Editor's Note: Two instances of OHSA occur in this transcript. Both should be OSHA. United States Department Of Labor
Advisory Committe on
Construction Safety and Health (ACCSH)
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.
John B. Moran
Willian C. Rhoten
Lauren J. Sugarmen
Theodore E. Webster
Kathryn G. Thompson
John A. Pompeii
Ana Maria Osorio
Judy A. Paul
P R O C E E D I N G S
WELCOME AND INTRODUCTIONS Knut Ringen, Chair
CHAIRMAN RINGEN: It's 9:00. We have a full
agenda and we'd like to get started. And since Bruce has
now arrived, we can.
I am Knut Ringen. I am chairman of the committee,
and we starting up again after a brief hiatus of about nine
months, during which budget conflicts and so on have taken
place. The committee has currently two vacancies; there are
the two state representatives. We expect them to be
appointed shortly. We have two members missing today, so
far as I know, Kathryn Thompson and Steve Cooper. Steve
Cooper is also a new representative from the employee side.
We also have one new employer representative with
us, Bob Masterson, who is from the Ryland Group and
represents the homebuilders. Welcome to the committee.
There are a couple of things that we want to go
over this morning. When the Solicitor comes I want him to
talk a little bit about how we operate, including what the
role of the working groups are, since there was a lot of
confusion about that last time, around which we had many
comments about procedures and so on, and we want to
straighten out hopefully once and for all the procedures
that we follow with regard to these work groups. They are
working groups and nothing more than that, and they don't
have formal procedures, but we will get back to that later.
But in the future, when we do have discussions of
our issues we want to focus on the technical merit of what
is being proposed, not on procedural things, and that's part
of what we will be discussing.
We have a couple of changes to the agenda today.
The first is an additional, we'll approve some minutes this
morning. The second is before lunch Stu Burkhammer will
give a report based on the work of the musculo-skeletal
disorders working group. Stu will not be able to be here
tomorrow so it's necessary to take that report today.
Tomorrow, we have two additions to the agenda.
The first is a report on the silica special emphasis program
that OSHA has established. And the second is a request...
We will do that first thing tomorrow morning.
The second is the last thing that we will do
before we adjourn tomorrow, is a request from the American
Society for Safety Engineers, ASSE, to make a special report
on some issues that they think they can make a contribution
We will definitely adjourn tomorrow before noon,
since we will only have, I believe, three work groups
reports. So my guess is that with some luck we will
probably be done by about 11:00 or so tomorrow, maybe a
little bit before then.
Today, this afternoon, I expect three work groups
meeting. One is on safety and health programs that's been
established already with Judy Paul as chairman. The other
is on women in construction with Lauren Sugarman as the
chairperson. And we will propose and ask for approval to
establish a new working group this morning, which is a
working group on confined spaces. We will get back to that
after we've approved the minutes, and after we've had our
solicitor give some comments.
And I wondered, Steve, if you could do us a favor
and just talk briefly about the purpose of the committee and
its work groups under the Federal Advisory Act, so that we
are reminded of how we are supposed to function.
MR. JONES: Sure. Knut, I provided you with a
written summary of what the Solicitor's Office understand
the role of the work groups to be. I could read that. I
mean, that would probably be the most concise way to
CHAIRMAN RINGEN: Okay.
MR. JONES: The ACCSH establishes work groups to
generate information and options for consideration by the
full advisory committee. In general, a work group is formed
when OSHA indicates to ACCSH that it will be initiating
rulemaking on a particular subject, such as safety and
health programs, methylene-chloride, or confined spaces. A
work group includes interested ACCSH members, one of whom
chairs the work group and non-members approved by OSHA who
have pertinent information or ideas to offer.
OSHA and the ACCSH assess work group activities
and participation based on the work group's effectiveness in
laying the groundwork for ACCSH recommendations to OSHA. A
work group does not reach consensus, vote, or otherwise
resolve issues. It simply presents its compilation as a
report to the full advisory committee.
The General Services Administration regulations
for management of federal advisory committees provide that
work group meetings convened solely to gather information or
conduct research for a chartered advisory committee, to
analyze relevant issues and facts, or to draft proposed
positions papers for consideration by the advisory committee
are not covered by the Federal Advisory Committee Act or the
implementing regulations. This means that such work groups
do not need to have separate charters, balanced
representation of viewpoint, or meeting notices published in
the Federal Register.
Accordingly, the current ACCSH approach to work
groups maximizes their utility while minimizing the
procedural burden. This helps to ensure that work group
reports and the resulting ACCSH recommendations are provided
in a timely fashion.
CHAIRMAN RINGEN: Thank you, Steve. Any comments
CHAIRMAN RINGEN: We will have this document, and,
please, I would like to have this document available at
every committee meeting that we have so that people can be
reminded of how these work groups are. They really are
working tools. It's so that we don't have to sit here
forever and deliberate issues in this committee, but have
groups work them up for us, more or less. Then this
committee has to get together and have discussions and make
decisions based on what the work groups may propose in terms
of options or the information that they present to us. They
are information gathering tools.
Our work group meetings are open to those who are
interested in participating. They'll have to come to this
committee in order to find out when these work group meet,
or they can always call the chairperson up of the work group
to find out, I suppose. But it's not in our obligation and
nor will we make any special effort beyond that to publicize
the meetings of the work groups.
The decisions that are made on any issue are made
in this committee rather than in the work groups. It's
really of the committee meetings that are of importance to
the interested parties who want to have an input into the
decisions that are made.
Having said that, we may perhaps proceed. Well,
we could introduce each other, but I think...
Do you know everybody here, Bob?
MR. MASTERSON: Pretty much.
CHAIRMAN RINGEN: Okay. And we have already
introduced Bob, so we'll dispense with that.
We have minutes from the last meeting to review.
They are in their packets. You should have had them before
and should have had an opportunity to review them. Are
there any changes or amendments or comments on the minutes?
MS. PAUL: We haven't had them before. This is
the first time I've seen them, anyway.
CHAIRMAN RINGEN: Well, we have had them before,
but maybe you did not receive them. At least I've seen them
MS. PAUL: Okay.
CHAIRMAN RINGEN: You have not seen them either?
Let's defer that until before lunch and go over
it. Maybe you will have a chance to read them during the
morning. And if you're not comfortable with that you can
always defer your approval of them until tomorrow.
I apologize to people who have not gotten them. It
may have fallen between the cracks between Holly and the...
When Holly left at the time of the last meeting.
MR. BURKHAMMER: Mr. Chairman, could we introduce
the audience so the committee knows who's out there?
CHAIRMAN RINGEN: That's a good idea. We'll start
with the audience over at the right side of the front row.
(Introductions from audience.)
CHAIRMAN RINGEN: Okay. Thank you.
We will then proceed with the first issue on the
agenda, unless there are any other comments. Greg Watchman
will provide us with a legislative update.
LEGISLATION UPDATE Greg Watchman
MR. WATCHMAN: Good morning. I thought I would
take a few minutes this morning to run through the
legislation that has pending on the Hill this year that
affects occupational safety and health. There are a couple
of wrinkles that specifically affect construction that I'll
touch on as well.
First I'll start with OSHA reform, which has
gotten a substantial amount of attention in the both the
House and the Senate in this Congress.
Early in this Congress Representative Ballinger
introduced legislation that would eliminate first instance
sanctions for violations of OSHA regulations. It would have
prevent penalties for violations of the general duty clause.
It would have limited enforcement to no more than 50 percent
of OSHA's budget. It would have eliminated NIOSH and MSHA
and well. It would have repealed the right to an inspection
that a worker has if he or she files a complaint that gives
OSHA reasonable cause to believe that a violation and hazard
exists, and it would have imposed a fairly rigid set of
standard setting criteria that most likely would have
delayed our standard setting process by quite a bit,
probably several years.
This bill had a particular impact on construction
in the following way. By eliminating first instance
sanctions it would have virtually completely eliminated
enforcement in the construction industry, because given the
transient nature of construction worksites, the first time
OSHA would come to inspect, given our limited resources they
would not be able to assess a penalty under the Ballinger
bill, and given the limited resources they would not likely
be able to come back for some time, and by the time they did
the job would probably be finished. So there never would be
any penalty assessed even for repeat violations.
The bill, as I said, had... Chairman Ballinger of
the Subcommittee on Workforce Protections, held several
hearings on the bill. Ultimately he has recently withdrawn
his bill and said that he would start over and try to draft
something more moderate. He indicated that he would try to
model it after a lot of the initiatives that the
Administration has been developing and has already put in
place. We have not yet seen any draft of that bill, so I
can't tell you right now what's in it, but we will be
watching closely to see how it's coming.
Senator Kassebaum and Senator Gregg in the Senate
introduced legislation last year, held a couple of hearings,
and then on March 3rd of this year... March 5th, excuse me.
Held a committee markup session to vote on the bill and
consider amendments to the bill. Ultimately the bill was
reported out of the committee by a party line vote, and
there were three amendments added to it. I'll summarize the
amendments in a moment, but first let me tell you basically
what's in the Kassebaum legislation.
Again, this bill would effectively repeal the
right to an inspection that has been one of the core
premises of the Act. It would also allow OSHA to issue
warnings instead of citations for first instance violations.
It would not mandate such warnings, but it would allow the
agency to issue them instead of citations.
The bill could potentially exempt over 90 percent
of firms from targeting inspections, so it could have a
fairly dramatic impact on OSHA's ability to target the worst
worksites to eliminate hazards and protect workers. It
would also allow in every enforcement proceeding an employer
to raise an alternative methods defense, and while at first
glance that seemed an interesting idea and worth
considering, ultimately the impact would be to turn every
enforcement proceeding into a variance proceeding. It would
draw out the litigation, increase litigation and effectively
undermine all of our standards.
The bill would also have substantial penalty
reductions. In fact, minimum penalty reductions of up to 75
percent for certain actions such as having a safety and
health program. And again, those sound like good ideas at
first glance, but there are so many loopholes in the
provision for penalty reductions that employers, even
employers who have a long history of OSHA violations and a
substantial number of serious hazards at their worksite
could still be eligible for a 75 percent penalty reduction.
Lastly, the Kassebaum bill would codify the VPP
and 7(C)1 programs currently operated by the agency, and
these two provisions are provisions that the Administration
does support. Nevertheless, given the overall, when you add
up all of the provisions in the legislation, the
Administration has serious concerns about it and the
President has indicated that he would veto the Kassebaum
bill or the Ballinger bill, or similar legislation, unless
it adequately addresses the Administration's concerns.
The three amendments that were added at the Senate
Labor Committee markup on March 5 included an amendment by
Senator DuWein to delete a provision of the bill which would
have prevented OSHA from inspecting following receipt of a
complaint from someone other than an employee, so that if a
physician or a former employee, for example, filed a
complaint alleging serious hazards, regardless of the merits
of that complaint OSHA would not have been able to inspect.
That language is now out of the bill pursuant to the DuWein
Second, Senator Jeffers offered an amendment to
delete language that would have allowed disclosure of a
complainant's name in a contested case with no limitations
about whether it was absolutely necessary or not. So that
language is not in the bill any longer.
Lastly, and this amendment was quite a surprise, I
think, that it was adopted. Senator Simon offered an
amendment to extend coverage of the OSHA Act to federal,
state and local employees. This is an amendment that, an
issue that has been considered in Congress in the last
couple of congresses, but I think no one expected that the
Republicans on the committee would agree to take that
amendment, but ultimately they did and so it is now part of
Under the Unfunded Mandates Act the committee now
has to seek a cost estimate of the impact of that amendment
on state and local governments, so that is in the works at
In terms of the prospects for OSHA reform
legislation passing this year it seems quite unlikely at
this point. Senator Kassebaum has indicated that given the
relatively few number of legislative days left this session
before they adjourn, it seems very unlikely to her that she
would able to persuade Senator Dole to give her some floor
If she's able to get enough co-sponsors to show
the majority leader that she has 60 votes to cut off a
filibuster should there be one, that would make it much more
likely that Senator Kassebaum would be able to get floor
time. That really remains to be seen at this point. There
are very few co-sponsors. I think six or seven.
Next, on OSHA's budget and the appropriations
process. If you've been reading your newspapers or paying
attention to the media I'm sure you are aware that the
government has shut down several times, that we've been
operating under a series of continuing resolutions rather
than having an actual budget for this year. I think we're
now up to at least 10 continuing resolutions that have been
passed in order to keep the government operating.
Our '95, Fiscal Year '95 budget, was $312 million;
so far through 1996 for virtually all of it we have been
operating at a 15.5 percent cut from that $312 million.
That is $264 million. That's obviously had a fairly
dramatic impact on the agency and its programs.
At present the Senate and House have both passed
appropriations bills and they are in conference to resolve
the differences. There has been a tentative agreement that
the budget for OSHA for this year would be $289 million,
which is about a seven percent cut. But it remains to be
seen whether that becomes part of a final agreement.
One of the major issues outstanding between the
House and Senate conferees is the question of ergonomics,
and as you may recall in their rescissions legislation in
1995 there was a provision that banned the agency from
issuing a final rule, a proposed rule or even guidelines on
ergonomics related injuries and illnesses.
That language is in the Senate bill. In the House
bill there is that language plus additional language which
would bar the agency from even working on a guideline or
standard, and would also prevent the agency from even
gathering on data on the problem of musculo-skeletal
Right now the House and Senate conferees, as I
say, have not agreed on which provision to adopt. We are
obviously hopeful that the Senate language would be adopted
so that at a minimum the agency could continue to gather
data on this very significant problem.
Most recently, the President signed the debt
ceiling legislation which included two provisions which
affect the agency. First, what is known as the Bond bill,
implemented regulatory reform regarding small businesses.
The bill requires OSHA to develop a compliance guide for
each regulation to assist small businesses. It requires the
establishment of small business review panels for each
regulation we are working on, with representation by OSHA,
OIRA, and SBA. It requires a penalty reduction program for
small businesses at each agency. It allows small businesses
to recover attorneys' fees and expenses from the government
even if the government wins the case, if the amount that the
government won was significantly less than what the
government initially sought. It also expands the Regulatory
Flexibility Act provisions requiring an assessment of the
impact on small business and allows for judicial review of
This will be effective as of June 28, 1996, so we
are already in the process of looking at the bill very
closely and figuring out how the agency will comply,
particularly given our very limited resources.
1 Secondly in the debt ceiling bill was a provision
allowing congressional review of all regulations. Now,
obviously, Congress can now review regulations to whatever
extent they want, and in fact they have done so on a number
of occasions, ergonomics being the most evident example.
But this would allow an expedited legislative procedure for
nullification of regulations that the Congress decides it
There are really two time tracks in the provision.
One is for when the regulation can become effective, and
basically we would have to allow, from the time we send it
or publish it in the Federal Register we would have to allow
60 days for Congress to look at it before it could become
effective. In fact, however, Congress would have
potentially over a year to review this regulation and decide
whether they wanted to nullify it or not. That's because
there's a separate contract for Congress being able to reach
back to a reg that's already effective and nullify it.
