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ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH

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


VOLUME 1

U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210


Thursday, May 22, 2003


The meeting was convened, pursuant to notice, at 9:06 a.m., MR. ROBERT KRUL, Chairman, presiding.

APPEARANCES:

EMPLOYEE REPRESENTATIVES

MR. ROBERT KRUL
MR. MANUEL MEDEROS
MR. FRANK L. MIGLIACCIO, JR.
MR. JOSEPH DURST

EMPLOYER REPRESENTATIVES

MR. JAMES AHERN
MR. DAN MURPHY
MR. GREG STRUDWICK
MR. DAVID M. BUSH
MR. MIKE SOTELO

STATE REPRESENTATIVES

MR. KEVIN BEAUREGARD

PUBLIC REPRESENTATIVES

MR. THOMAS A. BRODERICK
MS. JANE F. WILLIAMS


FEDERAL REPRESENTATIVE

MARIE HARING SWEENEY, Ph.D.

DESIGNATED FEDERAL OFFICIAL

MR. BRUCE SWANSON, DIRECTOR,
Directorate of Construction

COMMITTEE CONTACTS

MR. STEWART BURKHAMMER, DIRECTOR
Office of Construction Services
Directorate of Construction

MR. STEVE CLOUTIER
Directorate of Construction

ALSO PRESENT:

ASSISTANT SECRETARY JOHN HENSHAW
Occupational Safety and Health Administration

MR. NOAH CONNELL
Office Director
Construction Safety and Guidance

MR. STEVE WITT
Director
Office of Construction Safety and Guidance

MR. JOHN STEELNACK
Office of Construction Safety and Guidance

MR. BOB BURT
Directorate of Evaluation and Analysis

MR. DAVID O'CONNER
Office of Construction Safety and Guidance

MR. DAVE WALLIS
Office of Construction Safety and Guidance

MS. AMANDA EDENS
Office of Construction Safety and Guidance

 
INDEX
  PAGE
WELCOME, INTRODUCTIONS, EMERGENCY PLAN  
By Mr. Robert Krul .............................................................................................................. 5

PARTNERSHIPS AND ALLIANCES
 
By Mr. Stewart Burkhammer ............................................................................................ 9

REMARKS BY ASSISTANT SECRETARY - OSHA
 
By John Henshaw .......................................................................................................... 43

SUBPART N - CRANES AND DERRICKS UPDATE
 
By Mr. Noah Connell ............................................................................................................ 80

PIPELINE SAFETY
 
By Mr. Noah Connell ............................................................................................................ 89

STANDARDS ISSUES
 
By Mr. Steve Witt ............................................................................................................ 102

ASSIGNED PROTECTION FACTORS FOR RESPIRATORS
 
By Mr. John Steelnack .......................................................................................................... 106

CONTROLLED NEGATIVE PRESSURE (CNP) REDON
 
FIT TESTING PROTOCOL  
By Mr. John Steelnack ................................................................................................... 115

CHROMIUM
 
By Ms. Amanda Edens ......................................................................................................... 126
By Mr. David O'Conner ......................................................................................................... 130

SUBPART V - POWER TRANSMISSION & DISTRIBUTION
 
By Mr. Bob Burt ................................................................................................................... 144
By Mr. Dave Wallis ............................................................................................................. 150


PROCEEDINGS
WELCOME, INTRODUCTIONS, EMERGENCY PLAN

CHAIRMAN KRUL: Good morning and welcome. The last time we had snow. Today it is melted snow.

Before I go over the emergency plans, I want to cover a couple of things. I am circulating a sign-in sheet. Please be sure to sign it so that we can have a record of your attendance.

I would like to make introductions. Starting to my left, would you please introduce yourselves?

(Whereupon, introductions were made.)

CHAIRMAN KRUL: Just as a brief opening remark, I want to apologize to a couple members of the committee. I have been out of pocket and almost unreachable. I am not one of those people that calls in and sees who's in my phone messages, because it just causes me more work on the road. So, I apologize to anybody who was trying to get me. We just got a new boss, a new international president.

As my labor brethren and the committee from organized labor know, this is my fourth one that I've gone through. They all come into office as Tasmanian Devils, and you get caught up in the backwash of the whirling that they do when they come in.

I have been traveling far too much and have just not had enough time to devote to other things that I should have been devoting time to. So, I apologize to anyone who was trying to get me. Things will calm down over the next several months and it will be a lot better.

I'd like to go over this emergency plan that Mr. Cloutier has made. He's sitting here, ready to bail me out. But we have to go through these evacuation plans, emergency plans, as a matter of safety.

There are four emergency exits here. Most of you who have been here know there are bathrooms to the right and to the left, are they not? You can go either way to the restrooms.

The fire, medical and security phone number, for anyone's information, is 693-7777. There is a shelter-in-place plan that is now in effect here in the DOL. What that requires us to do, is that in the event of an emergency we are to stay in this room and await further instructions.

Now, obviously if there's a fire, I think we can look past that. But for any emergency that may arise, you're supposed to await further instructions here.

The cafeteria is on the sixth floor of this building. There's a snack bar on the fourth floor for those who would like. This one, at more and more meetings that we attend, becomes a bigger and bigger issue.

So I would ask members of the committee and others in the room, if you have a cell phone, please turn it on "silent," please turn it on "vibrate." In other words, please don't make any noise or interruptions with your cell phone.

It is very, very intrusive, especially when someone is speaking. We're going to have the Assistant Secretary down here and it just wouldn't be right, not only for him, but for anyone else making the presentation or while the proceedings of this committee are going on.

I've got a new president and I'm watching my phone on "silent." So if the chairman is going to do it, I would please ask everyone else to do the same.

Did I forget anything, Steve? There is a DOL evacuation assembly area plan up here. It gives the map. We would go out to C Street if we did evacuate this. If anyone wanted to look at that schematic, it will be up here.

Okay. Moving along. Mr. Swanson has told me that he is waiving his time right now for the Directorate's report and will weight in during the course of the meeting, and I'm sure with Mr. Henshaw.

I know. One thing I forgot. I just want to mention remarks. Tomorrow, we will be going over the workgroups. We have, in the estimation of a couple of us on the committee and within OSHA, too many workgroups. We know of at least four that can be consolidated.

We'd like you to work at those workgroups, members of the committee, and see where you could make recommendations for consolidation. We also want to do some brief, but comprehensive, descriptions of what those workgroups are charged with so that they have a focus and a direction to go in. So, if you would consider that and be prepared to address that tomorrow as well.

With that, we would like to have Mr. Burkhammer come up here and do his presentation on partnerships and alliances.

PARTNERSHIPS AND ALLIANCES

By Stewart Burkhammer

MR. BURKHAMMER: I thank Bruce for the extra time. I'm not sure I can talk enough to fill in before the Assistant Secretary gets here. If you have questions, we can spend the next hour or so talking about partnerships and alliances.

Apparently, since our last meeting when I reported to you we went through and we kind of got a correct count of all the partnerships and alliances we have. There was some question about some that had dissolved. Some of the partnerships have completed and we wanted to get a correct count.

So, as far as the ABC partnership goes, we have 47 chapters currently participating, 84 employees at those 47 chapters, and covering approximately 3,400 employees. The AGC partnership currently has 40 chapters participating, 291 employers covering 7,430, roughly, give or take.

Some of the things we've been doing with the regions. In Region 2 in New York, we've worked with them on the AMEC partnership. It's a large project in New York that they'll be working on.

The Driscoll Company, United Building Trades of Camden County, and the Site System is building a major hospital renovation.

In Region 7, Steve Cloutier has been working with the Mason Contractors Association and Region 7 on a fall protection partnership to reduce fall accidents by 10 percent by the third year of the partnership.

Alliances. We've signed, as I think I reported to you in Chicago, the Washington Group alliance and we've signed the Construction Management Association. We signed the National Association of Homebuilders alliance. I think that alliance is now the record time. It was also signed the same day as -- and the Air Conditioning Contractors. So, the construction totaled to nine.

There are several in various stages of process that are moving along to fruition, hopefully. The American Society of Civil Engineers is still ongoing, where it's now to the point that we've approved it -- throughout the agency and will be setting up a signing date for them.

Certified safety professionals to promote -- within the construction industry has also been finalized and approved by the board and it's being vetted throughout the agency.

There were discussions on May 1. I went over to the Building and Construction Trades -- the process of developing an alliance for that group.

Carolinas AGC. We've been working with them now for about seven months, trying to move their alliance on training and education for minority contractors.

We have a meeting scheduled with them with the executive director and their safety manager to analyze that and get it moving up here, and then after vetting, hopefully we can sign that one end of July, first of August.

Our construction group that I've been telling you about since day one is still out there. It's on ergonomics and best practices. It's all signed. It's currently being vetted throughout the agency and we hope to sign the second or third week, which is the Data Integrity Security Administration, which is a third-party drug testing agency.

We met with Bruce and the Assistant Secretary, Davis Lane, and myself to talk about opportunities maybe to have an alliance with them to promote drug testing.

We're also currently working with the Boilmakers Union and the Millwrights Union, and they've had discussions with Frank and the Ironworkers to work on drug testing in various labor unions.

I haven't had a chance to talk to Frank yet, but I want to sit down with Frank and see if maybe we can do a partnership of labor, DISA, and OSHA. That one has a lot of potential.

The Gill Bain Building Company out of Providence, Rhode Island have asked to talk about an alliance for construction best practices and safe work practices. It's in the early stages of review. We have a draft in from Jack O'Donovan. We're taking a look at it and we'll be turning that back around with several comments for him to review.

The National Electrical Contractors, NECA, training and education for small contractors, and Spanish training in electrical safety is currently being vetted. That's been approved by everybody.

The National Center for Construction Education and Research, NCCER out of Florida. They were up the other day and met with the Assistant Secretary, Bruce Davis and myself, regarding a possible alliance on education and training issues.

We're not quite sure where we're going to go with that one, but we're going to continue some dialogue with them and see. They've got some partners, CII, and some other groups that are working with them, and maybe we can take a look at a broader alliance rather just a narrow one.

We're meeting with the National Utility Contractors. We're meeting with the NUCA board June 9th to discuss approval with the alliance. That will come to fruition.

The Metropolitan Indianapolis Construction Coalition on Safety Mix. Steve Cloutier, Michael Bouchet and I had an opportunity to participate in their annual meeting when we were in Indianapolis doing the steel erection training. It was very, very impressive. They had about a thousand people there that night.

I got to play John Henshaw and Bruce Swanson and give a speech. In the glaring lights, it took me about two minutes to adjust my glasses so I could even see the print. But it was a very impressive evening, very impressive dinner. They're doing a lot of neat things for safety and health.

Jim Brown came over yesterday and we had some initial discussions on where we could go with them on an alliance. We have a little problem there, in that it's a State Plan state.

We've not done an alliance yet in a State Plan state, but there's a first time for everything. We have some support from the Commissioner of Labor, and hopefully we can move that along. At the next meeting, I'll be able to give you a little more information on that.

The South Dakota School of Mining and Technology. We're working with them on development of a curriculum for a safety and health course in all the engineering disciplines in the school.

We're also talking with ABET, which is an accreditation for schools and curriculums, and we're talking with them about also a mandatory safety and health class to not only the South Dakota School of Mining and Engineering School, but maybe a lot of other engineering schools if we can get this so we have engineers coming out of school that at least know how to spell safety and understand what it is.

Currently, a lot of schools don't even have any safety for the engineers in any of their disciplines, so hopefully we can move that one forward.

That's where we are in partnerships and alliances. Any questions, comments, discussion?

CHAIRMAN KRUL: Questions from the committee? Identify yourself, please, Mike.

MR. SOTELO: This is Mike Sotelo. What are the challenges with State Plan states?

MR. BURKHAMMER: I don't know them all, but right off the top of my head, OSHA has jurisdiction in the federal, states, and in the alliances and partnerships. We developed it with that in mind. However, some states are doing their own partnerships, though we do not have an alliance in a State Plan state.

I think the problem is basically jurisdiction and who's going to be responsible for managing it. Bruce, do you have any comments on that?

MR. SWANSON: No. Mr. Sotelo, if you would like a presentation on State Plan issues, we can do that.

MR. BEAUREGARD: We can talk about the challenges we have in the federal states.

(Laughter)

MR. BEAUREGARD: Seriously, jurisdiction is a issue.

MR. BURKHAMMER: One of the advantages to an alliance, is it doesn't have an enforcement part of it. Part of the alliance is basically training, education, research, promoting the national agenda. So, there's things we could do that would not involve the enforcement arm in the alliance piece. So the alliance may be a little easier than a partnership.

Marie Sweeney?

DR. SWEENEY: Marie Haring Sweeney. Stew, I understand --

MR. BURKHAMMER: Cancel is the wrong word. Expired.

DR. SWEENEY: Expired. Okay.

MR. BURKHAMMER: The term is "expired." Initially when we did alliances, they were for one year. We've since moved them now to two years, because one year you just get started and it's a period of time. That's what happened to the HCA alliance, it expired.

Where we are on that, is that there's five Hispanic groups now, basically large groups: the Hispanic Contractors Association, the United States Hispanic Contractors of America, the Chicago, Florida, and Texas Hispanic Contractors groups.

We've had discussions with them to take the five and merge them into one alliance rather than having five individual alliances or three individual alliances.

The problem is, we have one individual in those five groups who is being a little difficult and wants his own alliance, rather than sharing with the other four. We're working very hard to convince him that he should reconsider his position and decide to combine his capabilities with the others.

Also, we're working on a separate alliance with El Nueve, which is their constructor's magazine that they publish in Spanish once a quarter, I think, or maybe every other month now. We're writing articles for that magazine. Every magazine now will have a page in it with an Hispanic safety article from OSHA.

It's a tear-out and the contractors can use it as a toolbox talks. We're really excited about that. We've done one on tools. We've done one on, what, trenching and excavation, Steve, or is that coming up?

MR. CLOUTIER: The next one is on PPE, and the one after that is on trenching and excavation.

MR. BURKHAMMER: Okay. So we've done PPE and tools, and then we're going to do trenching and excavation, next. So, it's getting some good print. A lot of people are using it. They're tearing it out. We're getting some feedback because a lot of contractors are using it for their toolbox talks.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Jane Williams. My question is to Mr. Swanson.

MR. SWANSON: I would see no difficulty with that, Jane.

CHAIRMAN KRUL: Is part of this initiative with this alliance to help stem the accident and fatality rate among Hispanic construction workers?

MR. BURKHAMMER: All of both the partnerships and the alliances, and the third piece is agreements--we have two agreements, currently--is the triple bottom line, which is reduced fatalities, injury and illness, which the Assistant Secretary talks about in every one of his presentations. So, all these cooperative programs are geared toward driving down the accident rate in construction.

MR. SWANSON: Yes, Mr. Chairman. Bruce Swanson. Just off the top of my head, if I remember the figures correctly on fatality figures alone, something like 17, 18 percent -- of the construction community to find some mutual way of dealing with the problem out there.

MR. BURKHAMMER: In addition to that, every alliance that we discuss, every one of these I've mentioned today, we're talking with them about an Hispanic piece in the alliance to translate whatever we end up doing for both English and Spanish.

We're also now looking at additional languages. As you know, there's a large Asian population now coming into the construction workforce. So, we're having discussions on how we're going to do some training, if you will, toolbox talks, to start with in some of these other languages, also.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: This is just a follow-up from Bruce's comment. Do you know what trades we're seeing fatalities in? I don't want to put you on the spot. We can go back and look at that later.

MR. SWANSON: Yes. I would be more comfortable, Marie, to have something in print in front of me so I could be careful and be more precise. But, as a general statement, those sectors of the construction community which have historically dealt with large numbers of new employees, perhaps less skilled employees.

I apologize to the laborers for using that term. The laborers across the country, both organized and unorganized, are more at risk than, let us say, the operators.

