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Editor's Note: Two instances of OHSA occur in this transcript. Both should be OSHA.



Tuesday, April 9, 1996

The Advisory Committee met in the Frances Perkins Building, Room N3437 A-D, Washington, D.C., at 9:00 a.m., Knut Ringen, Chair, presiding.


Employee Representatives:


Employer Representatives:



State Representatives:


Public Representatives:




Welcome, Introductions
     Knut Ringen, Chair 
Legislation Update
     Greg Watchman 
Standards Update
Powered Industrial Trucks
     Tom Seymour 
CFR Page Reduction
     Anne Cyr  
Paperwork Reduction
     Barbara Bielaski 
Hazard Communication
     Joanne Goodell
     Bob Whitmore
Scaffolds - Subpart L
Fall Protection - Subpart M
Confined Space
Safety and Health Programs

     Gerry Reidy

Musculo-Skeletal Disorders
     Stuart Burkhammer
Directorate of Construction Update and Compliance Update/Focused Inspections
     Bruce Swanson
Workgroup Meetings

Page 4

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

2 9:00 a.m.


4 Knut Ringen, Chair

5 CHAIRMAN RINGEN: It's 9:00. We have a full

6 agenda and we'd like to get started. And since Bruce has

7 now arrived, we can.

8 I am Knut Ringen. I am chairman of the committee,

9 and we starting up again after a brief hiatus of about nine

10 months, during which budget conflicts and so on have taken

11 place. The committee has currently two vacancies; there are

12 the two state representatives. We expect them to be

13 appointed shortly. We have two members missing today, so

14 far as I know, Kathryn Thompson and Steve Cooper. Steve

15 Cooper is also a new representative from the employee side.

16 We also have one new employer representative with

17 us, Bob Masterson, who is from the Ryland Group and

18 represents the homebuilders. Welcome to the committee.

19 There are a couple of things that we want to go

20 over this morning. When the Solicitor comes I want him to

21 talk a little bit about how we operate, including what the

22 role of the working groups are, since there was a lot of

23 confusion about that last time, around which we had many

24 comments about procedures and so on, and we want to

25 straighten out hopefully once and for all the procedures

Page 5

1 that we follow with regard to these work groups. They are

2 working groups and nothing more than that, and they don't

3 have formal procedures, but we will get back to that later.

4 But in the future, when we do have discussions of

5 our issues we want to focus on the technical merit of what

6 is being proposed, not on procedural things, and that's part

7 of what we will be discussing.

8 We have a couple of changes to the agenda today.

9 The first is an additional, we'll approve some minutes this

10 morning. The second is before lunch Stu Burkhammer will

11 give a report based on the work of the musculo-skeletal

12 disorders working group. Stu will not be able to be here

13 tomorrow so it's necessary to take that report today.

14 Tomorrow, we have two additions to the agenda.

15 The first is a report on the silica special emphasis program

16 that OSHA has established. And the second is a request...

17 We will do that first thing tomorrow morning.

18 The second is the last thing that we will do

19 before we adjourn tomorrow, is a request from the American

20 Society for Safety Engineers, ASSE, to make a special report

21 on some issues that they think they can make a contribution

22 to.

23 We will definitely adjourn tomorrow before noon,

24 since we will only have, I believe, three work groups

25 reports. So my guess is that with some luck we will

Page 6

1 probably be done by about 11:00 or so tomorrow, maybe a

2 little bit before then.

3 Today, this afternoon, I expect three work groups

4 meeting. One is on safety and health programs that's been

5 established already with Judy Paul as chairman. The other

6 is on women in construction with Lauren Sugarman as the

7 chairperson. And we will propose and ask for approval to

8 establish a new working group this morning, which is a

9 working group on confined spaces. We will get back to that

10 after we've approved the minutes, and after we've had our

11 solicitor give some comments.

12 And I wondered, Steve, if you could do us a favor

13 and just talk briefly about the purpose of the committee and

14 its work groups under the Federal Advisory Act, so that we

15 are reminded of how we are supposed to function.

16 MR. JONES: Sure. Knut, I provided you with a

17 written summary of what the Solicitor's Office understand

18 the role of the work groups to be. I could read that. I

19 mean, that would probably be the most concise way to

20 proceed.


22 MR. JONES: The ACCSH establishes work groups to

23 generate information and options for consideration by the

24 full advisory committee. In general, a work group is formed

25 when OSHA indicates to ACCSH that it will be initiating

Page 7

1 rulemaking on a particular subject, such as safety and

2 health programs, methylene-chloride, or confined spaces. A

3 work group includes interested ACCSH members, one of whom

4 chairs the work group and non-members approved by OSHA who

5 have pertinent information or ideas to offer.

6 OSHA and the ACCSH assess work group activities

7 and participation based on the work group's effectiveness in

8 laying the groundwork for ACCSH recommendations to OSHA. A

9 work group does not reach consensus, vote, or otherwise

10 resolve issues. It simply presents its compilation as a

11 report to the full advisory committee.

12 The General Services Administration regulations

13 for management of federal advisory committees provide that

14 work group meetings convened solely to gather information or

15 conduct research for a chartered advisory committee, to

16 analyze relevant issues and facts, or to draft proposed

17 positions papers for consideration by the advisory committee

18 are not covered by the Federal Advisory Committee Act or the

19 implementing regulations. This means that such work groups

20 do not need to have separate charters, balanced

21 representation of viewpoint, or meeting notices published in

22 the Federal Register.

23 Accordingly, the current ACCSH approach to work

24 groups maximizes their utility while minimizing the

25 procedural burden. This helps to ensure that work group

Page 8

1 reports and the resulting ACCSH recommendations are provided

2 in a timely fashion.

3 CHAIRMAN RINGEN: Thank you, Steve. Any comments

4 on that?

5 (No response.)

6 CHAIRMAN RINGEN: We will have this document, and,

7 please, I would like to have this document available at

8 every committee meeting that we have so that people can be

9 reminded of how these work groups are. They really are

10 working tools. It's so that we don't have to sit here

11 forever and deliberate issues in this committee, but have

12 groups work them up for us, more or less. Then this

13 committee has to get together and have discussions and make

14 decisions based on what the work groups may propose in terms

15 of options or the information that they present to us. They

16 are information gathering tools.

17 Our work group meetings are open to those who are

18 interested in participating. They'll have to come to this

19 committee in order to find out when these work group meet,

20 or they can always call the chairperson up of the work group

21 to find out, I suppose. But it's not in our obligation and

22 nor will we make any special effort beyond that to publicize

23 the meetings of the work groups.

24 The decisions that are made on any issue are made

25 in this committee rather than in the work groups. It's

Page 9

1 really of the committee meetings that are of importance to

2 the interested parties who want to have an input into the

3 decisions that are made.

4 Having said that, we may perhaps proceed. Well,

5 we could introduce each other, but I think...

6 Do you know everybody here, Bob?

7 MR. MASTERSON: Pretty much.

8 CHAIRMAN RINGEN: Okay. And we have already

9 introduced Bob, so we'll dispense with that.

10 We have minutes from the last meeting to review.

11 They are in their packets. You should have had them before

12 and should have had an opportunity to review them. Are

13 there any changes or amendments or comments on the minutes?

14 Judy.

15 MS. PAUL: We haven't had them before. This is

16 the first time I've seen them, anyway.

17 CHAIRMAN RINGEN: Well, we have had them before,

18 but maybe you did not receive them. At least I've seen them

19 before. Okay?

20 MS. PAUL: Okay.

21 CHAIRMAN RINGEN: You have not seen them either?

22 Let's defer that until before lunch and go over

23 it. Maybe you will have a chance to read them during the

24 morning. And if you're not comfortable with that you can

25 always defer your approval of them until tomorrow.

Page 10

1 I apologize to people who have not gotten them. It

2 may have fallen between the cracks between Holly and the...

3 When Holly left at the time of the last meeting.

4 MR. BURKHAMMER: Mr. Chairman, could we introduce

5 the audience so the committee knows who's out there?

6 CHAIRMAN RINGEN: That's a good idea. We'll start

7 with the audience over at the right side of the front row.

8 (Introductions from audience.)

9 CHAIRMAN RINGEN: Okay. Thank you.

10 We will then proceed with the first issue on the

11 agenda, unless there are any other comments. Greg Watchman

12 will provide us with a legislative update.



15 Greg Watchman

16 MR. WATCHMAN: Good morning. I thought I would

17 take a few minutes this morning to run through the

18 legislation that has pending on the Hill this year that

19 affects occupational safety and health. There are a couple

20 of wrinkles that specifically affect construction that I'll

21 touch on as well.

22 First I'll start with OSHA reform, which has

23 gotten a substantial amount of attention in the both the

24 House and the Senate in this Congress.

25 Early in this Congress Representative Ballinger

Page 11

1 introduced legislation that would eliminate first instance

2 sanctions for violations of OSHA regulations. It would have

3 prevent penalties for violations of the general duty clause.

4 It would have limited enforcement to no more than 50 percent

5 of OSHA's budget. It would have eliminated NIOSH and MSHA

6 and well. It would have repealed the right to an inspection

7 that a worker has if he or she files a complaint that gives

8 OSHA reasonable cause to believe that a violation and hazard

9 exists, and it would have imposed a fairly rigid set of

10 standard setting criteria that most likely would have

11 delayed our standard setting process by quite a bit,

12 probably several years.

13 This bill had a particular impact on construction

14 in the following way. By eliminating first instance

15 sanctions it would have virtually completely eliminated

16 enforcement in the construction industry, because given the

17 transient nature of construction worksites, the first time

18 OSHA would come to inspect, given our limited resources they

19 would not be able to assess a penalty under the Ballinger

20 bill, and given the limited resources they would not likely

21 be able to come back for some time, and by the time they did

22 the job would probably be finished. So there never would be

23 any penalty assessed even for repeat violations.

24 The bill, as I said, had... Chairman Ballinger of

25 the Subcommittee on Workforce Protections, held several

Page 12

1 hearings on the bill. Ultimately he has recently withdrawn

2 his bill and said that he would start over and try to draft

3 something more moderate. He indicated that he would try to

4 model it after a lot of the initiatives that the

5 Administration has been developing and has already put in

6 place. We have not yet seen any draft of that bill, so I

7 can't tell you right now what's in it, but we will be

8 watching closely to see how it's coming.

9 Senator Kassebaum and Senator Gregg in the Senate

10 introduced legislation last year, held a couple of hearings,

11 and then on March 3rd of this year... March 5th, excuse me.

12 Held a committee markup session to vote on the bill and

13 consider amendments to the bill. Ultimately the bill was

14 reported out of the committee by a party line vote, and

15 there were three amendments added to it. I'll summarize the

16 amendments in a moment, but first let me tell you basically

17 what's in the Kassebaum legislation.

18 Again, this bill would effectively repeal the

19 right to an inspection that has been one of the core

20 premises of the Act. It would also allow OSHA to issue

21 warnings instead of citations for first instance violations.

22 It would not mandate such warnings, but it would allow the

23 agency to issue them instead of citations.

24 The bill could potentially exempt over 90 percent

25 of firms from targeting inspections, so it could have a

Page 13

1 fairly dramatic impact on OSHA's ability to target the worst

2 worksites to eliminate hazards and protect workers. It

3 would also allow in every enforcement proceeding an employer

4 to raise an alternative methods defense, and while at first

5 glance that seemed an interesting idea and worth

6 considering, ultimately the impact would be to turn every

7 enforcement proceeding into a variance proceeding. It would

8 draw out the litigation, increase litigation and effectively

9 undermine all of our standards.

10 The bill would also have substantial penalty

11 reductions. In fact, minimum penalty reductions of up to 75

12 percent for certain actions such as having a safety and

13 health program. And again, those sound like good ideas at

14 first glance, but there are so many loopholes in the

15 provision for penalty reductions that employers, even

16 employers who have a long history of OSHA violations and a

17 substantial number of serious hazards at their worksite

18 could still be eligible for a 75 percent penalty reduction.

19 Lastly, the Kassebaum bill would codify the VPP

20 and 7(C)1 programs currently operated by the agency, and

21 these two provisions are provisions that the Administration

22 does support. Nevertheless, given the overall, when you add

23 up all of the provisions in the legislation, the

24 Administration has serious concerns about it and the

25 President has indicated that he would veto the Kassebaum

Page 14

1 bill or the Ballinger bill, or similar legislation, unless

2 it adequately addresses the Administration's concerns.

3 The three amendments that were added at the Senate

4 Labor Committee markup on March 5 included an amendment by

5 Senator DuWein to delete a provision of the bill which would

6 have prevented OSHA from inspecting following receipt of a

7 complaint from someone other than an employee, so that if a

8 physician or a former employee, for example, filed a

9 complaint alleging serious hazards, regardless of the merits

10 of that complaint OSHA would not have been able to inspect.

11 That language is now out of the bill pursuant to the DuWein

12 amendment.

13 Second, Senator Jeffers offered an amendment to

14 delete language that would have allowed disclosure of a

15 complainant's name in a contested case with no limitations

16 about whether it was absolutely necessary or not. So that

17 language is not in the bill any longer.

18 Lastly, and this amendment was quite a surprise, I

19 think, that it was adopted. Senator Simon offered an

20 amendment to extend coverage of the OSHA Act to federal,

21 state and local employees. This is an amendment that, an

22 issue that has been considered in Congress in the last

23 couple of congresses, but I think no one expected that the

24 Republicans on the committee would agree to take that

25 amendment, but ultimately they did and so it is now part of

Page 15

1 the bill.

2 Under the Unfunded Mandates Act the committee now

3 has to seek a cost estimate of the impact of that amendment

4 on state and local governments, so that is in the works at

5 present.

6 In terms of the prospects for OSHA reform

7 legislation passing this year it seems quite unlikely at

8 this point. Senator Kassebaum has indicated that given the

9 relatively few number of legislative days left this session

10 before they adjourn, it seems very unlikely to her that she

11 would able to persuade Senator Dole to give her some floor

12 time.

13 If she's able to get enough co-sponsors to show

14 the majority leader that she has 60 votes to cut off a

15 filibuster should there be one, that would make it much more

16 likely that Senator Kassebaum would be able to get floor

17 time. That really remains to be seen at this point. There

18 are very few co-sponsors. I think six or seven.

19 Next, on OSHA's budget and the appropriations

20 process. If you've been reading your newspapers or paying

21 attention to the media I'm sure you are aware that the

22 government has shut down several times, that we've been

23 operating under a series of continuing resolutions rather

24 than having an actual budget for this year. I think we're

25 now up to at least 10 continuing resolutions that have been

Page 16

1 passed in order to keep the government operating.

2 Our '95, Fiscal Year '95 budget, was $312 million;

3 so far through 1996 for virtually all of it we have been

4 operating at a 15.5 percent cut from that $312 million.

5 That is $264 million. That's obviously had a fairly

6 dramatic impact on the agency and its programs.

7 At present the Senate and House have both passed

8 appropriations bills and they are in conference to resolve

9 the differences. There has been a tentative agreement that

10 the budget for OSHA for this year would be $289 million,

11 which is about a seven percent cut. But it remains to be

12 seen whether that becomes part of a final agreement.

13 One of the major issues outstanding between the

14 House and Senate conferees is the question of ergonomics,

15 and as you may recall in their rescissions legislation in

16 1995 there was a provision that banned the agency from

17 issuing a final rule, a proposed rule or even guidelines on

18 ergonomics related injuries and illnesses.

19 That language is in the Senate bill. In the House

20 bill there is that language plus additional language which

21 would bar the agency from even working on a guideline or

22 standard, and would also prevent the agency from even

23 gathering on data on the problem of musculo-skeletal

24 disorders.

25 Right now the House and Senate conferees, as I

Page 17

1 say, have not agreed on which provision to adopt. We are

2 obviously hopeful that the Senate language would be adopted

3 so that at a minimum the agency could continue to gather

4 data on this very significant problem.

5 Most recently, the President signed the debt

6 ceiling legislation which included two provisions which

7 affect the agency. First, what is known as the Bond bill,

8 implemented regulatory reform regarding small businesses.

9 The bill requires OSHA to develop a compliance guide for

10 each regulation to assist small businesses. It requires the

11 establishment of small business review panels for each

12 regulation we are working on, with representation by OSHA,

13 OIRA, and SBA. It requires a penalty reduction program for

14 small businesses at each agency. It allows small businesses

15 to recover attorneys' fees and expenses from the government

16 even if the government wins the case, if the amount that the

17 government won was significantly less than what the

18 government initially sought. It also expands the Regulatory

19 Flexibility Act provisions requiring an assessment of the

20 impact on small business and allows for judicial review of

21 that analysis.

22 This will be effective as of June 28, 1996, so we

23 are already in the process of looking at the bill very

24 closely and figuring out how the agency will comply,

25 particularly given our very limited resources.

Page 18

1 Secondly in the debt ceiling bill was a provision

2 allowing congressional review of all regulations. Now,

3 obviously, Congress can now review regulations to whatever

4 extent they want, and in fact they have done so on a number

5 of occasions, ergonomics being the most evident example.