Lastly, Representatives Johnson and Shays
introduced legislation a couple of weeks ago that would
require OSHA to inspect, OSHA inspectors to have
construction training if they are conducting inspections.
Right now as I understand it it's an option but not a
requirement, and this is legislation that would require
anyone inspecting a construction worksite to have specific
course training in construction.
I brought with me today copies of Congresswoman
Johnson's introductory statement on the bill and a copy of
the bill itself. It's only one page, so I'll pass this
around when we're done.
That's basically a summary of the issues that have
been pending on the bill there are doubtless other bills
that are kicking around, but those are the major ones that
have gotten the most attention. If any of you have
questions about these or other issues I'd be happy to...
CHAIRMAN RINGEN: Any questions? Maybe you can
talk a little bit about the Fiscal '97 proposal that has
MR. WATCHMAN: Our budget proposal is $340
million, which would be an increase over the '95 level of
$312 million, and a very significant increase over whatever
it is that we end up with this year. Essentially, the new
money is to continue to remodel the agency.
The agency has been working very hard in every
area to address legitimate concerns that employers and
worker representatives, and safety and health professionals,
have raised about the way that the agency develops standards
and the way that the agency enforces them, and the
underlying culture at the agency that has existed for many
years. We've seen so far significant success with many of
these initiatives; Maine 200 being the most obvious example,
having received the Ford Foundation Award for Innovations in
American Government several months ago. But obviously this
is a process that will take time, and we are moving strongly
in the right direction, I believe, but we really need
additional resources in order to complete the task.
So far, for example, we've redesigned I think
about 15 of our field offices. That leaves another over 50
offices that have not yet been redesigned. So that process
has slowed with the budget limitations we have been
operating under this year. Our hope is that with additional
funds we'll be able to speed that up and complete the
agency's reinvention as quickly as possible.
CHAIRMAN RINGEN: The issue that has come up in
particular is of course the request for enforcement money in
the new budget, which is below what the Senate, I think, has
approved even in its Continuing Resolution for this fiscal
MR. WATCHMAN: Actually, I think that number is
not at or above the Senate number.
CHAIRMAN RINGEN: Any other questions? Comments?
CHAIRMAN RINGEN: Thank you.
MR. WATCHMAN: Thank you.
CHAIRMAN RINGEN: Next we have the standards
update, and I think we'll ask all of the people who are on
the agenda just to come up and sit down who are here. Tom
Seymour, Ann Cyr, Barbara Bielaski, Joanne Goodell, Bob
Whitmore and Gerry Reidy.
To start with, you, Tom.
MR. SEYMOUR: It's the three of us as a panel.
CHAIRMAN RINGEN: Okay.
POWERED INDUSTRIAL TRUCKS Tom Seymour
MR. SEYMOUR: What we are passing out... We wish
to give you an update on the Industrial Truck Proposal so
the January notice is being passed out. We also are passing
out a sample, a potential sample, of what the booklet could
look like. We obviously are going to be asking the
committee for their suggestions and recommendations.
We're also passing out a copy of one of the CFR
page reduction rulemaking initiatives that will impact the
construction industry, and are looking for the committee to
give us some advice on that. And the other piece is a short
little table showing the paperwork burden hours for the
Treasury Department, which is the lead agency in the
government as far as paperwork, and the second leading
agency as far as burden hours is the Department of Labor,
and so that shows you the table there.
And we'll talk about, first industrial trucks, and
then we'd like to go into the CFR page reduction initiative
that the President has announced, and then we'll get to the
paperwork burden hour initiatives. Some of the material, of
course, was sent out to the committee members before the
If there's any questions before I begin, I'll take
MR. SEYMOUR: The Industrial Truck Proposal was
published on the 30th of January and as of late last week we
have received 79 written comments. We had four hearing
requests and of course we published the hearing notice at
the same time we did the proposal for the construction
industry. We have 21 notices from individuals or
organizations to take part in public hearing. The public
hearing is schedule for April 30th and May 1st. It's the
same days that the public meeting is going to beheld, the
second meeting, on the 1904 requirement, so there may be
particular people that actually take part in both
rulemakings at the same time during that time period. Our
hearing will be held in the auditorium downstairs on the
We just received... I think the AGC comment just
came in. I'm not sure of all the different comments that
we've gotten from the construction industry, but I know we
just received that one.
The notices for those who wish to take part in the
hearing, we need to receive those by the 15th of April.
And I'll just bring to your attention the
discussion of the advisory committee's input and
recommendations is starting on page 3103 for the committee
members to look at.
So that's kind of an update of where we are with
the Industrial Truck Proposal.
CHAIRMAN RINGEN: This is based to some extent on
what was reviewed here last year, right?
MR. SEYMOUR: Yes, sir. The page 3103 in the
January 30th Register, actually is the criteria information
that came from the committee's... The working group as well
as the main committee. The CFR pages...
CHAIRMAN RINGEN: Excuse me. Just to finish up.
What kind of feedback do you expect from this committee on
MR. SEYMOUR: Well, in general, on the Industrial
CHAIRMAN RINGEN: Yes.
MR. SEYMOUR: We are no in official rulemaking so
if any of the members care to take part in the hearings and
all we'd certainly like to have their request to participate
sent in by the 15th.
I want to just kind of give you an update on the
CFR page reduction. I know that this industry has been
fully aware of this initiative and the agency is fully aware
of some of the feelings from the industry, both labor and
management, about this effort, and I'd like to take this
opportunity to explain more fully what we are attempting to
do and to ask for committee guidance and assistance and
suggestions in how we might proceed with a booklet and so
As Mr. Dear has indicated a number of times, when
we end up doing the CFR page reduction package that is going
to remove essentially the health standards from the 1926 CFR
we will have a booklet that will essentially duplicate the
CFR as we know it today, and we have an opportunity to do
more than that by making the booklet more useful. As an
example, we could put in the 1904 recordkeeping requirements
in this booklet, and I am looking to the committee for some
advice about what else might be appropriate to put into this
book to make it more useful to those in the construction
Let me begin, first, to kind of give you the five
steps that we are going through to meet our obligation that
the President has laid down for the CFR page reduction
effort. We have already published in March the 275 page
reduction effort where we end up also impacting the health
standards, the... Essentially the effort there was the
consolidation of 13 carcinogens. We also took out a number
of pages dealing with state plans, rules, and things like
The second item that we are doing is before you
now, and we're looking for maybe some comments from you if
you have any, from either the full committee or however you
care to do that, Mr. Chairman. Hopefully something maybe in
the next few days or so, or 45 days. These are the problem
regulations as we call them, and we are intending to do this
rulemaking and this will actually be a notice of proposal
for public comment.
We are going to be impacting both construction
standards and general industry standards, and we are looking
for some feedback from the committee about the
appropriateness of this. We have provided you copies of our
draft preamble material as well as the reg text proposals
that we are considering. And the pagination that you have
is not totally complete because some of the pages that deal
with preamble discussion of general industry standards that
are not been put into the 1926 booklet, I just didn't
duplicate those. But the ones that you have include some of
the 1910 ones such as vinyl-chloride and so on because they
are also in 1926, in Subpart (C) in the 1100 series, so they
do have a potential impact.
We are hoping to by this rulemaking, if we get
support from the committee and from those in the public when
we actually go to the Federal Register for notice of public
comment. We hope to eliminate maybe 25 or 30 pages of CFR
CHAIRMAN RINGEN: So you are referring now to the
document that's dated March 15th?
MR. SEYMOUR: That's correct. Yes, sir. The
Solicitor has not finished their review of that, and nor has
our Policy Office, so you're getting a fairly early copy
that's in review. I was hoping to have some feedback from
the Policy Office and so on and given you that document, but
we just received that like a day or so ago and we have not
cranked that all in yet.
CHAIRMAN RINGEN: And you're asking us to go
through this and give you some, in some way, a review and
general comments on it within the next month or so. Right?
MR. SEYMOUR: If you might send them to Bruce,
that would be perfectly fine with us.
CHAIRMAN RINGEN: Okay.
MR. SEYMOUR: And you can organize that any way
you see fit, Mr. Chairman.
CHAIRMAN RINGEN: Thank you.
MR. SEYMOUR: The third effort is the duplicate
pages. That's where we're trying to eliminate both pages
out of the construction standards that are going to be
duplicative of the ones that are in 1910, general industry
standards, and also in the maritime shipyard standards.
This proposal will not be any rulemaking. We're really only
going to take out duplicate pages. It's not really going to
change any obligation any employer has.
Joe Dear has indicated that when we do this he
wants to have the booklet to have available for the industry
then to utilize in lieu of the CFR. And I think we have an
opportunity here that the committee with its advice and
recommendations, we could make this booklet more useful than
the CFR has been in the past. Meaning that in the case of
the recordkeeping requirements that we have today, they are
found in the first volume of the 1910, the 1900 series of
standards, so if an employer in the construction industry
wanted to have all the regulations that apply to them they'd
have to buy the 1910 first volume and second volume, as well
as 26. This booklet... We could put all this into one
It may be appropriate, depending on what the
committee might want to suggest, to put in principal policy
guidance or program directives. I'm not sure what the
committee might want to care to suggest in those areas, but
we have some flexibility and Ann Cyr will talk about that
when we get to the booklet and what we are thinking about
The fourth item is a longshoring proposal. We've
gone through the rulemaking on that. Now we're in the final
process of trying to get the final rule out. We're hoping
to get this final rule out probably in May. This will
revise the longshoring standards that have been around since
about 1963. We have not revised those in any formidable way
since they were originally issued in 1963, so this is a
major reinvention and improvement in some very old
The last one of the CFR page reduction is the CFR
effort to revise the respirator standard, and we have a
number of standards... Actually the health standards that
have the respirator selection criteria, fit testing
criteria. There's going to be an effort to consolidate
this, to make it all into one package, one set of standards,
in 1910.134 in the construction standards and the shipyard
standards and so on. And that will save maybe around 100
pages, we hope.
So we'll meet our goal not just by taking out the
duplicate pages but doing all five of these items will make
the 1049 pages that the President has asked us to do.
Again, we have the opportunity with this booklet to really
make the booklet more useable and useful to the industry,
and we're looking the committee maybe to suggest some of
those areas where they think we could add some additional
documents and so on.
Ann is here to maybe talk about some of the
mechanisms that we have, and you have a sample of what we've
put together in rough form. It is a photocopy, as you can
see, but I'll turn it over to Ann and she can talk about
some of the things that we are trying to do.
CFR PAGE REDUCTION Ann Cyr
MS. CYR: This is really off of a fax machine and
then xeroxed, so it's not particularly clear.
What we were thinking about doing to try to make
this a little bit more user friendly and at the same time
work within budget constraints, with these you have a
loose leaf, a three-ring binder type of booklet. This would
be hole-punched, the sample.
CHAIRMAN RINGEN: Is this the full protection one?
MS. CYR: This is just a sample of a layout and a
size of what we might use. That would be in a binder, and
that would be updated on a regular basis, quarterly or, you
know, twice a year or something like that, depending on what
kind of a system we set up to capture the regulations that
we ar producing throughout the year. And to a great extent
it would probably be more current than the CFR which is
printed ever year by the Government Printing Office.
Well, it actually goes there in July but we
frequently don't see it until December, January, whatever.
So it's not, this would come out... We would have more
control over this because we have our own database on the
What we are thinking about doing, again, in terms
of because of budget, would be to offer this as a
subscription through the Government Printing Office. So it
would be based on whether it's a quarterly subscription or
whatever. We're working with GPO to try to determine that.
I started talking to them in March, and I now have submitted
a proposal to them but don't have any actual feedback at
this particular time.
What they do when they have their subscription
program is that after a certain number of years, two or
three years, everything is consolidated into one unit, to
keep everything current, and then you continue on with the
The other thing that we are proposing to do is to
have, to continue to have our regulation on the Internet, so
they will be available electronically, and of course they
are available CD-ROM, so you'd have three options. We
thought that this format might be useful because you could
put other types of materials in there and it's a lot larger
than the Code of Federal Regulations. Unfortunately, it
follows pretty much their same format, so the logic isn't
improved necessarily. But the actual usability is much
better because you don't have the small type and you don't
have this really thick volume.
The other things we'll look into in going through
this process is, you know, what kind of a contents or what
kind of an index that might be more useful as we go along.
But all of our concerns, really, are based on time and money
in terms of not having to print massive quantities
throughout the year, and this is soon to be a viable
alternative, and we would appreciate whatever suggestions or
ideas you might have on this. And if you have any
MR. SEYMOUR: Let me just add a couple of things.
If you'll notice up in the right-hand corner we
have the section as well as the paragraph designation, and
that's something that's not in the CFR. All you'd get in
that is the section heading. And obviously, the larger
print. We would certainly entertain any format suggestions.
I think making print bolder and things like that makes it
easier to find information in this kind of document.
The indexes and table of contents, something like
that could also be improved, and we would certainly
entertain any kind of suggestions the committee may have to
make in that regard.
CHAIRMAN RINGEN: Can any person from this
committee simply make, give you their own comments? Within
the next... If there is anybody who has comments just send
a fax to you?
MS. CYR: Yes. Sure. Or you could send them to,
give to Bruce. We're just down the hall, some. Either way.
MR. SEYMOUR: I think we would prefer if you might
send them to Bruce. We're looking for Bruce to be kind of
the focal point, so if they might send them to Bruce and
Bruce will get them to the appropriate people. However you
want to best do that.
MR. MASTERSON: Do you have any restrictions as
far as the language you can use?
MR. SEYMOUR: Well, we are looking to... When we
say we are going to print the standards, when we do the CFR
we're going to take the text out, but there will still be
the 1926 number there and you'll have a reference back to
When we do the booklet we're actually going to put
the text in there, so there will be no reference to 1910.
You'll actually have the text of the standard. If you mean
now we want to change the wording of the standard we would
like not to do that, because then it won't be representative
of what of course the standard actually is. But if there's
other kinds of documents, directives or things like that, we
can certainly put those in there if that's the committee's
MR. MASTERSON: The reason I was asking the
question is a lot of people that have to use the standards
are not attorneys, and if we can put something in plain
English it's a lot easier for them to understand and deal
MR. SEYMOUR: We have an initiative that the
President is looking for all regulatory agencies to go back
and put their standards, requirements, into more
understandable language. We have a number of initiatives
that we are trying to do.
As you are fully aware, you helped us with the
scaffold initiative, and as we do rulemakings in the future
that's going to be part of what we are going to be doing,
getting people to help us put things into plainer English,
or plain English as we call it.
MS. CYR: Also, OSHA has a program... We do have
booklets that explain those.
MR. SEYMOUR: That could be something that we
could probably put into the booklet as well, maybe, a
listing of the publications that would help elaborate more
about, say, scaffolds or whatever, fall protection and so
on, that's available from the OSHA publication office.