DR. SWEENEY: If I may, Mr. Chairman. Last week, Jane Williams and I sat in on a conference call with Judy Freeman, who is the representative of the NACOSH committee. Mr. Henshaw has asked them to put on a summit for immigrant workers.

Part of the issue, I think we need to get the construction angle, and they want to talk about best practices. It's going to be focusing on Hispanic workers, although there is the issue of the other immigrant population.

So, maybe we can all sit down at some point and talk about how we want to get the construction angle into this meeting. We're not quite sure. The format and everything has not been settled.

But they're planning on doing it sometime early next winter, so I wanted to take this opportunity to sort of get the committee thinking about what they want to put in there.

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: Stew, what role does OSHA have in regards to working with State Plan states to have some type of Hispanic or bilingual training? Is there any kind of mandate whatsoever? Are you a resource? Particularly for the State of Washington that I come from, there's a very large Latino population in the construction industry.

There are minimal resources from the State Plan of labor and industry in Washington. Yet, it's the majority, or most, of the craft, at primarily on the residential side.

But it's a large opportunity. Does OSHA have a role or any kind of mandate because of funding, that they would ask State Plans to take a look at for bilingual training?

MR. BURKHAMMER: Bruce?

MR. SWANSON: Yes. Thank you, Stew.

Mike, as you well know, coming from a State Plan state as you do, we surrendered, as it were, when we entered into an 18(e) agreement with that state that they would run the OSHA program and all its aspects.

We monitor that to make sure "they are as effective as." Various states have chosen different paths to get to the same end goal as we've taken, and it is very difficult in the extreme for us to tell them that a particular path that they're following, because it's not identical with ours, is not as affective as.

So, we use the bully pulpit more than mandates on particular problems. The states are encouraged, as I'm sure Kevin will be happy to attest to, to address the issue of the immigrant worker in construction. We are ready, willing, and able to assist them in any way that they request, but we normally wait for them to ask us for help.

MR. BEAUREGARD: I would like to respond, if I could.

CHAIRMAN KRUL: Kevin Beauregard?

MR. BEAUREGARD: There are different states in the country that definitely have a higher population of immigrant workers, or Hispanic workers. I know that many of the states have circulated a number of different resources for that.

There are Hispanic task forces in certain states. For instance, North Carolina does have an Hispanic task force, and we're very active in the Hispanic community. We do have a major migrant workforce in North Carolina, a major agricultural player. Because of that, we have a program where -- I don't know if anybody's familiar with the H2A program for migrant workers.

But we meet every migrant worker that comes off the bus in a processing center and we kind of give them a day's briefing on not only OSHA, but Department of Labor, wage and hour. We kind of use it as an opportunity to train them.

We generally provide some food there, which helps with the attention span there. But we also have a bilingual staff that does all the training. I know there's many other states.

Certainly, it's a big issue in all the states. The states that have a bigger issue with it are aware of it and they're trying to do what they can with the resources that they have.

I do know that the current economic situation in many of these State Plan states is not good right now, as with the rest of the country. So, they're trying to do what they can to address the issue, but I certainly know that the statistics that Bruce read off are probably pretty consistent throughout the country as far as injuries and fatalities among the migrant workers.

CHAIRMAN KRUL: Greg Strudrick.

MR. STRUDWICK: From a national standpoint, the associations--and I'm very active in the National Utility Contractors Association--we recognize the -- more than recognize, we know, that we've got a problem from a training standpoint and the multilingual bilingual issues.

We've directed some of that attention to our competent person, excavation safety chairman, confined space injury chairman. We have translated both of those manuals and, through a Susan Harwood grant, have had probably now somewhere in the neighborhood of 5,000 to 7,000 Hispanic-only -- we've had the Hispanic-only training sessions and have trained 5,000 to 7,000 individuals, laborers, operators, supervisors.

So, there is a resource there. That's why we're excited as far as this alliance is concerned, that it does promote training and how to get the training into the workplace and how to effectively make sure that the bilingual issue is addressed. Because I've been on sites in the last 90 days where it wasn't 23 or 28 percent, it was 99 percent Hispanic.

So, we see a lot more Hispanic influx, I think, than any other industry, maybe because we're underground and it's easy to learn how to use a shovel. I started with a shovel. Everybody does. There's an awful lot of opportunity.

So, that's where we see that. We have some resources available across agency- NUCA that we'll make a little more available and identifiable, and then work towards a common goal.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: Two things. I think it's great to be training people and it's great to be training them in their own language, but we need to be doing some more effectiveness -- we need to be doing more evaluation to make sure that the message is getting across and people are actually putting that message into effect.

So, I'm not offering a solution right now, but there are some studies that are going on to evaluate effectiveness, but I'm not sure that they're doing it in Spanish with the populations that we're training.

Perhaps we'll hopefully see a reduction in the fatality rate and the injury rate. We're not getting much in terms of injury rates right now from that group.

The other thing is, this is in your packet. It's called "Safetia est Seguridad." It's a report that NIOSH commission, with the National Academy of Sciences, talks about how to develop a communications strategy for dissemination of information in Spanish.

At the back of this are five white papers that were commissioned that will give you kind of a baseline of what the issues are on safety and health relative to the Hispanic community and the United States.

Also, there are some messages to OSHA too on dissemination and communication, and some of the things that the committee thought would be useful in general for occupational safety and health, as well as for construction. We don't hand them out to the general public. If you want them, just call the NIOSH 800 number and ask them for a copy of "Safetia est Seguridad."

CHAIRMAN KRUL: David, Marie just gave me a great segue. I'll call on you in just a second. There is a huge problem in the organized sector between our joint labor/management-funded apprenticeship committees.

We've been struggling, especially with the Hispanic issue, and trying to get ahold of this problem of communication on a job site is going to be very difficult, not only in the Hispanic community. You have sections of the country that, because of the numbers of Hispanics, we're looking at them first.

But there's Bosnian sectors, Polish sectors, Cambodian sectors, and other Asian sectors that, once you go down this road, which costs a lot of money and time to do, you also have the frustration of illiteracy. A lot of these folks coming in just do not read and write their own language.

You have the problem of the diversity within the Hispanic community. South American Hispanics speak a different Spanish than Central Americans, speak a different Spanish from Mexicans. The idiomatic expressions and the slang that are used, especially towards construction terms, are all different.

So even though you translate something into Spanish, an individual coming from someplace either, A) cannot read it, or even if he or she can, B) those words don't mean anything to them where they come from.

So, it's very, very difficult to look at this thing and say we've addressed it. We've found this problem out the hard way. It's cost us a lot of money to translate apprenticeship training manuals into Spanish, our safety and health manuals into Spanish.

We've gone to bilingual instructors, yet they go into the classroom and you have people staring at you with blank stares because they just don't understand. They just don't understand.

Let me go to David Bush, first. I jumped ahead of him. David?

MR. BUSH: Thank you, Mr. Chairman. David Bush.

Stew, I would caution you. I'm the past national chairman of the NCCER and we've looked at translating all of our training material into Spanish, and several other languages. We actually, seven, eight years ago, translated a block of it for Floor Daniel into an African language, a tribal language, which was a real treat.

So the thing that we have found in our research, and the reason we haven't jumped on this quickly, is that there is as much or more value to the Hispanics, Asians, or anyone else to have a second language.

You can train them in all our statements, all our thoughts, and it's critical that you go to Spanish first to get them safe first because they're not going to learn English right away.

But we're coupling teaching Spanish and English because if you just teach Spanish, they still have to go out into a community in this country that still doesn't speak Spanish and it's more of a value to them.

We have found them more eager to learn if you couple Spanish and English, if you teach the course both ways so that your safety classes start becoming a chance to start getting an understanding in English also. If you focus just on Spanish, we have not had good success. So, I would look at that.

I mean, you want to hand them a tool that they want, and a tool they want is to be able to communicate when they go to the grocery store, to the health clinic, to the movie theater, and they're very eager to see that.

We ran into the same problem you did. We started dealing with the first Hispanic group, and now we actually have eight we're dealing with, so there are three that you have yet to find.

But that has been a real key issue to our ability to talk to them about translation. They really like the idea of us helping more than just teaching them safety, or carpentry, or anything else in Spanish.

MR. BURKHAMMER: That's a good point. A lot of companies now are going to basic English classes for the workers when they come in to give them some basic skills in English. When we met with Gary the other day, he's now doing something in Iraqi.

The companies that were going to work in Iraq were taking some safety stuff and doing toolbox talks in Iraqi to give the companies some stuff to go over and have safety over there. So, there are a lot of things happening in various languages.

Bob, your point is extremely well taken about, you could spend oodles on translating every language from here to A-Z safety, and you still wouldn't probably get them all.

CHAIRMAN KRUL: I'm sure there's a joke somewhere in that Iraqi thing, but I'm going to leave that alone.

(Laughter)

CHAIRMAN KRUL: Greg Strudwick?

MR. STRUDWICK: To expand a little bit on our safety training as far as the Harwood grant, we actually came with a slide presentation that included Spanish in one square and English in the other. We could relate to both ways. We tried to separate, in a lot of cases, Spanish and English. The Harwood grant, obviously, recommended that we do Spanish only.

But we were in classes and in training sessions where it was Spanish only, they had an Hispanic surname, but they didn't read or speak Spanish. Do you have anything in English, you know? So, we started to recognize right away that we weren't segregated on the job, we were together on the job.

Another thing that we recognized was that communication of the training and communication on site wasn't necessarily verbal all the time. So, we started to train with a lot more graphics and pictures along with the text, and we had a lot better response and a lot better performance on the final test and on the folks doing the work in the field.

So, adult education is a tough nut to crack, it really is. Most of us have been out of school for a long time. A lot of those guys have never been in school. We do translate, only to find out that they can't read anyway, you know.

So the pictures are just like signs that became universal, where you've got a cross through a cap, and that kind of thing. It's recognizable, it's easy. Some of the pocket guides that we have now are in Hispanic. Seguridad. Safetia est seguridad, seguridad is safety. Okay. Seguridad total tiempo. Seguridad all the time. They understand that. But they also understand safety all the time. It's not hard, especially when you combine the two.

So, I'm right along with the program and keeping it together and making sure that the performance after the fact, in every program we teach, we tell the supervisor, or the company president, or whoever it is, if they show up on a job and performance is below par, below average for those folks that have been in that classroom, they need to come back until their performance is at a level that is acceptable to that company or to that safety supervisor. So, it's there. We're working. It's a matter of a team effort, and that's where the alliances come in, in a team effort.

CHAIRMAN KRUL: Something that Bruce had mentioned, the cultural differences between Hispanics and Anglos. Anglos need to learn a lesson, too. It is a difficult culture and it's one which gets easily offended by something as simple as, everybody sees that most Hispanics have two names, and it's primero epeido et segundo epeido. One's their mother's maiden name and the other one is the married name after.

In the Hispanic culture, that is very important. I know our folks got in trouble because they yelled at them when they came in. We can only have you by one name. That's not the way. It's a simple example to use, but it's extremely important in the Hispanic culture that we learn a little bit and we're just not forcing safety on them, and you have to take ESOL. You also have ESL courses.

We also have to understand their culture and some of the things that are very, very Catholic. Some of the rites and festivities and holidays that they observe are extremely important to them. Those that come here from their homelands, saving money and going back to visit their families, the family unit within the Hispanic culture is so close.

I know contractors, I used to get yelled at for taking deer season off. But when they go back for two weeks for whatever festival it is, that is so important to them, so it's very, very important.

Who was next? Jane?

MS. WILLIAMS: Mr. Chairman, just to inform you, at our last meeting of the Diversified Construction Workforce workgroup, which, granted, was two years ago, we ran into the exact problems that you described, particularly as being faced by the apprentice issues.

We had at that time developed our charge to look directly at the cultural issues and signage. We were coming up with various applications for signage. We found, by two attendees that we had from different cultures, some of the issues that we could really pursue and help do a dual training, both from the superintendent, if you will, level, as well as the worker level.

We were very successful in identifying some of the site-specific traits that would enable them to have comprehension of the skills they were expected to do without a formal training dialogue. They were very receptive and very quick.

Felipe Segurra was one of the people who held that, and they were very quick to pick up those tasks. So, that's where we've headed off on that in bringing in a lot of the things that you're talking about right now.

CHAIRMAN KRUL: Frank Migliaccio. I want to see the Reporter look for that name.

(Laughter)

MR. MIGLIACCIO: I agree with what everybody's saying here. It's true, it costs a lot of money to change the materials from English over. Several of the Locals with the Ironworkers, what we've come up with, is we're not only training English to the worker, and it's usually the apprentice. We always do it through apprenticeship.

We're bringing their families in, also. If they speak it at home, it's a lot easier to train them. So, we still change things over to Spanish. We have several Locals that have a high Asian community. California.

They've changed a lot of their training material over at their own cost to train them. But we bring teachers in to actually instruct them in English. It's one night a week.

My Local right here in Washington, it's one night a week. We did separate the classes between English-speaking and Hispanic-speaking. But, like everybody said, there are several dialects of Spanish out there.

We sent to eight areas that have a high area of Hispanic speaking, one of them being Florida, and the Portuguese, they didn't understand one word of what we translated over. Not one word did they understand.

So, we've come to the fact of, teach them English. But you have to teach their families English. Their kids are learning English is school. When they go home, they go right back to speaking Spanish because that's what their parents speak. Teach their parents English and you get English speaking all the way around.

CHAIRMAN KRUL: Bruce?

MR. SWANSON: I know a number of ironworkers, Frank, and that's an English dialect that they speak.

(Laughter)

MR. SWANSON: On a more serious note, Marie is absolutely correct that we have to get into the measurables, those of us in government. It's fine to have a program that, in your gut, you know is correct and you know it's doing the right thing.

But to explain to the taxpayers where we're putting the money and where we're putting our effort, we have to be able to measure success. In the scientific community, they have to be able to measure success from where you start to where you are now and where you want to go.

I would be remiss if I don't point out for those of you that don't know that OSHA does have an Hispanic task force. It is meeting next week in San Diego.

I know Marie, and I believe some others, are planning on attending that, those that are on your workgroup, dealing with the language difficulties for immigrant labor. We have a construction component in there already.

Many issues that we've shared here in the last 30 minutes are recognized by the task force. Some of the solutions are a little harder to come by, but we are working on it. Thank you.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: Stew, bringing it back to partnerships and alliances, have you thought about doing partnerships with schools, post-secondary and vocational career/technical schools and talked in terms of safety and health planning programs, teaching the kids how to be safe on the job, as well as teachers?

I think that's a sort of gap that we have not approached and that we have not faced. I know NIOSH is doing something in preparing a CD-rom checklist for vocational schools.

But I think OSHA sort of stepping in and saying how important it is for students who are coming into the trades to understand that there is a safety and health component and teaching them how to do it, would be very important.

Secondly, sort of thinking about the language issue, have you thought about alliances and partnerships--and I'm not being facetious here--with some of the church organizations, the Catholic church, some of the Baptist churches in the South, who may in fact be already providing safety and health training in one form or another? More than that, they're also providing English, and also other kinds of career activities. So, just a couple of ideas.

MR. BURKHAMMER: It's a two-point question. I'll take the first part, first. I'm DOC's representative on the Youth Worker Safety Initiative Task Force. We've had one meeting. It was evident early on in that meeting that construction seemed to be an after-thought.

They were talking about the Burger Kings, and the flip joints, the grocery stores, the Wal-Marts, and K-Marts and stuff where a lot of your youth population works. When I brought up some issues about the younger population working in construction, people had this "deer in the headlights" stare.

All of a sudden, I was kind of an important person to have there, I guess. They asked a lot of questions and put a lot of stuff on the board. Hopefully at the next meeting, which I think is coming up in June, we'll be able to delve a little deeper.