6 But this would allow an expedited legislative procedure for

7 nullification of regulations that the Congress decides it

8 doesn't like.

9 There are really two time tracks in the provision.

10 One is for when the regulation can become effective, and

11 basically we would have to allow, from the time we send it

12 or publish it in the Federal Register we would have to allow

13 60 days for Congress to look at it before it could become

14 effective. In fact, however, Congress would have

15 potentially over a year to review this regulation and decide

16 whether they wanted to nullify it or not. That's because

17 there's a separate contract for Congress being able to reach

18 back to a reg that's already effective and nullify it.

19 Lastly, Representatives Johnson and Shays

20 introduced legislation a couple of weeks ago that would

21 require OSHA to inspect, OSHA inspectors to have

22 construction training if they are conducting inspections.

23 Right now as I understand it it's an option but not a

24 requirement, and this is legislation that would require

25 anyone inspecting a construction worksite to have specific

Page 19

1 course training in construction.

2 I brought with me today copies of Congresswoman

3 Johnson's introductory statement on the bill and a copy of

4 the bill itself. It's only one page, so I'll pass this

5 around when we're done.

6 That's basically a summary of the issues that have

7 been pending on the bill there are doubtless other bills

8 that are kicking around, but those are the major ones that

9 have gotten the most attention. If any of you have

10 questions about these or other issues I'd be happy to...

11 CHAIRMAN RINGEN: Any questions? Maybe you can

12 talk a little bit about the Fiscal '97 proposal that has

13 been submitted.

14 MR. WATCHMAN: Our budget proposal is $340

15 million, which would be an increase over the '95 level of

16 $312 million, and a very significant increase over whatever

17 it is that we end up with this year. Essentially, the new

18 money is to continue to remodel the agency.

19 The agency has been working very hard in every

20 area to address legitimate concerns that employers and

21 worker representatives, and safety and health professionals,

22 have raised about the way that the agency develops standards

23 and the way that the agency enforces them, and the

24 underlying culture at the agency that has existed for many

25 years. We've seen so far significant success with many of

Page 20

1 these initiatives; Maine 200 being the most obvious example,

2 having received the Ford Foundation Award for Innovations in

3 American Government several months ago. But obviously this

4 is a process that will take time, and we are moving strongly

5 in the right direction, I believe, but we really need

6 additional resources in order to complete the task.

7 So far, for example, we've redesigned I think

8 about 15 of our field offices. That leaves another over 50

9 offices that have not yet been redesigned. So that process

10 has slowed with the budget limitations we have been

11 operating under this year. Our hope is that with additional

12 funds we'll be able to speed that up and complete the

13 agency's reinvention as quickly as possible.

14 CHAIRMAN RINGEN: The issue that has come up in

15 particular is of course the request for enforcement money in

16 the new budget, which is below what the Senate, I think, has

17 approved even in its Continuing Resolution for this fiscal

18 year.

19 MR. WATCHMAN: Actually, I think that number is

20 not at or above the Senate number.

21 CHAIRMAN RINGEN: Any other questions? Comments?

22 (No response.)

23 CHAIRMAN RINGEN: Thank you.

24 MR. WATCHMAN: Thank you.

25 CHAIRMAN RINGEN: Next we have the standards

Page 21

1 update, and I think we'll ask all of the people who are on

2 the agenda just to come up and sit down who are here. Tom

3 Seymour, Ann Cyr, Barbara Bielaski, Joanne Goodell, Bob

4 Whitmore and Gerry Reidy.

5 To start with, you, Tom.

6 MR. SEYMOUR: It's the three of us as a panel.


8 (Brief pause.)



11 Tom Seymour

12 MR. SEYMOUR: What we are passing out... We wish

13 to give you an update on the Industrial Truck Proposal so

14 the January notice is being passed out. We also are passing

15 out a sample, a potential sample, of what the booklet could

16 look like. We obviously are going to be asking the

17 committee for their suggestions and recommendations.

18 We're also passing out a copy of one of the CFR

19 page reduction rulemaking initiatives that will impact the

20 construction industry, and are looking for the committee to

21 give us some advice on that. And the other piece is a short

22 little table showing the paperwork burden hours for the

23 Treasury Department, which is the lead agency in the

24 government as far as paperwork, and the second leading

25 agency as far as burden hours is the Department of Labor,

Page 22

1 and so that shows you the table there.

2 And we'll talk about, first industrial trucks, and

3 then we'd like to go into the CFR page reduction initiative

4 that the President has announced, and then we'll get to the

5 paperwork burden hour initiatives. Some of the material, of

6 course, was sent out to the committee members before the

7 meeting.

8 If there's any questions before I begin, I'll take

9 those.

10 (No response.)

11 MR. SEYMOUR: The Industrial Truck Proposal was

12 published on the 30th of January and as of late last week we

13 have received 79 written comments. We had four hearing

14 requests and of course we published the hearing notice at

15 the same time we did the proposal for the construction

16 industry. We have 21 notices from individuals or

17 organizations to take part in public hearing. The public

18 hearing is schedule for April 30th and May 1st. It's the

19 same days that the public meeting is going to beheld, the

20 second meeting, on the 1904 requirement, so there may be

21 particular people that actually take part in both

22 rulemakings at the same time during that time period. Our

23 hearing will be held in the auditorium downstairs on the

24 first floor.

25 We just received... I think the AGC comment just

Page 23

1 came in. I'm not sure of all the different comments that

2 we've gotten from the construction industry, but I know we

3 just received that one.

4 The notices for those who wish to take part in the

5 hearing, we need to receive those by the 15th of April.

6 And I'll just bring to your attention the

7 discussion of the advisory committee's input and

8 recommendations is starting on page 3103 for the committee

9 members to look at.

10 So that's kind of an update of where we are with

11 the Industrial Truck Proposal.

12 CHAIRMAN RINGEN: This is based to some extent on

13 what was reviewed here last year, right?

14 MR. SEYMOUR: Yes, sir. The page 3103 in the

15 January 30th Register, actually is the criteria information

16 that came from the committee's... The working group as well

17 as the main committee. The CFR pages...

18 CHAIRMAN RINGEN: Excuse me. Just to finish up.

19 What kind of feedback do you expect from this committee on

20 this?

21 MR. SEYMOUR: Well, in general, on the Industrial

22 Truck Proposal?


24 MR. SEYMOUR: We are no in official rulemaking so

25 if any of the members care to take part in the hearings and

Page 24

1 all we'd certainly like to have their request to participate

2 sent in by the 15th.

3 I want to just kind of give you an update on the

4 CFR page reduction. I know that this industry has been

5 fully aware of this initiative and the agency is fully aware

6 of some of the feelings from the industry, both labor and

7 management, about this effort, and I'd like to take this

8 opportunity to explain more fully what we are attempting to

9 do and to ask for committee guidance and assistance and

10 suggestions in how we might proceed with a booklet and so

11 on.

12 As Mr. Dear has indicated a number of times, when

13 we end up doing the CFR page reduction package that is going

14 to remove essentially the health standards from the 1926 CFR

15 we will have a booklet that will essentially duplicate the

16 CFR as we know it today, and we have an opportunity to do

17 more than that by making the booklet more useful. As an

18 example, we could put in the 1904 recordkeeping requirements

19 in this booklet, and I am looking to the committee for some

20 advice about what else might be appropriate to put into this

21 book to make it more useful to those in the construction

22 industry.

23 Let me begin, first, to kind of give you the five

24 steps that we are going through to meet our obligation that

25 the President has laid down for the CFR page reduction

Page 25

1 effort. We have already published in March the 275 page

2 reduction effort where we end up also impacting the health

3 standards, the... Essentially the effort there was the

4 consolidation of 13 carcinogens. We also took out a number

5 of pages dealing with state plans, rules, and things like

6 that.

7 The second item that we are doing is before you

8 now, and we're looking for maybe some comments from you if

9 you have any, from either the full committee or however you

10 care to do that, Mr. Chairman. Hopefully something maybe in

11 the next few days or so, or 45 days. These are the problem

12 regulations as we call them, and we are intending to do this

13 rulemaking and this will actually be a notice of proposal

14 for public comment.

15 We are going to be impacting both construction

16 standards and general industry standards, and we are looking

17 for some feedback from the committee about the

18 appropriateness of this. We have provided you copies of our

19 draft preamble material as well as the reg text proposals

20 that we are considering. And the pagination that you have

21 is not totally complete because some of the pages that deal

22 with preamble discussion of general industry standards that

23 are not been put into the 1926 booklet, I just didn't

24 duplicate those. But the ones that you have include some of

25 the 1910 ones such as vinyl-chloride and so on because they

Page 26

are also in 1926, in Subpart (C) in the 1100 series, so they

2 do have a potential impact.

3 We are hoping to by this rulemaking, if we get

4 support from the committee and from those in the public when

5 we actually go to the Federal Register for notice of public

6 comment. We hope to eliminate maybe 25 or 30 pages of CFR

7 pages.

8 CHAIRMAN RINGEN: So you are referring now to the

9 document that's dated March 15th?

10 MR. SEYMOUR: That's correct. Yes, sir. The

11 Solicitor has not finished their review of that, and nor has

12 our Policy Office, so you're getting a fairly early copy

13 that's in review. I was hoping to have some feedback from

14 the Policy Office and so on and given you that document, but

15 we just received that like a day or so ago and we have not

16 cranked that all in yet.

17 CHAIRMAN RINGEN: And you're asking us to go

18 through this and give you some, in some way, a review and

19 general comments on it within the next month or so. Right?

20 MR. SEYMOUR: If you might send them to Bruce,

21 that would be perfectly fine with us.


23 MR. SEYMOUR: And you can organize that any way

24 you see fit, Mr. Chairman.

25 CHAIRMAN RINGEN: Thank you.

Page 27

MR. SEYMOUR: The third effort is the duplicate

2 pages. That's where we're trying to eliminate both pages

3 out of the construction standards that are going to be

4 duplicative of the ones that are in 1910, general industry

5 standards, and also in the maritime shipyard standards.

6 This proposal will not be any rulemaking. We're really only

7 going to take out duplicate pages. It's not really going to

8 change any obligation any employer has.

9 Joe Dear has indicated that when we do this he

10 wants to have the booklet to have available for the industry

11 then to utilize in lieu of the CFR. And I think we have an

12 opportunity here that the committee with its advice and

13 recommendations, we could make this booklet more useful than

14 the CFR has been in the past. Meaning that in the case of

15 the recordkeeping requirements that we have today, they are

16 found in the first volume of the 1910, the 1900 series of

17 standards, so if an employer in the construction industry

18 wanted to have all the regulations that apply to them they'd

19 have to buy the 1910 first volume and second volume, as well

20 as 26. This booklet... We could put all this into one

21 booklet.

22 It may be appropriate, depending on what the

23 committee might want to suggest, to put in principal policy

24 guidance or program directives. I'm not sure what the

25 committee might want to care to suggest in those areas, but

Page 28

we have some flexibility and Ann Cyr will talk about that

2 when we get to the booklet and what we are thinking about

3 doing there.

4 The fourth item is a longshoring proposal. We've

5 gone through the rulemaking on that. Now we're in the final

6 process of trying to get the final rule out. We're hoping

7 to get this final rule out probably in May. This will

8 revise the longshoring standards that have been around since

9 about 1963. We have not revised those in any formidable way

10 since they were originally issued in 1963, so this is a

11 major reinvention and improvement in some very old

12 regulations.

13 The last one of the CFR page reduction is the CFR

14 effort to revise the respirator standard, and we have a

15 number of standards... Actually the health standards that

16 have the respirator selection criteria, fit testing

17 criteria. There's going to be an effort to consolidate

18 this, to make it all into one package, one set of standards,

19 in 1910.134 in the construction standards and the shipyard

20 standards and so on. And that will save maybe around 100

21 pages, we hope.

22 So we'll meet our goal not just by taking out the

23 duplicate pages but doing all five of these items will make

24 the 1049 pages that the President has asked us to do.

25 Again, we have the opportunity with this booklet to really

Page 29

make the booklet more useable and useful to the industry,

2 and we're looking the committee maybe to suggest some of

3 those areas where they think we could add some additional

4 documents and so on.

5 Ann is here to maybe talk about some of the

6 mechanisms that we have, and you have a sample of what we've

7 put together in rough form. It is a photocopy, as you can

8 see, but I'll turn it over to Ann and she can talk about

9 some of the things that we are trying to do.



12 Ann Cyr

13 MS. CYR: This is really off of a fax machine and

14 then xeroxed, so it's not particularly clear.

15 What we were thinking about doing to try to make

16 this a little bit more user friendly and at the same time

17 work within budget constraints, with these you have a

18 loose leaf, a three-ring binder type of booklet. This would

19 be hole-punched, the sample.

20 CHAIRMAN RINGEN: Is this the full protection one?

21 MS. CYR: This is just a sample of a layout and a

22 size of what we might use. That would be in a binder, and

23 that would be updated on a regular basis, quarterly or, you

24 know, twice a year or something like that, depending on what

25 kind of a system we set up to capture the regulations that

Page 30

we ar producing throughout the year. And to a great extent

2 it would probably be more current than the CFR which is

3 printed ever year by the Government Printing Office.

4 Well, it actually goes there in July but we

5 frequently don't see it until December, January, whatever.

6 So it's not, this would come out... We would have more

7 control over this because we have our own database on the

8 particular document.

9 What we are thinking about doing, again, in terms

10 of because of budget, would be to offer this as a

11 subscription through the Government Printing Office. So it

12 would be based on whether it's a quarterly subscription or

13 whatever. We're working with GPO to try to determine that.

14 I started talking to them in March, and I now have submitted

15 a proposal to them but don't have any actual feedback at

16 this particular time.

17 What they do when they have their subscription

18 program is that after a certain number of years, two or

19 three years, everything is consolidated into one unit, to

20 keep everything current, and then you continue on with the

21 subscription.

22 The other thing that we are proposing to do is to

23 have, to continue to have our regulation on the Internet, so

24 they will be available electronically, and of course they

25 are available CD-ROM, so you'd have three options. We

Page 31

1 thought that this format might be useful because you could

2 put other types of materials in there and it's a lot larger

3 than the Code of Federal Regulations. Unfortunately, it

4 follows pretty much their same format, so the logic isn't

5 improved necessarily. But the actual usability is much

6 better because you don't have the small type and you don't

7 have this really thick volume.

8 The other things we'll look into in going through

9 this process is, you know, what kind of a contents or what

10 kind of an index that might be more useful as we go along.

11 But all of our concerns, really, are based on time and money

12 in terms of not having to print massive quantities

13 throughout the year, and this is soon to be a viable

14 alternative, and we would appreciate whatever suggestions or

15 ideas you might have on this. And if you have any

16 questions...

17 MR. SEYMOUR: Let me just add a couple of things.

18 If you'll notice up in the right-hand corner we

19 have the section as well as the paragraph designation, and

20 that's something that's not in the CFR. All you'd get in

21 that is the section heading. And obviously, the larger

22 print. We would certainly entertain any format suggestions.

23 I think making print bolder and things like that makes it

24 easier to find information in this kind of document.

25 The indexes and table of contents, something like

Page 32

that could also be improved, and we would certainly

2 entertain any kind of suggestions the committee may have to

3 make in that regard.

4 CHAIRMAN RINGEN: Can any person from this

5 committee simply make, give you their own comments? Within

6 the next... If there is anybody who has comments just send

7 a fax to you?

8 MS. CYR: Yes. Sure. Or you could send them to,

9 give to Bruce. We're just down the hall, some. Either way.

10 MR. SEYMOUR: I think we would prefer if you might

11 send them to Bruce. We're looking for Bruce to be kind of

12 the focal point, so if they might send them to Bruce and

13 Bruce will get them to the appropriate people. However you

14 want to best do that.

15 MR. MASTERSON: Do you have any restrictions as

16 far as the language you can use?

17 MR. SEYMOUR: Well, we are looking to... When we

18 say we are going to print the standards, when we do the CFR

19 we're going to take the text out, but there will still be

20 the 1926 number there and you'll have a reference back to

21 1910.

22 When we do the booklet we're actually going to put

23 the text in there, so there will be no reference to 1910.

24 You'll actually have the text of the standard. If you mean

25 now we want to change the wording of the standard we would

Page 33

1 like not to do that, because then it won't be representative

2 of what of course the standard actually is. But if there's

3 other kinds of documents, directives or things like that, we

4 can certainly put those in there if that's the committee's

5 suggestion.

6 MR. MASTERSON: The reason I was asking the

7 question is a lot of people that have to use the standards

8 are not attorneys, and if we can put something in plain

9 English it's a lot easier for them to understand and deal

10 with it.

11 MR. SEYMOUR: We have an initiative that the

12 President is looking for all regulatory agencies to go back

13 and put their standards, requirements, into more

14 understandable language. We have a number of initiatives

15 that we are trying to do.

16 As you are fully aware, you helped us with the

17 scaffold initiative, and as we do rulemakings in the future

18 that's going to be part of what we are going to be doing,

19 getting people to help us put things into plainer English,

20 or plain English as we call it.