MR. MASTERSON: Going back to the scaffolding
issue. I remember as we going through that that you all
were very restricted in how you could change language, even
though you may not be changing the context.
MR. SEYMOUR: That was true because we were of
course through the rulemaking record and we were at the
final stages, but in the future, at the proposal stage, when
you see some of our proposals coming out we'll have probably
multiple formats. Possibly a Q&A format and different kind
of formats to let people pick which they think is the easier
way to understand some of our requirements.
It's true, as you indicate, that when we were
doing scaffolds, being as it was at the final rule stage, we
were more restricted in what we could do, but in the
proposal stage that really won't be a limitation then.
CHAIRMAN RINGEN: Just so I understand this...
MR. SEYMOUR: Yes, sir.
CHAIRMAN RINGEN: ...whole process better, because
I think a lot of people are confused about it. But if I
think back a little bit, the idea here is to reduce the
number of regulatory pages gradually, by more and more doing
away with the separate publication of all of 1926 standards
and the issuing of these kinds of, maybe notebook sort of
documents in their place, and you receive those as sort of
by cross-referencing the 1910, using that more as the
guidance to the construction industry?
MR. SEYMOUR: Well, the CFR booklet that we have
right now has all the text standards. In doesn't have...
In this, of course, it doesn't have 1904, which is also a
regulation that the construction industry is to comply with.
When we ended up doing this booklet, the text of the
standards we have in here right now...
Like vinyl-chloride is an example. In the
booklet, the vinyl-chloride text will be there just like it
is here. But when we end up issuing the next CFR back in
January or December of this year, or January of next year,
you'll have in the text then, you'll have the 26 number and
the heading for vinyl-chloride, but then there will be a
note saying there the regulatory text is the same as 1910,
and that's where the text is located. So if you're going to
rely on the CFR, then if you didn't have this booklet, if
you were going to rely on the CFR, you'd have to then get
both volumes of the 1910 booklet because 1904 is the front
of, before 1910 as well as the health standards.
The intention was that we would be able to have
this booklet, and you would have everything you might need,
at least the principal things. Again, the committee may
have some suggestions to help us maybe better focus in on
that in this one booklet.
We could do galley proofs and things like that if
someone else wants to print them besides maybe the service
with the GPO. It would be certainly a public information
CHAIRMAN RINGEN: I think what this committee and
most of the people in the construction industry have been
concerned about is that we are not going to have one place
to access construction standards anymore, and I think that's
the real issue, and also to access them as you say, in a
manner that most people can understand.
MR. SEYMOUR: Well, the agency has been charged as
all other federal agencies have been charged, that if we do
rulemakings in the future we are to take due consideration
of putting things in what we would call plain English, more
understandable language, and there will be various
mechanisms that will be used to do that. Some of the
proposals that are being developed right now to revise some
rules that were issued back in 1971 in the general industry
standards will actually have multiple formats to see what
the public thinks. The Family Leave, Medical Leave Act, was
done in a Q&A format, and we've been asked to put some of
our proposals into that kind of format, so we'll see what
the public thinks about that as a more understandable
approach to rulemaking.
CHAIRMAN RINGEN: Finally, do you expect that
these, what you call notebook documents, will become
available for every 1926 standard?
MR. SEYMOUR: I'm sorry. This is going to be the
whole... This will take care of all the 1926 standards and
can be more than that. I mean, we have an opportunity here
with the advice of the committee that you chair to maybe
make this booklet even more useful than the CFR, and that's
what we're asking the committee to help us with.
CHAIRMAN RINGEN: Steve.
MR. CLOUTIER: Well, I applaud you on this effort.
I think anytime we can make it more user friendly, the more
we can use bold prints and pick up on the key things. We
talk about guardrails and we bold print 42 inches, and we
bold print 21 inches. We go on to fall protection in there
and we bold print. We said the use of a body belt goes out
January 1,1998, well we ought to sit there and say you're
going to need a full body harness, it's not going to hurt
anybody to spell it out in there.
You know, we see these documents that J.J. Keller
has and BNA has, and Commerce Clearinghouse. This is the
way to go. For a user friendly on a construction site if
they're not going to go and tie in to the Internet or CD-
ROM, then a superintendent or a foreman or any craft worker
could pull the book off the shelf, it's in bold print,
because when you pick up your CFR and the others, what I
call the toilet paper version, it's so small you can't read
it. It's almost not being used.
This is an excellent document, and I encourage
that we expand it for the entire 1926 standards every time
that we revise and update.
MR. SEYMOUR: Okay, Stephen, this is going to
cover... We talking about having this totally for 1926.
Every standard. The 1904 regulations could be put in this
format. That's what I'm advocating, we put that as part of
the booklet because the fatality reporting requirements and
so on would also be in this booklet, whereas it's not in the
CFR right now in one volume. The format like you were
talking about, highlighting certain things, if you have some
suggestions on that we can easily do that. We're looking...
I'm sorry. Go ahead.
MS. CYR: And the 1910's will be...
MR. SEYMOUR: Well, but, that will be a whole
text. The things that have actually been brought across in
1993 when we did that, we put the whole text in there and we
actually gave it a 1926 number. Those 1926 numbers will
stay there. We are not taking everything out that we put in
in 1993, what I call bits and pieces. We're really dealing
with whole sections now, and so that's all we're going to
The rest of the stuff, where you end up putting
some things in on, oh, say explosives or something like
that, where we had a paragraph or two that we added into
1926 and gave it a 1926 number, we're not taking those out.
They're just going to stay in the CFR the way they are. But
they also will all be in this booklet.
Everything we're going to have in the CFR plus
will be in this booklet. And also as Ann indicated, we have
an opportunity maybe to keep it up to date, much more
current, than we ever have been able to do with the CFR. If
we do it quarterly... If there's that much activity going
on we would be able to do that. If it's not, then we would
probably do it semi-annually or however. But the direction
that I have from Joe Dear is we will have this booklet.
When we come out with the removal of the pages,
and you won't see the removal of those pages until the new
CFR comes out, which would be, again, December of this year
or maybe January of next year, we ought to have this booklet
ready. And so we're looking for some feedback. And you all
maybe give it back to Bruce, and if you could do that over
the next month or so that would be fine.
CHAIRMAN RINGEN: So you expect to have the whole
thing finished by January of next year?
MR. SEYMOUR: I'm sorry. Say that again, please?
CHAIRMAN RINGEN: You hope to have the whole thing
finished by January of next year?
MR. SEYMOUR: This booklet... Go ahead.
MS. CYR: No. It will published well before that
time. We're looking at in the next few months.
CHAIRMAN RINGEN: For all of the 1926.
MS. CYR: Right. For what's current. And then
your subscription will pick up whatever happens between, say
the first quarter... Say we publish this in July and in the
next quarter there is some regulation. Well, that would be
in your next portion of your subscription.
MR. SEYMOUR: Just one more time. What will
happen in December and January will be the new revision of
the CFR, and that when it comes out the next time around it
will not have all of the Subpart (C) whole text in there. It
will have just...
It will have the numbers in there, the 1926.1117,
vinyl-chloride, but then you're just going to have a note
saying the text is in 1910. When we do the booklet, it will
have all the text. It will look like it does right now in
the green CFR. And we...
Again, Joe Dear wants this booklet available so he
can show that it's now available for the industry at the
time we take the pages out.
MR. CLOUTIER: One other comment. My partner
here, Bob Masterson, talked about getting it in plain
English. If we can't do the entire document in plain
English maybe we could do one or two pages with bullets on
there explaining what, however else, 42 inches, 21 inches,
200 pounds. And just do a single page of bullets in there.
If it's going to work in the industry and get it to plain
English we're going to have reduce this down to one or two
MR. SEYMOUR: Okay. We have a little pocket
MR. CLOUTIER: And a summary.
MR. SEYMOUR: We have those little pocket booklets
that we've done. Maybe that's maybe the place where we
would do something like that. We were looking to make sure
that all the legal obligations the employer would have would
actually be in here, so like you're indicating, we could
highlight the 42 inch guardrail height an the text where it
actually appears, but you're talking about putting in
another heading of some sort?
MR. CLOUTIER: Well, I'm thinking if this was the
package I'm consulting on my fall protection there could be
a separate page that just had bullets on it. Here's what
you need to look at. You're talking about a construction
worker, you're talking about a company that's going either
into the industry or has been in the industry, wants to pull
it out, give me fast summary. Well, here's a bullets of
there that talks about fall protection.
MS. CYR: Abbreviated contents for that particular
MR. CLOUTIER: Just in plain English. Plain
MR. SEYMOUR: We could do that.
MS. CYR: Yes. That's a good idea. You may want
to... I would suggest recommending all of these, taking
them all through Bruce and then we'll look at them and see
how we can divvy them up and the best way to proceed on
this, because of the quantity and the time frame.
But the other aspect that Tom is talking about too
is that once the new regulations come out they will be in a
better language format. But your idea is just like a quick
reference, that's what you're saying.
MR. CLOUTIER: A quick reference, bullets, plain
English, could go a long way in our industry.
MR. SEYMOUR: We could do that as like a lead-in
to the Subpart, or at the conclusion do so. And then you
might want to suggest where you think the best place to
locate that would be. We could do that.
MR. CLOUTIER: Yeah. Every time a standard comes
out there's 15 pages of preamble, and there's 30 pages of
comments, and you get down to the last page it has the
issues. We want the issues out front. We want... What
makes a business tick. What are we looking for.
MR. SEYMOUR: Okay. Maybe when you give your
comments back, Steve, maybe you might want to just give us a
sample of what you envision. That would be helpful to us.
We could then try to do that. And if we don't get it all
done this time we can certainly do it as we do the revisions
of the booklet.
MR. MASTERSON: In this booklet as you perceive it
would you be able to replace text with drawings?
MR. SEYMOUR: With drawings?
MR. MASTERSON: Yes. Just a cover on the entire
first page with one simple drawing.
MR. SEYMOUR: Which is what we suggested with in
scaffold discussion, yes? To me... Even what Stephen is
advocating is like a lead-in summary. We could do the
summary; we could do drawings as well. Sure we could. This
is not going to be restrained by the Government Printing
Office from the CFR point of view. The Federal Register
won't have to be the same format that we're... I mean, this
won't have to be the same format as the Federal Register.
So we have that flexibility if we want to do that here.
These would be helpful suggestions to us as we try
to make it more useful to the members of the construction
Okay. Can I go on to the paperwork burden?
Barbara is going to pass those.
I just wanted to highlight, we have passed out
this table showing the burden hours that the government had
as of before the rules came out from OMB regarding the new
Paperwork Reduction Act that was passed in 1995. In that
piece of legislation the Congress with due purpose
overturned the Supreme Court decision where the Court had
indicated that being that the papers were not coming back to
the federal government it didn't have to count as burden.
And with that understanding, then, we had done
some rulemakings where we put in certifications and things
like that that was just between the employer and his
employees, or we might come and look at that and that would
We've had to then go back, now that that's
considered a paperwork burden we've had to go back and add
in some of those burdens. And so this shows you the
increase from what the Labor Department had in June of '95
to what it had at the end of this calendar year in December.
And as it comes up in a total tally, Treasury, obviously,
with the IRS is the lead agency as far as burdens on the
public as far as written requirements and things like that.
Written records, et cetera. And their's is 53 and plus.
And then the Labor Department is the second
highest federal agency as far as burden hours, and ours is
266 million. Of the 266 million 207 million are OSHA's
paperwork burden requirements. So OSHA ends up being the
driving force in the Labor Department as far as burden. And
so we are looking at trying to come up with a strategy to
reduce these burdens, and as you can see in the bottom part
of that single sheet, in FY 96 we're going to reduce it by
10 percent, in '97 10 percent, and then from there on down.
That reduction is a goal that has been established
in the legislation, in the Office of Management and Budget,
and the department is asking us to help do our part to help
the Labor Department make its goal. So we are looking at
coming to you all as we have sent some things out in
advance, and Barbara's going to talk a little bit about the
PAPERWORK REDUCTION Barbara Bielaski
MS. BIELASKI: First I'll just go over the two
documents I just gave you. The first one, the Federal
Register notice of February 13th, is a listing of all the
paperwork requirements in the OHSA standards, along with the
OMB approval number. For construction you'll want to note
that we've created, we're taking a section in the
construction standards and we've put all these numbers in
the same place.
For those of you who kept track of the control
numbers in the past, we used to put them at the end of the
sections, and what we did to avoid confusion was to identify
all of the collections of information in our standards and
put them in 1926.5. So in the next CFR you'll see a new
1926.5, and you'll see the OMB control numbers.
We also sent you a memorandum that explained the
Paperwork Reduction Act, our obligations under the Act. We
talked a little bit about the OMB implementing rules and
regulations and explained to you the problem that we have of
reducing our burden hours. And just in case you didn't
bring your copy with you I gave you another, and I'll just
highlight some of the things out of that.
We really need some help from you on this, because
under the new Paperwork Reduction Act of 95 OSHA like all
the other federal agencies has been told that it must reduce
its burdens on the public by 10 percent. That's for FY 96.
And in FY 97 we're going to have to reduce it by 10 percent
again, and then by five percent each year up through 2001.
It's a very complicated process to discuss, and it
can get kind of boring, but let me just highlight some of
the things it.
There was a Paperwork Reduction Act of 1980. It
was amended in 1986, and some of you who have been on the
committee for awhile might remember that in the late 80's we
identified some of the burdensome detailed recordkeeping
requirements in the construction standards and converted
them to something called a certification record. And under
the old Paperwork Reduction Act certification records didn't
have to be approved by OMB. We could put those types of
requirements in the standard and not have to get OMB's
Now, under the new Paperwork Reduction Act of
1995, certification activity counts the same as any detailed
paperwork requirement. These are all called collections of
information. A collection of information might not
necessarily be something in writing. Even though we refer
to it as paperwork reduction, it's not always paperwork. It
might be any activity that would require an employer to
maintain, disclose, prepare information to a third party, to
the government, to their employees.
So what we have done is we have gone through all
of our safety and health standards once again. We have
identified all the paperwork requirements in there, all the
collections of information. We have listed all of them in
the Federal Register notice. We have showed the OMB
approval number. That gives us...
Actually, that's our enforcement tool. If you
don't have an OMB approval number you cannot impose a burden
on anyone for having violated that provision.
And now what we're trying to do is identify which
collections of information we can revise to further reduce
the burden on the public, or perhaps we can even revoke
some. Now, we have 207 million burden hours, and we need to
reduce that by 10 percent. We expect to add about 6 million
burden hours for upcoming standards, some of those in a
construction area. For example, steel erection.
So the document that we sent to you, we only
talked about certification records and identified nine
certification records. And we had hoped that we would get
some feedback from you, some recommendations on whether or
not we should keep those requirements, or we can make some
changes to them, or revoke them. We're also asking our
field staff to give us input on this issue, and the state
And we are available for questioning now.