They're going to have some task forces that are going to look at some of the issues of youth workers and how to protect the youth worker, because a lot of them don't have a clue about OSHA, number one, don't understand safety, number two, and have no idea in the world how to protect their selves in the workplace because they're not getting a lot of support from the company or the joint that they're working with.

The second part of your question. No, we have not considered an alliance with churches. However, I will bring that up at the Alliance Task Force meeting. I think it's a pretty good idea.

DR. SWEENEY: Specifically with the schools. I mean, it's not only the youth workers, but the kids who are in the training programs. I think the health and safety issues, OSHA regulations, and other things like that just really come as an after-thought just in general.

MR. BURKHAMMER: That's a good point. Thank you.

CHAIRMAN KRUL: Picking up on what Marie is saying, and you can get that list from the AFL-CIO, there are interfaith groups across the United States that are working on that very issue for safety for all workers, not just construction workers. But I'm sure they'd be more than happy to work on it. I think it would be a good resource for you.

MR. BURKHAMMER: Super. Thank you.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: I think Marie has really focused on a key element. We had an excavation fatality in Arizona of a very young Hispanic worker. I did go into the church because I did know the pastor, and we had an entire little assembly, if you will, of well over 40 workers.

It was so traumatic for the parish, and they knew the family who was back in Mexico. We spent quite a bit of time talking about just the safety issues, of which that group of 40-some people had absolutely no clue, and were all working on construction sites.

So I think if you were to approach various parishes where you knew the construction community was participating, I think you will find staff and the parishioners embracing you to come in.

CHAIRMAN KRUL: I think it's a good resource for you, Stew.

MR. BURKHAMMER: Good. Thank you.

CHAIRMAN KRUL: Well, thank you very much, Mr. Burkhammer, as always.

MR. BEAUREGARD: Mr. Chairman?

CHAIRMAN KRUL: Yes, Kevin Beauregard.

MR. BEAUREGARD: I want to address this to either Bruce or Steve. They may know better about the last issue we just visited. I've been at so many conferences the last three months, I can't remember where I saw this.

But somebody showed me either a prototype, or it's actually out there on the OSHA web site now, a web site for school students. I think it's done in a little bit different format, something that's eye-catching.

Are you aware of this? It's a web site that appeals to high school students or middle school students as opposed to the rest of us, but it's supposed to be more kid-friendly, I guess. I saw a prototype of it.

For instance, they'll have a work setting and you click on different aspects in that work setting, different equipment, and it'll tell you what the hazards are associated with it and all this. I saw it within the last couple of months. I know it was an OSHA web site. Okay. Well, anyway, I'll look into that and see if I can find that then.

The other thing, was that I believe in the strategic plan that just got released, the new five-year strategic plan, one of the elements in there deals with training of youths for safety and health issues. So, I think OSHA as a whole has seen that that is an area that we probably need to explore.

CHAIRMAN KRUL: Frank, do you want to respond to that?

MR. MIGLIACCIO: Yes. Up in Northern New Jersey at one of our training regional schools, we just met with two members of NIOSH on just what you're talking about. It was a recognition of hazards associated with just the ironworkers right now. It might have something on what you're speaking of.

MR. BEAUREGARD: I'm fairly certain it's actually on the site now. If it's not, it's going to be added pretty soon. What I saw looked pretty interesting.

CHAIRMAN KRUL: There are others. Sheet metal workers, I know, had one.

MR. MIGLIACCIO: We're going to St. Louis with it next.

MR. SWANSON: Mr. Chairman, our version of just-in-time inventory, we have a guest who can perhaps address the strategic plan.

CHAIRMAN KRUL: What a great segue to that to cancel this discussion.

Ladies and gentlemen, it's my privilege to introduce John Henshaw, the Assistant Secretary of Labor for Occupational Safety and Health.

Mr. Secretary, on behalf of the committee and the members of the public here, welcome.

REMARKS BY ASSISTANT SECRETARY - OSHA


By John Henshaw

MR. HENSHAW: It is good to be here. And we are just in time. I do appreciate the opportunity to come and talk to everybody and sort of give you a little briefing as to where we are, and some of the initiatives, some of the things we're working on, some of the things we have accomplished, and some of the things we are about to accomplish or are just beginning to develop.

First of all, what I would like to emphasize, if you don't mind--and I'll get to the youth program specifically in a minute--is our strategic management plan that was just released. I think it's available on our web site, and hopefully everybody will have an opportunity to review that.

The critical pieces of this strategic management plan. It is a management plan, as apart from a strategic plan. The Department of Labor will have a strategic plan for the entire Department of Labor. In that will be specific GPRA goals.

We've decided to take that one step further and develop a management plan from that to talk about all the things in a balanced way, things that OSHA does, and look at goals, look at issues on how we're going to proceed in accomplishing the GPRA goals, which are significant reductions in injuries, illnesses, and fatalities, but also how we're going to approach that, what industries we're going to focus on, what areas, what emphasis we're going to apply over the next five years, what specific goals we're going to set for ourselves in these individual areas, and how we're going to accomplish and how we're going to measure the effectiveness of our efforts over the next five years.

In there also are pieces around how we're going to manage ourselves, how we're going to improve ourselves as individuals, as teams, as organizations, as directorates, as managers, how we're going to continually improve the way we operate as an agency.

In previous GPRA goals -- and GPRA just by itself doesn't cover those kinds of issues, but I think we need to do that. I think we need to look at the total package and make sure that we set appropriate stretch goals for ourselves and be more effective, more efficient as time goes on.

We're building from the successes of the past, and there have been a number of successes. But building from that, learning from that, we're going to build from the future. That's what the strategic management plan is all about.

So, that's available for your perusal. Obviously, feel free to look at that. Obviously, there will be adjustments to that, as we get new information. We're going to obviously make some fine-tuning of that. But the idea is, we want to have a comprehensive management plan to move forward for the next five years.

We are taking that a further step down in the agency where we, as individual managers and directors, will be looking at our individual areas and seeing what we can do to add or to contribute to the overall management plan, and obviously the GPRA goals, to achieve those results over the time frame.

So, we're going to be managing by results. We're going to be managing by measures, as objective measures as we can, and outcome measures as we can. Obviously, not everything lends itself to outcome measures, but the intent is to do that.

There will be some intermediate measures. There will be some activity measures. There will be other kinds of measures to judge and gauge our success. But the bottom line has to be reducing injuries, illnesses, and fatalities, and as effectively as we possibly can over the next five years.

That's one thing. Please, if you get a chance to look at that, you'll see that we're emphasizing areas that we haven't emphasized before. One in particular is going to be of interest to you.

These are sort of the non-traditional areas that we're going to be focusing on. We can no longer -- if this agency is focusing on workplace fatalities, injuries and illnesses, then we've got to look at all causes of workplace fatalities, injuries and illnesses, and look at them not necessarily bound by jurisdictional, legislative, or regulatory kinds of avenues.

We may not have standards in all areas. It doesn't mean we're not going to get there. We want to develop standards where appropriate. But it's not going to stop us from providing influence, providing direction, providing guidance, providing some other incentives for people to go beyond to avoid these injuries and illnesses. In the meantime, we'll continue to work on the regulatory agenda, as appropriate.

What I'm talking about, in particular, is workplace violence and motor vehicle fatalities. Those two areas, we have not traditionally focused on, at least enough. We want to continue and be more effective in those areas.

It may not involve a regulatory approach, it may not involve an enforcement approach, but that shouldn't stop us. We are an agency that's trying to promote safety and health and advance safety and health.

One of the tools we have is enforcement and regulations. That's one of the tools. We should deploy every tool we have to accomplish that injury, illness, and fatality reduction.

So you will see in there, we're going to be looking at motor vehicle fatalities, workplace motor vehicle fatalities. We're going to be looking at ways to drive those fatalities down. We must. It's still way too high. It's a significant portion of the total fatalities.

Workplace motor vehicle incidents at construction sites. We will be focusing on some of those issues. The same way with workplace violence. We will be addressing workplace violence as well.

What we're going to do in those areas, we'll come through developing our management or operational plans by each directorate and each manager. We will be developing those plans to help us move forward.

Some of the other areas that we have not traditionally been involved in which our strategic management plan includes, are homeland security issues. We will be engaged in homeland security. We were engaged in the TOPOFF 2 exercises last week, both in Region 10 and Region 5. We were actively involved in both of those exercises.

We learned a lot from those exercises. A lot of the other agencies also learned what our contributions can be, and should be, to these kinds of situations and our long-range plan reflects, or our long-range or strategic management plan, over the next five years, represents our engagement in worker safety and health for all risk, including risk of terrorist attacks. So, we will be engaged in that process.

The strategic management plan also includes things like youth safety. We do have a web site. We are focusing on youth, getting to young people. Most of our training, most of our communications, are geared to a 35-year-old white male. That's just the way it is. We need to modify that.

We need to get to other parts of the workforce and get to them in a way that they can appreciate and they can assimilate the information, and the do things appropriately according to the safety rules and guidance that we're providing.

So we are looking at various avenues for approaching that. We're partnering, certainly, with Department of Labor's Youth Rules web site, and we have a specific web site for safety that we're continuously working on and trying to improve. We'll be looking at training materials.

We'll be looking at partnerships with organizations that hire a large number of young people during the summer, developing training modules and training techniques and other kinds of communication techniques to get to young people so they know how to respond.

We will also be looking at partnerships and dealing with educational institutions, whether it be vocational institutions or other kinds of institutions on getting to young people, getting to young people who may go into the trades, young people who may go into the construction business, making sure they're well attuned to the safety components of that.

And, as everybody knows, as a young person, your degree of risk or acceptable risk is different. Certainly as you get older and have more kids and more responsibilities, your risk profiles, or what's acceptable to you, change over time.

It's important that we get to young folks because they are probably willing to take more risks than they should. So, we need to approach them in a different way.

We'll be partnering with NIOSH and we'll be partnering with a number of -- we had a discussion this week with the National Center for Construction Education and Research. There's a number of other places where we can partner or we can develop programs that get to young people, so we'll continue to approach those avenues.

There's a number of other things in the strategic management plan, but I think those are the highlights. Obviously, the Hispanics, getting to the hard-to-reach workers and employers, continue to be a focus. We will continue to pursue that. I don't see an end to that, at least in the near term, getting to the hard-to-reach workers.

We will also be looking at small businesses, how to get to small businesses. They still continue to be a focus of ours and we have to approach them, and we will continue to explore ways to be more effective at that.

I mentioned about our management systems. Part of our strategic management plan talks about how we're going to operate as an agency, how we're going to monitor our performance, how we're going to improve our performance.

In our strategic management plan we deal with things like improving our credentialing. We've had a 40 percent increase over the last 18 months in our number of certified people we have in the various avenues or certifying bodies, not just in safety, not just health, but also construction, also professional engineering, hazard material management, and so on. A 40 percent increase is a good increase, but we're going to continue to drive that.

We're going to continue to work on improving the training of our people, not only in the OTI, not only in our Training Institute, which we'll have a plan coming out soon about how we're going to improve our capabilities internally.

We will also be exploring ways to continue our partnering and mentorship or internship to make sure, especially in the construction industry, our people know the construction industry as well as they possibly can, that they know the nuances of the construction industry, and they can relate more effectively, not only in our inspection process, but all throughout our efforts, including the regulatory process, including the other pieces of the agency. So, we'll continue to work on those kinds of things.

We will also work on how we're improving our ability to use data. We know there's a lot of data out there. We have access to some. There's a lot more data than we have access to. So, our partnerships are going to focus on trying to get more effective data so we can manage and target our efforts more effectively.

We will use the data more effectively in the agency through our evaluation and analysis efforts, not only BLS data, but any data we can find that's useful, including insurance company data and so on.

But I'm not going to go through the entire strategic management plan, because you can read it. But we're going to continue to improve that document, work on it, refine it, and development management systems internally to execute, on a daily basis, what it is we do to make sure we impact the triple bottom line, which is injury, illness, and fatalities.

Let me talk specifically about some of the training issues. I'd like to commend the Ironworkers and the work that's being done, had been done, on the training around steel erection. I think that was a great effort.

I think we've done a tremendous job, thanks to you, thanks to the regulated community, to the Ironworkers, and others, in putting together a module, putting together training that is most effective or the best way for us to approach the new steel erection standard, and not just to enforce it, but to get it in place. That's the outcome.

The outcome is not how many citations we might issue in respect to a violation of the standard. The outcome is people applying the standard appropriately so they avoid injury, illness, and fatalities, even with us not being present. That's key.

We want to grow in those kinds of experiences. I think that was an excellent way to do training, and as we go down the road we'd like to do more of that.

I'd also like to talk about, briefly, we have explored, and we will continue to explore, some ideas of improving our training, and not only training material for workers, for employers, but also internal to OSHA. We will continue to explore, as we did recently with the building trades.

We want to continue to find ways to work with organizations outside of the agency on training workers, training employers, and training ourselves, and we're willing to partner with anybody who can help us achieve those results.

I've already spoken a little bit about the homeland security issue through our strategic management plan. The only thing I'd like to add on that, is we're looking at training on homeland security, we're looking at providing guidance around weapons of mass destruction, providing tools for worker and employers to use dealing with issues around weapons of mass destruction, or reducing the consequence, if you will, from a terrorist attack, getting prepared for the possibility of an event.

We will be working with employers, employees, and organized labor to advance that. We've already been exploring some ideas around some specific training on second responders.

These aren't necessarily the first responders, which there's also a training module for, but getting people prepared to deal with the aftermath, such as the World Trade Center, and combining a number of our efforts, such as the HAZWOPPER, asbestos, and lead, all the different training components, and wrapping them up into one package that could be delivered to second responders.

In addition to homeland security, we will be providing guidance as to what kind of PPE might be provided to deal with weapons of mass destruction, to deal with smallpox, to deal with SARS. That's not a weapons of mass destruction, but it's still a communicable disease that there needs to be some focus on.

Incidentally, in respect to SARS, you probably noticed, about two or three weeks ago we issued on our web site some guidance around SARS, because now it's in the workplace.

In fact, the day CDC announced that it's in the workplace, or at least transmission was associated with the workplace, we issued our guidance to workplaces. We are not the experts, however, on communicable disease, nor are we the experts at this point on weapons of mass destruction.

But we will be calling upon those experts to help us develop tools that can be worked into something that workplaces can now assimilate, workplaces now can use. We feel we have the infrastructure, we have the knowledge of how workplaces operate, and communication systems are in place, that this information -- we ought to pull this information from the various agencies who have that expertise, put it in a document that now can be used by workers and employers, so now they can take the appropriate precautions to prevent the possible outbreak, disease, or what have you. So, we'll be doing more of that. But it is our role, it is our responsibility.

As the strategic management plan, as well as the homeland security folks and FEMA folks understand, OSHA is responsible, is involved, engaged in providing assurance that workers are protected in workplaces. That includes from risk of weapons of mass destruction or terrorist activities. So, we will step up to that plate and assume that role.

Let me talk specifically, if I might, then I'd open it up for questions. I'm going to talk about two other issues, some of the regulatory work that's going on, rulemaking that's going on now that we can really use your help on, and then the other piece is our 2004 budget.

In respect to our regulatory agenda, we have a number of items in there that deal with construction. As you know, we are working, and we will soon be announcing the Negotiated Rulemaking Committee on Cranes.

We did the review. We sent the original notice out of committee members. We will be, very soon, issuing a final on that as far as committee members and setting a date. I hope it's very soon, maybe next week. So, we are going to actively pursue that.

I would like to reassure everybody that we are committed to the negotiated rulemaking process. In my mind, a significant part of that process is, we take the final product and get it done and not wait several months/years before we take action. Steel erection, I think, is an example of what can happen if we don't take the appropriate action immediately following the negotiated rulemaking process.