21 MS. CYR: Also, OSHA has a program... We do have

22 booklets that explain those.

23 MR. SEYMOUR: That could be something that we

24 could probably put into the booklet as well, maybe, a

25 listing of the publications that would help elaborate more

Page 34

about, say, scaffolds or whatever, fall protection and so

2 on, that's available from the OSHA publication office.

3 MR. MASTERSON: Going back to the scaffolding

4 issue. I remember as we going through that that you all

5 were very restricted in how you could change language, even

6 though you may not be changing the context.

7 MR. SEYMOUR: That was true because we were of

8 course through the rulemaking record and we were at the

9 final stages, but in the future, at the proposal stage, when

10 you see some of our proposals coming out we'll have probably

11 multiple formats. Possibly a Q&A format and different kind

12 of formats to let people pick which they think is the easier

13 way to understand some of our requirements.

14 It's true, as you indicate, that when we were

15 doing scaffolds, being as it was at the final rule stage, we

16 were more restricted in what we could do, but in the

17 proposal stage that really won't be a limitation then.

18 CHAIRMAN RINGEN: Just so I understand this...

19 MR. SEYMOUR: Yes, sir.

20 CHAIRMAN RINGEN: ...whole process better, because

21 I think a lot of people are confused about it. But if I

22 think back a little bit, the idea here is to reduce the

23 number of regulatory pages gradually, by more and more doing

24 away with the separate publication of all of 1926 standards

25 and the issuing of these kinds of, maybe notebook sort of

Page 35

documents in their place, and you receive those as sort of

2 by cross-referencing the 1910, using that more as the

3 guidance to the construction industry?

4 MR. SEYMOUR: Well, the CFR booklet that we have

5 right now has all the text standards. In doesn't have...

6 In this, of course, it doesn't have 1904, which is also a

7 regulation that the construction industry is to comply with.

8 When we ended up doing this booklet, the text of the

9 standards we have in here right now...

10 Like vinyl-chloride is an example. In the

11 booklet, the vinyl-chloride text will be there just like it

12 is here. But when we end up issuing the next CFR back in

13 January or December of this year, or January of next year,

14 you'll have in the text then, you'll have the 26 number and

15 the heading for vinyl-chloride, but then there will be a

16 note saying there the regulatory text is the same as 1910,

17 and that's where the text is located. So if you're going to

18 rely on the CFR, then if you didn't have this booklet, if

19 you were going to rely on the CFR, you'd have to then get

20 both volumes of the 1910 booklet because 1904 is the front

21 of, before 1910 as well as the health standards.

22 The intention was that we would be able to have

23 this booklet, and you would have everything you might need,

24 at least the principal things. Again, the committee may

25 have some suggestions to help us maybe better focus in on

Page 36

1 that in this one booklet.

2 We could do galley proofs and things like that if

3 someone else wants to print them besides maybe the service

4 with the GPO. It would be certainly a public information

5 document.

6 CHAIRMAN RINGEN: I think what this committee and

7 most of the people in the construction industry have been

8 concerned about is that we are not going to have one place

9 to access construction standards anymore, and I think that's

10 the real issue, and also to access them as you say, in a

11 manner that most people can understand.

12 MR. SEYMOUR: Well, the agency has been charged as

13 all other federal agencies have been charged, that if we do

14 rulemakings in the future we are to take due consideration

15 of putting things in what we would call plain English, more

16 understandable language, and there will be various

17 mechanisms that will be used to do that. Some of the

18 proposals that are being developed right now to revise some

19 rules that were issued back in 1971 in the general industry

20 standards will actually have multiple formats to see what

21 the public thinks. The Family Leave, Medical Leave Act, was

22 done in a Q&A format, and we've been asked to put some of

23 our proposals into that kind of format, so we'll see what

24 the public thinks about that as a more understandable

25 approach to rulemaking.

Page 37

CHAIRMAN RINGEN: Finally, do you expect that

2 these, what you call notebook documents, will become

3 available for every 1926 standard?

4 MR. SEYMOUR: I'm sorry. This is going to be the

5 whole... This will take care of all the 1926 standards and

6 can be more than that. I mean, we have an opportunity here

7 with the advice of the committee that you chair to maybe

8 make this booklet even more useful than the CFR, and that's

9 what we're asking the committee to help us with.


11 MR. CLOUTIER: Well, I applaud you on this effort.

12 I think anytime we can make it more user friendly, the more

13 we can use bold prints and pick up on the key things. We

14 talk about guardrails and we bold print 42 inches, and we

15 bold print 21 inches. We go on to fall protection in there

16 and we bold print. We said the use of a body belt goes out

17 January 1,1998, well we ought to sit there and say you're

18 going to need a full body harness, it's not going to hurt

19 anybody to spell it out in there.

20 You know, we see these documents that J.J. Keller

21 has and BNA has, and Commerce Clearinghouse. This is the

22 way to go. For a user friendly on a construction site if

23 they're not going to go and tie in to the Internet or CD-

24 ROM, then a superintendent or a foreman or any craft worker

25 could pull the book off the shelf, it's in bold print,

Page 38

1 because when you pick up your CFR and the others, what I

2 call the toilet paper version, it's so small you can't read

3 it. It's almost not being used.

4 This is an excellent document, and I encourage

5 that we expand it for the entire 1926 standards every time

6 that we revise and update.

7 MR. SEYMOUR: Okay, Stephen, this is going to

8 cover... We talking about having this totally for 1926.

9 Every standard. The 1904 regulations could be put in this

10 format. That's what I'm advocating, we put that as part of

11 the booklet because the fatality reporting requirements and

12 so on would also be in this booklet, whereas it's not in the

13 CFR right now in one volume. The format like you were

14 talking about, highlighting certain things, if you have some

15 suggestions on that we can easily do that. We're looking...

16 I'm sorry. Go ahead.

17 MS. CYR: And the 1910's will be...

18 MR. SEYMOUR: Well, but, that will be a whole

19 text. The things that have actually been brought across in

20 1993 when we did that, we put the whole text in there and we

21 actually gave it a 1926 number. Those 1926 numbers will

22 stay there. We are not taking everything out that we put in

23 in 1993, what I call bits and pieces. We're really dealing

24 with whole sections now, and so that's all we're going to

25 take out.

Page 39

1 The rest of the stuff, where you end up putting

2 some things in on, oh, say explosives or something like

3 that, where we had a paragraph or two that we added into

4 1926 and gave it a 1926 number, we're not taking those out.

5 They're just going to stay in the CFR the way they are. But

6 they also will all be in this booklet.

7 Everything we're going to have in the CFR plus

8 will be in this booklet. And also as Ann indicated, we have

9 an opportunity maybe to keep it up to date, much more

10 current, than we ever have been able to do with the CFR. If

11 we do it quarterly... If there's that much activity going

12 on we would be able to do that. If it's not, then we would

13 probably do it semi-annually or however. But the direction

14 that I have from Joe Dear is we will have this booklet.

15 When we come out with the removal of the pages,

16 and you won't see the removal of those pages until the new

17 CFR comes out, which would be, again, December of this year

18 or maybe January of next year, we ought to have this booklet

19 ready. And so we're looking for some feedback. And you all

20 maybe give it back to Bruce, and if you could do that over

21 the next month or so that would be fine.

22 CHAIRMAN RINGEN: So you expect to have the whole

23 thing finished by January of next year?

24 MR. SEYMOUR: I'm sorry. Say that again, please?

25 CHAIRMAN RINGEN: You hope to have the whole thing

Page 40

1 finished by January of next year?

2 MR. SEYMOUR: This booklet... Go ahead.

3 MS. CYR: No. It will published well before that

4 time. We're looking at in the next few months.

5 CHAIRMAN RINGEN: For all of the 1926.

6 MS. CYR: Right. For what's current. And then

7 your subscription will pick up whatever happens between, say

8 the first quarter... Say we publish this in July and in the

9 next quarter there is some regulation. Well, that would be

10 in your next portion of your subscription.

11 MR. SEYMOUR: Just one more time. What will

12 happen in December and January will be the new revision of

13 the CFR, and that when it comes out the next time around it

14 will not have all of the Subpart (C) whole text in there. It

15 will have just...

16 It will have the numbers in there, the 1926.1117,

17 vinyl-chloride, but then you're just going to have a note

18 saying the text is in 1910. When we do the booklet, it will

19 have all the text. It will look like it does right now in

20 the green CFR. And we...

21 Again, Joe Dear wants this booklet available so he

22 can show that it's now available for the industry at the

23 time we take the pages out.

24 MR. CLOUTIER: One other comment. My partner

25 here, Bob Masterson, talked about getting it in plain

Page 41

1 English. If we can't do the entire document in plain

2 English maybe we could do one or two pages with bullets on

3 there explaining what, however else, 42 inches, 21 inches,

4 200 pounds. And just do a single page of bullets in there.

5 If it's going to work in the industry and get it to plain

6 English we're going to have reduce this down to one or two

7 pages.

8 MR. SEYMOUR: Okay. We have a little pocket

9 booklet...

10 MR. CLOUTIER: And a summary.

11 MR. SEYMOUR: We have those little pocket booklets

12 that we've done. Maybe that's maybe the place where we

13 would do something like that. We were looking to make sure

14 that all the legal obligations the employer would have would

15 actually be in here, so like you're indicating, we could

16 highlight the 42 inch guardrail height an the text where it

17 actually appears, but you're talking about putting in

18 another heading of some sort?

19 MR. CLOUTIER: Well, I'm thinking if this was the

20 package I'm consulting on my fall protection there could be

21 a separate page that just had bullets on it. Here's what

22 you need to look at. You're talking about a construction

23 worker, you're talking about a company that's going either

24 into the industry or has been in the industry, wants to pull

25 it out, give me fast summary. Well, here's a bullets of

Page 42

1 there that talks about fall protection.

2 MS. CYR: Abbreviated contents for that particular

3 area.

4 MR. CLOUTIER: Just in plain English. Plain

5 English.

6 MR. SEYMOUR: We could do that.

7 MS. CYR: Yes. That's a good idea. You may want

8 to... I would suggest recommending all of these, taking

9 them all through Bruce and then we'll look at them and see

10 how we can divvy them up and the best way to proceed on

11 this, because of the quantity and the time frame.

12 But the other aspect that Tom is talking about too

13 is that once the new regulations come out they will be in a

14 better language format. But your idea is just like a quick

15 reference, that's what you're saying.

16 MR. CLOUTIER: A quick reference, bullets, plain

17 English, could go a long way in our industry.

18 MR. SEYMOUR: We could do that as like a lead-in

19 to the Subpart, or at the conclusion do so. And then you

20 might want to suggest where you think the best place to

21 locate that would be. We could do that.

22 MR. CLOUTIER: Yeah. Every time a standard comes

23 out there's 15 pages of preamble, and there's 30 pages of

24 comments, and you get down to the last page it has the

25 issues. We want the issues out front. We want... What

Page 43

1 makes a business tick. What are we looking for.

2 MR. SEYMOUR: Okay. Maybe when you give your

3 comments back, Steve, maybe you might want to just give us a

4 sample of what you envision. That would be helpful to us.

5 We could then try to do that. And if we don't get it all

6 done this time we can certainly do it as we do the revisions

7 of the booklet.

8 MR. MASTERSON: In this booklet as you perceive it

9 would you be able to replace text with drawings?

10 MR. SEYMOUR: With drawings?

11 MR. MASTERSON: Yes. Just a cover on the entire

12 first page with one simple drawing.

13 MR. SEYMOUR: Which is what we suggested with in

14 scaffold discussion, yes? To me... Even what Stephen is

15 advocating is like a lead-in summary. We could do the

16 summary; we could do drawings as well. Sure we could. This

17 is not going to be restrained by the Government Printing

18 Office from the CFR point of view. The Federal Register

19 won't have to be the same format that we're... I mean, this

20 won't have to be the same format as the Federal Register.

21 So we have that flexibility if we want to do that here.

22 These would be helpful suggestions to us as we try

23 to make it more useful to the members of the construction

24 industry.

25 Okay. Can I go on to the paperwork burden?

Page 44

1 Barbara is going to pass those.

2 I just wanted to highlight, we have passed out

3 this table showing the burden hours that the government had

4 as of before the rules came out from OMB regarding the new

5 Paperwork Reduction Act that was passed in 1995. In that

6 piece of legislation the Congress with due purpose

7 overturned the Supreme Court decision where the Court had

8 indicated that being that the papers were not coming back to

9 the federal government it didn't have to count as burden.

10 And with that understanding, then, we had done

11 some rulemakings where we put in certifications and things

12 like that that was just between the employer and his

13 employees, or we might come and look at that and that would

14 be it.

15 We've had to then go back, now that that's

16 considered a paperwork burden we've had to go back and add

17 in some of those burdens. And so this shows you the

18 increase from what the Labor Department had in June of '95

19 to what it had at the end of this calendar year in December.

20 And as it comes up in a total tally, Treasury, obviously,

21 with the IRS is the lead agency as far as burdens on the

22 public as far as written requirements and things like that.

23 Written records, et cetera. And their's is 53 and plus.

24 And then the Labor Department is the second

25 highest federal agency as far as burden hours, and ours is

Page 45

1 266 million. Of the 266 million 207 million are OSHA's

2 paperwork burden requirements. So OSHA ends up being the

3 driving force in the Labor Department as far as burden. And

4 so we are looking at trying to come up with a strategy to

5 reduce these burdens, and as you can see in the bottom part

6 of that single sheet, in FY 96 we're going to reduce it by

7 10 percent, in '97 10 percent, and then from there on down.

8 That reduction is a goal that has been established

9 in the legislation, in the Office of Management and Budget,

10 and the department is asking us to help do our part to help

11 the Labor Department make its goal. So we are looking at

12 coming to you all as we have sent some things out in

13 advance, and Barbara's going to talk a little bit about the

14 paperwork requirements.



17 Barbara Bielaski

18 MS. BIELASKI: First I'll just go over the two

19 documents I just gave you. The first one, the Federal

20 Register notice of February 13th, is a listing of all the

21 paperwork requirements in the OHSA standards, along with the

22 OMB approval number. For construction you'll want to note

23 that we've created, we're taking a section in the

24 construction standards and we've put all these numbers in

25 the same place.

Page 46

1 For those of you who kept track of the control

2 numbers in the past, we used to put them at the end of the

3 sections, and what we did to avoid confusion was to identify

4 all of the collections of information in our standards and

5 put them in 1926.5. So in the next CFR you'll see a new

6 1926.5, and you'll see the OMB control numbers.

7 We also sent you a memorandum that explained the

8 Paperwork Reduction Act, our obligations under the Act. We

9 talked a little bit about the OMB implementing rules and

10 regulations and explained to you the problem that we have of

11 reducing our burden hours. And just in case you didn't

12 bring your copy with you I gave you another, and I'll just

13 highlight some of the things out of that.

14 We really need some help from you on this, because

15 under the new Paperwork Reduction Act of 95 OSHA like all

16 the other federal agencies has been told that it must reduce

17 its burdens on the public by 10 percent. That's for FY 96.

18 And in FY 97 we're going to have to reduce it by 10 percent

19 again, and then by five percent each year up through 2001.

20 It's a very complicated process to discuss, and it

21 can get kind of boring, but let me just highlight some of

22 the things it.

23 There was a Paperwork Reduction Act of 1980. It

24 was amended in 1986, and some of you who have been on the

25 committee for awhile might remember that in the late 80's we

Page 47

1 identified some of the burdensome detailed recordkeeping

2 requirements in the construction standards and converted

3 them to something called a certification record. And under

4 the old Paperwork Reduction Act certification records didn't

5 have to be approved by OMB. We could put those types of

6 requirements in the standard and not have to get OMB's

7 permission.

8 Now, under the new Paperwork Reduction Act of

9 1995, certification activity counts the same as any detailed

10 paperwork requirement. These are all called collections of

11 information. A collection of information might not

12 necessarily be something in writing. Even though we refer

13 to it as paperwork reduction, it's not always paperwork. It

14 might be any activity that would require an employer to

15 maintain, disclose, prepare information to a third party, to

16 the government, to their employees.

17 So what we have done is we have gone through all

18 of our safety and health standards once again. We have

19 identified all the paperwork requirements in there, all the

20 collections of information. We have listed all of them in

21 the Federal Register notice. We have showed the OMB

22 approval number. That gives us...

23 Actually, that's our enforcement tool. If you

24 don't have an OMB approval number you cannot impose a burden

25 on anyone for having violated that provision.

Page 48

1 And now what we're trying to do is identify which

2 collections of information we can revise to further reduce

3 the burden on the public, or perhaps we can even revoke

4 some. Now, we have 207 million burden hours, and we need to

5 reduce that by 10 percent. We expect to add about 6 million

6 burden hours for upcoming standards, some of those in a

7 construction area. For example, steel erection.

8 So the document that we sent to you, we only

9 talked about certification records and identified nine

10 certification records. And we had hoped that we would get

11 some feedback from you, some recommendations on whether or

12 not we should keep those requirements, or we can make some

13 changes to them, or revoke them. We're also asking our

14 field staff to give us input on this issue, and the state

15 designees.