CHAIRMAN RINGEN: First of all, I don't understand
this chart thing.
MR. SEYMOUR: I'll try again, then.
CHAIRMAN RINGEN: I understand the bottom of it,
but I don't understand the top of it.
MR. SEYMOUR: Well, the top is the difference
between June and December was the, what happened in that
time was the new OMB rules came out and we had to meet the
new requirements. So what Barbara just said about we went
back and we worked our fannies off to get everything in
place before October 1. That's why the burden for the Labor
Department went up, is because OSHA and other agencies were
putting in all the pieces of collection of information that
heretofore maybe were not considered paperwork, and now in
the new rules and the new statute were considered paperwork,
since we had to get appropriate clearance and authorization
from OMB, and we submitted all those and we've gotten
approval for all of our collections of information.
Some of the approvals weren't even for one year.
In some cases OMB will give you an approval of up to three
years, but in some cases they gave us less than a year
approval on some things and we had to do some other stuff.
But that's why the increase shows how we had to go about
counting those new burdens that previously weren't
CHAIRMAN RINGEN: It's a huge increase. The
Department of Labor is very different from the other
MR. SEYMOUR: Say it again, please?
CHAIRMAN RINGEN: Well, you went up from 48
million to 266 million hours, based on this. So that fully
half, or almost half of all of the increases based on this
assessment throughout the federal government came here at
the Department of Labor.
MR. SEYMOUR: Well, in the Department of Labor we,
in the new legislation we ended up, in the course of new OMB
regulations, all the agencies put their stuff in, and again,
OSHA accounts for 207 million of that 266.
CHAIRMAN RINGEN: Bruce?
MR. SWANSON: I think, Mr. Chairman, one of the
greatest variables here is that OSHA used to look at the
time necessary to prepare paperwork, and we are an
inspection based organization. What we did not maybe spend
enough time counting gin the past was the hours necessary to
gather the information to gather the information to prepare
the paperwork. So you have to count the whole inspection,
which is why we went from the, I believe, why we went from
the 48 to the 200 million.
MR. SEYMOUR: Even how they interpret training, as
an example. The time that the instructor will use to
prepare his materials, the time it takes him to deliver the
materials, the time to record who attended the class or
successfully completed the class or the course or whatever,
all those are burden hours that now are being counted. And
a number of other interpretations by OMB on how they
approach what is collection of information has entered into
how we've added up our total.
MR. SWANSON: Mr. Chairman, they said we weren't
using the right hours. It's just like your tax auditor
tells you, you know, that you weren't using the right
CHAIRMAN RINGEN: But this was just so much more
the case at this department than at any of the others.
MS. PAUL: Well, so, if a standard comes out and
the first time that the employer has to comply with the
standard it takes lots of hours because the developing
programs are being put in place, and then as time goes by it
becomes kind of an automatic thing because they are in
compliance and they are doing these things, or they are not,
but either way the first, right from the get-go there's
going to be lots of hours that ongoing now are going to
diminish. Is that taken into account?
MS. BIELASKI: Yes, that is taken into account.
Normally when we do... For us to...
Let me just tell you what we have to do to clear a
package. If there's a collection of information requirement
in the standard, the standards writer, the project officer,
is going to have prepare a package and answer 18 questions
to OMB, starting with what is the practical utility of this
requirement? They're going to want to know how many
employers are affected by that requirement.
How long does it take them to prepare the
paperwork? If they have to do something in order to prepare
the paperwork, like make an inspection of a claim, how long
does it take to make an inspection to get the information to
prepare the paper. How long does it take for the employer
to get that piece of paper out of the file cabinet and make
it available to the compliance officer at the time of
inspection? So all those numbers...
And then we have to assess the amount of money
that it would cost the employer to comply with the number of
hours that it takes them to do that, and if they have to buy
any new equipment in order to maintain these records, how
long does it take to do that, or how much does it cost to do
that? There's a new staff person. How much does it cost to
So all that information is figured out upfront.
This is all public information. And we sometimes, most of
the time the burden is a first year burden, and what we do
is we calculate the burden for the first year, the second
year and the third year. We only give three year approval.
Sometimes they don't even give us a three year approval. If
it's a really big collection we might only get a one year
At the end of the three year approval we have to
go back and do this all over again, and some of you may have
seen that here recently with the new Paperwork Reduction Act
where we only got six month approval or nine month approval
on some of our bigger collections, we've actually had to put
a notice in the Federal Register and give 60 days for the
public comment, and after we get that public comment we'll
have to go back and answer those 18 questions again, and
we'll have to discuss that public comment, and then we'll
have to ask OMB to approve the information collection
requirement, give us a number, we've go to publish the
number, and then we can go about our business of
MR. SEYMOUR: Otherwise we can't enforce the
standard. Or that provision, anyway.
MS. BIELASKI: Now, somebody in the course of
commenting one of these should bring to our attention that
we have failed to take into consideration that these hours
dropped down in the second year, then we can take what's
called a program adjustment, and we can adjust our numbers
downwards. We're not sure, we think they're going to
account adjustments toward our 10 percent reduction.
Normally they only count program changes. Now, a program
change would mean that we actually went and changed the
CHAIRMAN RINGEN: And what exactly is it that
you'd like this committee to do?
MS. BIELASKI: We would like to have
recommendations on just the certification records that were
listed in the attachment to the memorandum. We're not going
to get into the other kinds of...
We also have plans, procedures, programs and
assessments that are also all collections of information,
but we're saving them for another time. Our first activity
is to look at just the certification records.
A lot of people feel that certification records
are really... These are the records, remember, that require
you to give, for example, you might have to either conduct
training or make an inspection of a crane, and when you are
finished you're going to prepare a record that says which
crane was inspected, some number or identifier, so that
we'll know what the record matches, and we want to know when
did you inspect it? And then we want the signature of the
person who did the inspection or the employer's signature.
And then the last record is always kept on file.
Those three data element records are called
certification records. There are many records. And those
have the greatest potential to be revoked or revised because
our compliance officers can go to the site and look at the
crane and see if there is something wrong, or in some cases
they can't, depending on what they've inspected. But they
can make some determination at the site. They can ask
employees about their training. So they have the greatest
potential for being eliminated or reduced, further reduced.
I'm not sure how we might further reduce a three
data element record, but you can see the numbers attached
forms. The crane inspection is the big one.
MR. SEYMOUR: We would like to have some feedback
through Bruce from you all about maybe which ones you think
would be the ones that maybe from your judgment are least
useful and which ones maybe are necessary and should not
CHAIRMAN RINGEN: Any more comments about this?
CHAIRMAN RINGEN: This whole issue of whether it's
Administration imposed reinvention or congressional imposed
reductions is a pretty huge undertaking, and part of the
problem is that it covers a very broad range of issues. I
think we need a little bit of time to think about some of
these things, and I'd suggest the following, if that's
agreeable with the committee. That between now and then
I'll take responsibility for trying to produce a reasonable
response to both this document, this draft, which is the
3/15 draft of miscellaneous changes, as well as on this
issue that has to do with the burden hours that you're
And I'll seek input from the various members of
the committee. And I want to work with Bruce and the people
at OSHA a little bit to try to come up with a process.
Because this is going to take some time, and you're going to
come back to us with more and more of this stuff.
And I think we have to come up with a slightly new
process within this committee for how to deal with such a
huge, generic kind of issue that deals literally with every
aspect of regulation.
MR. SEYMOUR: Mr. Chairman, also, as we do rules
in the future this really is going to have a major impact on
some of the decision-making about whether we really need to
have that written record or that collection information or
not, because as we put more in we still have to make this
reduction. It's not you add more, you take 10 percent of
We have the baseline which you see here of 266 and
we're working from that baseline down. So everything we add
has to be neutralized by having something else that we've
taken out to make sure that whatever we added still doesn't
add to our total.
CHAIRMAN RINGEN: How many more of these kinds of
things do you think you'll come to us with in the course of
MR. SEYMOUR: I think this is the one that we are
looking to do this year.
CHAIRMAN RINGEN: Okay.
MR. SEYMOUR: But as you can see from the table,
we're talking about like a 40 percent reduction over the
next four or five years, so we've really got to make some
inroads into cutting things that maybe people would say
well, we shouldn't really eliminate that record, we're going
to have to find some way to judge which ones we need to keep
an which ones we need to get rid of.
MS. BIELASKI: Will the baseline stay the same,
then? For the all the years?
MR. SEYMOUR: Well, OMB is not going to allow us
to raise our baseline. They are looking for...
This is what we have. Now, as we add new
standards that will, that has potential for raising our
baseline, but we're looking for a ten percent reduction, so
we're not going to say, increase it up to, for OSHA, say up
to 230 million burden hours and now we're going to take 10
percent of that. We had to get all of our burdens in before
October 1, and we really worked hard to do that, both health
and safety standards, construction. We all put them in.
And so that's what we have. That's why we have this
increase, a significant increase in what we previously had.
CHAIRMAN RINGEN: And by the year 2001 all of the
OSHA regulations are supposed to, in terms of burden hours,
in total, are supposed to be 40 percent below where they are
MR. SEYMOUR: Yes. That's what they are...
That's what the statute says.
Obviously, I passed out that chart or little
table, this one here, and the government goal of course is
10 percent, and compared to IRS and Treasury we're really
kind of a little small fish in the pond here. But for us to
be number two, they are looking at us to make our
contribution to the cause. And whether the government seeks
and makes that 10 percent goal, obviously, will be dependent
upon the Treasury Department's actions as well.
CHAIRMAN RINGEN: But you should be down to about
135 million hours in 2001. Or something like that.
MR. SEYMOUR: It will be down, yes.
MS. BIELASKI: But it's only... It's only a goal.
MR. SEYMOUR: It's a goal.
CHAIRMAN RINGEN: So if it's changed over time...
So if its agreeable, what we'll do with this is
that on, since I don't have any other work assignments...
CHAIRMAN RINGEN: Until the next meeting I'll try
to make some sense out of this, from our committee's, not
from your perspective, from our committee's perspective.
and if any of you have any comments on this if you can get
them to me that would be very helpful, and I'll get in touch
with each of you about the specific issues. And working
with Bruce we'll have some sort of recommendation back to
you by the next meeting. Not today's committee but the next
meeting. Is that acceptable to everybody?
MR. SEYMOUR: Well, we're... I'm sorry. We're
looking... We were hoping that maybe you might really give
Bruce at least what you are suggesting. I'm not sure
budget-wise when your next meeting will be.
CHAIRMAN RINGEN: If we don't have a meeting
within the next couple of months again then we will
certainly make sure that you have it, and that we have had
committee input into it.
MR. SEYMOUR: I guess we would like it maybe by
the end of May, if that wouldn't be too much of a
CHAIRMAN RINGEN: That would be fine.
MR. SEYMOUR: And we will certainly visit this
again and again, as you indicated, Mr. Chairman. And I do
appreciate your time for us to make a presentation. Thank
you very much.
CHAIRMAN RINGEN: Thank you.
It's 10:30. We still have a lot of stuff to do,
but I wonder if we shouldn't take a short break. A ten
minute break. It's 10:20 now; we'll start exactly at 10:30
with Bob Whitmore.
(Whereupon, a brief recess was taken.)
CHAIRMAN RINGEN: Back on the record.
We will finish up with Bob Whitmore and... I'll
let you introduce yourself. But go ahead, Bob.
RECORDKEEPING Bob Whitmore
MR. WHITMORE: Okay. Thank you, Mr. Chairman.
First of all I'd like to just very briefly thank
the chairman and Mr. Burkhammer who heads the recordkeeping
subcommittee, I guess you call it, for helping us to finally
get this proposal out in the Federal Register. It took...
It only took nine years, but February 2nd it actually
appeared in the Register, and what I've given to the
committee members, and I will lay copies in the back of the
room, are two pieces of paper. One is a Federal Register
notice from yesterdays Federal Register announcing a public
meeting, a second public meeting, as well as a news release,
a Department of Labor news release talking about he same
Very, very briefly, as most people know, we are in
the middle of our public comment period. That public
comment period was due to expire May 2nd. In this Federal
Register notice we are extending the comment period to May
31st. The public meetings will be held April 30th and May
1st, if need be, in room S4215 of this building. All this
information will be in the press release and the Federal
Register. Starting at 8:30 Mr. Michael Lesnick of the
Keystone Center will be facilitating this public meeting as
he did the public meeting that ran from May 26th, I believe
through the 29th.
People that want to participate and give
presentations need to contact Tom Hall, to my left here, and
here again all of this is spelled out in the release and the
register notice, by the 19th, the close of business April
19th. We will then look at the number of presenters and
figure out how we can fit everybody in. You should request
the period of time that you think you will need.
Obviously, if we have more people than we have
hours in the day we're going to have to cut back on that,
but the meeting is going to be run exactly the same way that
the prior meeting was run. Exactly the same way. The same
ground rules, the same procedures will be in place. So this
is up to two days of meeting, a two-day meeting, for the
public to participate.
If there's any questions from the committee, I
think I've touched on all the important points.
CHAIRMAN RINGEN: I don't imagine you want to
comment on what took place at the earlier meeting that you
held, the sort of comments that you got?
MR. WHITMORE: Well, it was very, very
interesting. I can say that. I heard a lot of interesting
alternatives to what we had proposed. And that was the key
that we tried to get out to people is, if you don't like
what we are proposing, that's fine. But just saying you
don't like it doesn't get us where we need to go. We need
alternative positions or propositions. And it...
I had never taken part in something quite like
that before and I found it really interesting. And I think
it was very, very beneficial, not just to OSHA but to those
people who were in the audience listening and asking
questions, and other presenters. It was just, I thought, a
really good experience.
CHAIRMAN RINGEN: Any comments? Questions?
CHAIRMAN RINGEN: Thanks, Bob.
MR. WHITMORE: Okay. Thank you.
I'm going to put copies of these on the back
table, in the back.
CHAIRMAN RINGEN: Thank you.
MR. WHITMORE: ...incorporated in the revised
draft that's out now. So I think we've heard a lot over the
years that a lot of things that this committee does isn't
taken seriously be OHSA, but the recordkeeping
recommendations that this committee put forth have been
taken seriously, and probably 90 percent of them are
included in the draft which is out today.
CHAIRMAN RINGEN: I think you're right, and that
we should perhaps comment on that, that the work group did a
terrific job and the OSHA staff on this has done a terrific
job in working with the committee, and we appreciate that.
HAZARD COMMUNICATION Joanne Goodell
MS. GOODELL: Okay. I'm Joanne Goodell with the
Policy Directorate, and my main duty is to be responsible
for the National Advisory Committee on Occupational Safety
and Health, and that's the committee that deals primarily
with policy issues.
We've done something a little bit unusual by
forming a very substantive work group on Hazcom. Last May,
the report from the President and Vice President under the
National Performance Review, OSHA promised to form a work
group of NACOSH to study the Hazcom Program.