So we are wedded to not only making sure the negotiated rulemaking process is executed appropriately, but also, once that's done, OSHA takes the appropriate action to complete the process, and in a timely fashion. So, we're committed to do that. Our commitment is not just the negotiated rulemaking, it's also taking action afterwards.

So, hopefully we'll be hearing very soon as to what that committee is, and hopefully they'll be meeting before the beginning, or soon, during the first of the summer so they can begin the process.

The other of the two significant items that I'd like to talk about, is silica. We are working very diligently on the rulemaking around SiO2, crystalline silica, quartz. I, for one, prefer to do this both industries.

Now, obviously there are different nuances for both industries, but silica is silica, a worker is a worker, and a health effect is a health effect. The differences in how they may get exposed and the controls, obviously, are different. But we ought to approach silica as silica and workers together, and deal with the industries that are engaged in operating the silica. So we will be looking at how to do that, and the differences between general industry and construction.

We can certainly use your help on that. I hope that there's an opportunity here, Mr. Chairman, about a workgroup for a small group of individuals from this committee who can help us work through the nuances of this around how we can look at construction, and how can we deal with the issues of silica exposure, and controlling silica exposure in the construction industry. It's certainly different than the general industry and we need your expert advice on how to make that happen.

Rest assured, we are moving forward on it. I'd like to move forward on dealing with all industries that engaged in silica, recognizing there's differences, so we have to deal with that. But we're committed to carrying through with this process.

The workers depend on us, and the employers depend on us, to take this process and do it in a proper way, consider all the nuances of the various industries that are involved in silica, and come up with a standard that is not only protective enough, but also implementable, where we could implement it appropriately in all the industries involved.

The next one that we could use your expert assistance on is around noise and construction. We have a general industry noise standard. Noise is noise, and workers are workers. Ears don't change because you're working in one industry or another. They're the same, the effects are the same.

The controls may be different. How we go about making sure people are protected from noise-induced hearing loss may be different, but the eardrum is the eardrum, or the inner ear is the inner ear, and hearing acuity is the same for all workers, or the effects of noise to hearing acuity.

So, we could really use your help on how to make that happen. We are proceeding on noise in construction. We would certainly like your expert advice on how to do this in the right way for the construction industry.

Whether that's a task force, whether that's a workgroup, Mr. Chairman, you guys can decide on how you want to do that, but we could certainly use your help on that issue.

The last one that I would like to raise -- this is not a rulemaking process. Incidentally, anything else on the regulatory agenda, obviously, we're interested in your input on that, but these are the three that are significant, in my mind, right now, the cranes, the silica, and noise. There are others in there that we could use your help on, and I expect that you would give us advice, as appropriate.

The other issue is the Hispanic worker. We have been, over the last few years, focused on the Hispanic worker, focused on the immigrant worker in general, how to approach, how to address the employers and employees that are non-English speaking, or have very little ability in the English language, and therefore miss a lot around, what are the obligations of employers, what are the obligations of employees, how to protect themselves, how to listen and assimilate the training that goes on day in and day out around how to protect yourselves and how to operate properly.

We need your advice on how to continue to improve that, how to approach the right people. It's not just workers, it's also employers. It's also associations or groups that deal with either workers or employers.

We can certainly use your help on how to continue that conversation and improve our effectiveness in reaching the hard-to-reach workers and employers.

As you know, we have a lot of Hispanic employers out there who speak very little English. We need to approach them. We need to find ways to get to them.

Now, we'll continue on our regulatory scheme and continue on our enforcement scheme. In our outreach, education, and assistance area, our partnership area, we need to continue to improve to reach more and more of those hard-to-reach populations, and we can certainly use your help in achieving that.

With that, the last thing is the 2004 budget. As you know, the President brought forward the 2004 budget. We had a respectable increase in the 2004 budget. Given all the issues that this country has to deal with, including terrorism, including recovery of the economy, we have, in my mind, a very, very respectable budget.

We have issues in there. We have earmarked monies around getting to the hard-to-reach workers. We have about a $5.2 million increase dealing with outreach and education and compliance assistance.

About $2.25 million of that includes dealing with the Hispanic worker. Now, this is in addition to what we are already doing, so it will give us a little bit of a jump-start or give us a real kick in what we're doing, and we're going to pursue that more heavily in 2004, again, depending on the appropriations. This is the budget we brought forward.

There are monies in there around improving our people skills and our professional skills, credentialling and training of our people. There are some additional monies to deal with that.

There is additional money in there to deal with homeland security, so we will be stepping up to the plate with those additional funds to address the homeland security issues.

Obviously, we're maintaining a strong, fair, and effective enforcement. We're not decreasing that at all. We are improving our ability to reach the right people and touching them in a way that is significant, so it sticks, so we don't have to keep going back, and back, and back, over and over again. That's our enhanced enforcement policy.

So our 2004 budget represents the continuing of our enhanced enforcement program to make sure that we do get to the employers that are what we used to call recalcitrant employers.

The budget includes continuing on with the regulatory agenda. We have a number of items there whose timelines are very short. Hexavalent chromium is one of them. Obviously, the ones that I mentioned, they're in our regulatory agenda and our budget reflects completing those dates on our regulatory agenda, and we will do that.

The budget also reflects our continuing efforts that we already have in place around compliance assistance or outreach in our education centers. There is grant money in there for training, for granting comprehensive training programs. That's in our 2004 budget as well.

I probably missed a few things, but it's a large budget and there's a lot of activity going on in OSHA. So, if I did miss anything, I'm sure you'll raise it if you have any questions about it.

I will open it up for questions, if that's okay.

CHAIRMAN KRUL: Thank you, Mr. Secretary, as always, for your comprehensive and candid assessment of what's going on at OSHA.

Before I open it up to the rest of the committee, I just want to make a couple of comments. I was looking earlier, talking with Bruce and others, about cutting back the number of workgroups we had and looking to consolidate. You raised some issues today that I can see we'll be looking at.

Homeland security, we've already established, but the youth safety, and especially the motor vehicle fatalities on construction sites, as you had mentioned, is a concern with the rising figure that's happening.

On the rulemaking, where you stated that you needed help, we have Jane Williams and Jim Ahern on the crane standard. I'm certain they'd be willing to help you on that.

On silica, Marie Haring Sweeney and Jane, again, co-chairing that. We've invited the building construction trades people that worked on that proposed standard, most notably from the Bricklayers Union, to assist them in that committee.

On noise, Joe Durst from the carpenters, and Marie, again, are co-chairing that subcommittee.

On training, I had a note down here. Both Frank Migliaccio and Jane Williams are on that workgroup. I remember in the past that members of the building trades, especially, used to go to DesPlanes and work with training compliance officers, and using the steel erection training that the Ironworkers had put on, and the success it's been for OSHA, not only within the building trades, but there's several association members represented out in the public audience that I'm sure have safety representatives that would be more than willing to assist in assuring that the credibility of OSHA compliance officers in construction remains at a high level by taking the knowledge that's there with both active and retired individuals from the trades who are working in safety and health and transferring that knowledge over to compliance officers.

If we have to, we can sun that through Frank and Jane's committee and look for ways that perhaps we could work together on it. I think that would be a huge resource for OSHA to utilize.

Last, but not least, to have the Advisory Committee working in reverse of what its intention was. As you had suggested at a previous meeting, we were contacted by NACOSH. We're going to talk about that in our workgroup meeting tomorrow.

But our Diversity in Construction and Multilingual Group is working with theirs so that we're not duplicating efforts and expending resources in trying to attain the same goal that you're looking for. So, we'll be reporting back to you on that.

So I think it's all dovetailing wonderfully together and I look forward, and I'm sure this committee looks forward, to working on these issues.

MR. HENSHAW: Thank you.

CHAIRMAN KRUL: I'd open it up to the committee for questions. Greg Strudwick?

MR. STRUDWICK: Just a little clarification on the motor vehicle fatalities. Was it directed towards the work site or are we going to work with the DOT on commercial vehicles? Where were we actually going to focus?

MR. HENSHAW: Well, our focus is going to be on workplace fatalities. We recognize there's a significant overlap. It depends on the industry and depends on what the situation is. But our focus has to be around workplace.

Obviously, that shouldn't stop us from using whatever is out there on the general commercial side that could apply to the workplace, and we want to piggy back on those.

The "click it or ticket" kinds of programs that are out there now for the commercial side and for the public, if there's value in something like that in a workplace, then we ought to consider that.

So, we ought to capitalize on the learning what's gone on on the commercial, as well as on the private side, and see how we can apply that in a workplace setting.

CHAIRMAN KRUL: Marie Sweeney?

DR. SWEENEY: Good morning, Mr. Secretary. How are you?

MR. HENSHAW: Good morning.

DR. SWEENEY: Two things. One, dealing with the Hispanic workers, I wanted to share with you, a report that was commissioned by NIOSH and presented by the National Academy of Sciences includes a chapter on children who live and work on farms.

I know OSHA doesn't deal with agricultural issues too much, but I think, in terms of the Hispanic workers, there's sort of a two-edged sword here. We have kids who live, work, or are very near farms. There's lots of exposures and there's a potential for injuries and illnesses.

I will share this report with you, but perhaps OSHA might consider at least thinking about those issues. NIOSH would be more than happy to set some frameworks with you on that.

The other thing about silica, is Jane Williams and I, and the rest of the silica workgroup met yesterday with the staff from OSHA, who gave us a baseline on where the regulations are going, where the rulemaking's going. We had some very frank discussions about controlled silica on the construction work site. I think we're engaging in some really productive dialogue. So, it's moving.

MR. HENSHAW: Good. Good. Thank you.

CHAIRMAN KRUL: Manny Mederos?

MR. MEDEROS: Good morning, Mr. Secretary. I have two comments. I had a question also on the motor vehicle fatalities. We were involved with this before and it seems to generate a jurisdictional dispute, whether it's between the DOT, the FAA, or the NRC.

I don't disagree that something needs to be done. Just, red flags came up on which agency's foot is going to be stepped on, and we don't seem to get anything done in those areas.

The other thing on the Hispanic construction worker, one of the things that's kind of disturbing, and there's no regulation, no standard. You can get a large Hispanic workforce out there doing underground work.

I come from a state where everything is underground. They don't know whether they're digging around a cable TV line, a telephone line, or a 12,000 primary line out there.

They'll have one foreman on the crew that's English-Spanish speaking, but if that individual leaves--and this has happened in the state before--there's no one there to guide those people. I don't know how we take care of that. Education is probably a very good thing, but without any type of enforcement, I don't know how far that would go.

CHAIRMAN KRUL: Let's talk about how we can approach that. But, yes, I can appreciate the issue there, so let's see if we can't explore that even further. Manny, thanks.

Mike Sotelo?

MR. SOTELO: Good morning, Mr. Secretary.

MR. HENSHAW: Good morning.

MR. SOTELO: First, a comment. Some of the things that we've been doing with your agency through the Associated General Contractors have been very positive and we've had a number of different partnerships and strategic alliances that have been extremely successful.

I want to thank you for allowing us to have Stew and Bruce come to our meetings, and it's been very productive. We certainly appreciate it, and we're excited about the things in the future, one of them being bilingual safety and health training for the Latino workforce.

Being a Latino myself, one of the things I've learned over the years--and I used to work out in the trades--is that, especially the non-English speaking Latinos, giving them regulations is not necessarily going to be an effective way of keeping them from being hurt. I think Bruce talked about it earlier. But the cultural importance of dealing with the Latino workforce is very significant.

Having someone from government go up in front of these groups and talk to them, it might not be the most effective way of doing it because they might think they could be Immigration, for heaven's sake. You never know. So, it's something that's not very well accepted.

So the only thing I would comment on, is I want to make sure that OSHA really does take a look at, when it comes to actual training, that it's more of on a behavioral side than a statistical side, because I think you'll be much more effective. Once again, we're looking forward to working with you on that. I sit on that task force also. Thank you.

MR. HENSHAW: Okay. Good. I agree, the behavioral or the cultural issues are certainly -- it depends on what country the person may be coming from. There's a different degree of respect for the government or a different view of the government, I guess.

We've got to make it clear that we're not concerned about immigration status. So, we'll continue, and let's work together on that with the committee to figure out how to do this.

CHAIRMAN KRUL: Jim Ahern?

MR. AHERN: Do you believe the silica standard is a candidate for the negotiated rulemaking technique?

MR. HENSHAW: I think not, at this point. We are down the road already on the silica. Now, that doesn't mean we can't change our mind at some point, but we're proceeding on the basis that it's not and we ought to continue pursuing with the proposal as planned. Now, that is, again, assuming we can work out these issues. But right now, it's not a candidate for negotiated rulemaking.

MR. AHERN: Being in the workgroup meeting yesterday and looking at the complexity of defining the hazard in the typical construction site, there could be a potential for a plus to utilize that technique.

MR. HENSHAW: Okay. Thanks. We'll consider it.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Good morning, Mr. Secretary. In our homeland security workgroup yesterday, we really made good headway in identifying where we felt we could assist you in recognizing potential hazards that could develop on a construction site, and the peripheral damage that would entail with emergency response, also.

So we're going to be moving on it more quickly than a quarterly meeting of this committee, and potentially be meeting in between to help support that. I did look over the regulatory agenda, and there are a lot of good items on there, and I know you've got your hands full.

But I really look forward to these completing on the schedule you've developed, and then hopefully we can put our ANPR for construction sanitation back on that regulatory agenda sometime. I thought I'd mention that.

MR. HENSHAW: I thought you would, yes.

MS. WILLIAMS: So we'll certainly support your achievements.

MR. HENSHAW: Okay. Thank you.

CHAIRMAN KRUL: Did I hear a squeak in there somewhere?

(Laughter)

CHAIRMAN KRUL: Kevin Beauregard?

MR. BEAUREGARD: Since Jane has broached the subject of adding to your regulatory agenda, back in 2000, this group unanimously forwarded a motion over to your predecessor that we thought OSHA should be working on some type of regulation having to do with tower erection in light of the number of fatalities associated with that.

We do know that OSHA has come out with some compliance directives and has worked with NATE, and has done some other initiatives. I co-chair a subcommittee workgroup on tower erection.

I was wondering if tower erection regulation is somewhere out there on the radar. I know it's not on the regulatory agenda, but do you know if that's something that is going to be pursued or not?

MR. HENSHAW: Well, I can't say whether it is or is not. Certainly all issues that deal with significant risk are on our radar screen. We're looking at all of them.

So, obviously tower erection is one of those where there's some significant risk. Whether we in fact go through a rulemaking process, I can't say at this point.

What I can ask, is if you have information -- one of the things we need to do is use appropriate data to make the judgment call as to what goes on in the regulatory agenda.

We need to look at not only where the risks are, not only where the real injuries, illnesses, and fatalities occur, we also need to know, are there viable solutions? Are there things that can be done to do that?

So, we need all that information before we can judge whether to put it on the regulatory agenda. Then when we put it on the agenda, we set the appropriate dates and then live up to those dates.

So I don't want to say we're going to add something to it for sure or not. But, as we take things off, we'll put things back on appropriately, based on the risk and the solutions.

MR. BEAUREGARD: And I can certainly understand that. I do know that NIOSH has done a number of studies. The number of fatalities is 10 to 100 times higher than the industry average. So, I feel that it is a significant area that needs to be looked at.

I know North Carolina is pursuing a rulemaking process. We have drafted a standard, and hopefully we will have it out within the next few years. But I just wanted to make sure that it does stay out there in the forefront.

I do know that the regulatory agenda has been cut down in size, and I applaud your efforts for doing that to get the things that we're working on out there. But, as the co-chair of the workgroup, I just wanted to find out where that's at.

MR. HENSHAW: And we'll be watching North Carolina very closely to see how that goes. The regulatory agenda, while the agenda itself was pared down, the activity really has been more effective and increased.

We have put a lot of energy in this and we are accomplishing a lot more things than we have in the past, and primarily because we've focused, now. It's not just everything. We're not picking something up and then dropping it, picking it up and dropping it every five or six years. We are addressing it, going to accomplish it, and then move on.