16 And we are available for questioning now.

17 CHAIRMAN RINGEN: First of all, I don't understand

18 this chart thing.

19 MR. SEYMOUR: I'll try again, then.

20 CHAIRMAN RINGEN: I understand the bottom of it,

21 but I don't understand the top of it.

22 MR. SEYMOUR: Well, the top is the difference

23 between June and December was the, what happened in that

24 time was the new OMB rules came out and we had to meet the

25 new requirements. So what Barbara just said about we went

Page 49

1 back and we worked our fannies off to get everything in

2 place before October 1. That's why the burden for the Labor

3 Department went up, is because OSHA and other agencies were

4 putting in all the pieces of collection of information that

5 heretofore maybe were not considered paperwork, and now in

6 the new rules and the new statute were considered paperwork,

7 since we had to get appropriate clearance and authorization

8 from OMB, and we submitted all those and we've gotten

9 approval for all of our collections of information.

10 Some of the approvals weren't even for one year.

11 In some cases OMB will give you an approval of up to three

12 years, but in some cases they gave us less than a year

13 approval on some things and we had to do some other stuff.

14 But that's why the increase shows how we had to go about

15 counting those new burdens that previously weren't

16 considered paperwork.

17 CHAIRMAN RINGEN: It's a huge increase. The

18 Department of Labor is very different from the other

19 departments.

20 MR. SEYMOUR: Say it again, please?

21 CHAIRMAN RINGEN: Well, you went up from 48

22 million to 266 million hours, based on this. So that fully

23 half, or almost half of all of the increases based on this

24 assessment throughout the federal government came here at

25 the Department of Labor.

Page 50

1 MR. SEYMOUR: Well, in the Department of Labor we,

2 in the new legislation we ended up, in the course of new OMB

3 regulations, all the agencies put their stuff in, and again,

4 OSHA accounts for 207 million of that 266.


6 MR. SWANSON: I think, Mr. Chairman, one of the

7 greatest variables here is that OSHA used to look at the

8 time necessary to prepare paperwork, and we are an

9 inspection based organization. What we did not maybe spend

10 enough time counting gin the past was the hours necessary to

11 gather the information to gather the information to prepare

12 the paperwork. So you have to count the whole inspection,

13 which is why we went from the, I believe, why we went from

14 the 48 to the 200 million.

15 MR. SEYMOUR: Even how they interpret training, as

16 an example. The time that the instructor will use to

17 prepare his materials, the time it takes him to deliver the

18 materials, the time to record who attended the class or

19 successfully completed the class or the course or whatever,

20 all those are burden hours that now are being counted. And

21 a number of other interpretations by OMB on how they

22 approach what is collection of information has entered into

23 how we've added up our total.

24 MR. SWANSON: Mr. Chairman, they said we weren't

25 using the right hours. It's just like your tax auditor

Page 51

1 tells you, you know, that you weren't using the right

2 numbers, kiddo.

3 CHAIRMAN RINGEN: But this was just so much more

4 the case at this department than at any of the others.

5 MS. PAUL: Well, so, if a standard comes out and

6 the first time that the employer has to comply with the

7 standard it takes lots of hours because the developing

8 programs are being put in place, and then as time goes by it

9 becomes kind of an automatic thing because they are in

10 compliance and they are doing these things, or they are not,

11 but either way the first, right from the get-go there's

12 going to be lots of hours that ongoing now are going to

13 diminish. Is that taken into account?

14 MS. BIELASKI: Yes, that is taken into account.

15 Normally when we do... For us to...

16 Let me just tell you what we have to do to clear a

17 package. If there's a collection of information requirement

18 in the standard, the standards writer, the project officer,

19 is going to have prepare a package and answer 18 questions

20 to OMB, starting with what is the practical utility of this

21 requirement? They're going to want to know how many

22 employers are affected by that requirement.

23 How long does it take them to prepare the

24 paperwork? If they have to do something in order to prepare

25 the paperwork, like make an inspection of a claim, how long

Page 52

1 does it take to make an inspection to get the information to

2 prepare the paper. How long does it take for the employer

3 to get that piece of paper out of the file cabinet and make

4 it available to the compliance officer at the time of

5 inspection? So all those numbers...

6 And then we have to assess the amount of money

7 that it would cost the employer to comply with the number of

8 hours that it takes them to do that, and if they have to buy

9 any new equipment in order to maintain these records, how

10 long does it take to do that, or how much does it cost to do

11 that? There's a new staff person. How much does it cost to

12 do that?

13 So all that information is figured out upfront.

14 This is all public information. And we sometimes, most of

15 the time the burden is a first year burden, and what we do

16 is we calculate the burden for the first year, the second

17 year and the third year. We only give three year approval.

18 Sometimes they don't even give us a three year approval. If

19 it's a really big collection we might only get a one year

20 approval.

21 At the end of the three year approval we have to

22 go back and do this all over again, and some of you may have

23 seen that here recently with the new Paperwork Reduction Act

24 where we only got six month approval or nine month approval

25 on some of our bigger collections, we've actually had to put

Page 53

1 a notice in the Federal Register and give 60 days for the

2 public comment, and after we get that public comment we'll

3 have to go back and answer those 18 questions again, and

4 we'll have to discuss that public comment, and then we'll

5 have to ask OMB to approve the information collection

6 requirement, give us a number, we've go to publish the

7 number, and then we can go about our business of

8 enforcement.

9 MR. SEYMOUR: Otherwise we can't enforce the

10 standard. Or that provision, anyway.

11 MS. BIELASKI: Now, somebody in the course of

12 commenting one of these should bring to our attention that

13 we have failed to take into consideration that these hours

14 dropped down in the second year, then we can take what's

15 called a program adjustment, and we can adjust our numbers

16 downwards. We're not sure, we think they're going to

17 account adjustments toward our 10 percent reduction.

18 Normally they only count program changes. Now, a program

19 change would mean that we actually went and changed the

20 rule.

21 CHAIRMAN RINGEN: And what exactly is it that

22 you'd like this committee to do?

23 MS. BIELASKI: We would like to have

24 recommendations on just the certification records that were

25 listed in the attachment to the memorandum. We're not going

Page 54

1 to get into the other kinds of...

2 We also have plans, procedures, programs and

3 assessments that are also all collections of information,

4 but we're saving them for another time. Our first activity

5 is to look at just the certification records.

6 A lot of people feel that certification records

7 are really... These are the records, remember, that require

8 you to give, for example, you might have to either conduct

9 training or make an inspection of a crane, and when you are

10 finished you're going to prepare a record that says which

11 crane was inspected, some number or identifier, so that

12 we'll know what the record matches, and we want to know when

13 did you inspect it? And then we want the signature of the

14 person who did the inspection or the employer's signature.

15 And then the last record is always kept on file.

16 Those three data element records are called

17 certification records. There are many records. And those

18 have the greatest potential to be revoked or revised because

19 our compliance officers can go to the site and look at the

20 crane and see if there is something wrong, or in some cases

21 they can't, depending on what they've inspected. But they

22 can make some determination at the site. They can ask

23 employees about their training. So they have the greatest

24 potential for being eliminated or reduced, further reduced.

25 I'm not sure how we might further reduce a three

Page 55

1 data element record, but you can see the numbers attached

2 forms. The crane inspection is the big one.

3 MR. SEYMOUR: We would like to have some feedback

4 through Bruce from you all about maybe which ones you think

5 would be the ones that maybe from your judgment are least

6 useful and which ones maybe are necessary and should not

7 eliminated.

8 CHAIRMAN RINGEN: Any more comments about this?

9 (No response.)

10 CHAIRMAN RINGEN: This whole issue of whether it's

11 Administration imposed reinvention or congressional imposed

12 reductions is a pretty huge undertaking, and part of the

13 problem is that it covers a very broad range of issues. I

14 think we need a little bit of time to think about some of

15 these things, and I'd suggest the following, if that's

16 agreeable with the committee. That between now and then

17 I'll take responsibility for trying to produce a reasonable

18 response to both this document, this draft, which is the

19 3/15 draft of miscellaneous changes, as well as on this

20 issue that has to do with the burden hours that you're

21 asking for.

22 And I'll seek input from the various members of

23 the committee. And I want to work with Bruce and the people

24 at OSHA a little bit to try to come up with a process.

25 Because this is going to take some time, and you're going to

Page 56

1 come back to us with more and more of this stuff.

2 And I think we have to come up with a slightly new

3 process within this committee for how to deal with such a

4 huge, generic kind of issue that deals literally with every

5 aspect of regulation.

6 MR. SEYMOUR: Mr. Chairman, also, as we do rules

7 in the future this really is going to have a major impact on

8 some of the decision-making about whether we really need to

9 have that written record or that collection information or

10 not, because as we put more in we still have to make this

11 reduction. It's not you add more, you take 10 percent of

12 that.

13 We have the baseline which you see here of 266 and

14 we're working from that baseline down. So everything we add

15 has to be neutralized by having something else that we've

16 taken out to make sure that whatever we added still doesn't

17 add to our total.

18 CHAIRMAN RINGEN: How many more of these kinds of

19 things do you think you'll come to us with in the course of

20 this year?

21 MR. SEYMOUR: I think this is the one that we are

22 looking to do this year.


24 MR. SEYMOUR: But as you can see from the table,

25 we're talking about like a 40 percent reduction over the

Page 57

1 next four or five years, so we've really got to make some

2 inroads into cutting things that maybe people would say

3 well, we shouldn't really eliminate that record, we're going

4 to have to find some way to judge which ones we need to keep

5 an which ones we need to get rid of.

6 MS. BIELASKI: Will the baseline stay the same,

7 then? For the all the years?

8 MR. SEYMOUR: Well, OMB is not going to allow us

9 to raise our baseline. They are looking for...

10 This is what we have. Now, as we add new

11 standards that will, that has potential for raising our

12 baseline, but we're looking for a ten percent reduction, so

13 we're not going to say, increase it up to, for OSHA, say up

14 to 230 million burden hours and now we're going to take 10

15 percent of that. We had to get all of our burdens in before

16 October 1, and we really worked hard to do that, both health

17 and safety standards, construction. We all put them in.

18 And so that's what we have. That's why we have this

19 increase, a significant increase in what we previously had.

20 CHAIRMAN RINGEN: And by the year 2001 all of the

21 OSHA regulations are supposed to, in terms of burden hours,

22 in total, are supposed to be 40 percent below where they are

23 now.

24 MR. SEYMOUR: Yes. That's what they are...

25 That's what the statute says.

Page 58

1 Obviously, I passed out that chart or little

2 table, this one here, and the government goal of course is

3 10 percent, and compared to IRS and Treasury we're really

4 kind of a little small fish in the pond here. But for us to

5 be number two, they are looking at us to make our

6 contribution to the cause. And whether the government seeks

7 and makes that 10 percent goal, obviously, will be dependent

8 upon the Treasury Department's actions as well.

9 CHAIRMAN RINGEN: But you should be down to about

10 135 million hours in 2001. Or something like that.

11 MR. SEYMOUR: It will be down, yes.

12 MS. BIELASKI: But it's only... It's only a goal.

13 MR. SEYMOUR: It's a goal.

14 (Laughter.)

15 CHAIRMAN RINGEN: So if it's changed over time...

16 So if its agreeable, what we'll do with this is

17 that on, since I don't have any other work assignments...

18 (Laughter)

19 CHAIRMAN RINGEN: Until the next meeting I'll try

20 to make some sense out of this, from our committee's, not

21 from your perspective, from our committee's perspective.

22 and if any of you have any comments on this if you can get

23 them to me that would be very helpful, and I'll get in touch

24 with each of you about the specific issues. And working

25 with Bruce we'll have some sort of recommendation back to

Page 59

1 you by the next meeting. Not today's committee but the next

2 meeting. Is that acceptable to everybody?

3 Okay. Thanks.

4 MR. SEYMOUR: Well, we're... I'm sorry. We're

5 looking... We were hoping that maybe you might really give

6 Bruce at least what you are suggesting. I'm not sure

7 budget-wise when your next meeting will be.

8 (Laughter.)

9 CHAIRMAN RINGEN: If we don't have a meeting

10 within the next couple of months again then we will

11 certainly make sure that you have it, and that we have had

12 committee input into it.

13 MR. SEYMOUR: I guess we would like it maybe by

14 the end of May, if that wouldn't be too much of a

15 difficulty.

16 CHAIRMAN RINGEN: That would be fine.

17 MR. SEYMOUR: And we will certainly visit this

18 again and again, as you indicated, Mr. Chairman. And I do

19 appreciate your time for us to make a presentation. Thank

20 you very much.

21 CHAIRMAN RINGEN: Thank you.

22 It's 10:30. We still have a lot of stuff to do,

23 but I wonder if we shouldn't take a short break. A ten

24 minute break. It's 10:20 now; we'll start exactly at 10:30

25 with Bob Whitmore.

Page 60

1 (Whereupon, a brief recess was taken.)

2 CHAIRMAN RINGEN: Back on the record.

3 We will finish up with Bob Whitmore and... I'll

4 let you introduce yourself. But go ahead, Bob.



7 Bob Whitmore

8 MR. WHITMORE: Okay. Thank you, Mr. Chairman.

9 First of all I'd like to just very briefly thank

10 the chairman and Mr. Burkhammer who heads the recordkeeping

11 subcommittee, I guess you call it, for helping us to finally

12 get this proposal out in the Federal Register. It took...

13 It only took nine years, but February 2nd it actually

14 appeared in the Register, and what I've given to the

15 committee members, and I will lay copies in the back of the

16 room, are two pieces of paper. One is a Federal Register

17 notice from yesterdays Federal Register announcing a public

18 meeting, a second public meeting, as well as a news release,

19 a Department of Labor news release talking about he same

20 issue.

21 Very, very briefly, as most people know, we are in

22 the middle of our public comment period. That public

23 comment period was due to expire May 2nd. In this Federal

24 Register notice we are extending the comment period to May

25 31st. The public meetings will be held April 30th and May

Page 61

1 1st, if need be, in room S4215 of this building. All this

2 information will be in the press release and the Federal

3 Register. Starting at 8:30 Mr. Michael Lesnick of the

4 Keystone Center will be facilitating this public meeting as

5 he did the public meeting that ran from May 26th, I believe

6 through the 29th.

7 People that want to participate and give

8 presentations need to contact Tom Hall, to my left here, and

9 here again all of this is spelled out in the release and the

10 register notice, by the 19th, the close of business April

11 19th. We will then look at the number of presenters and

12 figure out how we can fit everybody in. You should request

13 the period of time that you think you will need.

14 Obviously, if we have more people than we have

15 hours in the day we're going to have to cut back on that,

16 but the meeting is going to be run exactly the same way that

17 the prior meeting was run. Exactly the same way. The same

18 ground rules, the same procedures will be in place. So this

19 is up to two days of meeting, a two-day meeting, for the

20 public to participate.

21 If there's any questions from the committee, I

22 think I've touched on all the important points.

23 CHAIRMAN RINGEN: I don't imagine you want to

24 comment on what took place at the earlier meeting that you

25 held, the sort of comments that you got?

Page 62

1 MR. WHITMORE: Well, it was very, very

2 interesting. I can say that. I heard a lot of interesting

3 alternatives to what we had proposed. And that was the key

4 that we tried to get out to people is, if you don't like

5 what we are proposing, that's fine. But just saying you

6 don't like it doesn't get us where we need to go. We need

7 alternative positions or propositions. And it...

8 I had never taken part in something quite like

9 that before and I found it really interesting. And I think

10 it was very, very beneficial, not just to OSHA but to those

11 people who were in the audience listening and asking

12 questions, and other presenters. It was just, I thought, a

13 really good experience.

14 CHAIRMAN RINGEN: Any comments? Questions?

15 (No response.)

16 CHAIRMAN RINGEN: Thanks, Bob.

17 MR. WHITMORE: Okay. Thank you.

18 I'm going to put copies of these on the back

19 table, in the back.

20 CHAIRMAN RINGEN: Thank you.

21 MR. WHITMORE: ...incorporated in the revised

22 draft that's out now. So I think we've heard a lot over the

23 years that a lot of things that this committee does isn't

24 taken seriously be OHSA, but the recordkeeping

25 recommendations that this committee put forth have been

Page 63

1 taken seriously, and probably 90 percent of them are

2 included in the draft which is out today.

3 CHAIRMAN RINGEN: I think you're right, and that

4 we should perhaps comment on that, that the work group did a

5 terrific job and the OSHA staff on this has done a terrific

6 job in working with the committee, and we appreciate that.

7 Joanne.



10 Joanne Goodell

11 MS. GOODELL: Okay. I'm Joanne Goodell with the

12 Policy Directorate, and my main duty is to be responsible

13 for the National Advisory Committee on Occupational Safety

14 and Health, and that's the committee that deals primarily

15 with policy issues.