Normally we would just have formed a little group
of three or four and had several sessions to discuss it and
produce maybe two or three pages of recommendations of a
relatively general policy nature. So we decided because of
the substantiveness of the program and the many comments
that are subject all the time of congressional hearings that
it deserved more substantive treatment than that.
So we decided to take a work group of four members
and then supplement it with 10 extra people, in the same
manner that you have done with your work group. And we
brought in experts from the field of labeling and material
safety data sheets, but we also then represented small
business, large business, chemical manufacturers and
chemical users, and the labor unions, including construction
labor unions. So that we would have a widespread variety of
backgrounds on the committee but with really good knowledge
of the Hazcom Program.
In addition, because there were so many people who
were interested in this subject and wanted to be on the
committee, I decided that the only proper thing to do was to
open it up to public hearings in our first two series of
So last October and in December we had two dates
each of meetings open to anybody from the public. The first
group was specializing in small business and labor unions,
and other employee associations. The second ones in
December were large business professional associations and
anybody else who hadn't been heard. So that everybody had
an opportunity to come and address the committee.
In addition, we did receive quite a lot of written
comments that were all forwarded to the committee so that
everybody could be heard in this group, not just the members
of the group. In the packet of information I've given you,
I wanted to give you some information about the background
of these people so you can see the type of people we had
working with us. And the two page work plan there shows you
what our meeting schedule has been and how we focused what
we hoped to be a six month project.
We lost a couple of months in January and February
because of government shutdowns and budget restrictions, but
we're back on target now. And we will be having another
meeting April 24th and 25th. The committee is now working
on individual assignments for what we hope will be about a
40 page, very substantive report on the subject. And then
at the final meeting, June 12th and 13th, they will be
concluding their final polished report, we hope, and
agreeing with all of the content of it as a work group.
Now after this happens this must go to the full
committee, because it's still just a work group product,
even though it's quite outside the realm of what we normally
do as a work group. And we have treated this almost as a
separate committee by publishing all of its meeting notices
in the Federal Register, publishing agendas, opening it to
everybody. So we have had extensive public input in that.
And I thought you might like to have a summary of the sorts
of things everybody has said.
We don't yet of course have the recommendations,
but there seems to be some common agreement among the public
and the work group that nothing was wrong with the
regulation and they don't recommend that we reopen it, but
they would like us to modify the enforcement of it and try
to emphasize the overall quality of programs and not be
quite so specific that if you find a good program but
there's one little tiny thing that didn't meet standards,
let's emphasize the good program. And that's something that
we've been trying to do already.
The paperwork problem that everybody talks about,
everyone recognized was not caused by OSHA but was caused by
the chemical manufacturers producing MSDS's on everything
that they make. And unfortunately we are blamed for this,
but we are not able to restrict a chemical manufacturer from
producing an MSDS sheet on something where it's not
There was some discussion with the thought of
helping small businesses that perhaps we could add a
statement to the MSDS for those substances that were
required by MSDS's, such as, "This material has been
determined to be hazardous under OSHA's Hazcom Standard."
The purpose of that would be to help a small business that
might get 500 sheets and only need five of them, but have no
technical person who could determine which five they needed.
If they had a statement such as that that would relieve a
lot of the burden on small businesses. We could not prevent
them getting the 500 sheets but we could make it easier for
them to learn which ones were incorporated or required under
our Hazcom Program. So that may be one of the
recommendations that comes out.
Everybody acknowledged that they would like now a
standardized format, but they didn't want us to open up the
rule at this time to require one because of international
harmonization efforts that are going on and things of this
nature. So primarily people recommended to us that we
endorse the ANSI format and just not require it, but say
this is a format that meets all of OSHA's requirements, so
that's a possibility for a recommendation.
And they did talk a lot about the fact that
everybody would like a very simple MSDS, like a two page
sheet that gave you just what the worker needed. But
everybody emphasized that the MSDS existed a long time
before OSHA for a lot of reasons other than OSHA's
responsibilities and that there was almost not likelihood
that we could do away with the MSDS sheet as it is, and that
nobody would recommend having an extra two-page format that
was designed just with workers.
So there was a lot of attention given to trying to
make on the first page a summary paragraph that was in plain
English that would supply what the workers needed so that
they wouldn't have to be burdened by the extra papers that
were there for emergency responders and for the EPA SERA
considerations and for hospital staff and those things that
the MSDS is also used for.
But I would like to invite any of you to come to
our meeting if you are here or have other reason to be here.
They are going to be working very hard in the next two
meetings. And I also brought some forms I will leave on the
back table for any of you who are interested to request a
copy of the final report.
Can I answer any questions?
MR. MASTERSON: My understanding of the entire
Hazcom Standard is it is designed to provide the user of the
product with valuable information. The typical MSDS format
does not meet that need. What is the recommendations of
your committee as far as addressing the user's needs?
MS. GOODELL: Well, that's what I was talking
about with the MSDS being designed for many purposes other
than the workers and other than OSHA's. I don't know yet
what the committee's recommendation will be because they are
working on them now, but the things that people mentioned
were that there was likelihood of getting rid of the long
The ANSI format that's just come out in their new
regulation, for their own uses, is as complex as any you
have seen. It has... It takes care of everybody's concerns.
And the workers are only one of those. And that's where the
discretion lies. It would be nicer if we had just a simple
one or two page sheet, but then we'd have a whole new
paperwork burden. And that that's the sort of thing that
prevents requiring a separate document that is just designed
for the worker, that it would be an additional document.
MR. MASTERSON: Okay. So what I am hearing is
that you are not recommending any change in the Material
Safety Data Sheet as far as the employer's burden to
maintain those at the worksite?
MS. GOODELL: They are working on their
recommendations now, so I can't really say what their
recommendations will really be, but in their discussions
there hasn't been much indication that we can shorten the
format. They've emphasized plain English and quality
upgrade, and then much has been made of the electronic
transmission of MSDS's, that this will eventually simplify
and standardize MSDS's just be virtue of that fact.
But ANSI, which is the major organization that has
been working on that has come out with a pretty complex
format that everybody has agreed to in their organization.
CHAIRMAN RINGEN: The International Chemical
Safety Program has come up with some much simpler cards that
don't cover mixtures, of course, they're just for chemicals,
but they cover up to 1,200, 1,600 chemicals, if I remember
right, and may be useful to look at.
MS. GOODELL: That's the main problem. They don't
come in mixtures.
CHAIRMAN RINGEN: Right. Any other questions?
But they are simple.
MS. GOODELL: Very simple.
CHAIRMAN RINGEN: Any other questions or comments?
CHAIRMAN RINGEN: Thank you.
SCAFFOLDS - SUBPART L
FALL PROTECTION - SUBPART M
CONFINED SPACE, & SAFETY AND HEALTH PROGRAMS Gerry Reidy
MR. REIDY: Good morning. I am Gerry Reidy,
Director of the Office of Construction Standards and
Compliance Assistance, Director of Construction. And I have
five standards to give you an update on, and I'll try to be
brief and pithy, but I'll open it up to questions, too.
The first one is on SENRAC, and just for the
record SENRAC is an acronym for Steel Erection Negotiated
Rulemaking Advisory Committee, if you didn't know. Two of
your members, Mr. Cooper and Mr. Smith are on the committee.
The last meeting was held in November/December of last year,
and I'm quite sure you got copies of both the minutes and
the rough draft of the proposed standards.
What is not there of course is the preamble and a
sort of polishing up to the draft. So what is going on
right now is, in doing the preamble and doing a rough draft
of the proposal to supply with the regulatory requirements
and language and so forth. About 100 pages have been done
so far and they are still working on it. The two sections
that have not been completed yet are the joists, which is
.757, and fall protection, which is .760. When this thing
is put together as a total package this committee will be
given copies for comments and input and so forth.
There was a meeting held in March about the scope
section of the proposed rule and the scope section revised
to place the list of structures and activities in a note.
That of course will be a part of the proposed rule when the
proposed rule is published, and it is programmed for
publication in September of this year. Those who see the
proposal can make appropriate comments on that at that time.
That completes SENRAC at this point. Are there
MR. MASTERSON: Gerry, it seems like the scope is
a lot broader than what I always understood that SENRAC was
going to be addressing. In looking through here real
quickly, and this is the first chance I've had to look at
it, I'm seeing siding, windows... Help me understand how
that got brought into steel erection?
MR. REIDY: Well, perhaps the counsel can help me
out on that one.
MR. JONES: Gerry, all I can do is repeat that the
committee in discussing the scope basically had been given
pretty much full discretion by the agency to include those
steel erection activities which they are able to identify
and that the list which you see there is intended to be as
inclusive as the members of the committee could make it at
that time. And the reason the judge mentioned that there
had been further discussion is that there has been concern
expressed, indeed, that the scope is perhaps overly
inclusive and that further consideration needs to be given
to the manner in which the scope is addressed in the
proposed regulatory text.
CHAIRMAN RINGEN: Bob, this committee actually
commented on that perhaps over a year ago, a year and a half
ago or something like that, when SENRAC was first
established. There was some question about whether the
charge was getting larger than originally intended and
whether in fact the membership of the committee was suited
to the larger charge, so we did make our comments on the
MR. MASTERSON: Unfortunately, I wasn't there for
CHAIRMAN RINGEN: Okay.
MR. MASTERSON: Yeah, I am seeing wall panel
systems, doors, windows, security equipment, and I don't see
the connection to steel erection here, and there you are
talking construction as a whole, and you're drawing in the
entire construction industry into the steel erection. And
was that the original intent?
MR. REIDY: Bob, the important word, the important
word here is proposed rule. Okay? Not the final rule.
The proposed rule offers comments on steel
erection activities. It is also an important set of words
to keep in mind because the representatives of the committee
told us that there are steel erection activities that occur
in relation to when those sky lights, wall panels and other
such structural members, that is a matter as to the public
comments on the proposal, you know, where we are very
interested in receiving feedback.
MR. MASTERSON: Well, I still see this as being
far outside the scope of steel erection.
MR. REIDY: Well, we certainly invite you to
comment and participate in the rulemaking.
Any other questions?
MR. REIDY: The standard is scaffolds, Subpart L.
And the Subpart L scaffolds is going to be a final standard.
We are programmed to furnish the final standard in June of
We have given the final draft to the interested
party of the Office of Regulatory Assessment, and in
preparing drawings and so forth to accompany the standard,
and we're developing training with the OSHA Training
Institute for compliance officers and also for the affected
individuals. We are working on outreach right now with the
private sector. We've talked to a number of associations
and unions, and we're preparing a work booklet with the
Information Office on this standard.
And at this point we are on final approach and
hope to make the landing by June. This will be a final
MR. REIDY: Okay. Fall Protection, Subpart M,
Construction. Since the issuance of the final rule or
Subpart M a number of groups have come forward raising
concerns about their particular activities and how they are
affected by or impacted by Subpart M, and as a case in
point, Precast Concrete, Post Builders, the National
Association of Tile Erectors, and Homebuilders, have come
forward and have indicated they have particular, unique
problems that they would like to discuss with OSHA.
In response to that inquiry, if you will, OSHA is
going to open M, and the programmed date for publishing in
the Federal Register is June of this year. We are going to
ask the industries and anyone else that wants to to indicate
what they consider to be a problem with the current M, if
you will, and give us as much in-depth comments with
supporting data and/or evidence to sustain their basis.
I can't forecast at this point, but there is a
good probability that the original comment period, which is
only about 90 days, or 120 days, may be extended per request
of the parties and they may also indicate they want some
hearings on this matter. At this point the preamble is
being prepared and, as I say, we are programmed to go in the
Federal Register in June.
MR. REIDY: Confined spaces. As you are probably
aware, there is a 1910 confined spaces final rule that was
published I believe last year or sometime at that point, and
this committee has over a period of years indicated a very
strong desire that a confined space standard for
construction be crafted. The current comment in the
construction standard is I think one paragraph.
Last year we took the draft final 1910 standard
and submitted it to this committee, received comments, and
modified the draft reflecting those comments, and then we
sent out the draft comments to about 150 groups,
associations, individuals, including to the ten regions, the
offices of the administrators, the state plans, and asked
for their comment. As a result of that we received 32
rather in-depth comments which are being reviewed at this
A dialogue with the chair of ACCSH has resulted in
a work committee being established. Is that correct, Mr.
CHAIRMAN RINGEN: Well, it's been proposed, and
we're going to discuss it as soon as you are finished with
MR. REIDY: Oh, okay. I didn't mean to... I'm
the precursor for you, okay?
And for the work committee we will have the
comments that we received with a summary of the comments as
assistance for the committee, and we will of course have
OSHA personnel involved to. According to this agenda we're
going to meet this afternoon.
CHAIRMAN RINGEN: If we get the work group
established as soon as you are finished. Yes, sir.
MR. REIDY: Let me know.
CHAIRMAN RINGEN: I think we'll get back to that
one. You want to cover the safety and health program...
MR. REIDY: Yes. Fine.
CHAIRMAN RINGEN: ...a discussion and finalize it.
MR. REIDY: The safety and health program, again,
and you know the dialogue of ACCSH. I believe a work
committee will be established for that work group, and I
know the committee is aware of the fact that ANSI has put
out ANSI A-1033 and A-1038 which deals with health and
safety programs, and we of course have the guidelines OSHA
put out in 1989 which could be used as a stepping stone or a
basis for the work group to get going.
CHAIRMAN RINGEN: What Gerry is referring to here
is a discussion that we have had in the last three months, I
guess, or so about the two areas where OSHA thinks that the
committee can help it a great deal. It has to do with the
development of recommendations that might lead to standards
development in the area of both safety and health programs
and confined spaces.
We already have a work group established on
programs that Judy Paul is chairing. What I did ask OSHA to
do for us that I thought would be helpful, for these two
committees, since it was a little unclear to me exactly what
they had in mind I asked them to provide some proposed
charges for the two work groups, and in the back on the
left-hand side of this folder that we have here there are,
the charges are there.
In order to establish these work groups we're also
going to have to scramble our existing membership on the
current work groups somewhat and make some changes, because
as near as I can tell OSHA would like us to produce some
results here as soon as possible, more or less.
MR. REIDY: It's more than a goal.
CHAIRMAN RINGEN: It's more than a goal. Yes.
If I can take a minute... Or, first of all, are
there any general questions for Gerry about his
CHAIRMAN RINGEN: Okay. Then let me just take a
minute and go over the charges that have been proposed. The
first I'll deal with is confined spaces.
"To assist the agency in identifying and finding
the significant issues to be addressed by the Department's
rulemaking." And below it says, "The duties of the work
group is to identify the key issues, collect and analyze the
information pertinent to it," and so on.
In thinking about this issue and how we may go
about doing it, I did call Steve Cloutier and asked if he
might be willing to volunteer to be chairman of the work
group and he said he'd think about that. And I wonder what
your deliberations have resulted in, Steve.
