, Knut, 35 or 40 percent of the construction sites in America probably do not have effective safety and health programs. I agree with that. But I ask only rhetorically, do 35 to 40 percent of the construction sites that we select through use of the Dodge Reports have good safety and health programs? And that's probably a yes answer. So then we get down to the issue of how do we target so we've reached those sites that are not produced simply through the Dodge system?
CHAIRMAN RINGEN: I think you've just closed the circle.
I think it's time for lunch. Any other comments or questions?
Any questions from the public?
Okay. Just two very quick things. First of all, I think I introduced John Moran wrongly earlier. He is the Liaison for the Department of Energy to this committee.
One of the objectives that we had when we started out this committee was to get more such representatives from the various departments or agencies that had major influence or involvement in construction, like the Corps of Engineers, maybe the Highway Transportation Administration and so on. And that we will get, I hope, more liaison members to this committee. And as far as I'm concerned, anyway, we expect you to function as any other members in terms of making comments, except you have to vote more carefully.
Unless there are any other issues, then I think we will break for lunch, and we are supposed to meet again at 1:00 to start the workgroups. And tomorrow morning, please note that we start at 8:30. And as I said, we will be done before noon tomorrow.
MR. BURKHAMMER: Mr. Chairman?
CHAIRMAN RINGEN: Just a minute, please.
MR. BURKHAMMER: On the workgroup, could we, Holly changed the recordkeeping from 1:00 to 2:00, and then add the extra half hour to ergonomics so we can increase that.
CHAIRMAN RINGEN: Yes.
MR. BURKHAMMER: So recordkeeping will run 1:00 to 2:00 and ergonomics 2:30 to 4:00. Thank you.
(Whereupon, at 12:10 p.m. the meeting was adjourned.)
DATE: February 28, 1995
LOCATION: Washington, D.C.
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