16 We've done something a little bit unusual by

17 forming a very substantive work group on Hazcom. Last May,

18 the report from the President and Vice President under the

19 National Performance Review, OSHA promised to form a work

20 group of NACOSH to study the Hazcom Program.

21 Normally we would just have formed a little group

22 of three or four and had several sessions to discuss it and

23 produce maybe two or three pages of recommendations of a

24 relatively general policy nature. So we decided because of

25 the substantiveness of the program and the many comments

Page 64

1 that are subject all the time of congressional hearings that

2 it deserved more substantive treatment than that.

3 So we decided to take a work group of four members

4 and then supplement it with 10 extra people, in the same

5 manner that you have done with your work group. And we

6 brought in experts from the field of labeling and material

7 safety data sheets, but we also then represented small

8 business, large business, chemical manufacturers and

9 chemical users, and the labor unions, including construction

10 labor unions. So that we would have a widespread variety of

11 backgrounds on the committee but with really good knowledge

12 of the Hazcom Program.

13 In addition, because there were so many people who

14 were interested in this subject and wanted to be on the

15 committee, I decided that the only proper thing to do was to

16 open it up to public hearings in our first two series of

17 meetings.

18 So last October and in December we had two dates

19 each of meetings open to anybody from the public. The first

20 group was specializing in small business and labor unions,

21 and other employee associations. The second ones in

22 December were large business professional associations and

23 anybody else who hadn't been heard. So that everybody had

24 an opportunity to come and address the committee.

25 In addition, we did receive quite a lot of written

Page 65

1 comments that were all forwarded to the committee so that

2 everybody could be heard in this group, not just the members

3 of the group. In the packet of information I've given you,

4 I wanted to give you some information about the background

5 of these people so you can see the type of people we had

6 working with us. And the two page work plan there shows you

7 what our meeting schedule has been and how we focused what

8 we hoped to be a six month project.

9 We lost a couple of months in January and February

10 because of government shutdowns and budget restrictions, but

11 we're back on target now. And we will be having another

12 meeting April 24th and 25th. The committee is now working

13 on individual assignments for what we hope will be about a

14 40 page, very substantive report on the subject. And then

15 at the final meeting, June 12th and 13th, they will be

16 concluding their final polished report, we hope, and

17 agreeing with all of the content of it as a work group.

18 Now after this happens this must go to the full

19 committee, because it's still just a work group product,

20 even though it's quite outside the realm of what we normally

21 do as a work group. And we have treated this almost as a

22 separate committee by publishing all of its meeting notices

23 in the Federal Register, publishing agendas, opening it to

24 everybody. So we have had extensive public input in that.

25 And I thought you might like to have a summary of the sorts

Page 66

1 of things everybody has said.

2 We don't yet of course have the recommendations,

3 but there seems to be some common agreement among the public

4 and the work group that nothing was wrong with the

5 regulation and they don't recommend that we reopen it, but

6 they would like us to modify the enforcement of it and try

7 to emphasize the overall quality of programs and not be

8 quite so specific that if you find a good program but

9 there's one little tiny thing that didn't meet standards,

10 let's emphasize the good program. And that's something that

11 we've been trying to do already.

12 The paperwork problem that everybody talks about,

13 everyone recognized was not caused by OSHA but was caused by

14 the chemical manufacturers producing MSDS's on everything

15 that they make. And unfortunately we are blamed for this,

16 but we are not able to restrict a chemical manufacturer from

17 producing an MSDS sheet on something where it's not

18 required.

19 There was some discussion with the thought of

20 helping small businesses that perhaps we could add a

21 statement to the MSDS for those substances that were

22 required by MSDS's, such as, "This material has been

23 determined to be hazardous under OSHA's Hazcom Standard."

24 The purpose of that would be to help a small business that

25 might get 500 sheets and only need five of them, but have no

Page 67

1 technical person who could determine which five they needed.

2 If they had a statement such as that that would relieve a

3 lot of the burden on small businesses. We could not prevent

4 them getting the 500 sheets but we could make it easier for

5 them to learn which ones were incorporated or required under

6 our Hazcom Program. So that may be one of the

7 recommendations that comes out.

8 Everybody acknowledged that they would like now a

9 standardized format, but they didn't want us to open up the

10 rule at this time to require one because of international

11 harmonization efforts that are going on and things of this

12 nature. So primarily people recommended to us that we

13 endorse the ANSI format and just not require it, but say

14 this is a format that meets all of OSHA's requirements, so

15 that's a possibility for a recommendation.

16 And they did talk a lot about the fact that

17 everybody would like a very simple MSDS, like a two page

18 sheet that gave you just what the worker needed. But

19 everybody emphasized that the MSDS existed a long time

20 before OSHA for a lot of reasons other than OSHA's

21 responsibilities and that there was almost not likelihood

22 that we could do away with the MSDS sheet as it is, and that

23 nobody would recommend having an extra two-page format that

24 was designed just with workers.

25 So there was a lot of attention given to trying to

Page 68

1 make on the first page a summary paragraph that was in plain

2 English that would supply what the workers needed so that

3 they wouldn't have to be burdened by the extra papers that

4 were there for emergency responders and for the EPA SERA

5 considerations and for hospital staff and those things that

6 the MSDS is also used for.

7 But I would like to invite any of you to come to

8 our meeting if you are here or have other reason to be here.

9 They are going to be working very hard in the next two

10 meetings. And I also brought some forms I will leave on the

11 back table for any of you who are interested to request a

12 copy of the final report.

13 Can I answer any questions?

14 MR. MASTERSON: My understanding of the entire

15 Hazcom Standard is it is designed to provide the user of the

16 product with valuable information. The typical MSDS format

17 does not meet that need. What is the recommendations of

18 your committee as far as addressing the user's needs?

19 MS. GOODELL: Well, that's what I was talking

20 about with the MSDS being designed for many purposes other

21 than the workers and other than OSHA's. I don't know yet

22 what the committee's recommendation will be because they are

23 working on them now, but the things that people mentioned

24 were that there was likelihood of getting rid of the long

25 MSDS now.

Page 69

1 The ANSI format that's just come out in their new

2 regulation, for their own uses, is as complex as any you

3 have seen. It has... It takes care of everybody's concerns.

4 And the workers are only one of those. And that's where the

5 discretion lies. It would be nicer if we had just a simple

6 one or two page sheet, but then we'd have a whole new

7 paperwork burden. And that that's the sort of thing that

8 prevents requiring a separate document that is just designed

9 for the worker, that it would be an additional document.

10 MR. MASTERSON: Okay. So what I am hearing is

11 that you are not recommending any change in the Material

12 Safety Data Sheet as far as the employer's burden to

13 maintain those at the worksite?

14 MS. GOODELL: They are working on their

15 recommendations now, so I can't really say what their

16 recommendations will really be, but in their discussions

17 there hasn't been much indication that we can shorten the

18 format. They've emphasized plain English and quality

19 upgrade, and then much has been made of the electronic

20 transmission of MSDS's, that this will eventually simplify

21 and standardize MSDS's just be virtue of that fact.

22 But ANSI, which is the major organization that has

23 been working on that has come out with a pretty complex

24 format that everybody has agreed to in their organization.

25 CHAIRMAN RINGEN: The International Chemical

Page 70

1 Safety Program has come up with some much simpler cards that

2 don't cover mixtures, of course, they're just for chemicals,

3 but they cover up to 1,200, 1,600 chemicals, if I remember

4 right, and may be useful to look at.

5 MS. GOODELL: That's the main problem. They don't

6 come in mixtures.

7 CHAIRMAN RINGEN: Right. Any other questions?

8 But they are simple.

9 MS. GOODELL: Very simple.

10 CHAIRMAN RINGEN: Any other questions or comments?

11 (No response.)

12 CHAIRMAN RINGEN: Thank you.

13 Okay. Gerry?





18 Gerry Reidy

19 MR. REIDY: Good morning. I am Gerry Reidy,

20 Director of the Office of Construction Standards and

21 Compliance Assistance, Director of Construction. And I have

22 five standards to give you an update on, and I'll try to be

23 brief and pithy, but I'll open it up to questions, too.

24 The first one is on SENRAC, and just for the

25 record SENRAC is an acronym for Steel Erection Negotiated

Page 71

1 Rulemaking Advisory Committee, if you didn't know. Two of

2 your members, Mr. Cooper and Mr. Smith are on the committee.

3 The last meeting was held in November/December of last year,

4 and I'm quite sure you got copies of both the minutes and

5 the rough draft of the proposed standards.

6 What is not there of course is the preamble and a

7 sort of polishing up to the draft. So what is going on

8 right now is, in doing the preamble and doing a rough draft

9 of the proposal to supply with the regulatory requirements

10 and language and so forth. About 100 pages have been done

11 so far and they are still working on it. The two sections

12 that have not been completed yet are the joists, which is

13 .757, and fall protection, which is .760. When this thing

14 is put together as a total package this committee will be

15 given copies for comments and input and so forth.

16 There was a meeting held in March about the scope

17 section of the proposed rule and the scope section revised

18 to place the list of structures and activities in a note.

19 That of course will be a part of the proposed rule when the

20 proposed rule is published, and it is programmed for

21 publication in September of this year. Those who see the

22 proposal can make appropriate comments on that at that time.

23 That completes SENRAC at this point. Are there

24 any questions?

25 MR. MASTERSON: Gerry, it seems like the scope is

Page 72

1 a lot broader than what I always understood that SENRAC was

2 going to be addressing. In looking through here real

3 quickly, and this is the first chance I've had to look at

4 it, I'm seeing siding, windows... Help me understand how

5 that got brought into steel erection?

6 MR. REIDY: Well, perhaps the counsel can help me

7 out on that one.

8 MR. JONES: Gerry, all I can do is repeat that the

9 committee in discussing the scope basically had been given

10 pretty much full discretion by the agency to include those

11 steel erection activities which they are able to identify

12 and that the list which you see there is intended to be as

13 inclusive as the members of the committee could make it at

14 that time. And the reason the judge mentioned that there

15 had been further discussion is that there has been concern

16 expressed, indeed, that the scope is perhaps overly

17 inclusive and that further consideration needs to be given

18 to the manner in which the scope is addressed in the

19 proposed regulatory text.

20 CHAIRMAN RINGEN: Bob, this committee actually

21 commented on that perhaps over a year ago, a year and a half

22 ago or something like that, when SENRAC was first

23 established. There was some question about whether the

24 charge was getting larger than originally intended and

25 whether in fact the membership of the committee was suited

Page 73

1 to the larger charge, so we did make our comments on the

2 issue.

3 MR. MASTERSON: Unfortunately, I wasn't there for

4 that.


6 MR. MASTERSON: Yeah, I am seeing wall panel

7 systems, doors, windows, security equipment, and I don't see

8 the connection to steel erection here, and there you are

9 talking construction as a whole, and you're drawing in the

10 entire construction industry into the steel erection. And

11 was that the original intent?

12 MR. REIDY: Bob, the important word, the important

13 word here is proposed rule. Okay? Not the final rule.

14 The proposed rule offers comments on steel

15 erection activities. It is also an important set of words

16 to keep in mind because the representatives of the committee

17 told us that there are steel erection activities that occur

18 in relation to when those sky lights, wall panels and other

19 such structural members, that is a matter as to the public

20 comments on the proposal, you know, where we are very

21 interested in receiving feedback.

22 MR. MASTERSON: Well, I still see this as being

23 far outside the scope of steel erection.

24 MR. REIDY: Well, we certainly invite you to

25 comment and participate in the rulemaking.

Page 74

1 Any other questions?

2 (No response.)

3 MR. REIDY: The standard is scaffolds, Subpart L.

4 And the Subpart L scaffolds is going to be a final standard.

5 We are programmed to furnish the final standard in June of

6 this year.

7 We have given the final draft to the interested

8 party of the Office of Regulatory Assessment, and in

9 preparing drawings and so forth to accompany the standard,

10 and we're developing training with the OSHA Training

11 Institute for compliance officers and also for the affected

12 individuals. We are working on outreach right now with the

13 private sector. We've talked to a number of associations

14 and unions, and we're preparing a work booklet with the

15 Information Office on this standard.

16 And at this point we are on final approach and

17 hope to make the landing by June. This will be a final

18 rule.

19 Any questions?

20 (No response.)

21 MR. REIDY: Okay. Fall Protection, Subpart M,

22 Construction. Since the issuance of the final rule or

23 Subpart M a number of groups have come forward raising

24 concerns about their particular activities and how they are

25 affected by or impacted by Subpart M, and as a case in

Page 75

1 point, Precast Concrete, Post Builders, the National

2 Association of Tile Erectors, and Homebuilders, have come

3 forward and have indicated they have particular, unique

4 problems that they would like to discuss with OSHA.

5 In response to that inquiry, if you will, OSHA is

6 going to open M, and the programmed date for publishing in

7 the Federal Register is June of this year. We are going to

8 ask the industries and anyone else that wants to to indicate

9 what they consider to be a problem with the current M, if

10 you will, and give us as much in-depth comments with

11 supporting data and/or evidence to sustain their basis.

12 I can't forecast at this point, but there is a

13 good probability that the original comment period, which is

14 only about 90 days, or 120 days, may be extended per request

15 of the parties and they may also indicate they want some

16 hearings on this matter. At this point the preamble is

17 being prepared and, as I say, we are programmed to go in the

18 Federal Register in June.

19 Any questions?

20 (No response.)

21 MR. REIDY: Confined spaces. As you are probably

22 aware, there is a 1910 confined spaces final rule that was

23 published I believe last year or sometime at that point, and

24 this committee has over a period of years indicated a very

25 strong desire that a confined space standard for

Page 76

1 construction be crafted. The current comment in the

2 construction standard is I think one paragraph.

3 Last year we took the draft final 1910 standard

4 and submitted it to this committee, received comments, and

5 modified the draft reflecting those comments, and then we

6 sent out the draft comments to about 150 groups,

7 associations, individuals, including to the ten regions, the

8 offices of the administrators, the state plans, and asked

9 for their comment. As a result of that we received 32

10 rather in-depth comments which are being reviewed at this

11 point.

12 A dialogue with the chair of ACCSH has resulted in

13 a work committee being established. Is that correct, Mr.

14 Chairman?

15 CHAIRMAN RINGEN: Well, it's been proposed, and

16 we're going to discuss it as soon as you are finished with

17 your presentation.

18 MR. REIDY: Oh, okay. I didn't mean to... I'm

19 the precursor for you, okay?

20 And for the work committee we will have the

21 comments that we received with a summary of the comments as

22 assistance for the committee, and we will of course have

23 OSHA personnel involved to. According to this agenda we're

24 going to meet this afternoon.

25 CHAIRMAN RINGEN: If we get the work group

Page 77

1 established as soon as you are finished. Yes, sir.

2 MR. REIDY: Let me know.

3 Any questions?

4 CHAIRMAN RINGEN: I think we'll get back to that

5 one. You want to cover the safety and health program...

6 MR. REIDY: Yes. Fine.

7 CHAIRMAN RINGEN: ...a discussion and finalize it.

8 MR. REIDY: The safety and health program, again,

9 and you know the dialogue of ACCSH. I believe a work

10 committee will be established for that work group, and I

11 know the committee is aware of the fact that ANSI has put

12 out ANSI A-1033 and A-1038 which deals with health and

13 safety programs, and we of course have the guidelines OSHA

14 put out in 1989 which could be used as a stepping stone or a

15 basis for the work group to get going.

16 CHAIRMAN RINGEN: What Gerry is referring to here

17 is a discussion that we have had in the last three months, I

18 guess, or so about the two areas where OSHA thinks that the

19 committee can help it a great deal. It has to do with the

20 development of recommendations that might lead to standards

21 development in the area of both safety and health programs

22 and confined spaces.

23 We already have a work group established on

24 programs that Judy Paul is chairing. What I did ask OSHA to

25 do for us that I thought would be helpful, for these two

Page 78

1 committees, since it was a little unclear to me exactly what

2 they had in mind I asked them to provide some proposed

3 charges for the two work groups, and in the back on the

4 left-hand side of this folder that we have here there are,

5 the charges are there.

6 In order to establish these work groups we're also

7 going to have to scramble our existing membership on the

8 current work groups somewhat and make some changes, because

9 as near as I can tell OSHA would like us to produce some

10 results here as soon as possible, more or less.

11 MR. REIDY: It's more than a goal.

12 CHAIRMAN RINGEN: It's more than a goal. Yes.

13 If I can take a minute... Or, first of all, are

14 there any general questions for Gerry about his

15 presentations?

16 (No response.)

17 CHAIRMAN RINGEN: Okay. Then let me just take a

18 minute and go over the charges that have been proposed. The

19 first I'll deal with is confined spaces.

20 "To assist the agency in identifying and finding

21 the significant issues to be addressed by the Department's

22 rulemaking." And below it says, "The duties of the work

23 group is to identify the key issues, collect and analyze the

24 information pertinent to it," and so on.

25 In thinking about this issue and how we may go

Page 79

1 about doing it, I did call Steve Cloutier and asked if he

2 might be willing to volunteer to be chairman of the work

3 group and he said he'd think about that. And I wonder what

4 your deliberations have resulted in, Steve.