MR. CLOUTIER: I didn't think there was much of a
question there. I will carefully...
CHAIRMAN RINGEN: Well, then, in that case, we
first have the issue of whether we should establish a
workgroup in this area of confined spaces, and I think it's
something that's worthwhile taking a vote on, or I'd like a
motion to that effect, anyway.
MR. RHOTEN: So moved.
CHAIRMAN RINGEN: Relating to this charge, any
MS. OSORIO: Seconded.
CHAIRMAN RINGEN: Thank you. Any comments? All
in favor? Any opposed? Okay.
And Steve has agreed to serve as chairman of it.
I would like to suggest also, Bill, this is clearly an area
where you have involvement.
Now, you've served on the program work group, and
I'm going to ask you, because I think we are going to have a
fairly intense effort in this area to maybe more from the
program work group over to this...
MR. RHOTEN: I would like to do that, yes.
CHAIRMAN RINGEN: Okay. Are there other members
of the committee that would like to participate in this work
group? Could we get somebody from NIOSH's safety office?
That would be great, Diane. Thanks.
There's a question about when we might have a
report ready, and we were going to have a little bit of a
dialogue here about the date that you would like us to have
something ready and the date that we could achieve having
something ready, quite possibly.
MR. SWANSON: Well, OSHA would like this report
late spring, early summer, and contemplate having something
by late summer ready for the Federal Register.
The question in our minds and which we did not
wish to bring up to the committee on is what would that then
leave you desirous of as far as report back from the work
group and give the full committee time to ruminate on it?
We also have the question as one of the speakers commented
on earlier today on this, with this budget plan that the
federal government is under at least the Labor Department of
week to week funding, how many meetings are we going to be
able to have between now and the end of the fiscal year is
also rather open.
But it is more important, obviously, to us to have
quality rather than timeliness. On the other hand, we would
like to have the work group complete its work; the
committee, ACCSH, complete its work on the work group
product; dovetail this with what OSHA as the regulatory
agency has to do vis a vis preamble language and the rest,
and have something ready for the Federal Register before the
end of the fiscal year.
So as you back up from that, those are tentative
constraints that we are looking at.
CHAIRMAN RINGEN: To back up from that,
realistically this committee has to sort of finalize its
product, whatever it ends up being on this issue, by Labor
Day at the latest.
MR. SWANSON: Oh, yes. I would think at the
latest. Then again, it would be helpful if we could have
the report back this afternoon, but...
CHAIRMAN RINGEN: Well, we'll see if they're going
CHAIRMAN RINGEN: I think we received a previous
report on this issue that had been worked on in part within
this committee, I think. And you have all of that
documentation. So if...
We'll leave it at this, that one of the things you
may want to consider this afternoon, Steve, is dates as well
as possible times.
MR. RHOTEN: I've just got a question, it may be
off the subject but it follows on it, on the rules for the
ACCSH work groups.
CHAIRMAN RINGEN: Yes?
MR. RHOTEN: It seems to me like in the past the
work groups came back with a recommendation. Is that
CHAIRMAN RINGEN: They came back with a report.
It may include some sort of a recommendation, yeah.
MR. RHOTEN: Yeah. And what I'm saying here is
that it would probably be improper under these guidelines
for the work group to make a recommendation. Is that
MR. JONES: It would be improper for there to be a
vote, for there to be a majority report and a minority
MR. RHOTEN: Which would mean a recommendation, I
MR. JONES: Which would be in effect a
MR. RHOTEN: Right. So what I am suggesting is,
the way we are heading now is, in the future, the work
groups will not come back with a recommendation, and not
even a consensus, but basically a lot of information to be
discussed by the full board. Is that correct?
MR. JONES: That's correct.
MR. RHOTEN: I'm not suggesting that's a change
from the past, although I think it is.
CHAIRMAN RINGEN: That may or may not be the case.
It depends on the situation.
MR. RHOTEN: And I'm not raising the issue to take
issue with your position. What I'm raising it for is to
maybe state this, that there's already a lot of information
out there now on confined spaces that have been collected,
or gathered up, and I think in the future on a an issue like
this it's probably going to take more participation by the
full board to reach a conclusion than it would have in the
past because in the past I basically relied on the other
committee's recommendation, knowing they were well made up
of full size industry and labor and they were open to the
public, but the subcommittee in effect came back with a
And I see the committee in the future on this
confined space, because even though we sit down and go over
it and have the full committee meetings, we're not going to
really be able to come back under these rules and make a
recommendation to the full committee.
I guess what I am suggesting is if it's going to
take more time to get to a recommendation out of this
committee that all the information that is out there now
should be forwarded to the full committee now.
CHAIRMAN RINGEN: I think it's kind of splitting
semantic hairs a little bit, in the sense that there may be
issues where there is a wide difference of opinion, in which
case the committee will have to deal with those big
differences. There might be areas that are very specific
and narrowly defined where a single conclusion could be the
sense of the work group. It could be presented in that way.
MR. JONES: We'd certainly want to make sure that
all members of work groups have their views represented to
the full committee. It shouldn't have any kind of editorial
or limiting kind of role being played by the chair or by any
member of the committee.
And secondly, we are reaffirming our determination
that it's the full committee which needs to make decisions
and to make recommendations, which then can be determined by
a majority vote, but that we don't want things to be brought
to the committee and then in effect, oh, is that what the
work group said? Well, the, let's just do that.
MR. RHOTEN: Well, I agree, although I thought in
the past the committee did make recommendations and the
people that made up part of the subcommittee who also came
before this full board made their arguments. I wouldn't
object to taking all of the different views back to this
committee, but I don't think that the committee members per
se can make all the arguments for everybody that shows up at
the meeting and doesn't like what's going on. They're still
going to have to come down to the full committee and make
their own arguments.
CHAIRMAN RINGEN: Absolutely. Yes.
MR. JONES: You certainly are not going to be
expected to represent other persons' views, as far as that
goes. Except insofar as when you present a report if you
are a member of the committee or a chair for the committee.
Whatever compilation, whatever report, would be as inclusive
as is reasonably possible. There would certainly, I hope,
be supplemental comments that members of the work groups
would be able to make to the full committee, to explain the
basis for what they are bringing forward to the full
CHAIRMAN RINGEN: Anna Maria.
MS. OSORIO: I think Bill brings out a good point.
I think this is a change in direction. I only have limited
experience, but at least the four or five work groups I've
been on we'd come together, and some of them have had some
open meetings also, and then we do put forth suggested
either action steps or recommendations for the whole
committee to discuss or whatever. But they have been...
I mean, you can change the meaning but they are
recommendations. So if you want us not to do that, that's
fine, but I just want to know is that a change from what we
were directed earlier?
MR. JONES: Well, yes. As far as the Solicitor's
Office is concerned what we are saying is a reaffirmation of
what under proper FACA procedures the work group is supposed
to do. If there has been drift, you know, in the work
groups from that, then what we are trying to do is to
provide a course correction and ensure that you as
individual members of a work group feel, and in fact act on,
the responsibility to add your viewpoint and your
information and your perspective to whatever product comes
forward from the work group so that the full committee has
the full benefit of your participating.
MR. RHOTEN: But, again, the bottom line is in the
future there will be no more recommendations from the
MR. JONES: That is a semantic point.
(Cross-talk and laughter)
MR. RHOTEN: If the committee meets and comes back
with a recommendation it's either a recommendation or it's
CHAIRMAN RINGEN: Steve.
MR. JONES: Well, it shouldn't be.
MR. CLOUTIER: Well, the work group meets, gathers
the information, and we may or may not come to a consensus
as the work group, but you also put of the other members of
the work group's input into it. Then we bring that package
to the full committee, and the full committee can accept it
entirely, they can dissect it, they can do what they want to
do with it. But in the past couple of years the committee
has pretty much adopted everything that a work group has
proposed or presented back to the full committee. And I
don't think that changes.
You're asking us to give you good information.
The work group is going to gather that information, we're
going to bring it back here to the full committee, and the
full committee will either vote unanimously or there'll be a
split vote, or however you want. Or they'll dissect it.
CHAIRMAN RINGEN: I think part of the reason that
this has worked very well in the past is that the work
groups have been very carefully getting information from
everybody. So I think on the one hand having work groups
doesn't alleviate this committee of any responsibility for
looking at this issue from all perspectives and making the
ultimate decision on it.
The purpose of the work groups is to simplify our
operation, if you will, and clearly those of us, the
committee would like to see the work groups come up with as
much specificity as possible. It's supposed to take all of
this information and ferret out what is useful and not and
come back to us with useful and limited information that we
can make decisions on, but at the same time, as Steve says,
we have to make sure that we look at all angles of it.
MR. MASTERSON: If I hear what you are saying
correctly, the work group would come back with like an
outline of possible alternatives for the committee to look
CHAIRMAN RINGEN: It could. Or it could come back
with something specific and say how it reached that point
from looking at various alternatives. I don't see any
problem with that second option. It depends on how clear a
consensus there is about it. You get a feel for that pretty
fast. There are some issues that we don't have consensus
With regard to the operation of the committee as a
whole, we do operate generally, or at least it is my intent
that we will operate, on the basis of consensus, and where
we know that we don't have an consensus, like an issue that
we'll have coming up very shortly, we will refer it off with
MR. RHOTEN: Not to beat a dead horse or anything,
but it says here, "The work group does not reach a
CHAIRMAN RINGEN: That's correct.
MR. RHOTEN: Well, I thought... Didn't you say we
were relying on a consensus?
CHAIRMAN RINGEN: No, no. The committee. The
committee reaches a consensus.
MR. RHOTEN: Oh, okay.
CHAIRMAN RINGEN: Usually. There are rare
exceptions to that.
If it doesn't reach a consensus then there is no
use having a split vote and sending on something as a split
vote. You know. That's not the purpose of this.
MR. RHOTEN: I'm sure it's fine. I was just
trying to get you to clarify.
CHAIRMAN RINGEN: So we have established that work
groups, you will meet in the afternoon, Diane, Bill and
Steve. And anyone else who is interested in joining them.
(Discussion of location of work group meetings.)
CHAIRMAN RINGEN: Yes.
MS. PAUL: Just a note on safety and health
CHAIRMAN RINGEN: We are going to come back to
that now, yes.
MS. PAUL: Okay. I'm sorry. I thought you were
CHAIRMAN RINGEN: No. Now that we have finished
that we will do the programs, and then Stu has to make his
report, because he has other commitments that he has to get
to. But I wanted to get this out of the way first.
The Construction Safety and Health Programs. We
have a charge that OSHA has asked us to follow more or less
that the work group can review since the work group has been
established and agreed to by the committee already. There
is no need to have a vote on that, on whether we're going to
follow that charge or not. But I think as fully as
I think the report timing is of a similar era as
well, so you should consider that today.
Given that Steve has served on that work group and
will not be able to continue to do that, I've asked Bob if
he would be interested in participating in it, and I think
having his input will be very useful.
MS. PAUL: And Bill just got removed, too.
CHAIRMAN RINGEN: Bill just got removed. That's
MR. RHOTEN: Transferred, please.
CHAIRMAN RINGEN: What?
MR. RHOTEN: Transferred, please.
CHAIRMAN RINGEN: Transferred, yes.
MR. SWANSON: I think that... And I will check on
this. But I believe the time is shorter on this one if we
are working within the parameters of the fiscal year, which
I hope we are. On significant rules, significant is defined
by OMB, OMB wants 90 days to review a rule.
We are probably going to be able to sidestep that
issue on the confined space but we will not be able to
sidestep it on construction safety and health programs
standard. So if we were to make the fiscal year, we are
talking the end of June for us to have a draft proposal to
go to OMB.
Am I correct on that, Gerry?
MR. REIDY: Yes. Unfortunately.
MS. PAUL: Could I ask a question?
The OSHA group that's working on this presented to
us a report on where they're at in the general standards.
Kind of an overview. Is there anything specific being done?
Has there been any decisions made about whether construction
is going to have a separate standard or...?
MR. REIDY: Yes, it is. Go ahead.
MR. SWANSON: The safety and health program
standard has been quite heated. Whatever the degree means.
We are going to get a general industry, truncated, I think
is the word. A general industry standard, a construction
standard and a maritime standard for programs.
Generally there seems to be some thought, once
word got out that we were splitting, that this meant the
general industry was going to stop, and indeed not. It is
continuing. It is continuing on its own track.
The policy makers in OSHA have recognized that the
construction industry is unique. We've been trying to tell
them that for a long time, right? And so those unique
concerns that we have can be addressed in a safety and
health program standard design for the construction
We will be given, I think, quite a long leash. So
long as it's what we design as a proposal is not
inconsistent with where OSHA intends to go with its main
safety and health program standards, we're fine.
There has not been anything distributed from that
committee that you referred to. The in-house OSHA committee
that is working on the general industry standards. They
have not shared anything with us that we can use. They well
might, but they have not to date.
MS. PAUL: Okay. Is there a person working on the
construction standard within OSHA?
MR. SWANSON: There will be. We may have a
designated project officer, and at the moment that's Mr.
Gerry Reidy. There is not, however, an in-house committee
that has been working on a construction program standard to
CHAIRMAN RINGEN: In the interest of time, let me
ask this. Who's going to participate in the work group
meeting in this area today from OSHA?
Okay. Gerry. So you can address that with him at
the time of the work group.
Steve Cooper had expressed an interest in serving
on this work group in the future. He won't be here today.
I'll participate in it today.
Anybody else? Who else is on this work group
MS. PAUL: Anna Maria is another one.
CHAIRMAN RINGEN: Yes. And Bob.
Anyone else who would care to join? It's a big
task ahead of you, without a doubt, and it's going to be a
difficult one, but I am sure, Judy, that you will carry it
MS. PAUL: It's nice to have it in the record.
MS. PAUL: Thank you.
CHAIRMAN RINGEN: So that will meet in room S-25,
S-52? S-5215B. Right. Okay.
The only other work group that is meeting today as
far as I know is the women in construction work group, and
that will meet here. And I think we may have another work
group, but I don't think there is, I don't know if there's
any need for it to meet. So those three work groups will
meet today and will report back tomorrow.
MS. OSORIO: So, musculo-skeletal disorders has
CHAIRMAN RINGEN: We are going to deal with that
MS. OSORIO: Oh, okay. Sorry.
CHAIRMAN RINGEN: Are there any comments on these
issues, or questions about it?
CHAIRMAN RINGEN: Okay. Then we are set with the
work groups. Set with you, Gerry? Thanks a lot.
And we have two major issues to deal with,
obviously before the middle of the summer, and that is the
programs and the confined spaces, both of which I think,
personally, it's very forthright.
Stu, do you want to go ahead and make your report
on the musculo-skeletal disorders?
MUSCULO-SKELETAL DISORDERS Stuart Burkhammer
MR. BURKHAMMER: Thank you, Mr. Chairman. I
apologize to the committee for not being able to be here
this afternoon and tomorrow, but our company is reorganizing
and I have other things...