So, our folks have done an excellent job on meeting the timelines on the regulatory agenda, and we're going to continue to do that, and then look at what options, what are the right issues to add to the regulatory agenda.

What I would like to suggest, and I'd be open to any other kinds of input that this body has to offer, is in lieu of taking the regulatory approach, because it's not on the agenda at this point, what else can we do in respect to tower maintenance and erection? We talked about, at least we tried something like sending a letter out--I'm not sure whether that was useful or not.

I haven't really gotten a good reading of whether that's productive--to the tower owners and say, be cognizant of safety and health, focus on safety and health.

If you're going to hire somebody to do something on your towers, or construction, you are the owner, you are giving them the financing to do it, make sure it's listened to or adhered to.

There are some other things we can do besides just waiting for a standard to come out at some point down the road. So if there are things we can do in the interim, we would like to hear about it because we'd like to explore those and see if we could be effective in at least cutting, or beginning to cut down, the number of injuries, and illnesses, and fatalities as quickly as we can.

CHAIRMAN KRUL: You want to address that question? Go ahead.

MS. WILLIAMS: Mr. Henshaw, one of the things that we spoke about yesterday in one of our workgroups for towers with Kevin, I attended the NATE meeting and we discussed a forum of, hopefully, maybe at DLL, bringing in panelists to help explain to those small employers what were some of the things we were recognizing and what tools were available to help them for safety, for education, from training, for program development, and complete, total understanding and awareness.

The NATE participants were very, very supportive of that at that time. In the workgroup yesterday, we talked about really pursuing trying to do that and working with the Directorate to see what we would have to do to work with NATE to potentially do something of that nature. That's just to open awareness of the issues, the presentation to employers, as well as to the employees who are doing the work.

MR. HENSHAW: That's a good approach. Certainly, working with NIOSH, I think OSHA and NIOSH could be of assistance there.

MS. WILLIAMS: Absolutely.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: My concern with the regulations is that we put a regulation out -- and one of the -- hard-to-reach employers --

CHAIRMAN KRUL: Thank you, Mr. Secretary. We appreciate your being here.

MR. HENSHAW: Thank you.

CHAIRMAN KRUL: Our agenda calls for a break.

(Whereupon, at 11:00 a.m. the meeting was recessed and resumed back on the record at 11:17 a.m.)

CHAIRMAN KRUL: Everybody take your seats, please.

I keep apologizing for forgetting a couple things. One, on the minutes. What I'd like to do, and this committee's probably no different than any other, and nobody read the minutes prior to getting here.

What I'd like you to do is to hold onto those, take a look at them today sometime or this evening, and when you come in tomorrow, if you could be prepared to make any corrections or changes, and to vote on approval.

I neglected in the beginning to thank two people. One, Jane Williams, for sitting in for me at the last ACCSH meeting and doing a yeoman's--yeowoman's--job of doing that.

MS. WILLIAMS: Thank you.

CHAIRMAN KRUL: Also, to thank Tom Broderick for inviting everybody out to Chicago LAN during that safety conference. I understand everything went well. The committee was very, very happy to see that wonderful presentation they do at that safety expo out there. So, thanks to you.

Noah? Where are you? Noah Connell, who is the Office Director of the OCS&G, Office of Construction Safety & Guidance. I got the acronym correct, I hope.

MR. CONNELL: Yes.

CHAIRMAN KRUL: Welcome.

MR. CONNELL: It's the Office of Construction Standards and Guidance.

CHAIRMAN KRUL: I did misstate it. Office of Construction Standards and Guidance. Thank you, Noah.

MR. CONNELL: Not to confuse standards with safety.

(Laughter)

CHAIRMAN KRUL: And Noah is here to give us an update on the Subpart N - Cranes and Derricks. Noah, please proceed. Welcome.

SUBPART N - CRANES AND DERRICKS UPDATE

By Noah Connell

MR. CONNELL: Thank you. Thank you, Mr. Chairman.

Subpart N. July 16 of 2002, OSHA published a Notice of Intent that we were going to use negotiated rulemaking to update the crane and derricks standard.

A couple of points of clarification. One, is that we are only going to address the cranes and derricks portion of 1926 Subpart N. There are other aspects to that standard Subpart N, including things like helicopters and hoists that are not part of the negotiated rulemaking. We're just focusing on cranes and derricks.

We solicited comments, both on the use of negotiated rulemaking for updating this standard, and also solicited nominations for a negotiated rulemaking committee. We had 55 nominations submitted. On February 27 of this year, we published a proposed list of committee membership, and that has 20 names on it.

We had a comment period. We gave the public an opportunity to comment on the proposed list. That closed March 31. We received 29 comments. Thirteen of those comments basically just said, we think it's a good list. Sixteen of the comments thought it would be a perfect list if we added just one more name. They didn't all agree on who that additional name would be.

So, the Department is continuing to evaluate those suggestions. As soon as that process is complete, we will publish a final list of committee membership and announce when the first meeting will be.

We have in the meantime, by the way, hired a facilitator, Susan Potzeba, who has facilitated a number of negotiated rulemakings for both EPA and the Department of Education.

It is still possible that the first meeting could be as early as the latter part of June. We will know soon whether that continues to be a possibility, or if we start having to look later into the summer for the first meeting.

Any questions on the Subpart N process or where we are, or where we're going?

MR. SWANSON: Noah, if you'd just expand, or -- I'll expand. The process for us setting up a meeting--and here we are in the middle of May, or a little past the middle of May and we don't know if we can have a meeting the end of June or not--has to do with a sign-off on some of our recommendations as to what that final committee will look like.

Noah's office was responsible for doing a relatively in-depth review on each of the 16 less-than-favorable comments. We had to share that with others. When they tell us how that final committee will look -- incidentally, it is not on the table that any of the 20 are going to be changed. They will stay. The question is only, will there be additions, and if there are additions, how many?

We have to know that in enough time to get to the Federal Register and give the mandatory lead-time requirement. So, we can't wait until June and tell you there's going to be a meeting the end of June. We have to know here in the next several days whether we go, or no-go.

Those of you who have people in your organizations, or who yourselves are members of that committee, I understand that it is very difficult for you to plan your busy lives around this big question mark out there: will there be a meeting?

If the meeting is in June, I don't know how specific you were, Noah, but I believe we have three days in June that will either be a go or no-go. Is that 27, 28, 29?

MR. CONNELL: Yes.

MR. SWANSON: And we have two other windows in July. It's the week of what?

MR. CONNELL: The week of the 14th and the last week in July.

MR. SWANSON: And the last week in July. Those are the only maybes. So if that's of any benefit to anybody who's a potential committee member or you have people in your organizations who are, you can use those dates for planning purposes.

We understand that, for most folks -- we have already surveyed the 20 and asked them which of those dates are most attractive to them. Skipping the very severely negative comments that we received on a couple of those dates, it seems like most would be in favor of June, if we're able to do that. July starts running into, we presume, family vacation time and other plans. That is as far as we've proceeded.

Noah left it sounding like his office was going to get to this when they got around to it, and that's not the case at all. We're up against the pin. He has done everything that he can do up until this hour.

I saw the Secretary knock on the table when he said, hopefully we're going to be able to get this started soon. The Assistant Secretary himself is as anxious as we are to get a go-ahead and pull the trigger on this thing so we can get it off in June and meet people's needs and desires. Thank you.

CHAIRMAN KRUL: Jim Ahern?

MR. AHERN: Having been a part of that process for a couple of years and the owner of a couple cranes that will be impacted by the ultimate decision making, I think the decision makers that went through the process picked 20 really outstanding people.

I know my other competitors and colleagues in the industry think that as well. So, we applaud your process, however difficult it was for you.

Do you have a sense of how long you believe the process will take once you have your first meeting?

MR. CONNELL: Well, our target is an aggressive one, in that we would like to try to complete the negotiated part of the process in a year. Just to give you a sense of how that compares to some others, the steel erection negotiated rulemaking, the negotiation part took 18 months.

So, I think 12 months is a very aggressive schedule that probably means meeting almost every month. We don't know if that's achievable, but we're going to try to push for something like that.

MR. SWANSON: Again, Jim, for the record, on steel erection, they took 18 months. I believe they met 11 times, and those were multiple-day meetings, each of them, two- and three-day meetings. Some, with travel involved, probably went over that three-day limit. So, there is a cost factor involved in time for the people that we named to that committee.

I thank you for your comments and feedback from the community on how these 20 people are viewed by the crane community. Because of that, they have busy lives, however, and this is going to be a strain on everybody.

MR. AHERN: That just sounds like an aggressive stance, to do it in one year.

MR. CONNELL: Yes. And a lot will depend on how many bumps in the road we hit. A lot of it is unpredictable. Anything else on cranes?

MR. AHERN: Were you going to follow up with the time period that will be taken by the OSHA team to evaluate what the negotiated rulemaking committee concludes?

MR. SWANSON: Let me jump into Noah's obvious pause here. There was a very lengthy period with steel erection following the 18 months that the negotiated rulemaking committee took. I don't remember how many years. I think it was still in the single digits. But we took a number of years before we went out on the street with a product.

You heard an hour ago this Assistant Secretary say that that is not a formula that will be followed on cranes. When the negotiated rulemaking team is done with this product, it will be on the street shortly thereafter as our proposal.

The unknown, of course, is where is John Henshaw going to be 12 months, or whatever time frame it takes us to put this product out, and is his successor going to feel exactly the same way? So, it's an unknown that neither Noah nor I can really respond to.

MR. CONNELL: If there's nothing else on Subpart N, I could say a few words about the confined space standard. We are proceeding with the confined space in construction rulemaking. Where we are right now, is we are preparing for a SBREFA review panel. SBREFA stands for the Small Business Regulatory Enforcement Fairness Act.

That Act calls for OSHA to conduct a special review process with small businesses for certain rules. This rule, the confined space rule, falls into that category, so we are going to go through the special review process.

The review process involves a panel that is formed consisting of an OSHA official, an OMB, Office of Management and Budget official, and a Small Business Administration official.

That panel consults with a group of small business representatives about the draft regulation that the Agency has prepared and asks the small businesses for their input on that.

So, this is a process that takes place before the Agency formally proposes a proposed rule. We are on a schedule to convene this review panel in late June.

So at that point, or prior to that point, the small business representatives will be given the draft rule and have some time to look at it, and then the panel will have conversations with the small business representatives.

Then the panel considers the input and produces a report 60 days after the panel is convened. Then the next step following that will be publication in the final register of a proposed rule. So, that's where we are right now in the process.

CHAIRMAN KRUL: Questions or comments?

(No response)

CHAIRMAN KRUL: You must have done a thorough job, Noah.

Is that it, Noah?

MR. CONNELL: Yes, unless anyone had any questions for me about our office or our projects.

MR. SWANSON: Mr. Chairman, Noah asked me during the break whether he could go ahead and handle the pipeline safety issue at this time or not. My answer to him was, let it go until this afternoon. But, obviously, we have a spot on the clock here if you'd like to deal with it.

CHAIRMAN KRUL: Why don't we do that, Noah?

MR. CONNELL: Okay.

CHAIRMAN KRUL: It will save you coming back, because you were scheduled for later this afternoon.

MR. CONNELL: All right.

PIPELINE SAFETY

By Noah Connell


MR. CONNELL: July 18 of 2000, the National Transportation Safety Board issued a recommendation to OSHA regarding pipeline safety. Specifically, they had investigated an accident that took place in Minnesota involving an explosion that occurred.

A little thumbnail sketch of what happened there was, a contractor struck and damaged a gas pipeline. There was a delay in summoning emergency services. There was also a delay in contacting the gas line operator.

After about 40 minutes from the time that the pipeline was struck, the escaping gas collected in a nearby building and there was an explosion, and there were several fatalities.

At the time of the explosion, emergency services were on the scene, as were representatives of the pipeline owner. But, as I said, the NTSB found that there was a delay before they had arrived.

So the NTSB recommended to OSHA that we requite excavators to notify the pipeline operator immediately if their work damages a pipeline and to call 911, or other local emergency response numbers, immediately if the damage results in a release of natural gas or other hazardous substance, or potentially endangers life, health, or property.

The existing OSHA excavation standard has provisions in it designed to hopefully prevent a contractor from striking a pipeline in the first place.

Specifically, our standard requires the contractor to determine, or attempt to determine, the location from the utility owners of utilities at the site where they're going to be digging.

If they can't get that information within a certain period of time, then they can only proceed if they take certain precautions as they are digging to locate the lines.

But there is no explicit requirement in the standard itself right now to immediately call 911 and to immediately notify a pipeline owner upon striking a pipeline.

On October 4th of 2002, OSHA informed the NTSB that we would issue a Hazard Information Bulletin on the general hazard of striking underground gas lines and damaging them. We also indicated that we would be looking at the NTSB's data on this problem, which we are currently in the process of doing.

So this accident and the recommendation of the NTSB has raised a number of questions for us. In terms of when you have a recommendation to address a particular problem using the regulatory process, that immediately raises a number of questions for us.

What is the extent of this problem? How many of these accidental strikes and damages of pipelines do we have? What is the extent of the problem in terms of, in the industry, how often is there a delay in notifying emergency services and notifying the pipeline owner when there is a strike?

What is the industry practice now in terms of dealing with the problem of getting emergency services and the pipeline owner notified right away? So, these are the kinds of questions that are raised for us when we get a recommendation like this.

Obviously, the use of the regulatory process is one of a number of different tools that OSHA has to deal with problems, and in evaluating what is the right response we have to figure out some of the answers to the questions like these. So, that's pretty much where we are right now in regards to this issue.

MR. SWANSON: Mr. Chairman?

CHAIRMAN KRUL: Yes, sir?

MR. SWANSON: If that sounded like a request for another ACCSH workgroup, it wasn't. I understand the problem that this committee has. Nonetheless, if you would be sensitive to, this committee is our best window to the construction community. When we have issues that go beyond our personal experience, we come to you and seek input.

So, yes, we would like input, but no, specifically, anyhow, it wasn't a request for a committee, although I don't mean to second-guess you on that. If you want a committee, that would be fine.

CHAIRMAN KRUL: No. I think what's being sought here are recommendations based on what you've gotten from the NTSB for what amounts to be an emergency plan for something that isn't in the standard right now.

I think Greg Strudwick has some experience, and other contractors sitting on this committee may have some experience and knowledge, that may be beneficial. Greg?

MR. STRUDWICK: In 1999, they convened, through the T21 initiative through Congress, a Damage Prevention Common Ground Alliance Board, basically. It was to gather together all the stakeholders that are affected when underground damage occurs. I was on that team, and I'm still on the team.

It's actually the pass-forward, they call it now, in research and development. But at that point, I was on the locating and marking side. There was an excavation team, there was an engineering team, there was a team that looked at response, physical response and telephone response, communication response.

I think that a lot of the proposals that came out were consensus-type damage prevention agreements between all stakeholders that addressed that issue. Honestly, from an excavator's standpoint and from a contractor's standpoint, it is general industry typically to call immediately when you hit a gas line and let someone know immediately that there's a release of gas, or any other type of dangerous type of product. It could be a sewer line, and that's EPA or the Texas Water Commission, because I'm from Texas.

But if you would allow me to try and gather some of that information for you, Noah, I'd be happy to do that, along with anyone else that wanted to participate, and bring it back to you, not as a workgroup situation, but as a recommendation on whether or not we need to amend Subpart P or we need to leave it as it is.

Let me go back. We're having a spring board meeting in June and we're going to have Steve hopefully there to talk about our alliance. Well, I'd be happy at that point to talk about this particular issue with the executive board and the Safety Committee.

Evan Wyman is our government relations person that has all of the information in regards to the state one call laws, and all that. So, there's just a ton of stuff out there.