5 MR. CLOUTIER: I didn't think there was much of a

6 question there. I will carefully...

7 CHAIRMAN RINGEN: Well, then, in that case, we

8 first have the issue of whether we should establish a

9 workgroup in this area of confined spaces, and I think it's

10 something that's worthwhile taking a vote on, or I'd like a

11 motion to that effect, anyway.

12 MR. RHOTEN: So moved.

13 CHAIRMAN RINGEN: Relating to this charge, any

14 seconds?

15 MS. OSORIO: Seconded.

16 CHAIRMAN RINGEN: Thank you. Any comments? All

17 in favor? Any opposed? Okay.

18 And Steve has agreed to serve as chairman of it.

19 I would like to suggest also, Bill, this is clearly an area

20 where you have involvement.

21 Now, you've served on the program work group, and

22 I'm going to ask you, because I think we are going to have a

23 fairly intense effort in this area to maybe more from the

24 program work group over to this...

25 MR. RHOTEN: I would like to do that, yes.

Page 80

1 CHAIRMAN RINGEN: Okay. Are there other members

2 of the committee that would like to participate in this work

3 group? Could we get somebody from NIOSH's safety office?

4 That would be great, Diane. Thanks.

5 There's a question about when we might have a

6 report ready, and we were going to have a little bit of a

7 dialogue here about the date that you would like us to have

8 something ready and the date that we could achieve having

9 something ready, quite possibly.

10 MR. SWANSON: Well, OSHA would like this report

11 late spring, early summer, and contemplate having something

12 by late summer ready for the Federal Register.

13 The question in our minds and which we did not

14 wish to bring up to the committee on is what would that then

15 leave you desirous of as far as report back from the work

16 group and give the full committee time to ruminate on it?

17 We also have the question as one of the speakers commented

18 on earlier today on this, with this budget plan that the

19 federal government is under at least the Labor Department of

20 week to week funding, how many meetings are we going to be

21 able to have between now and the end of the fiscal year is

22 also rather open.

23 But it is more important, obviously, to us to have

24 quality rather than timeliness. On the other hand, we would

25 like to have the work group complete its work; the

Page 81

1 committee, ACCSH, complete its work on the work group

2 product; dovetail this with what OSHA as the regulatory

3 agency has to do vis a vis preamble language and the rest,

4 and have something ready for the Federal Register before the

5 end of the fiscal year.

6 So as you back up from that, those are tentative

7 constraints that we are looking at.

8 CHAIRMAN RINGEN: To back up from that,

9 realistically this committee has to sort of finalize its

10 product, whatever it ends up being on this issue, by Labor

11 Day at the latest.

12 MR. SWANSON: Oh, yes. I would think at the

13 latest. Then again, it would be helpful if we could have

14 the report back this afternoon, but...

15 (Laughter)

16 CHAIRMAN RINGEN: Well, we'll see if they're going

17 to meet.

18 (Laughter)

19 CHAIRMAN RINGEN: I think we received a previous

20 report on this issue that had been worked on in part within

21 this committee, I think. And you have all of that

22 documentation. So if...

23 We'll leave it at this, that one of the things you

24 may want to consider this afternoon, Steve, is dates as well

25 as possible times.

Page 82

1 Bill.

2 MR. RHOTEN: I've just got a question, it may be

3 off the subject but it follows on it, on the rules for the

4 ACCSH work groups.


6 MR. RHOTEN: It seems to me like in the past the

7 work groups came back with a recommendation. Is that

8 correct?

9 CHAIRMAN RINGEN: They came back with a report.

10 It may include some sort of a recommendation, yeah.

11 MR. RHOTEN: Yeah. And what I'm saying here is

12 that it would probably be improper under these guidelines

13 for the work group to make a recommendation. Is that

14 correct?

15 MR. JONES: It would be improper for there to be a

16 vote, for there to be a majority report and a minority

17 report.

18 MR. RHOTEN: Which would mean a recommendation, I

19 would assume.

20 MR. JONES: Which would be in effect a

21 recommendation.

22 MR. RHOTEN: Right. So what I am suggesting is,

23 the way we are heading now is, in the future, the work

24 groups will not come back with a recommendation, and not

25 even a consensus, but basically a lot of information to be

Page 83

1 discussed by the full board. Is that correct?

2 MR. JONES: That's correct.

3 MR. RHOTEN: I'm not suggesting that's a change

4 from the past, although I think it is.

5 CHAIRMAN RINGEN: That may or may not be the case.

6 It depends on the situation.

7 MR. RHOTEN: And I'm not raising the issue to take

8 issue with your position. What I'm raising it for is to

9 maybe state this, that there's already a lot of information

10 out there now on confined spaces that have been collected,

11 or gathered up, and I think in the future on a an issue like

12 this it's probably going to take more participation by the

13 full board to reach a conclusion than it would have in the

14 past because in the past I basically relied on the other

15 committee's recommendation, knowing they were well made up

16 of full size industry and labor and they were open to the

17 public, but the subcommittee in effect came back with a

18 recommendation.

19 And I see the committee in the future on this

20 confined space, because even though we sit down and go over

21 it and have the full committee meetings, we're not going to

22 really be able to come back under these rules and make a

23 recommendation to the full committee.

24 I guess what I am suggesting is if it's going to

25 take more time to get to a recommendation out of this

Page 84

1 committee that all the information that is out there now

2 should be forwarded to the full committee now.

3 CHAIRMAN RINGEN: I think it's kind of splitting

4 semantic hairs a little bit, in the sense that there may be

5 issues where there is a wide difference of opinion, in which

6 case the committee will have to deal with those big

7 differences. There might be areas that are very specific

8 and narrowly defined where a single conclusion could be the

9 sense of the work group. It could be presented in that way.

10 MR. JONES: We'd certainly want to make sure that

11 all members of work groups have their views represented to

12 the full committee. It shouldn't have any kind of editorial

13 or limiting kind of role being played by the chair or by any

14 member of the committee.

15 And secondly, we are reaffirming our determination

16 that it's the full committee which needs to make decisions

17 and to make recommendations, which then can be determined by

18 a majority vote, but that we don't want things to be brought

19 to the committee and then in effect, oh, is that what the

20 work group said? Well, the, let's just do that.

21 MR. RHOTEN: Well, I agree, although I thought in

22 the past the committee did make recommendations and the

23 people that made up part of the subcommittee who also came

24 before this full board made their arguments. I wouldn't

25 object to taking all of the different views back to this

Page 85

1 committee, but I don't think that the committee members per

2 se can make all the arguments for everybody that shows up at

3 the meeting and doesn't like what's going on. They're still

4 going to have to come down to the full committee and make

5 their own arguments.

6 CHAIRMAN RINGEN: Absolutely. Yes.

7 MR. JONES: You certainly are not going to be

8 expected to represent other persons' views, as far as that

9 goes. Except insofar as when you present a report if you

10 are a member of the committee or a chair for the committee.

11 Whatever compilation, whatever report, would be as inclusive

12 as is reasonably possible. There would certainly, I hope,

13 be supplemental comments that members of the work groups

14 would be able to make to the full committee, to explain the

15 basis for what they are bringing forward to the full

16 committee.


18 MS. OSORIO: I think Bill brings out a good point.

19 I think this is a change in direction. I only have limited

20 experience, but at least the four or five work groups I've

21 been on we'd come together, and some of them have had some

22 open meetings also, and then we do put forth suggested

23 either action steps or recommendations for the whole

24 committee to discuss or whatever. But they have been...

25 I mean, you can change the meaning but they are

Page 86

1 recommendations. So if you want us not to do that, that's

2 fine, but I just want to know is that a change from what we

3 were directed earlier?

4 MR. JONES: Well, yes. As far as the Solicitor's

5 Office is concerned what we are saying is a reaffirmation of

6 what under proper FACA procedures the work group is supposed

7 to do. If there has been drift, you know, in the work

8 groups from that, then what we are trying to do is to

9 provide a course correction and ensure that you as

10 individual members of a work group feel, and in fact act on,

11 the responsibility to add your viewpoint and your

12 information and your perspective to whatever product comes

13 forward from the work group so that the full committee has

14 the full benefit of your participating.

15 MR. RHOTEN: But, again, the bottom line is in the

16 future there will be no more recommendations from the

17 subcommittees.

18 MR. JONES: That is a semantic point.

19 (Cross-talk and laughter)

20 MR. RHOTEN: If the committee meets and comes back

21 with a recommendation it's either a recommendation or it's

22 not.


24 MR. JONES: Well, it shouldn't be.

25 MR. CLOUTIER: Well, the work group meets, gathers

Page 87

1 the information, and we may or may not come to a consensus

2 as the work group, but you also put of the other members of

3 the work group's input into it. Then we bring that package

4 to the full committee, and the full committee can accept it

5 entirely, they can dissect it, they can do what they want to

6 do with it. But in the past couple of years the committee

7 has pretty much adopted everything that a work group has

8 proposed or presented back to the full committee. And I

9 don't think that changes.

10 You're asking us to give you good information.

11 The work group is going to gather that information, we're

12 going to bring it back here to the full committee, and the

13 full committee will either vote unanimously or there'll be a

14 split vote, or however you want. Or they'll dissect it.

15 CHAIRMAN RINGEN: I think part of the reason that

16 this has worked very well in the past is that the work

17 groups have been very carefully getting information from

18 everybody. So I think on the one hand having work groups

19 doesn't alleviate this committee of any responsibility for

20 looking at this issue from all perspectives and making the

21 ultimate decision on it.

22 The purpose of the work groups is to simplify our

23 operation, if you will, and clearly those of us, the

24 committee would like to see the work groups come up with as

25 much specificity as possible. It's supposed to take all of

Page 88

1 this information and ferret out what is useful and not and

2 come back to us with useful and limited information that we

3 can make decisions on, but at the same time, as Steve says,

4 we have to make sure that we look at all angles of it.

5 MR. MASTERSON: If I hear what you are saying

6 correctly, the work group would come back with like an

7 outline of possible alternatives for the committee to look

8 at.

9 CHAIRMAN RINGEN: It could. Or it could come back

10 with something specific and say how it reached that point

11 from looking at various alternatives. I don't see any

12 problem with that second option. It depends on how clear a

13 consensus there is about it. You get a feel for that pretty

14 fast. There are some issues that we don't have consensus

15 on.

16 With regard to the operation of the committee as a

17 whole, we do operate generally, or at least it is my intent

18 that we will operate, on the basis of consensus, and where

19 we know that we don't have an consensus, like an issue that

20 we'll have coming up very shortly, we will refer it off with

21 that finding.

22 MR. RHOTEN: Not to beat a dead horse or anything,

23 but it says here, "The work group does not reach a

24 consensus."

25 CHAIRMAN RINGEN: That's correct.

Page 89

1 MR. RHOTEN: Well, I thought... Didn't you say we

2 were relying on a consensus?

3 CHAIRMAN RINGEN: No, no. The committee. The

4 committee reaches a consensus.

5 MR. RHOTEN: Oh, okay.

6 CHAIRMAN RINGEN: Usually. There are rare

7 exceptions to that.

8 If it doesn't reach a consensus then there is no

9 use having a split vote and sending on something as a split

10 vote. You know. That's not the purpose of this.

11 MR. RHOTEN: I'm sure it's fine. I was just

12 trying to get you to clarify.

13 CHAIRMAN RINGEN: So we have established that work

14 groups, you will meet in the afternoon, Diane, Bill and

15 Steve. And anyone else who is interested in joining them.

16 (Discussion of location of work group meetings.)


18 MS. PAUL: Just a note on safety and health

19 program.

20 CHAIRMAN RINGEN: We are going to come back to

21 that now, yes.

22 MS. PAUL: Okay. I'm sorry. I thought you were

23 skipping ahead.

24 CHAIRMAN RINGEN: No. Now that we have finished

25 that we will do the programs, and then Stu has to make his

Page 90

1 report, because he has other commitments that he has to get

2 to. But I wanted to get this out of the way first.

3 The Construction Safety and Health Programs. We

4 have a charge that OSHA has asked us to follow more or less

5 that the work group can review since the work group has been

6 established and agreed to by the committee already. There

7 is no need to have a vote on that, on whether we're going to

8 follow that charge or not. But I think as fully as

9 possible...

10 I think the report timing is of a similar era as

11 well, so you should consider that today.

12 Given that Steve has served on that work group and

13 will not be able to continue to do that, I've asked Bob if

14 he would be interested in participating in it, and I think

15 having his input will be very useful.

16 MS. PAUL: And Bill just got removed, too.

17 CHAIRMAN RINGEN: Bill just got removed. That's

18 correct.

19 MR. RHOTEN: Transferred, please.


21 MR. RHOTEN: Transferred, please.

22 CHAIRMAN RINGEN: Transferred, yes.

23 MR. SWANSON: I think that... And I will check on

24 this. But I believe the time is shorter on this one if we

25 are working within the parameters of the fiscal year, which

Page 91

1 I hope we are. On significant rules, significant is defined

2 by OMB, OMB wants 90 days to review a rule.

3 We are probably going to be able to sidestep that

4 issue on the confined space but we will not be able to

5 sidestep it on construction safety and health programs

6 standard. So if we were to make the fiscal year, we are

7 talking the end of June for us to have a draft proposal to

8 go to OMB.

9 Am I correct on that, Gerry?

10 MR. REIDY: Yes. Unfortunately.

11 MS. PAUL: Could I ask a question?

12 The OSHA group that's working on this presented to

13 us a report on where they're at in the general standards.

14 Kind of an overview. Is there anything specific being done?

15 Has there been any decisions made about whether construction

16 is going to have a separate standard or...?

17 MR. REIDY: Yes, it is. Go ahead.

18 MR. SWANSON: The safety and health program

19 standard has been quite heated. Whatever the degree means.

20 We are going to get a general industry, truncated, I think

21 is the word. A general industry standard, a construction

22 standard and a maritime standard for programs.

23 Generally there seems to be some thought, once

24 word got out that we were splitting, that this meant the

25 general industry was going to stop, and indeed not. It is

Page 92

1 continuing. It is continuing on its own track.

2 The policy makers in OSHA have recognized that the

3 construction industry is unique. We've been trying to tell

4 them that for a long time, right? And so those unique

5 concerns that we have can be addressed in a safety and

6 health program standard design for the construction

7 industry.

8 We will be given, I think, quite a long leash. So

9 long as it's what we design as a proposal is not

10 inconsistent with where OSHA intends to go with its main

11 safety and health program standards, we're fine.

12 There has not been anything distributed from that

13 committee that you referred to. The in-house OSHA committee

14 that is working on the general industry standards. They

15 have not shared anything with us that we can use. They well

16 might, but they have not to date.

17 MS. PAUL: Okay. Is there a person working on the

18 construction standard within OSHA?

19 MR. SWANSON: There will be. We may have a

20 designated project officer, and at the moment that's Mr.

21 Gerry Reidy. There is not, however, an in-house committee

22 that has been working on a construction program standard to

23 date.

24 CHAIRMAN RINGEN: In the interest of time, let me

25 ask this. Who's going to participate in the work group

Page 93

1 meeting in this area today from OSHA?

2 Okay. Gerry. So you can address that with him at

3 the time of the work group.

4 Steve Cooper had expressed an interest in serving

5 on this work group in the future. He won't be here today.

6 I'll participate in it today.

7 Anybody else? Who else is on this work group

8 right now?

9 MS. PAUL: Anna Maria is another one.


11 Anyone else who would care to join? It's a big

12 task ahead of you, without a doubt, and it's going to be a

13 difficult one, but I am sure, Judy, that you will carry it

14 off fine.

15 MS. PAUL: It's nice to have it in the record.


17 MS. PAUL: Thank you.

18 CHAIRMAN RINGEN: So that will meet in room S-25,

19 S-52? S-5215B. Right. Okay.

20 The only other work group that is meeting today as

21 far as I know is the women in construction work group, and

22 that will meet here. And I think we may have another work

23 group, but I don't think there is, I don't know if there's

24 any need for it to meet. So those three work groups will

25 meet today and will report back tomorrow.

Page 94

1 MS. OSORIO: So, musculo-skeletal disorders has

2 been canceled?

3 CHAIRMAN RINGEN: We are going to deal with that

4 right now.

5 MS. OSORIO: Oh, okay. Sorry.

6 CHAIRMAN RINGEN: Are there any comments on these

7 issues, or questions about it?

8 (No response.)

9 CHAIRMAN RINGEN: Okay. Then we are set with the

10 work groups. Set with you, Gerry? Thanks a lot.

11 And we have two major issues to deal with,

12 obviously before the middle of the summer, and that is the

13 programs and the confined spaces, both of which I think,

14 personally, it's very forthright.

15 Stu, do you want to go ahead and make your report

16 on the musculo-skeletal disorders?



19 Stuart Burkhammer

20 MR. BURKHAMMER: Thank you, Mr. Chairman. I

21 apologize to the committee for not being able to be here

22 this afternoon and tomorrow, but our company is reorganizing

23 and I have other things...