CHAIRMAN RINGEN: It's always reorganizing.
MR. BURKHAMMER: And reorganizing me at the same
I am Option 2 of Knut's two options, and that's
where I'm going to make some specific recommendations to
this committee to deliberate on and possibly vote on. And
I'll explain why.
As you remember, those of you that were present at
the last meeting on August 8th and 9th of last year, several
representatives, some of who are in the audience here, came
before us to make presentations regarding their views on the
MSD work group's draft report. Basically, the theme of the
speakers centered around three issues. And I took copious
notes. Those of you who were here saw it. I have a list,
basically, and I would like to read some of them. But I
think you'll get [the idea of the] failure to show need for
the standard in the MSD area. Most of the speakers were
opposed to any type of standard in this area. A lot of
comments on lack of sound, scientific data. Small employers
cannot comply, will affect small business greatly.
I like this one. The work group jumped to
conclusions without any research and study.
The risk factors that were considered were flawed.
Lack of statistical evidence that MSD is a problem in
construction, which I also liked.
A lack of industry involvement in development of
the draft MSD standard. We need a demonstration effort to
see if something like this will work in construction. And
there were some of the presenters who volunteered, and I'll
address that in just a minute.
Let industry take care of itself on this issue, as
if they haven't to date. MSD is now at epidemic proportions
currently. And the Center to Protect Workers' Rights data
was flawed, and Pete Cheney was kind enough to provide us
with a study that his group did, and Knut passed that study
on to a group of scientists and they reviewed it, and I'll
So basically I broke all those down into three
issues that I'd like to address for the committee.
The first issue is about the process that ACCSH
and I specifically as chairman went through to select the
members of the work group. The sentiment was, as you heard
in my notes, that it was a closed group, and there were
comments that industry wasn't allowed to participate fully.
There were no meeting notes or anything presented in the
Federal Register for anybody to look at or review, and I
think you heard today that it doesn't have to be.
As ACCSH committee members you heard at length
today from our chairman the selection process of work groups
and how they work. One other point that Knut and our
counsel didn't stress is what happens after the committee is
formed and the chairman is picked. Well, the work group
chairman then has the opportunity to select other people
from industry to participate as deemed necessary or
required. And as far as the MSD work group goes, all those
who asked or volunteered to be on the work group were
accepted and included in all work group matters.
It is important to note here, and I want to
stress, and I think I have done in the past and I want to do
it again, that no one is turned down who asks to be on the
work group. And no, I didn't go out and wear a sign and
solicit people to join, but there were a lot of people in
attendance who formed the MSD work group, and every one of
the people who were in attendance who came up and asked to
be on the work group were selected and included in all the
The second general issue from the presenters was,
why do we need this? There's no evidence to shoe that MSD
is a problem in the construction industry. MSD is not of
epidemic proportions, and et cetera.
So let me offer a personal observation of an
individual who has been in the construction safety and
health field for 35 years. To those that suggest that MSD
is not a problem in construction, it is my opinion that
those people have never worked in the safety and health
profession on a job site and witnessed the number of
employees who come into the first-aid offices and go to the
hospitals or doctors with pulled muscles, strains, sprains,
back injuries, sore knees, sore wrists, sore feet, all of
which involve musculo-skeletal disorders.
We did a study in our company of injuries from
1983 through 1994, and this study indicated that
approximately 50 percent, or half of all our injuries
reported, were MSD related. I'm not at liberty to share the
study with you due to company confidentiality. However,
back injuries alone resulted in 35 percent of our lost cost
for that period of time.
If a company like ours with the world-class safety
and health program that everybody says we have and the
outstanding safety and health record that we have, along
with the many innovative concepts and programs that we've
put forth, is experiencing these kinds of numbers in MSD's.
I'm quite sure that other contractors are showing the same
numbers, or worse.
The third general issue is that there is not
enough scientific evidence to conclude that MSD in the
construction industry is a problem.
Mr. Chairman, you addressed this issue in a letter
to the Center to Protect Workers' Rights to a selected group
of university-based scientists and physicians, and I think
included in those were the ones suggested by Pete Cheney and
the AGC, and you asked them to review the data and submit
their findings. And at this time, I along with you, Mr.
Chairman, if you would please comment, got the report, and
I'll just hit a couple of the highlights.
Musculo-skeletal disorders caused by strenuous
overexertion as well as those associated with repetitive
motion and particular work postures are a major health
problem for construction health workers. I like the word
major. They didn't just say health problem, or minor health
problem, or some health problem, or maybe a health problem.
They said a major health problem. Which indicates to me
that they agree with what the work group came up with. And
they closed in their conclusion with a comment that I think
the work group also put forth, was that a great deal more
needs to be done in the design, implementation and
evaluation of interventions needed to prevent or control
And their final comment that the respondents in
the study that Knut, our chairman, asked to be done,
expressed no opinion regarding the feasibility of federal
guidelines or a federal standard for the prevention of work-
related musculo-skeletal disorders. Which I would kind of
expect became they were asked to evaluate a study and not
make comments on whether there needed to be a standard.
So I think the conclusions of this group, using
the work group's study research plus the ones that Pete
Cheney provided us, have come to the conclusion basically
that the MSD data that the work group reviewed was not
flawed and that is was valid in a lot of cases, more so than
not, and that what the committee viewed was worth reviewing.
So I think this independent study that our chairman had
conducted puts to rest any suggestion that the data reviewed
by the work group wasn't worth reviewing.
As each of you who were present remember after
listening to the presenters make their case I asked them
specifically to provide the work group with any data or
documentation that disproved the work group's findings so
the work group could come to a conclusion on this issue.
This was followed up with an August 9th letter from myself
to all the presenters, and an additional August 29th letter
from Knut to all the presenters. And to date I have
received eight letters from all those who presented, and
every one of them declining to participate in the work group
or in the development of the product.
And as I said, with the exception of the Pete and
the AGC providing us data, nobody else sent any in. Which,
again, I guess, goes to the fact that we've got a lot of
people in the world and a lot of various subjects who like
to complain, but when it comes time to produce, we don't
have a lot of people who show up.
So, as based on these and the comments from the
presenters, it has become apparent to me as the chairman of
the work group that the work group will be unable to
generate the voluntary industry cooperation needed to
achieve a consensus vote among this committee. If I were to
call for a full committee vote I believe I would receive a
majority but not a full yes vote to forward the work group
report on to OSHA for acceptance.
So based on this I have come to the conclusion
that further deliberation on the MSD issue by the work group
will not yield any additional benefit.
So based on Knut's Option 2, I offer some five
recommendations to the committee for consideration. I'll
pass these out, but basically that the full ACCSH committee
agree or vote to refer the MSD matter back to OSHA, that
OSHA use formal administrative procedures available to the
agency to consider a construction MSD standard, that the
work group forward the documentation it has developed to
date to OSHA for their use, that OSHA, perhaps in
conjunction with NIOSH, conduct demonstration programs to
determine if the work group draft has practical
applicability in the construction industry, is cost
effective and has an effect on reducing MSD's in
I would like to note, as I said earlier, again,
that some of the industry presenters, and it's in your
minutes, you can kind of read a synopsis of the three panels
that presented at our last meeting in the minutes, that they
supported the demonstration effort, and even offered to
participate. And again, I would hope that they would still
be forthcoming in their support if OSHA agrees to do some
demonstration efforts in this regard.
And finally, that the MSD and construction work
group be put on hold at this time to be available for advice
and counsel in the event that OSHA wishes to continue in the
development of a standard or conduct demonstration programs.
That concludes my report.
CHAIRMAN RINGEN: Thank you very much, Stu. We
have said this many times before to you, but I wish to thank
you first of all for all of the work that you have done on
this issue, and the difficult conditions under which some of
this work has been carried out. I think the recommendations
that you have presented are very reasonable, and we have to
have a discussion of them. Any comments?
MS. OSORIO: I just apologize. On my way out here
to the airport I realized that my review of the August 7th
letter from Mr. Fred Ryan from Options and Choices to Mr.
Pete Cheney never got to you, so I have a two page list of
comments on it. I think the bottom line on this is that due
to the flaws in concept and analysis described within this
letter, I cannot interpret the final interpretations
contained in the letter. And that is in essence that the
bulk of the citations in the Center to Protect Worker's
Rights bibliography are unfounded.
I'll submit this for formal inclusion.
I also just want to acknowledge the tremendous
work of Stu and the rest of his work group. And I think
it's a sad comment when an important issue like this has
virtually zero interest or participation by industry. I
think it's a really sad comment. You don't avoid a problem
by just going away. You confront and you deal with some
equitable way of dealing with it, and I think it's a very
CHAIRMAN RINGEN: I don't think there was a lack
of interest. You may want to rephrase that.
MS. OSORIO: Okay. Sorry. A lack of desire to
participate in resolving...
CHAIRMAN RINGEN: Any other comments?
CHAIRMAN RINGEN: Do I have a motion to accept
MS. PAUL: So moved.
CHAIRMAN RINGEN: Do I have a second for it?
MR. MASTERSON: Second.
CHAIRMAN RINGEN: Bob Masterson.
Any discussions of this?
MS. JENKINS: I have one question.
CHAIRMAN RINGEN: Yes.
MS. JENKINS: At the last meeting, and I can't
remember the gentleman's name, he proposed that a
demonstration be made on a construction site to see if this
standard would be cost effective and practical. Was that
CHAIRMAN RINGEN: No, it's not, nothing has been
done since because we didn't finalize the issue. It's part
of the recommendation here, I think, the recommendation
bullet #4, exactly to do that, and OSHA perhaps in
conjunction with NIOSH. We do have some projects that are
getting close to doing some of those things, and I am sure
those kinds of projects will be carried out in the coming
years. We're not finished with this issue. I'm sure. But
for now we are.
Any other comments? Questions?
MR. SWANSON: I'd like to comment. And that's
simply to say that the advisory board here will make
whatever recommendations that it wishes to make and we will
gladly accept them and deal with them however we can. But
as far as conducting demonstration programs to determine if
the work group draft has practical applicability, et cetera,
those of you who have followed what is happening on the Hill
know that funding problems will exist for us this year, next
year, and until that place freezes over if we engage in
activities like this.
CHAIRMAN RINGEN: You have a sister, or a brother
agency, whatever it is, over here, that might be able to
help. But recognizing those caveats. These are our
recommendations to you. Do what you want.
Any other comments? Discussion?
MR. CLOUTIER: Just a semantic thing. I think it
says ACCSH MSD. It should say work group instead of
committee. It's that work group's recommendations to the
CHAIRMAN RINGEN: Okay. Any other comments,
All in favor, aye?
Any opposed? Okay.
Again, Stu, thank you very much. This is an issue
that will be coming up again, and I was just in a meeting in
Germany a week and a half ago, two days on this issue, where
there is an enormous amount of research going on, so a
temporal, clear relationships, dose response relationships,
age relationships, you name it. This...
We will have more data on this issue and it's
clear to me that the focal point... I believe this. I have
no doubt about it. The focal point of construction safety
and health in the future, in the next coming couple of
decades is going to be dealing with this particular issue.
That was an editorial comment.
So thanks, Stu, for a very good job. And I know
you have to leave.
DIRECTORATE OF CONSTRUCTION UPDATE AND
COMPLIANCE UPDATE/FOCUSED INSPECTIONS Bruce Swanson
MR. SWANSON: Yes, thank you, Mr. Chairman.
It was nice to hear Mr. Burkhammer set the mood
for the next presenter, right? We are asked for an update
on DOC, or the Directorate of Construction.
We got out of the gate, those of you who were
involved in it recall early in December, I think the
effective date was December 11th, the reception was the
12th. We got off to I think an auspicious start. We had
the Secretary come and make the appropriate comments. We
had the President of the Building Trades Department in
attendance and commenting. We had the chairmen of both
AGC's Safety Committee and the Business Round Table's
Construction Division's Safety Committee make comments. And
with that kind of support, I hope we have a long and
What we did is, and this is review for many of
you, but we did is we grabbed several shops that were within
OSHA. We took the engineering unit from what had been
Construction and Engineering. We took the construction
safety standards unit and we took what was the construction
portion of the Compliance Directorate, and brought them into
one tent. Very small elements. We got two professionals
out of the compliance shop; we got five professionals, I
believe, out of the safety shop; and we retained the seven
people or thereabouts that we had in the engineering shop.
We had, we have still, plans to add people to
achieve some of the other ends that we had in mind when we
planned this Directorate of Construction. As of yet we have
not added many of those people. We did add a statistician
to our group. We have an office manager that we added to
our group. And later this month we will be adding, at least
on a temporary basis, a deputy director to the group that's
on a 60 day assignment, and hopefully when that 60 days is
over we will either have someone else for another 60 days or
we'll have somebody for 60 months. I have no idea how
that's going to work, but at least we'll have another
manager in the directorate.
Standards. You had an in-depth review on the
assignment that Joe Dear has given our small shop for
standards this year. Half of the high priority standards
that OSHA has on the docket for this fiscal year are in the
Directorate of Construction. The two that you are going to
participate in and work with us on, and scaffolds, steel
erection and the opening of the Subpart M, or Fall
The Construction Services Office is an office that
we have the greatest plans for and therefore has progressed
the least because we haven't added the staff necessary to
deal with that. But the concept is that we are going to do
outreach, we are going to do construction specific
statistical reports for OSHA's use. We are going to, out of
that office, continue to interface with this committee.
We are going to have coordination with the OSHA
Training Institute in Chicago so that construction specific
training can be a topic of conversation within OSHA. You've
heard that there is legislation on the Hill. I know from my
contacts with you and people here in the audience that there
is some concern about the abilities of compliance officers
to make construction inspections. We hope to continue work
in that area.
Cooperative programs. Although we have done some
limited work in cooperative programs in the construction
area, I think some creative work that's been done by myself
in working with other personnel in OSHA not within the
construction shop, we need to add staff to successfully
pursue that line, and the Clinton Administration has been
talking about reinvention and been working on reinvention,
OSHA's been working on reinvention, and we want to see the
Directorate of Construction work on reinvention.
We need construction specific case screening on
the egregious cases, the significant cases that come through
OSHA. As of yet those cases are being screened elsewhere
for their propriety. They should be screened, those that
are construction in nature should be screened within the
Directorate of Construction. We should have someone with
field experience to do those screenings and to help the
policy makers make their decisions.
We will tomorrow be having a briefing on a special
emphasis program on silica. The agency is also doing a
special emphasis program on lead, and in neither of those
situations are we going to be able to track it or monitor it
from the Directorate of Construction because we do not have
the industrial hygiene capacity that this directorate needs.
Some things that we have underway at the present
moment, the engineering office is being used as a
coordinating center. We are formulating a response team,
probably to be used 90 percent of the time on chemical
problems in the industry, but it will be engineering in
basis and we can respond, we'll be able to respond to non-
chemical collapses and other engineering disasters out there
such as we've had recently in Atlanta and some other places.