But I can honestly tell you that this is kind of a no-brainer situation from a contractor standpoint, because we expect our operators, it doesn't matter which side we are, open shop or union, to immediately notify us in a situation where they have cut a gas main, or hit a power line, or cut a sewer line, immediately so we can notify the owner and the appropriate response team, whether it's the fire department, the public works department, whoever it is, so we can clarify or rectify that right away. So, it's already there.

It wouldn't give me any heartburn if that actual text was added after the fact that we will make a 48-hour one-call prior to excavation, to the Subpart P, where it was mandatory that we make the 911 call or the response call.

But, in an effort to see if we're not being too redundant or recreating the wheel, let me get all the information together, come back, and give it to you, then we can address the committee in the fall, or whenever we have our next meeting.

MR. SWANSON: Mr. Chairman?

CHAIRMAN KRUL: Yes, sir?

MR. SWANSON: It would be best, Mr. Strudwick, if you supplied that information to this committee rather than to OSHA, because it's the committee's input and opinion that we're looking for.

Let me invite anybody in the audience, or anyone who reads this transcript later, to feel free to make contact with Mr. Strudwick and share your views with him on this issue so we get as much input as possible.

CHAIRMAN KRUL: Thank you, Bruce.

Manny Mederos?

MR. MEDEROS: I'm somewhat confused. But, along with Greg, there could be a variety of reasons why people don't contact immediately, if you're in a rural location and you hit something and your cell phone doesn't work. If it's a transmission gas main, it's screaming so loud you couldn't talk on the radio if you wanted to anyway.

But, you know, grading problems. There's all kinds of things. Even after marking, if the grading's occurred afterwards and the main is a lot shallower, those things can happen.

But the thing I think that confuses me somewhat, is what is the view of the Pipeline Safety Act people in RSPA, in particular, because they're pretty protective of their area.

Now NTSB is asking OSHA to do something. So is that going to be a barrier or is it going to be a problem on down the line, or are they aware of what you're doing and it's okay?

MR. CONNELL: I don't know the answer to that question. As to whether it's a barrier, though, OSHA has jurisdiction over the contractor in terms of safety of the contractor and employees. So, I wouldn't anticipate a jurisdictional problem.

MR. MEDEROS: Well, we find, if you have an accident at a nuclear power plant, the NRC claims jurisdiction. If we're working helicopters on a high-voltage line and there's a fatality, the FAA claims jurisdiction in it. That's why I'm trying to figure out --

MR. CONNELL: Well, the jurisdiction in terms of on-site jurisdiction at the time of the incident, that's a different issue.

MR. MEDEROS: Okay.

MR. CONNELL: What we're talking about, is whether there would be an OSHA regulatory requirement that that contractor do something at that moment. Those really are different problems.

MR. MEDEROS: Okay.

CHAIRMAN KRUL: Jim Ahern?

MR. AHERN: When a contractor moves a piece of tract equipment from point A to point B, we, a lot of times, refer to that as tramming the equipment. We've had a case here recently where, in tramming a piece of equipment--this is in reference to Manny's comment about it being shallower--we drove over a low-pressure gas line.

We knew it was there. We didn't think we had a problem. It created a failure in the line, so there was a leak. Well, the gas is artificially odored and it smelled, and ultimately responded to.

But sometimes those low-pressure leaks, unlike the high pressure ones that are screaming and everybody knows that they're occurring, are the most dangerous one because you get this huge plume of gas that, when it does ignite, is a significant fireball.

So you might think a little bit about expanding beyond just the fact that you knew you hit it, but you know you smell that artificial smell, you make those same responses.

MR. CONNELL: I see what you're saying. A situation where you don't know that you damaged it, but you now have evidence that you did.

MR. AHERN: You smell the gas.

MR. CONNELL: That's an interesting point. Yes.

MR. AHERN: In some cases, because those low-pressure leaks can create even bigger problems than the high-pressure leaks, but you don't necessarily know that you damaged the line, you haven't physically seen the tooth of the excavator puncture the steel.

MR. CONNELL: Right. Right. Uh-huh.

CHAIRMAN KRUL: Greg?

MR. STRUDWICK: The Common Ground Alliance best practices addresses that and what to do, and the best practice. In other words, obviously if you smell that odor which is not in the gas mains or transmission mains, in a lot of cases because that gas hasn't reached the plant where it's injected yet, but the Common Ground Alliance has a booklet that's about an inch thick and it covers each one of these reporting situations or what to do in the event that there is a strike, the responsibility of the contractor and of the owner, and it sets those guidelines out.

So, I can get a copy of that for every member of the committee prior to the next meeting and let you look at it yourself. But it's there. There is a vehicle for us to access without trying to reinvent a good idea. Because we spent one year, by direction, and we were mandated to finish in that year on a consensus basis.

So, everything that's in that booklet was agreed on by not only the contractor, but the locator and the owner. So, I'll be happy to make arrangements to do that if you'd like for me to do that.

CHAIRMAN KRUL: I think that would be the process we'd like to follow. As the Directorate has suggested, this is ground that need not be plowed over. If these things are already existing, and most of them, with the exceptions that were noted, sound like commonsensical, pragmatic things that need to be, or probably already are, in standards that exist, and then we can recommend that back through this committee to OSHA and through your office, Noah.

MR. CONNELL: And, by the way, I do have an 800 number, for those of you that are on the committee. But for those people that are in the room, if there's an input, my number is: 1-800-426-8920, directly to my office from anywhere in the country. So, feel free to call. It's 1-800-426-8920.

CHAIRMAN KRUL: Okay. We're going to recess for lunch. If there's anyone in the audience who would like to make public comment, I don't know if there will be time today. There certainly is time set aside for tomorrow. But if you would let me know your name and your affiliation, we'll give you five minutes, and more if it's absolutely necessary, depending on time.

But, please see me sometime during the meeting and let me know that you'd like to make some public comments, whether we fit you in today or tomorrow.

Let's meet back here no later than 1:15 for readjourning. Thank you, Noah.

MR. CONNELL: Thank you.

(Whereupon, at 11:52 a.m. the meeting was recessed for lunch.)

AFTERNOON SESSION
(1:15 p.m.)

CHAIRMAN KRUL: A couple of housekeeping items. The privilege of the chair being exercised, Annika is one under after 13. The leaders are at four under. She is doing extremely well. Go, Annika!

MR. SWANSON: Is anyone going to ask for equal time?

CHAIRMAN KRUL: We don't have any PGA members in here, and I don't want to hear it anyway. Vijay's gotten into enough trouble for the men.

I'm going to pass around for the committee members a sheet, and we'd like you to look at it and update it. There are one or two e-mails missing. If you have an e-mail, please make the necessary corrections on the sheet.

Okay. Mr. Witt is here. Steve, if you would come up. Steve is the Director of the Office of Standards and Guidance and is here to talk to us about some of the standards.

Welcome, Steve.

STANDARDS ISSUES
By Steve Witt

MR. WITT: Thanks, Bob. It's a pleasure to be here today. Thank you for the invitation.

For those of you who don't know, the Directorate of Standards and Guidance is the successor organization to the Directorates of Safety Standards Programs and Health Standards Programs. The new Directorate was created last September when the national office was reorganized.

I'm only going to take a few minutes of your time today, and then turn the rest of the afternoon over to my staff to talk to you about a number of issues which I think are of interest to this committee.

I had hoped today, when I was told the date for this meeting, to be able to talk to you about the new regulatory agenda. The regulatory agenda is published twice a year, sometime after April 1 and sometime after October 1. I was optimistic that the April 1 edition would be published sometime this week.

We now understand it will be published next Tuesday, and, as I said, I had planned to give the committee an update of the items in the regulatory agenda and we'll have to postpone that to the next meeting, and also possibly discuss other issues in the regulatory agenda that are of interest to the committee.

I'd like to thank the members of the committee that are on the Silica Working Group. I understand you had a successful meeting yesterday afternoon with some of my staff. John Henshaw mentioned this morning hearing conservation in construction.

We published a number of months ago an advance Notice of Proposed Rulemaking. We will be taking the next step, and that will be announced next week in the regulatory agenda on that subject on noise and construction.

What I'd like to request of the committee, Bob, if the committee has the interest, that a workgroup be set up on noise in construction. This will be a critical issue for us, something hopefully this committee will be able to work on and provide input to us. We'd like to work with that working group.

So, as we move forward on silica, with the support of the committee, I'd like to request that you also focus part of your energies on noise in construction. As I said, if the committee is willing to set up a working group, we would like to work closely with that working group.

Today I have a number of my staff here, and also Bob Burt from the Directorate of Evaluation and Analysis, to talk about several issues that directly relate to the construction industry.

The first items, are assigned protection factors for respirators. This is part of the respirator standard from 1998 that was reserved. You all received, a few weeks ago, a copy of a proposal that has been through departmental review and reviewed by OMB.

Once we make this presentation and receive your comments on that, we intend to go to the Federal Register and publish that as a proposal. Also, we have a proposal on controlled negative pressure testing protocol, and you all have a copy of that.

What we'd like to do specifically on those today, is have John Steelnack of my staff make a presentation--he's brought some props along to show you what some of the respirators are that we're talking about--get any feedback from you, any issues you'd like to raise or discuss with us, and once that's been done we will move forward to publish in the Federal Register.

What I'd like to do, with no objection from the committee, is introduce John Steelnack and we'll begin the first of our substantive presentations.

John?

CHAIRMAN KRUL: While John's getting ready, Steve, we do have a workgroup on noise and they would be glad to work with you on any standards.

MR. WITT: Good. Thanks, Bob.

ASSIGNED PROTECTION FACTORS FOR RESPIRATORS
By John Steelnack

MR. STEELNACK: Good afternoon. I'm John Steelnack, with the OSHA Directorate of Standards and Guidance. I work on the OSHA respiratory protection standard.

What I'm here to discuss this afternoon, is the Notice of Proposed Rulemaking on assigned protection factors for respirators, which will be the last piece of this proposal to finish off the revision of OSHA's respirator standard which was begun a long time ago, and came out as a final in 1998.

Now, this Notice of Proposed Rulemaking will contain an assigned protection factor table, definitions of assigned protection factor and maximum use concentration, and a scheme for superseding the existing APF requirements and various OSHA substance-specific standards, and replacing them with the one generic APF table that will be in 1910.134.

When we published the original 1910.134 in 1998, the final, we reserved this particular section dealing with assigned protection factors, as well as maximum use concentration, and superseding the various APF tables simply because there was a lot of research going on and a lot of studies being done, and we weren't in a position at that time to really finalize the assigned protection factors.

Since then, new studies have been published. We've looked at all of those and analyzed them. We've done a heavy-duty review of all the various studies, comparing and contrasting the performance of the various classes of respirators, and we have looked not only at that, but at our own qualitative review of the various respiratory protection literature and what it means for assigning protection factors to the various respirator classes. Out of that, we have developed an assigned protection factor table.

These APF tables will provide increased worker protection basically by incorporating APFs as part of a complete respirator program. Right now, our respirator program says you use either the NIOSH-assigned protection factors that are in their respirator decision logic, or something equivalent like the 1992 ANSI Z88.2 respirator standard which has an APF table.

But things have evolved since then. The Z88.2 is no longer officially out there. ANSI has a rule that their standards cannot be more than 10 years old. If they are, they're no longer valid, even though it's still out there.

They have a new ANSI Z88.2 committee who has worked on a new standard, and they've been doing a lot of work. But they're not final yet. I hope they will be finalized in time to submit it here as part of our proposal so we can evaluate that.

The other thing we're going to do is supersede the existing substance-specific APF table basically to reduce confusion and harmonized the assigned protection factor numbers, basically because originally when the substance-specific standards came in over the years, the APFs tended to vary a little bit as they used the best available information in that particular year.

So, some of them relied on the '69 ANSI standards, some of them relied on a NIOSH respirator decision logic, some of them, they used the 1992 ANSI standards or the 1980 ANSI standards, and tended to vary a little bit, so you could end up with the same half-mask for one compound, getting 50 or 100 for a full face piece, I mean. What we have done, is we've given one number basically to everything across the board in the 134 standard.

We're adding definitions of assigned protection factor and maximum use concentration. These are very similar to what's already out there in the ANSI standard and in the NIOSH respirator decision logic.

The maximum use concentration basically will be defined as the APF multiplied by the PEL. This sets a maximum exposure limit based on the protection that that particular class of respirator can provide.

The key issues, basically, are the assigned protection factor of 5 versus 10 for filtering face pieces and elastomeric, basic rubber or silicone, respirators. This is the traditional elastomeric twin cartridge respirator.

You can have various types of filtering face piece respirators from the full flaps like this, to respirators rather like these, the cup style, which is kind of traditional. This is an N95-3M8210, up to ones with exhalation valves, and continuing on. There are various classes and types. You can go from one -- like this one here is one.

It's an N95 respirator, but it has thin straps, then you have to form the face piece to your face and it has a formable nose bridge, like most of the filtering face pieces do.

The trick is, is this face seal adequate to get a good seal on the face, and what assigned protection factor should be assigned to that class?

The respirator performance studies we looked at have shown that we cannot really differentiate between the performance based on the studies that we have now. We did a big analysis and we had a statistician review the results and go through it.

What happens is, the performance levels of the filtering face pieces and the elastomerics overlap. You can't separate them out. They don't have filtering face pieces at one end and elastomerics performing better. They actually overlap totally and you really can't decide between them. Therefore, we've given them all a single APF.

The other group that we're looking at, especially for assigned protection factors, is the powered air purifying respirators. That is because, originally in the NIOSH respirator decision logic, all loose-fitting powered air purifying respirators get 25.

But we have been approached in the past by the pharmaceutical industry, ORC, and others, and they basically did a large study at Lawrence Livermore National Laboratory where they evaluated the performance of loose-fitting hoods and helmets, and showed that they actually divide into two classes, with much different levels of performance.

One, loose-fitting face piece hoods and helmets that truly are loose-fitting, they perform at 25. Then there's another class of loose-fitting, basically hoods with a bib that fits over the shoulder, and either an inner neck seal, a turtleneck, a rubber neck seal, or other things to control the air flow, and they perform at a much higher level.

What we have done based on that, was OSHA had issued already a compliance letter allowing the use of certain ones that had shown their higher performance during this study for a higher protection factor. That's what we've continued here in our APF table.

We have done an economic analysis, but I'm not really going to go into much of that because there really is no unusual response here among construction. They're treated like every other respirator user.

Basically, the major classes of respirators that are used in construction have not changed their APFs. Half-masks still get 10, full face pieces get 50. The one group that is possibly affected is the ones where the loose-fitting versus better-performing PAPRS are. There are some specialty groups in there, basically.

Total incremental cost for the entire proposal is estimated to be like $4.6 million across all industries, of which only $900,000 is in construction, and most of that, or $700,000 or better, is in the specialty respirator trades.

That's it for assigned protection factors. I would like to hear if you have any questions or comments you'd like to raise.

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: What about fit testing? I didn't get a chance to read the document. Is there anything in there on fit testing?

MR. STEELNACK: Well, fit testing is already a part of the existing respirator standard and it is finalized. We're not going back to touch fit testing again.

But the APFs, the table itself, is predicted upon, you're part of a continuing effective respirator program which includes fit testing. Fit testing is how we're going to filter out and remove the guys who may not fit this particular respirator, like the ones here, like the duck bills.

They fit some people well, and some people they don't fit well at all. Fit testing is what's going to -- you have to do mandatory fit testing, so if it doesn't fit you you'll flunk the test and you can't wear it.

MR. SOTELO: Okay. Thank you.

CHAIRMAN KRUL: For the record, I know when we do these acronyms we drive you people nuts. PAPRS are powered air purifying respirators. APFs are assigned protection factors.

Kevin Beauregard?

MR. BEAUREGARD: I tried to review the entire document.