24 CHAIRMAN RINGEN: It's always reorganizing.

25 MR. BURKHAMMER: And reorganizing me at the same

Page 95

1 time.

2 I am Option 2 of Knut's two options, and that's

3 where I'm going to make some specific recommendations to

4 this committee to deliberate on and possibly vote on. And

5 I'll explain why.

6 As you remember, those of you that were present at

7 the last meeting on August 8th and 9th of last year, several

8 representatives, some of who are in the audience here, came

9 before us to make presentations regarding their views on the

10 MSD work group's draft report. Basically, the theme of the

11 speakers centered around three issues. And I took copious

12 notes. Those of you who were here saw it. I have a list,

13 basically, and I would like to read some of them. But I

14 think you'll get [the idea of the] failure to show need for

15 the standard in the MSD area. Most of the speakers were

16 opposed to any type of standard in this area. A lot of

17 comments on lack of sound, scientific data. Small employers

18 cannot comply, will affect small business greatly.

19 I like this one. The work group jumped to

20 conclusions without any research and study.

21 The risk factors that were considered were flawed.

22 Lack of statistical evidence that MSD is a problem in

23 construction, which I also liked.

24 A lack of industry involvement in development of

25 the draft MSD standard. We need a demonstration effort to

Page 96

1 see if something like this will work in construction. And

2 there were some of the presenters who volunteered, and I'll

3 address that in just a minute.

4 Let industry take care of itself on this issue, as

5 if they haven't to date. MSD is now at epidemic proportions

6 currently. And the Center to Protect Workers' Rights data

7 was flawed, and Pete Cheney was kind enough to provide us

8 with a study that his group did, and Knut passed that study

9 on to a group of scientists and they reviewed it, and I'll

10 address that.

11 So basically I broke all those down into three

12 issues that I'd like to address for the committee.

13 The first issue is about the process that ACCSH

14 and I specifically as chairman went through to select the

15 members of the work group. The sentiment was, as you heard

16 in my notes, that it was a closed group, and there were

17 comments that industry wasn't allowed to participate fully.

18 There were no meeting notes or anything presented in the

19 Federal Register for anybody to look at or review, and I

20 think you heard today that it doesn't have to be.

21 As ACCSH committee members you heard at length

22 today from our chairman the selection process of work groups

23 and how they work. One other point that Knut and our

24 counsel didn't stress is what happens after the committee is

25 formed and the chairman is picked. Well, the work group

Page 97

1 chairman then has the opportunity to select other people

2 from industry to participate as deemed necessary or

3 required. And as far as the MSD work group goes, all those

4 who asked or volunteered to be on the work group were

5 accepted and included in all work group matters.

6 It is important to note here, and I want to

7 stress, and I think I have done in the past and I want to do

8 it again, that no one is turned down who asks to be on the

9 work group. And no, I didn't go out and wear a sign and

10 solicit people to join, but there were a lot of people in

11 attendance who formed the MSD work group, and every one of

12 the people who were in attendance who came up and asked to

13 be on the work group were selected and included in all the

14 meetings.

15 The second general issue from the presenters was,

16 why do we need this? There's no evidence to shoe that MSD

17 is a problem in the construction industry. MSD is not of

18 epidemic proportions, and et cetera.

19 So let me offer a personal observation of an

20 individual who has been in the construction safety and

21 health field for 35 years. To those that suggest that MSD

22 is not a problem in construction, it is my opinion that

23 those people have never worked in the safety and health

24 profession on a job site and witnessed the number of

25 employees who come into the first-aid offices and go to the

Page 98

1 hospitals or doctors with pulled muscles, strains, sprains,

2 back injuries, sore knees, sore wrists, sore feet, all of

3 which involve musculo-skeletal disorders.

4 We did a study in our company of injuries from

5 1983 through 1994, and this study indicated that

6 approximately 50 percent, or half of all our injuries

7 reported, were MSD related. I'm not at liberty to share the

8 study with you due to company confidentiality. However,

9 back injuries alone resulted in 35 percent of our lost cost

10 for that period of time.

11 If a company like ours with the world-class safety

12 and health program that everybody says we have and the

13 outstanding safety and health record that we have, along

14 with the many innovative concepts and programs that we've

15 put forth, is experiencing these kinds of numbers in MSD's.

16 I'm quite sure that other contractors are showing the same

17 numbers, or worse.

18 The third general issue is that there is not

19 enough scientific evidence to conclude that MSD in the

20 construction industry is a problem.

21 Mr. Chairman, you addressed this issue in a letter

22 to the Center to Protect Workers' Rights to a selected group

23 of university-based scientists and physicians, and I think

24 included in those were the ones suggested by Pete Cheney and

25 the AGC, and you asked them to review the data and submit

Page 99

1 their findings. And at this time, I along with you, Mr.

2 Chairman, if you would please comment, got the report, and

3 I'll just hit a couple of the highlights.

4 Musculo-skeletal disorders caused by strenuous

5 overexertion as well as those associated with repetitive

6 motion and particular work postures are a major health

7 problem for construction health workers. I like the word

8 major. They didn't just say health problem, or minor health

9 problem, or some health problem, or maybe a health problem.

10 They said a major health problem. Which indicates to me

11 that they agree with what the work group came up with. And

12 they closed in their conclusion with a comment that I think

13 the work group also put forth, was that a great deal more

14 needs to be done in the design, implementation and

15 evaluation of interventions needed to prevent or control

16 musculo-skeletal disorders.

17 And their final comment that the respondents in

18 the study that Knut, our chairman, asked to be done,

19 expressed no opinion regarding the feasibility of federal

20 guidelines or a federal standard for the prevention of work-

21 related musculo-skeletal disorders. Which I would kind of

22 expect became they were asked to evaluate a study and not

23 make comments on whether there needed to be a standard.

24 So I think the conclusions of this group, using

25 the work group's study research plus the ones that Pete

Page 100

1 Cheney provided us, have come to the conclusion basically

2 that the MSD data that the work group reviewed was not

3 flawed and that is was valid in a lot of cases, more so than

4 not, and that what the committee viewed was worth reviewing.

5 So I think this independent study that our chairman had

6 conducted puts to rest any suggestion that the data reviewed

7 by the work group wasn't worth reviewing.

8 As each of you who were present remember after

9 listening to the presenters make their case I asked them

10 specifically to provide the work group with any data or

11 documentation that disproved the work group's findings so

12 the work group could come to a conclusion on this issue.

13 This was followed up with an August 9th letter from myself

14 to all the presenters, and an additional August 29th letter

15 from Knut to all the presenters. And to date I have

16 received eight letters from all those who presented, and

17 every one of them declining to participate in the work group

18 or in the development of the product.

19 And as I said, with the exception of the Pete and

20 the AGC providing us data, nobody else sent any in. Which,

21 again, I guess, goes to the fact that we've got a lot of

22 people in the world and a lot of various subjects who like

23 to complain, but when it comes time to produce, we don't

24 have a lot of people who show up.

25 So, as based on these and the comments from the

Page 101

1 presenters, it has become apparent to me as the chairman of

2 the work group that the work group will be unable to

3 generate the voluntary industry cooperation needed to

4 achieve a consensus vote among this committee. If I were to

5 call for a full committee vote I believe I would receive a

6 majority but not a full yes vote to forward the work group

7 report on to OSHA for acceptance.

8 So based on this I have come to the conclusion

9 that further deliberation on the MSD issue by the work group

10 will not yield any additional benefit.

11 So based on Knut's Option 2, I offer some five

12 recommendations to the committee for consideration. I'll

13 pass these out, but basically that the full ACCSH committee

14 agree or vote to refer the MSD matter back to OSHA, that

15 OSHA use formal administrative procedures available to the

16 agency to consider a construction MSD standard, that the

17 work group forward the documentation it has developed to

18 date to OSHA for their use, that OSHA, perhaps in

19 conjunction with NIOSH, conduct demonstration programs to

20 determine if the work group draft has practical

21 applicability in the construction industry, is cost

22 effective and has an effect on reducing MSD's in

23 construction.

24 I would like to note, as I said earlier, again,

25 that some of the industry presenters, and it's in your

Page 102

1 minutes, you can kind of read a synopsis of the three panels

2 that presented at our last meeting in the minutes, that they

3 supported the demonstration effort, and even offered to

4 participate. And again, I would hope that they would still

5 be forthcoming in their support if OSHA agrees to do some

6 demonstration efforts in this regard.

7 And finally, that the MSD and construction work

8 group be put on hold at this time to be available for advice

9 and counsel in the event that OSHA wishes to continue in the

10 development of a standard or conduct demonstration programs.

11 That concludes my report.

12 CHAIRMAN RINGEN: Thank you very much, Stu. We

13 have said this many times before to you, but I wish to thank

14 you first of all for all of the work that you have done on

15 this issue, and the difficult conditions under which some of

16 this work has been carried out. I think the recommendations

17 that you have presented are very reasonable, and we have to

18 have a discussion of them. Any comments?

19 Anna Maria.

20 MS. OSORIO: I just apologize. On my way out here

21 to the airport I realized that my review of the August 7th

22 letter from Mr. Fred Ryan from Options and Choices to Mr.

23 Pete Cheney never got to you, so I have a two page list of

24 comments on it. I think the bottom line on this is that due

25 to the flaws in concept and analysis described within this

Page 103

1 letter, I cannot interpret the final interpretations

2 contained in the letter. And that is in essence that the

3 bulk of the citations in the Center to Protect Worker's

4 Rights bibliography are unfounded.

5 I'll submit this for formal inclusion.

6 I also just want to acknowledge the tremendous

7 work of Stu and the rest of his work group. And I think

8 it's a sad comment when an important issue like this has

9 virtually zero interest or participation by industry. I

10 think it's a really sad comment. You don't avoid a problem

11 by just going away. You confront and you deal with some

12 equitable way of dealing with it, and I think it's a very

13 sad day.

14 CHAIRMAN RINGEN: I don't think there was a lack

15 of interest. You may want to rephrase that.

16 MS. OSORIO: Okay. Sorry. A lack of desire to

17 participate in resolving...

18 CHAIRMAN RINGEN: Any other comments?

19 (No response.)

20 CHAIRMAN RINGEN: Do I have a motion to accept

21 Stu's report?

22 MS. PAUL: So moved.

23 CHAIRMAN RINGEN: Do I have a second for it?

24 MR. MASTERSON: Second.

25 CHAIRMAN RINGEN: Bob Masterson.

Page 104

1 Any discussions of this?

2 MS. JENKINS: I have one question.


4 MS. JENKINS: At the last meeting, and I can't

5 remember the gentleman's name, he proposed that a

6 demonstration be made on a construction site to see if this

7 standard would be cost effective and practical. Was that

8 ever done?

9 CHAIRMAN RINGEN: No, it's not, nothing has been

10 done since because we didn't finalize the issue. It's part

11 of the recommendation here, I think, the recommendation

12 bullet #4, exactly to do that, and OSHA perhaps in

13 conjunction with NIOSH. We do have some projects that are

14 getting close to doing some of those things, and I am sure

15 those kinds of projects will be carried out in the coming

16 years. We're not finished with this issue. I'm sure. But

17 for now we are.

18 Any other comments? Questions?

19 Bruce.

20 MR. SWANSON: I'd like to comment. And that's

21 simply to say that the advisory board here will make

22 whatever recommendations that it wishes to make and we will

23 gladly accept them and deal with them however we can. But

24 as far as conducting demonstration programs to determine if

25 the work group draft has practical applicability, et cetera,

Page 105

1 those of you who have followed what is happening on the Hill

2 know that funding problems will exist for us this year, next

3 year, and until that place freezes over if we engage in

4 activities like this.

5 CHAIRMAN RINGEN: You have a sister, or a brother

6 agency, whatever it is, over here, that might be able to

7 help. But recognizing those caveats. These are our

8 recommendations to you. Do what you want.

9 Any other comments? Discussion?

10 Yes, Steve.

11 MR. CLOUTIER: Just a semantic thing. I think it

12 says ACCSH MSD. It should say work group instead of

13 committee. It's that work group's recommendations to the

14 full committee.

15 CHAIRMAN RINGEN: Okay. Any other comments,

16 questions?

17 All in favor, aye?

18 Any opposed? Okay.

19 Again, Stu, thank you very much. This is an issue

20 that will be coming up again, and I was just in a meeting in

21 Germany a week and a half ago, two days on this issue, where

22 there is an enormous amount of research going on, so a

23 temporal, clear relationships, dose response relationships,

24 age relationships, you name it. This...

25 We will have more data on this issue and it's

Page 106

1 clear to me that the focal point... I believe this. I have

2 no doubt about it. The focal point of construction safety

3 and health in the future, in the next coming couple of

4 decades is going to be dealing with this particular issue.

5 That was an editorial comment.

6 Bruce?

7 So thanks, Stu, for a very good job. And I know

8 you have to leave.




12 Bruce Swanson

13 MR. SWANSON: Yes, thank you, Mr. Chairman.

14 It was nice to hear Mr. Burkhammer set the mood

15 for the next presenter, right? We are asked for an update

16 on DOC, or the Directorate of Construction.

17 We got out of the gate, those of you who were

18 involved in it recall early in December, I think the

19 effective date was December 11th, the reception was the

20 12th. We got off to I think an auspicious start. We had

21 the Secretary come and make the appropriate comments. We

22 had the President of the Building Trades Department in

23 attendance and commenting. We had the chairmen of both

24 AGC's Safety Committee and the Business Round Table's

25 Construction Division's Safety Committee make comments. And

Page 107

1 with that kind of support, I hope we have a long and

2 prosperous career.

3 What we did is, and this is review for many of

4 you, but we did is we grabbed several shops that were within

5 OSHA. We took the engineering unit from what had been

6 Construction and Engineering. We took the construction

7 safety standards unit and we took what was the construction

8 portion of the Compliance Directorate, and brought them into

9 one tent. Very small elements. We got two professionals

10 out of the compliance shop; we got five professionals, I

11 believe, out of the safety shop; and we retained the seven

12 people or thereabouts that we had in the engineering shop.

13 We had, we have still, plans to add people to

14 achieve some of the other ends that we had in mind when we

15 planned this Directorate of Construction. As of yet we have

16 not added many of those people. We did add a statistician

17 to our group. We have an office manager that we added to

18 our group. And later this month we will be adding, at least

19 on a temporary basis, a deputy director to the group that's

20 on a 60 day assignment, and hopefully when that 60 days is

21 over we will either have someone else for another 60 days or

22 we'll have somebody for 60 months. I have no idea how

23 that's going to work, but at least we'll have another

24 manager in the directorate.

25 Standards. You had an in-depth review on the

Page 108

1 assignment that Joe Dear has given our small shop for

2 standards this year. Half of the high priority standards

3 that OSHA has on the docket for this fiscal year are in the

4 Directorate of Construction. The two that you are going to

5 participate in and work with us on, and scaffolds, steel

6 erection and the opening of the Subpart M, or Fall

7 Protection.

8 The Construction Services Office is an office that

9 we have the greatest plans for and therefore has progressed

10 the least because we haven't added the staff necessary to

11 deal with that. But the concept is that we are going to do

12 outreach, we are going to do construction specific

13 statistical reports for OSHA's use. We are going to, out of

14 that office, continue to interface with this committee.

15 We are going to have coordination with the OSHA

16 Training Institute in Chicago so that construction specific

17 training can be a topic of conversation within OSHA. You've

18 heard that there is legislation on the Hill. I know from my

19 contacts with you and people here in the audience that there

20 is some concern about the abilities of compliance officers

21 to make construction inspections. We hope to continue work

22 in that area.

23 Cooperative programs. Although we have done some

24 limited work in cooperative programs in the construction

25 area, I think some creative work that's been done by myself

Page 109

1 in working with other personnel in OSHA not within the

2 construction shop, we need to add staff to successfully

3 pursue that line, and the Clinton Administration has been

4 talking about reinvention and been working on reinvention,

5 OSHA's been working on reinvention, and we want to see the

6 Directorate of Construction work on reinvention.

7 We need construction specific case screening on

8 the egregious cases, the significant cases that come through

9 OSHA. As of yet those cases are being screened elsewhere

10 for their propriety. They should be screened, those that

11 are construction in nature should be screened within the

12 Directorate of Construction. We should have someone with

13 field experience to do those screenings and to help the

14 policy makers make their decisions.

15 We will tomorrow be having a briefing on a special

16 emphasis program on silica. The agency is also doing a

17 special emphasis program on lead, and in neither of those

18 situations are we going to be able to track it or monitor it

19 from the Directorate of Construction because we do not have

20 the industrial hygiene capacity that this directorate needs.

21 Some things that we have underway at the present

22 moment, the engineering office is being used as a

23 coordinating center. We are formulating a response team,

24 probably to be used 90 percent of the time on chemical

25 problems in the industry, but it will be engineering in

Page 110

1 basis and we can respond, we'll be able to respond to non-

2 chemical collapses and other engineering disasters out there

3 such as we've had recently in Atlanta and some other places.