The essence of that is that the core of the group
will be in the engineering shop in Washington, but we will
take that expertise, process safety management expertise and
engineering expertise that exists in the 10 regions around
the country, add them on paper to the team, and then make a
cost effective response as the situation calls for.
We also on more of an informational, not
substantive, basis, have put together a list of construction
coordinators. These are persons, singular or at the
regional administrator's choice, some of the regions have
multiple construction coordinators. It is a position that
will be utilized to interface with the construction industry
in the region in question in receiving complaints, in
receiving feedback from the construction company vis a vis
what OSHA is doing, or even what OSHA is not doing.
Those persons will also act as a dispersal point
for information from OSHA, construction only in nature, that
should be getting out to the community and not just through
the vehicles of the trade papers or the Federal Register but
somebody in each of those regional offices who knows the
players in the construction community in your portion of the
Not much progress, but some progress.
And that really is all we've accomplished in the
three months that we've been in existence. Some of our
progress was slowed down by specially scheduled
congressional vacations for us in December. We hope that a
budget will be finalized for '96 and give us a little better
feel on what financial resources are available for us to
make the in-house transfers or even possibly even hires that
the directorate needs.
And that, Mr. Chairman, is my update.
CHAIRMAN RINGEN: Thank you.
Any questions, comments?
CHAIRMAN RINGEN: Would it be useful for you,
Bruce, in the future... It's an unusual suggestion,
perhaps, in light of the charter of the committee, but would
it be useful for you to have the committee review your
operation periodically? Or have a group review it?
MR. SWANSON: Explain review, Mr. Chairman.
CHAIRMAN RINGEN: In our programs we have, our own
programs, we have substantial external review by various
committees who come in and take a look at what we are doing
and how well we are doing. I find that to be amazingly
useful to keep us focused. And I think there are a number
of people on this committee who have very great experience
in seeing OSHA operate out in the field. That might be
helpful to you in looking at what you are doing in
relationship to what their needs are.
MR. SWANSON: We'd be thankful for oversight. I'm
sure we'd find it helpful.
CHAIRMAN RINGEN: I would consider it something
slightly different than oversight. Perhaps more advisory
than that, since... But it's... Why don't we talk about
that before the next meeting and see if we can set up... I
think it would be useful.
I'd also like to know a little bit more about this
line responsibility. You alluded to it with construction
coordinators in the regions, but the line responsibilities
between the area offices and the central construction
MR. SWANSON: I can touch on that right now if
CHAIRMAN RINGEN: Yes.
MR. SWANSON: There is no line authority.
MR. SWANSON: Compliance officers report to their
supervisors and their area directors. The area directors
report to regional administrators. The regional
administrators report to an enforcement deputy who reports
to Joe Dear. We are nowhere in the direct line of authority
having to do with compliance investigations, training
activity or outreach activity as done by a regional or area
office. We are a support office, a policy assistance
We would hope to be able to generate information
that would be useful for the compliance deputy to use, a
field enforcement deputy to use, on targeting in the
construction area. We would also be happy to help on any
policy formulation on how inspections, where inspections,
what training, who training, anything like that he would
welcome in the area of construction specific plans or
policies or procedures. But we have no line authority going
to the compliance officer whatsoever.
CHAIRMAN RINGEN: Is that something that might be
MR. SWANSON: There have... I doubt that that
would... I doubt that that would ever occur. I cannot
answer for the Assistant Secretary, this one of the next
one. But if we can help with the training and education and
direction of the field staff vis a vis the construction
industry, I think that would be a large step in the right
direction, but where OSHA is going right now all the
authority, all the empowerment is being pushed out and down,
and to get actual direction from an office in Washington,
D.C. I see as running counter to the current at the moment.
CHAIRMAN RINGEN: Any other comments?
CHAIRMAN RINGEN: We have the second part of
Bruce's presentation still waiting, when he will go through
some of the specific, some of the performance that they have
had in the inspection program. But before we can do that we
have to take about a three to five minute break so you can
get set up?
MR. SWANSON: Right.
CHAIRMAN RINGEN: So we will start again at about
two after noon. And you will be done by 12:30 for lunch as
CHAIRMAN RINGEN: Back on the record.
MR. SWANSON: Okay, Mr. Chairman and members of
the committee. This is to give you a quick fly-by on what
OSHA is doing with the focused inspection program that we
have had in place since the fall of '94. There is continued
curiosity about what our numbers are really doing and how we
are performing out there nationally.
Everything that we'll show you here is broken down
by the 10 regions, so you can take a look at your own area
of the country. What we show... I think this is self-
explanatory and I won't spend the time on the next slides.
But you can see the color-coding, that in Region I they did
613 conventional site inspections, construction site
Now what we have done is gone through the data and
made sure that we are comparing apples and apples. On a
construction site, a conventional inspection normally gives
us three or four inspection numbers, because each sub is
counted as a separate inspection. But what John Franklin
has done for us here is gone through and reduced all these
numbers to projects/sites inspected, so that they give you
the same numbers that correspond to what happens on a
focused inspection where normally you only get the one
So back to the example here, Region I, 613
conventional inspections versus 296 focused inspections for
our entire focused history, which is October 1, 1994 to
date, March 31, 1996.
MR. CLOUTIER: That isn't 613, of which 296 turned
MR. SWANSON: It is not.
MR. CLOUTIER: That's fine.
MR. SWANSON: It is not. It is not. If you're
quick with your math, and I am not, but that's 900 and
whatever inspections total for Region I
Yes. Anna Marie.
MS. OSORIO: On a clarification. This represents
only federal inspections. Right?
MR. SWANSON: That's correct.
MS. OSORIO: So what is the interplay, then, for a
state that has its own plan, and federal, if it's
construction. Do you, because you folks are in
construction, take over? Do you do any coordination?
Because Region IX has a relatively few number, but you are
doing some. So how is that burden distributed when there's
a state and a federal plan?
MR. SWANSON: Region IX as you well know is made
up totally of state plan states, Hawaii, California, Nevada,
Arizona. Those 101 construction industry inspections have
taken place in areas where there is exclusive federal
jurisdiction on federal properties or some other reason why
the feds have exclusive jurisdiction and whatever state
we're talking about did not have the authority to go in
there. Nowhere do we capture the state plan data on focused
inspections because they have such a variety of responses to
MS. OSORIO: Yes. I just think it would help in
the future if you had an asterisk or something where some
regions did have their own state plans, because that sort of
diminishes the work going into that. You know, there may be
fewer federal ones because the states are taking over. But
anyway... Go ahead.
MR. SWANSON: I understand the comment. I do
believe that each of the 10 regions up there would then earn
an asterisk though, because they all have state plans. IX
is 100 percent state plans; X has only the state of Idaho;
and then the others in diminishing percent.
Let's go on to the next one, John.
These tell you slightly different things because
now the time period that we captured is changing. This is
basically the same information that you got on the last
slide except that we are talking about what our numbers were
and what our experience was the first full fiscal year that
we had the focused inspections.
We got off to a very slow start. I don't think we
break this down by orders, but in '94, October, we came out
with a policy and we really weren't making focused
inspections until January of that year, and then the pace
picked up from there on out.
Okay. Again, this is a year to date slide for
this year. You can see what the percentage is, and we
didn't break it down into percentage, we just gave you the
raw numbers. But you can see that percentage-wise focused
inspections are becoming a more significant portion of what
we are doing in the field.
CHAIRMAN RINGEN: So total inspections are going
to be presented.
MR. SWANSON: Also total inspections. This is not
the same time frame, however. This is half a year.
CHAIRMAN RINGEN: If you adjust for time frame...
MR. SWANSON: Right. Right.
OSHA is off on all its inspection numbers in FY
96. In the construction industry we are suffering the same
Okay. Here we have the regions with their two
similar time periods, half of '95 and half of '96 compared.
Okay? Next slide. We'll stop on any of these,
but... Here is just the first half of year one broken down
by regions, conventional versus focused. As I said earlier,
you can see that focused inspections were not an overnight
The next slide is the third quarter of year one,
where focused inspections are becoming a thing closer to the
norm. This might well have been our highest quarter as far
as a percentage of focused inspections, and I cannot explain
the why of that to you.
The fourth quarter, still a high number of focused
inspections but not quite the same as the third quarter.
I have really no comment to make on whether this
is good news or bad news. It's the glass half-full, half
empty. If all focused inspections... If all of our
construction inspections are focused inspections, that might
mean that the entire construction industry qualifies for
focused inspection. And that is a good thing.
It could be that there is something wrong with our
targeting system, and the two or three percent of the
construction sites that we get to take a look at for any
given time period are falling in the wrong target area.
Perhaps we should be inspecting a universe where we don't
have any focused inspections.
This is the first quarter of year two. I don't
think it shows you a whole lot there of changing interest.
The second quarter, again.
The last slide I think might be instructive here.
What we've done... What John has done is he's taken one
region, Region I, and taken a look at that by area office.
You can see that what we're talking about here is a half of
year, '96 year to date. We are looking at each of the area
offices and what office does what percent of focused versus
Like anything else, I'm not a statistician, but
like anything else the further down you break things the
more you start running into, I think, human nature. Can I
explain the difference in the percent of focused inspections
in Boston versus North Boston? I cannot. But I would
suspect that it has something to do with the area director
and the individual compliance officers' attitudes. It's a
thing that we would try and get out of the system but which
you can't, totally.
The average penalty per project, however, gets to
be a very interesting thing, at least for the employer
community, I would think. It's self-explanatory on focused
MS. JENKINS: Do you find the penalty is higher on
MR. SWANSON: You'll find the penalties much lower
on the focused inspection. As you can see there, let's take
Concord. The average penalty for a focused inspection was
$60.00. The average penalty per project for a conventional
inspection was that $33.54 number.
Now, you know, there again we have, like the
Springfield office with an $800.00 average penalty for, you
know, per project. I would suspect without knowing that
there were one or two projects that were heavily penalized,
and the average breaks out to be $800.00. I doubt that you
would find any norm bubbling along $800 there. There's
probably some significant dollar amounts on one or more of
Okay? Any questions about this? This is intended
to give you a feel for where we are after a year and a half
of our focused policy.
Thank you, Mr. Chairman.
CHAIRMAN RINGEN: I have one comment, and that is
that the purpose of a focused inspection program was to free
up resources to do other things. While you've seen a big
increase in the focused inspections at the same time you
have seen a huge decline in conventional inspections. The
question would be perhaps, to look at is, what would the
number of conventional inspections have been in the event
that you had not had the focused inspection program in this
period when you've had restrictions in your budgets?
MR. SWANSON: Well... And we have not done that.
We have... You know, we do have the question out there as
to why the numbers are going down. We have a half-dozen
answers for ourselves as to why the numbers are going down
with OSHA. Budget, you mentioned, is one of the them. The
time that we spent shut down in FY 96 is clearly one of
them. How focused inspections themselves interplay with
those numbers, clearly focused inspections are bringing down
OSHA's construction inspection numbers, for the reason that
the old way of counting was you'd get three and a half
inspections per inspection site because you counted all the
So if OSHA switched over and did all focused
inspections, visited the same number of projects, you would
be down someplace around 25 percent of the number of
inspections, although you would be visiting the same number
of sites. As you pointed out, though, when we were going
through the slides, we have taken that variable out of these
slides, and we still slow a decline in numbers. Not nearly
as severe as those people who just compare FY 93 fiscal year
or FY 94 fiscal year to what happened in '95 or '96, but
still it's having an impact.
MR. CLOUTIER: Mr. Chairman, I also thought that
Joe Dear said last year and the year before when we made
this change we were going to do quality instead of quantity,
that when an inspector left a job site he or she should have
made a difference on whether that job site was any safer or
not, was one of the things. And I know my company has had a
number of focused inspections, and they seem to be working,
and maybe we need to capture if we go to a site instead of
just counting the site we also count at the site, that
somewhere we keep a subset of notes of how many subs were
there, which will also increase your numbers.
But I thought we were getting away from the number
bit. We were trying to look at the quality and the end
MS. OSORIO: Is it possible to get similar graphs
but have them stacked, so that you have state as well as
federal? Because I think you're only seeing a slice of the
picture here, and it would be nice just to get the whole
"OSHA experience" especially with respect to...
You may be focusing on focused, but in other
states that don't use the feds it may not be going that way,
and I just think... You know, a lot of the western states
and what they represent, you know, we need to see what's
going on there. So if at all possible a tally or a query to
that state offices to give you some head counts I think
would be quite helpful.
MR. SWANSON: We could follow up on that. As I
said earlier, there was no intent here to not recognize that
half of OSHA out there are state plan states. It's
difficult to show this way because 25 different states have
25 different reactions to focused inspections, and also as
was pointed out, we are getting away from the numbers as a
way of measuring anything, but it is still a management
tool. Are we having the impact that we wish to have with
our programs? Is it creating as you pointed out, Mr.
Chairman, some other...
Is it part of a problem in and of itself? I don't
know that. But we're looking at this as a management tool
CHAIRMAN RINGEN: Steve makes a very good point
about the change towards quality. The problem is... And I
think also is that we are going to get some performance
measure that would capture that, but I don't know if those
are in place yet.
MR. SWANSON: No. That... That is the agency's
goal. That is what Joe Dear wants. I suspect Steve knows
better than I do what change there has been, if any, in the
last year or two in construction inspections by OSHA
compliance officers out there. We need a review team, Mr.
CHAIRMAN RINGEN: You'll have one.
Any other questions or comments?
CHAIRMAN RINGEN: Before we break for lunch, we
will reconvene tomorrow morning here at 8:30. As I said, we
will have a report on the silica special emphasis program.
First we will have three work group reports, the women in
construction, compliance basis and safety and health
programs. We will try to schedule our future meetings, so
think about your calendars, and hopefully out of the
meetings, particularly of the confined spaces work group and
the programmed work groups we will hear something about when
you think we need to meet to discuss your progress.
And finally, the ASSE will be addressing us. And
also we do normally offer the opportunity for public
comment, and if there is anybody else who has any comments
that they would like to make tomorrow, before we adjourn
will be the time for that, but please let Thomas know in
writing, either today or at the very latest first thing
tomorrow morning if you have comments that you want to make
and what you want to comment on.
With that, I think we have concluded today's
discussions and we will break for lunch. Thank you.
The work groups meet at 2:00. thanks.
(Whereupon, at 12:20 p.m. the meeting was
adjourned, to reconvene at 8:30 a.m. on Wednesday, April 10,
BAYLEY REPORTING, INC.
(202) 234-7787 (800) 368-8993
DATE: April 9, 1996
LOCATION: Washington, D.C.
This is to certify that the attached proceedings
before the United States Department of Labor, were held
according to the record and that this is the original,
complete, true and accurate transcript which has been
compared to the reporting or recording accomplished at this
BAYLEY REPORTING, INC.
April 9, 1996
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