MR. STEELNACK: Thank you. An honest man.

CHAIRMAN KRUL: I'm sure all members of the committee read it thoroughly.

MR. BEAUREGARD: Yes. I slept very well last week.

The costs associated with construction did not look too high, but I did have a question on one of the items that is not a construction item.

But in SIC 44, water transportation, the average compliance cost for the affected establishments in that area was over $5,700. I was just curious as to why it was so high in that area, because that's the one that stuck out to me.

MR. STEELNACK: That's one I really couldn't say. Maybe Bob could help out.

MR. WITT: The economist who supports us on this and did the regulatory analysis is sitting in the back. Bob, can you come up? Bob Burt.

MR. BURT: The major reason for that is probably, we relied heavily on surveys, particularly the very recently released NIOSH survey.

Now, the survey was a well-designed, large-scale survey. But one of the facts about surveys, is they're plus or minus 95 percent confidence intervals. Frankly, I strongly suspect that one is simply outside the confidence interval.

The answer is not entirely reasonable to us. It isn't obvious why that should be the case, but we felt we should rely on real survey data rather than just saying, oh, we think that's wrong and correcting it. That's really the best I can explain what's going on there. We noticed that, too, and scratched our heads, but those are the answers that people gave on the survey.

MR. BEAUREGARD: Thank you.

CHAIRMAN KRUL: Anyone else?

MR. WITT: If there are no further questions, I'll assume that the advance reading on the second proposal is consistent with the advance reading on the first one, so I'll turn it over to John so he can walk us through it.

CONTROLLED NEGATIVE PRESSURE (CNP) REDON FIT TESTING PROTOCOL
By Mr. Steelnack

MR. STEELNACK: Okay. The second item here is the controlled negative pressure fit test protocol. Now, this is basically part of the existing respirator standard back in Appendix A where we have our mandatory fit test protocols. We established a procedure for approving new fit test protocols.

We allow individuals to petition OSHA and present their information. They're required to have at least two published industrial hygiene studies showing the performance on the new fit test protocol, and they have to write out their protocol, and all the rest.

Then we will present it as a Notice and Comment Rulemaking here in the Federal Register to seek public comment. This basically is a new CNP, what's called the REDON protocol. What it does, is it substitutes for the existing CNP protocol, which will remain in the respirator standard and will still be used.

he original standard requires eight exercises and one redonning. Now, the new CNP REDON protocol basically reduces the number of exercises, but adds additional redonnings of the respirator.

Basically, the individual does three exercises on the original donning, then removes the respirator, puts it on again and they're tested one time again. They take it off and put it on again, and they're tested again to see whether the fit of that mask has changed.

It tests two things better, in a way, than the original standard does. It tests the individual's ability to achieve a consistent face piece fit, and it also tests to see how well they understand putting on that respirator, because, chances are, if they're not well trained and they don't know what they're doing, one of those two redons will fail. When you fail it, you fail with that respirator.

Now, this was requested by the folks who invested the fit test method, Dr. Cliff Crutchfield and the Occupational Health Dynamics, Inc., which is the distributing company that distributes the CNP fit testing method.

We're basically going to add a new CNP REDON protocol as part of the existing protocols in Appendix A, and we'll have a new Table A-1 describing the different fit test exercises that are part of the REDON protocol, basically to make them assured that they will follow and do the two redonnings correctly.

We're also doing a few technical revisions. Basically, since the manufacturer of the equipment has now switched from Dynetech Nevada over to Occupational Health Dynamics, and we're doing an adjustment of one type that was in it. It should read minus 15 inches of mercury, and that the breath-hold is for 10 seconds.

We've also added a phrase which Dr. Crutchfield wanted which is on the equipment that is out there. They actually have a visual tracing on the equipment. It electronically traces. So, if you're not doing it correctly and you're not holding your breath when you're supposed to, that tracing changes shape and it not only sounds a buzzer, but you can look at the tracing itself and see that it's not in the proper form, and therefore you can fail that way.

Therefore, we've added the phrase, "or a visual warning device in the form of a screen tracing" as one of the things to look at to determine if the person's performing it correctly.

The test duration of these exercises is reduced to approximately 30 seconds. With the CNP method, test duration really doesn't matter. You have to stand still and hold your face still during the actual testing, and it only takes 10 to 15 seconds to do the actual test. So, having them stand there for a minute for each exercise is rather redundant, so we've allowed them to go to 30 seconds.

This is also the start of what may be a chain of alterations to the existing OSHA fit test protocols because this will allow you to do fit testing faster with their particular equipment.

But the other manufacturers with the other fit test equipment will probably come in and request an equivalent type adjustment for their testing exercises to get a faster protocol.

I've already seen them at the American Industrial Hygiene conference. There was one presentation on Bittrex, and I've seen ones for the Portacount as well. So if CNP succeeds, the other two will probably come in.

That's it for CNP. Are there any questions?

(No response)

MR. STEELNACK: I didn't expect any on CNP.

CHAIRMAN KRUL: For those of us who had trouble with organic and inorganic chemistry and calculus, this is highly scientific.

Go ahead, John. Please proceed.

MR. STEELNACK: Well, that is it for the two things I am supposed to discuss.

MR. WITT: Okay. If there are no other questions or discussion, we will be, in the very near future, publishing these two documents in the Federal Register and there will be opportunity for all interested parties to comment.

CHAIRMAN KRUL: Let me ask the members of the committee, obviously there are some of you who understand this whole discussion better than most of us. This has been a contentious and controversial issue from the start. Are we going in a direction that is getting where everybody would like to see assigned protection factors to go to, in the way that John explained it? Joe?

MR. DURST: The answer is yes. In the past, in teaching asbestos, you had one number, hazardous waste, you had another number. So you'd have one group of students this month, next month you're telling them it's different.

They're arguing with you, pulling out their asbestos book, proving to you that it's 25, and you're the instructor. It's like, hey, asbestos is -- next month we'll have another number when we do hazardous waste. So, it is standardized.

MR. WITT: I think Joe is focused on what is sometimes missed when we discuss APFs. We're not only proposing a new assigned protection factor table, but as John said, the different substance-specific standards, as they were developed and finalized over the years, had different APFs for respirators for that particular substance.

We will now remove those for most of the substance-specific standards and they will all be accounted for in this table. So, yes, it will be simpler and clearer for purposes of selection.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: Just a minor note. Actually, NIOSH has been working with OSHA on this for however long it's been. Our respirator experts from the National Personal Protective Technology Laboratory out of Pittsburgh, and I think out of some of the other divisions in Morgantown, and actually some staff from my branch, have gone back and forth with OSHA.

There have been disagreements and things have gotten to the point where now we are in full agreement with the APF issues. So, I think, at least from our standpoint, this is a very, very good and solid piece of work, and it needed to be done because there were respirators out there that did not have assigned protection factors, and you could not use the respirators effectively.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Sir, please bear with my question, because I did read the document. When I completed it, I wondered what day I was going back to school. It was difficult for me.

Do I understand that the typical N95 that's used every day in construction, mostly, that APF will change?

MR. STEELNACK: No. The N95 filtering face piece respirators are traditionally used in construction and they follow the 1992 ANSI standard. That has an APF of 10 for that respirator class and it has not changed.

MS. WILLIAMS: It has not changed.

MR. STEELNACK: We're seeking comment on that. That is one of the most controversial issues, is the 5 versus 10.

MS. WILLIAMS: Yes.

MR. STEELNACK: But for now, it has not changed.

MS. WILLIAMS: Is that the same ANSI standard that is more than 10 years old?

MR. STEELNACK: Yes, that's the old ANSI standard. That's one of the reasons I would like to see the new ANSI standard get through its review and approval process while we're out getting public comment so we can take that into account.

MS. WILLIAMS: The ANSI process is experiencing great difficulty right now with various issues of Secretariat. Nothing appears to be moving at this point in time.

MR. STEELNACK: Well, on ZNE2 it is moving. I voted today, as the OSHA representative.

MS. WILLIAMS: You did?

MR. STEELNACK: The final vote on the Z88 committee on the Z88.2 standard is, like, May 30. So, hopefully that will then trigger a further movement from the Z88 committee to send it forward. But then there is the chance of appeals and the rest because of the process of 5 versus 10.

MS. WILLIAMS: Understood.

MR. STEELNACK: It's hard to predict how long the appeals process will take before they come out with a final standard.

CHAIRMAN KRUL: Jane, Marie wants to point something out.

DR. SWEENEY: If you have your document, am I right, John, the new table for the APFs is on page 279 of the document.

MR. STEELNACK: Uh-huh.

DR. SWEENEY: If you wanted to look, it would give you what the APFs are being proposed and whether they've changed or not, whether they're proposed being changed.

MS. WILLIAMS: Yes, I saw that.

DR. SWEENEY: Just for clarification. I'm sorry.

MS. WILLIAMS: That kind of answers where I thought it was going. Thank you, sir.

CHAIRMAN KRUL: Bruce?

MR. SWANSON: Yes. Mr. Chairman, I believe that Mr. Witt would like from this committee, and what I'm going to recommend to you that the committee do, is before you adjourn tomorrow, put together some type of formal recommendation that OSHA proceed with these issues.

I know that they would like to go to the Federal Register next week. Just to clean up the paperwork, it would be nice to have a recommendation on the record.

CHAIRMAN KRUL: We will have that on tomorrow's agenda for a formal motion.

MR. SWANSON: Thank you.

CHAIRMAN KRUL: Okay. Thank you, John.

MR. STEELNACK: Thank you.

CHAIRMAN KRUL: Thank you very much.

Steve, we're scheduled for a break. But is Amanda here?

MR. WITT: Yes. Yes.

CHAIRMAN KRUL: Why don't we just go right into chromium?

MR. WITT: Fine.

While Mandy is coming up, I'll give you 30 seconds of background, and Mandy will go into this in a little more detail.

The Agency has been working on a chromium standard for a number of years. We were petitioned during the 1990s to move forward with rulemaking, and in 1998, the then-Assistant Secretary, in writing, stated that we would work towards a proposal.

The petitioners, last year, petitioned the Court of Appeals in Philadelphia, the Third Circuit, to impose on OSHA a schedule to develop a proposal. The court rendered that decision, and we have an order from the court that strongly suggests we publish a proposal by October of 2004.

Taking into account the amount of work we need to do, development work, both technological feasibility, economic feasibility, the other aspects in developing a standard, that is a timeframe for us that we intend to meet, but we will meet it with some difficulty. But we intend to meet that.

I've asked Mandy Edens to speak to you today about our activities, the chronology, and some of the issues we'll be dealing with, especially as chromium relates to the construction industry.

Mandy?

CHROMIUM
By Amanda Edens

MS. EDENS: Steve pretty much said a lot of what I was going to say.

MR. WITT: Oh, well. We can take our break then, Bob.

(Laughter)

MS. EDENS: Now you'll have to listen to David, mostly. I have with me also David O'Connor, who is acting as kind of one of the main coordinators for the team.

As Steve mentioned, we are under a court order. Has everybody got the handout now? That court order was imposed on us on April 2nd. I always kind of find it interesting that it didn't come out the day before.

But at any rate, we're under a court order and we do intend to meet it. Actually, we do have a standard for construction right now, which is 100 micrograms, measured as chromic acid, not as hexavalent chromium. The equivalent would be roughly about 52 micrograms of hexavalent chromium.

So basically in the handout we have here, you can see what our timeline is to get the proposal done in October, which essentially means we have to initiate our SBREFA process at the beginning of this coming up year, and we hope to have a regulatory text and our economic analysis done in time to initiate that process.

If we do publish in October--and we will, there's no "if" about that because, you know, I don't want to go to jail --

MR. WITT: And we don't want Claudia to go to jail.

MS. EDENS: Yes. Claudia will go to jail, for sure. But at any rate, the way the schedule is laid out, in order to make a January 18th final, we will have a 90-day comment period. Unless there's some unusual circumstance that arises, the court is going to kind of hold us to that. So, we're on a very tight and vicious schedule.

Although, if you look at it on its surface, it seems like a lot of time, but it really encompasses everything, not just the staff here developing it, but going through departmental review, which you're probably aware is a fairly complex process.

CHAIRMAN KRUL: Amanda, because there's newer members on the committee and the hexavalent chromium issue has been ongoing for a number of years, and for the benefit of some of the public members as well, would you review in a little more detail the exposures in construction that can occur?

MS. EDENS: Yes. I was just going to go over the timetable. I was going to let David get into some of the details of where we think the exposures in construction are going to occur. So, we'll do that in just a second.

CHAIRMAN KRUL: Okay.

MS. EDENS: I just wanted to give the committee a little bit of a flavor for where opportunities are or people, the groups that they may be parts of, where they will have some opportunities to comment on our proposed rule and when those kinds of situations are likely to come up, given the timeframe we have before us. Essentially, that is our schedule.

For the people who are not familiar with chromium, we're talking about hexavalent chromium. There are a couple of permissible exposure limits for it. As I said, we have a permissible exposure limit for construction and general industry currently, and we do anticipate covering construction in this proposed rule.

As you may know, hexavalent chromium is very toxic. It is classified as a known human carcinogen by IARC, NTP, and ACGIH. It also causes, in addition to lung cancer, additional dermal problems that it causes. It causes nasal septum problems, and also skin ulcers and dermatoses.

So, with that I'm going to turn it over to David O'Conner, who's going to tell you where we anticipate the exposures to occur in construction and just where we are right now with some of our current activities towards developing the proposal.

CHROMIUM (Continued)
By David O'Conner

MR. O'CONNER: Good afternoon. Just to give you a brief overview of the areas we're looking at where hexavalent chromium is used in construction, we're looking at cement and concrete work where the cement itself contains a bit of hexavalent chromium as a result of the production process where the chromium is used in the refractory material in the cement kilns and ends up contaminating, I guess would be the proper word, the concrete.

Woodworking, where chromium is going to be used as a component of the preservative materials in pressure treated wood, which you would find in telephone poles, fence posts, railroad ties, outside decks, things of that nature.

In the application and removal of some paints and coatings, particularly when you're getting into bridges, for their anti-corrosion properties. These paints are often applied in those environments and employees can be exposed when they're either applying that paint or coating, or in the process or removing the paint and coating in demolition work, or in repair work on those structures.

Stainless steel, which itself does not contain hexavalent chromium, if you have a hot process such as welding or cutting, can be generated in that process and the welders can then be exposed to hexavalent chromium. Also, in the welding and cutting of materials which would not themselves contain chromium, but would have coatings which were chromium-containing.

Right now, the Agency is under the process of developing the standard, not only the regulatory text, but also doing the type of work where evaluating the exposures that would be involved in those types of work, and also the control measures that would be useful in protecting workers who are preforming those types of work.

We are at this point intending to develop a separate standard which would address the construction industry and unique characteristics of that industry, so we would anticipate that, although that would closely parallel the standard that would cover general industry and other industries, that there would be some specific nuances that would be developed for construction activities.

We're currently looking at the risk assessment to determine what the risks are from exposure to chromium. You'll see mentioned at the top of the handout was given the health effects that are associated with exposure to hexavalent chromium.

A primary interest is probably lung cancer, but there are a number of other adverse health effects that are associated with exposure, including dermatoses--that is particularly common in concrete work, where you have a chromium dermatitis associated with skin contact with cement--nasal septum perforations and skin ulcers, and also asthma.

We recently had Requests for Information on hexavalent chromium and we're taking the responses that we received from the RFI into account in development of the proposed standard.

Did you have anything you wanted to add, Mandy?

MS. EDENS: No.

MR. O'CONNER: Any questions?

CHAIRMAN KRUL: Questions from the committee? Jane?

MS. WILLIAMS: At any point in time would the committee be able to receive a copy of what you're proposing prior to the time? We're not allowed to have it?

MR. WITT: Maybe you'd want to reword that.