4 The essence of that is that the core of the group

5 will be in the engineering shop in Washington, but we will

6 take that expertise, process safety management expertise and

7 engineering expertise that exists in the 10 regions around

8 the country, add them on paper to the team, and then make a

9 cost effective response as the situation calls for.

10 We also on more of an informational, not

11 substantive, basis, have put together a list of construction

12 coordinators. These are persons, singular or at the

13 regional administrator's choice, some of the regions have

14 multiple construction coordinators. It is a position that

15 will be utilized to interface with the construction industry

16 in the region in question in receiving complaints, in

17 receiving feedback from the construction company vis a vis

18 what OSHA is doing, or even what OSHA is not doing.

19 Those persons will also act as a dispersal point

20 for information from OSHA, construction only in nature, that

21 should be getting out to the community and not just through

22 the vehicles of the trade papers or the Federal Register but

23 somebody in each of those regional offices who knows the

24 players in the construction community in your portion of the

25 country.

Page 111

1 Not much progress, but some progress.

2 And that really is all we've accomplished in the

3 three months that we've been in existence. Some of our

4 progress was slowed down by specially scheduled

5 congressional vacations for us in December. We hope that a

6 budget will be finalized for '96 and give us a little better

7 feel on what financial resources are available for us to

8 make the in-house transfers or even possibly even hires that

9 the directorate needs.

10 And that, Mr. Chairman, is my update.

11 CHAIRMAN RINGEN: Thank you.

12 Any questions, comments?

13 (No response.)

14 CHAIRMAN RINGEN: Would it be useful for you,

15 Bruce, in the future... It's an unusual suggestion,

16 perhaps, in light of the charter of the committee, but would

17 it be useful for you to have the committee review your

18 operation periodically? Or have a group review it?

19 MR. SWANSON: Explain review, Mr. Chairman.

20 (Laughter)

21 CHAIRMAN RINGEN: In our programs we have, our own

22 programs, we have substantial external review by various

23 committees who come in and take a look at what we are doing

24 and how well we are doing. I find that to be amazingly

25 useful to keep us focused. And I think there are a number

Page 112

1 of people on this committee who have very great experience

2 in seeing OSHA operate out in the field. That might be

3 helpful to you in looking at what you are doing in

4 relationship to what their needs are.

5 MR. SWANSON: We'd be thankful for oversight. I'm

6 sure we'd find it helpful.

7 CHAIRMAN RINGEN: I would consider it something

8 slightly different than oversight. Perhaps more advisory

9 than that, since... But it's... Why don't we talk about

10 that before the next meeting and see if we can set up... I

11 think it would be useful.

12 I'd also like to know a little bit more about this

13 line responsibility. You alluded to it with construction

14 coordinators in the regions, but the line responsibilities

15 between the area offices and the central construction

16 office.

17 MR. SWANSON: I can touch on that right now if

18 you'd like.


20 MR. SWANSON: There is no line authority.

21 (Laughter)

22 MR. SWANSON: Compliance officers report to their

23 supervisors and their area directors. The area directors

24 report to regional administrators. The regional

25 administrators report to an enforcement deputy who reports

Page 113

1 to Joe Dear. We are nowhere in the direct line of authority

2 having to do with compliance investigations, training

3 activity or outreach activity as done by a regional or area

4 office. We are a support office, a policy assistance

5 office.

6 We would hope to be able to generate information

7 that would be useful for the compliance deputy to use, a

8 field enforcement deputy to use, on targeting in the

9 construction area. We would also be happy to help on any

10 policy formulation on how inspections, where inspections,

11 what training, who training, anything like that he would

12 welcome in the area of construction specific plans or

13 policies or procedures. But we have no line authority going

14 to the compliance officer whatsoever.

15 CHAIRMAN RINGEN: Is that something that might be

16 contemplated?

17 MR. SWANSON: There have... I doubt that that

18 would... I doubt that that would ever occur. I cannot

19 answer for the Assistant Secretary, this one of the next

20 one. But if we can help with the training and education and

21 direction of the field staff vis a vis the construction

22 industry, I think that would be a large step in the right

23 direction, but where OSHA is going right now all the

24 authority, all the empowerment is being pushed out and down,

25 and to get actual direction from an office in Washington,

Page 114

1 D.C. I see as running counter to the current at the moment.

2 CHAIRMAN RINGEN: Any other comments?

3 (No response.)

4 CHAIRMAN RINGEN: We have the second part of

5 Bruce's presentation still waiting, when he will go through

6 some of the specific, some of the performance that they have

7 had in the inspection program. But before we can do that we

8 have to take about a three to five minute break so you can

9 get set up?

10 MR. SWANSON: Right.

11 CHAIRMAN RINGEN: So we will start again at about

12 two after noon. And you will be done by 12:30 for lunch as

13 scheduled. Right?

14 (Brief pause.)

15 CHAIRMAN RINGEN: Back on the record.

16 MR. SWANSON: Okay, Mr. Chairman and members of

17 the committee. This is to give you a quick fly-by on what

18 OSHA is doing with the focused inspection program that we

19 have had in place since the fall of '94. There is continued

20 curiosity about what our numbers are really doing and how we

21 are performing out there nationally.

22 Everything that we'll show you here is broken down

23 by the 10 regions, so you can take a look at your own area

24 of the country. What we show... I think this is self-

25 explanatory and I won't spend the time on the next slides.

Page 115

1 But you can see the color-coding, that in Region I they did

2 613 conventional site inspections, construction site

3 inspections.

4 Now what we have done is gone through the data and

5 made sure that we are comparing apples and apples. On a

6 construction site, a conventional inspection normally gives

7 us three or four inspection numbers, because each sub is

8 counted as a separate inspection. But what John Franklin

9 has done for us here is gone through and reduced all these

10 numbers to projects/sites inspected, so that they give you

11 the same numbers that correspond to what happens on a

12 focused inspection where normally you only get the one

13 number.

14 So back to the example here, Region I, 613

15 conventional inspections versus 296 focused inspections for

16 our entire focused history, which is October 1, 1994 to

17 date, March 31, 1996.

18 MR. CLOUTIER: That isn't 613, of which 296 turned

19 into focused?

20 MR. SWANSON: It is not.

21 MR. CLOUTIER: That's fine.

22 MR. SWANSON: It is not. It is not. If you're

23 quick with your math, and I am not, but that's 900 and

24 whatever inspections total for Region I

25 Yes. Anna Marie.

Page 116

1 MS. OSORIO: On a clarification. This represents

2 only federal inspections. Right?

3 MR. SWANSON: That's correct.

4 MS. OSORIO: So what is the interplay, then, for a

5 state that has its own plan, and federal, if it's

6 construction. Do you, because you folks are in

7 construction, take over? Do you do any coordination?

8 Because Region IX has a relatively few number, but you are

9 doing some. So how is that burden distributed when there's

10 a state and a federal plan?

11 MR. SWANSON: Region IX as you well know is made

12 up totally of state plan states, Hawaii, California, Nevada,

13 Arizona. Those 101 construction industry inspections have

14 taken place in areas where there is exclusive federal

15 jurisdiction on federal properties or some other reason why

16 the feds have exclusive jurisdiction and whatever state

17 we're talking about did not have the authority to go in

18 there. Nowhere do we capture the state plan data on focused

19 inspections because they have such a variety of responses to

20 focused inspections.

21 MS. OSORIO: Yes. I just think it would help in

22 the future if you had an asterisk or something where some

23 regions did have their own state plans, because that sort of

24 diminishes the work going into that. You know, there may be

25 fewer federal ones because the states are taking over. But

Page 117

1 anyway... Go ahead.

2 MR. SWANSON: I understand the comment. I do

3 believe that each of the 10 regions up there would then earn

4 an asterisk though, because they all have state plans. IX

5 is 100 percent state plans; X has only the state of Idaho;

6 and then the others in diminishing percent.

7 Let's go on to the next one, John.

8 These tell you slightly different things because

9 now the time period that we captured is changing. This is

10 basically the same information that you got on the last

11 slide except that we are talking about what our numbers were

12 and what our experience was the first full fiscal year that

13 we had the focused inspections.

14 We got off to a very slow start. I don't think we

15 break this down by orders, but in '94, October, we came out

16 with a policy and we really weren't making focused

17 inspections until January of that year, and then the pace

18 picked up from there on out.

19 Okay. Again, this is a year to date slide for

20 this year. You can see what the percentage is, and we

21 didn't break it down into percentage, we just gave you the

22 raw numbers. But you can see that percentage-wise focused

23 inspections are becoming a more significant portion of what

24 we are doing in the field.

25 CHAIRMAN RINGEN: So total inspections are going

Page 118

1 to be presented.

2 MR. SWANSON: Also total inspections. This is not

3 the same time frame, however. This is half a year.

4 CHAIRMAN RINGEN: If you adjust for time frame...

5 MR. SWANSON: Right. Right.

6 OSHA is off on all its inspection numbers in FY

7 96. In the construction industry we are suffering the same

8 way.

9 Okay. Here we have the regions with their two

10 similar time periods, half of '95 and half of '96 compared.

11 Okay? Next slide. We'll stop on any of these,

12 but... Here is just the first half of year one broken down

13 by regions, conventional versus focused. As I said earlier,

14 you can see that focused inspections were not an overnight

15 success.

16 The next slide is the third quarter of year one,

17 where focused inspections are becoming a thing closer to the

18 norm. This might well have been our highest quarter as far

19 as a percentage of focused inspections, and I cannot explain

20 the why of that to you.

21 The fourth quarter, still a high number of focused

22 inspections but not quite the same as the third quarter.

23 I have really no comment to make on whether this

24 is good news or bad news. It's the glass half-full, half

25 empty. If all focused inspections... If all of our

Page 119

1 construction inspections are focused inspections, that might

2 mean that the entire construction industry qualifies for

3 focused inspection. And that is a good thing.

4 It could be that there is something wrong with our

5 targeting system, and the two or three percent of the

6 construction sites that we get to take a look at for any

7 given time period are falling in the wrong target area.

8 Perhaps we should be inspecting a universe where we don't

9 have any focused inspections.

10 This is the first quarter of year two. I don't

11 think it shows you a whole lot there of changing interest.

12 The second quarter, again.

13 The last slide I think might be instructive here.

14 What we've done... What John has done is he's taken one

15 region, Region I, and taken a look at that by area office.

16 You can see that what we're talking about here is a half of

17 year, '96 year to date. We are looking at each of the area

18 offices and what office does what percent of focused versus

19 conventional inspections.

20 Like anything else, I'm not a statistician, but

21 like anything else the further down you break things the

22 more you start running into, I think, human nature. Can I

23 explain the difference in the percent of focused inspections

24 in Boston versus North Boston? I cannot. But I would

25 suspect that it has something to do with the area director

Page 120

1 and the individual compliance officers' attitudes. It's a

2 thing that we would try and get out of the system but which

3 you can't, totally.

4 The average penalty per project, however, gets to

5 be a very interesting thing, at least for the employer

6 community, I would think. It's self-explanatory on focused

7 inspections.

8 MS. JENKINS: Do you find the penalty is higher on

9 focused inspections?

10 MR. SWANSON: You'll find the penalties much lower

11 on the focused inspection. As you can see there, let's take

12 Concord. The average penalty for a focused inspection was

13 $60.00. The average penalty per project for a conventional

14 inspection was that $33.54 number.

15 Now, you know, there again we have, like the

16 Springfield office with an $800.00 average penalty for, you

17 know, per project. I would suspect without knowing that

18 there were one or two projects that were heavily penalized,

19 and the average breaks out to be $800.00. I doubt that you

20 would find any norm bubbling along $800 there. There's

21 probably some significant dollar amounts on one or more of

22 Springfield's inspections.

23 Okay? Any questions about this? This is intended

24 to give you a feel for where we are after a year and a half

25 of our focused policy.

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1 Thank you, Mr. Chairman.

2 CHAIRMAN RINGEN: I have one comment, and that is

3 that the purpose of a focused inspection program was to free

4 up resources to do other things. While you've seen a big

5 increase in the focused inspections at the same time you

6 have seen a huge decline in conventional inspections. The

7 question would be perhaps, to look at is, what would the

8 number of conventional inspections have been in the event

9 that you had not had the focused inspection program in this

10 period when you've had restrictions in your budgets?

11 MR. SWANSON: Well... And we have not done that.

12 We have... You know, we do have the question out there as

13 to why the numbers are going down. We have a half-dozen

14 answers for ourselves as to why the numbers are going down

15 with OSHA. Budget, you mentioned, is one of the them. The

16 time that we spent shut down in FY 96 is clearly one of

17 them. How focused inspections themselves interplay with

18 those numbers, clearly focused inspections are bringing down

19 OSHA's construction inspection numbers, for the reason that

20 the old way of counting was you'd get three and a half

21 inspections per inspection site because you counted all the

22 subs.

23 So if OSHA switched over and did all focused

24 inspections, visited the same number of projects, you would

25 be down someplace around 25 percent of the number of

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1 inspections, although you would be visiting the same number

2 of sites. As you pointed out, though, when we were going

3 through the slides, we have taken that variable out of these

4 slides, and we still slow a decline in numbers. Not nearly

5 as severe as those people who just compare FY 93 fiscal year

6 or FY 94 fiscal year to what happened in '95 or '96, but

7 still it's having an impact.

8 MR. CLOUTIER: Mr. Chairman, I also thought that

9 Joe Dear said last year and the year before when we made

10 this change we were going to do quality instead of quantity,

11 that when an inspector left a job site he or she should have

12 made a difference on whether that job site was any safer or

13 not, was one of the things. And I know my company has had a

14 number of focused inspections, and they seem to be working,

15 and maybe we need to capture if we go to a site instead of

16 just counting the site we also count at the site, that

17 somewhere we keep a subset of notes of how many subs were

18 there, which will also increase your numbers.

19 But I thought we were getting away from the number

20 bit. We were trying to look at the quality and the end

21 result.

22 MS. OSORIO: Is it possible to get similar graphs

23 but have them stacked, so that you have state as well as

24 federal? Because I think you're only seeing a slice of the

25 picture here, and it would be nice just to get the whole

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1 "OSHA experience" especially with respect to...

2 You may be focusing on focused, but in other

3 states that don't use the feds it may not be going that way,

4 and I just think... You know, a lot of the western states

5 and what they represent, you know, we need to see what's

6 going on there. So if at all possible a tally or a query to

7 that state offices to give you some head counts I think

8 would be quite helpful.

9 MR. SWANSON: We could follow up on that. As I

10 said earlier, there was no intent here to not recognize that

11 half of OSHA out there are state plan states. It's

12 difficult to show this way because 25 different states have

13 25 different reactions to focused inspections, and also as

14 was pointed out, we are getting away from the numbers as a

15 way of measuring anything, but it is still a management

16 tool. Are we having the impact that we wish to have with

17 our programs? Is it creating as you pointed out, Mr.

18 Chairman, some other...

19 Is it part of a problem in and of itself? I don't

20 know that. But we're looking at this as a management tool

21 so far.

22 CHAIRMAN RINGEN: Steve makes a very good point

23 about the change towards quality. The problem is... And I

24 think also is that we are going to get some performance

25 measure that would capture that, but I don't know if those

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1 are in place yet.

2 MR. SWANSON: No. That... That is the agency's

3 goal. That is what Joe Dear wants. I suspect Steve knows

4 better than I do what change there has been, if any, in the

5 last year or two in construction inspections by OSHA

6 compliance officers out there. We need a review team, Mr.

7 Chairman.

8 CHAIRMAN RINGEN: You'll have one.

9 Any other questions or comments?

10 (No response.)

11 CHAIRMAN RINGEN: Before we break for lunch, we

12 will reconvene tomorrow morning here at 8:30. As I said, we

13 will have a report on the silica special emphasis program.

14 First we will have three work group reports, the women in

15 construction, compliance basis and safety and health

16 programs. We will try to schedule our future meetings, so

17 think about your calendars, and hopefully out of the

18 meetings, particularly of the confined spaces work group and

19 the programmed work groups we will hear something about when

20 you think we need to meet to discuss your progress.

21 And finally, the ASSE will be addressing us. And

22 also we do normally offer the opportunity for public

23 comment, and if there is anybody else who has any comments

24 that they would like to make tomorrow, before we adjourn

25 will be the time for that, but please let Thomas know in

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1 writing, either today or at the very latest first thing

2 tomorrow morning if you have comments that you want to make

3 and what you want to comment on.

4 With that, I think we have concluded today's

5 discussions and we will break for lunch. Thank you.

6 The work groups meet at 2:00. thanks.

7 (Whereupon, at 12:20 p.m. the meeting was

8 adjourned, to reconvene at 8:30 a.m. on Wednesday, April 10,

9 1996.)


















(202) 234-7787 (800) 368-8993

Page 126




4 DATE: April 9, 1996

5 LOCATION: Washington, D.C.


7 This is to certify that the attached proceedings

8 before the United States Department of Labor, were held

9 according to the record and that this is the original,

10 complete, true and accurate transcript which has been

11 compared to the reporting or recording accomplished at this

12 hearing.



15 BAYLEY REPORTING, INC.                       April 9, 1996