MS. WILLIAMS: Well, when it goes into the formal process. We're not allowed to. Is it an opportunity for us to see preliminary language so we can get a feel for the language itself and offer reasonable comment at that time?

MR. SWANSON: Since this is under the Construction Safety Act, any proposal that we develop that would apply to construction is shared with, and we'd get input from, this Advisory Committee before we publish in the Federal Register. We will share the proposal for chromium some number of months before it goes to the Federal Register and you'll have an opportunity to comment.

In this case, I think we sent the APF proposal out three or four weeks ago, so you had a month to review it before this committee meeting, and we will do the same with chromium.

MS. WILLIAMS: Thank you.

CHAIRMAN KRUL: Joe?

MR. DURST: Steve?

MR. WITT: Yes, sir.

MR. DURST: Being as this is a carcinogen, is this going to have a separate standard? Is this going to join the 13-carcinogen group?

MR. WITT: No. This will be proposed as a substance-specific standard, as we have done in the past with ethylene oxide and ethylene chloride, and the others, you know, lead, cadmium.

This will not be joined with them. That was a specific rulemaking in the early '70s and that stands alone. This will be a separate rulemaking, substance-specific rulemaking. It will be given an additional 1910, 1000 and whatever number.

And Joe, whatever our health effects findings, of course, that will be discussed in the preamble to the proposal. That conclusion won't be reached until we publish the final.

CHAIRMAN KRUL: This question popped into my mind, just knowing the carcinogenicity of silica. Is there compounding or synergistic effect between hexavalent chromium, and concrete, and cement, and silica, or is there a potential for that?

MR. O'CONNER: Nothing that I'm aware of as far as a synergistic effect. But certainly you would expect a cumulative effect.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: Do we have a sense of the extent of exposure to construction workers to these five or six different exposures and areas?

MR. O'CONNER: Not at this point. We're still gathering that information.

CHAIRMAN KRUL: Now, I know when Bill Rhoten sat on this committee, he had his viewpoints, especially with the stainless steel and nuclear industry welding, that goes on for the hexavalent chromium exposures.

But one that I was not aware of, and maybe Joe can help us out, was on woodworking, with these pressure-treated lumbers. If you're talking about the decks in America being built, the exposures to workers, I'm assuming that comes from sawing. Is that from the dust exposure from sawing pressure-treated lumber?

MR. O'CONNER: Well, not necessarily.

MS. EDENS: Maybe Bob can help me out a little bit. We don't believe that that's really a significant exposure to workers. This has really been more of an EPA issue a little bit, because not only the chromium, but the arsenic that's in the formula they use to treat the wood.

So there was some concern about children being on the decks and playing with them, and maybe some of it getting into the soil. But whether or not there would really be that much exposure if someone was constructing the deck or creating dust, I don't know if we have a lot of information that that's a serious exposure to workers, and whether or not they'd be handling the soil around it if they were doing some kind of clean-up. But we don't anticipate that to be a huge exposure, but we are gathering the information right now to look at the extent.

We will be having some part of our regulatory analysis which will address it, but I think what you're likely to see, is more of the impact will be in these other ones, not the woodworking one.

CHAIRMAN KRUL: Okay. Manny Mederos?

MR. MEDEROS: Yes. You raised a question about, you called them telephone poles and power poles that are treated. I would assume that that would be minimal exposure with someone that's climbing with a set of hooks or drilling a pole to hang a cross-arm or transformer.

MR. O'CONNER: We would think so, but until we have the information in hand we're not in a position to say.

MR. WITT: Let me, so there is no over-reaction from anyone on the committee or my staff, we're early in the process of developing information, doing site visits, looking at economic and technologic feasibility.

We will have the proposal out by October of next year and I'd rather not comment on information that is not only not complete, but hasn't been completely reviewed by us yet.

MR. O'CONNER: If I can add something here. The applications you see listed where there are anticipated chromium exposures are exactly that, situations where we're looking at potential chromium exposure, but we really don't know what those exposure levels are going to be. So we have to gather the information before we know or have an idea that they would be of concern, before they would be presented as a proposal.

MR. WITT: We will, as I said earlier, present the proposed chromium standard to this committee some number of months before we're scheduled to publish in the Federal Register. We will meet periodically as this committee meets, and we will be more than happy to discuss updates on the status of the work that we're doing.

CHAIRMAN KRUL: Joe?

MR. DURST: Mr. Chairman and Steve, in woodworking, we have over the years responded to a number of cases where our members were doing extensive work at a marina or somewhere where a lot of a pressure-treated wood was being put in for all the decks, walkways, and guardrail systems, and things like that.

Not only were there problems with exposure to the members inhaling the dust, there were a lot of problems with members who would get slivers from the pressure-treated wood and get some very severe infections in their arm, or their leg, or their hand where they got the sliver.

Then with regards to things like telephone poles, remember, years ago telephone poles used to be treated with creosote, and some of them still are. But the process was different, as they were soaked in vats. Now the process is, the pole enters a sticker that drives spikes in it by terrific pressure, and then it moves forward. It forces these holes in three.

Then they're put in an autoclave and, under pressure with these chemicals, are cooked for a number of hours to drive that clear into the core of the tree so the whole pole is saturated. Then as that stands there, that stuff starts leaching back out.

If you put one of those in a front yard of rural America, and little children running, playing tag and hide-and-go-seek, and all kinds of things, touching this pole, you're getting great exposures because of a couple of poles.

MS. EDENS: I think that's why EPA and the CPSC is interested in it. It's not, as I said, the chromium. There's also arsenic, I think, that's actually in a greater concentration than the chromium. So, we've been tapping them and monitoring their progress on this as well, so we share your concern with that.

CHAIRMAN KRUL: Jane Williams?

MS. WILLIAMS: Mr. Witt, I really appreciate your comment of giving us some internal reports. We have a workgroup right now who is taking on the assignment of demolition.

Quite frankly, on my list of things for consideration, I had not entertained chromium, other than a welding process. So, that would be of interest to us in looking at that during the process of our deliberations on demolition.

MR. WITT: Okay. Well, I'll be happy to work with Bruce and his staff as the workgroups move forward to provide whatever information or work cooperatively with the workgroups.

MS. WILLIAMS: Okay. Thank you.

MR. SWANSON: Mr. Chairman? If I may.

CHAIRMAN KRUL: Yes. Go ahead, Bruce.

MR. SWANSON: Steve has mentioned several times, in several different ways, that this is very early in his process, regardless of how many years it's been, and he's offered to work with this committee with interim reports, work through my office to get to this committee with interim reports.

At the moment, although I don't know if it'll survive tomorrow's cut, kind of like some golfers, we have a chromium workgroup, and if it survives that might well be a vehicle for Steve to utilize to have discussions with the construction industry, give and take.

You should all know, however, that no matter how friendly and how much exchange of information we have in the preliminary stages and as we work through this, OSHA has a statutory responsibility to give you certain information, at least a regulatory responsibility to give you certain information, at a given point in time downstream, which those of you who disagree with what we are about to do can then share with your legal staffs.

That will follow a very formalized process because this is the real world, and some of this might end up in a courthouse someday. But until we get to that point in time, we'll all be in the sandbox together and try and work through this process to the benefit of the construction industry, and I know Steve joins me in that.

CHAIRMAN KRUL: Anyone else?

(No response)

CHAIRMAN KRUL: Well, thank you very much. I think you've answered everybody's questions.

Steve, you had the transmission people here. I think what we'd like to do is take a 10-minute break. But before we do that, just going along with Mr. Swanson's remarks, if we can, we'll get to it today, if not it'll be a cut tomorrow. But I'm struck by a couple of things with these presentations.

One, is that we have to have a better, and a more quick response and interaction between our workgroups and the folks like this that are having rulemaking.

The other thing is, because of the topics that are covered under that workgroup, I looked at a couple of these workgroups and I'm struck that we're not stretching out the balance, for whatever reason, whether people don't feel comfortable with the topic, or whether people don't feel they have the time to devote.

What I'd like to do, as much as possible, is make it a triparthied chairpersonship, if you will, between the public sector, labor, and the employers. I mean, obviously everybody's got a vested interest that sits on this committee, but I'd like to keep it as fair as possible with folks who sit on this committee. We'll be talking about that, in addition to talking about the subgroup charges or scopes.

I'd like those of you who are currently sitting as chairpersons and co-chairpersons, I'd like to look at that as a tripartheid chairpersonship, again, to just bring some equity and spread this out a little bit.

I include myself in that group. There isn't a whole bunch of us to handle all these workgroups, even though we'll be consolidating some of them. Just keep that in mind.

Okay. Let's take 10. Be back in here at 2:15.

(Whereupon, at 2:06 p.m. the meeting was recessed and resumed back on the record at 2:20 p.m.)

CHAIRMAN KRUL: Will the committee please take your seats and come to order, please?

Okay. Continuing with the agenda, Steve, if you would introduce the folks who are going to present the Subpart V presentation.

MR. WITT: Thank you. The next item on the agenda is our regulatory activity related to Subpart V, Electric Power Transmission and Distribution.

This proposal is now part of the SBREFA process. For those of you who don't know, that's the Small Business Regulatory Enforcement Fairness Act. We work closely with SBA as we meet the requirements of that statute.

Bob Burt from the Directorate of Evaluation Analysis has responsibility within the Agency for working with the Small Business Administration and following the dictates of that statute. Dave Wallis, who is on my staff, has the responsibility for the overall rulemaking part of this.

What we'd like to do today, is have Bob quickly go through, for those who aren't aware, what for us turns out to be a fairly lengthy process in meeting the requirements of the Small Business Regulatory Enforcement Fairness Act, quickly go through that for you.

He will discuss some issues related to it for which he has responsibility, and Dave will go through the proposal and highlight some of those issues, and we will have time for comment, questions, and discussion.

Bob, do you plan on going first?

MR. BURT: Yes.

MR. WITT: Go ahead.

SUBPART V - POWER TRANSMISSION & DISTRIBUTION
By Bob Burt

MR. BURT: Okay. I'm sorry this will be a bit repetitious for some of you who were in the silica meeting yesterday, but hopefully I can be briefer and more organized and have answers to quite a few questions that came up the other day.

I want to point out, we want to take advantage of this opportunity to talk to you to find out -- we're looking ahead to a number of these panels over the next year that will be of interest to this committee.

We're currently doing electric power generation transmission and distribution. We will be, very shortly, starting confined spaces in construction. That will be followed by silica. Silica will, in turn, be followed by chromium. So, we're looking at a fairly busy year ahead in terms of panel activities.

To go into the panel itself, the basic purpose of this panel, it was set up by law to give small businesses an opportunity to have a direct effect before a rule is proposed. Congress felt this was useful, for a variety of reasons.

In part, because of findings, and this certainly reflects all my own economic analyses that there are disproportionate impacts in many cases on small business, and in part to ensure that small businesses have the opportunity to engage directly in the rulemaking process.

With the lack of resources of very small businesses that make it more difficult for them to participate, this is a chance for us to reach out and talk to real small business owners and their representatives and find out what they really think of this rule, of the rule we're thinking of proposing.

The ultimate goal of this process is to try to find better ways, ways that will alleviate burdens on small businesses, while at the same time meeting the goals of the Occupational Safety and Health Act. That's the overall goal of the process.

The process contains a panel. This is sometimes confusing. The panel consists of members from OMB, SBA's Office of Advocacy, and from OSHA. I am OSHA's chair for this panel. This is all a little new to us.

We have not had a panel for over two years, now, though we're going to have four in the next year. We have a new set of procedures that we've worked out with Office of Advocacy, which I think gives us a much better and much smoother process. We're certainly finding that true on this first one we're doing now on electric power generation, transmission and distribution.

Now, those are the panel members. The panel members, in turn, go out and select a set of small entity representatives. I always say "entity" rather than "small business," because some of our rules affect small nonprofit organizations and small governments. So, they're technically SERs, as we put it, small entity representatives.

Having found those representatives, we send them a package which consists of a draft rule if we have it, or a description of the kinds of things we're considering putting in a rule, a summary of the major issues with respect to the economics and small business aspects of the rule. Those are the key things.

But part of the process is for us to work with the Office of Advocacy and with OMB to agree on what is the best package that can be most helpful for the small entity representatives.

The small entity representatives then have a chance to read through these materials, ask for additional materials, talk to anyone they want to about these issues, and in turn we then get their feedback through both a teleconference and through their written comments. The panel then summarizes the comments of the small entities and decides on a set of recommendations to provide to OSHA.

Let me pause briefly just to introduce, if there are any who do not know him. I believe Charlie Bareska is with us today. He's the Office of Advocacy representative of these panels.

This process requires approximately 120 days, according to our procedures, and begins with us informally notifying SBA of our desire to convene a panel in 60 days.

We then spend the first six weeks or so of this process working with Office of Advocacy and with OMB to choose the small entity representatives, to develop the materials we want to send them, and to set up an overall procedure that that panel will work to.

Our goal is, after about six weeks, to send packages out to the chosen small entity representatives, give them a chance to read this material for about, I'd prefer to give them a month, have the teleconference I mentioned, and then the last five to six weeks are devoted to developing our report.

Now, let me hit something that I was a little bit vague on yesterday, and also affects all of these rulemakings as far as public information.

The package we send to the small entity representatives, which will include any draft rule we have, a summary of the economic analysis, as well as supporting data such as the draft economic analysis itself, however long it may be, is a publicly available document. It will be put in the docket.

I will be happy to coordinate with someone from this committee if you would like to be sure that some or all of you get copies of that material.

There is a second place where it is again public, and this is the teleconference. It is open to the public. People can attend this and listen to what the small entity representatives have to say.

Finally, the panel reports will be put in the docket once they are completed, and again our public information. So, those, in addition to anything else you may work with a group on, are three points of public information that you will have as a result of the SBREFA process.

Right now, in electric power generation, transmission and distribution, we are basically looking, at the very beginning of July, to have our panel report.

We had a very valuable pair of teleconferences with the small entity representatives last week and are now in the process of collecting their written comments and trying to put together a draft report.

So, having brought it back to electric power generation, transmission and distribution, let me ask if there are any questions, then I'll turn it over to Dave.

(No response)

SUBPART V - POWER TRANSMISSION & DISTRIBUTION (Continued)
By Mr. Davis Wallis

MR. WALLIS: Okay. Maybe one small update to what Bob said. Bob said we were putting the materials in the docket. Most of the materials are already in the docket. The only thing we have remaining to put in is the revised issue list that we provided to the small entity representatives.

That was done right before the meeting, and that will go in either the end of this week, or certainly by the end of next week that will go into the Docket Office.

The second thing is, I want to assure you that I sent copies of the electronic versions of the materials that we provided, I provided to the Construction Directorate so that they can provide you with that material, the electronic versions.

They include the draft rule itself, which is three separate PDF files, it includes the text of the BRFA--the only thing missing from those is a couple of tables that are available in hard copy only--and it also includes the list of issues and the letter to the SERs.

The host contractor provisions. The standard briefly requires the host employer, in selecting contractors, to evaluate the safety performance of the contractor.

It requires the host employer to provide information on hazards to the contracting employer, and it requires the host employer to notify the contract employer of any violations that he observes while the contractor is doing work so that the contractor can fix those violations, and for the host employer to note any failures to correct the violations.

It also imposes some obligations on the contract employer to provide information back to the host employer on hazards that he finds that the host employer wouldn't know about.

We did get some comments from the group. They were concerned that the requirement to evaluate contractors' safety performance and to note any failures to correct violations, some of the utility representatives and even some of the contractors were concerned that that would increase the third party liability of some of the utilities. The main recommendation there, I guess, from the SERs, would be that those two provisions needed to be addressed.

The other major area for the utilities and contractors were the requirements on protection from electric arc. Basically, the rule would require employers to estimate or assess the hazards from electric arcs that their employees are exposed to, to select clothing that would protect their employees from those arcs, and to train the employees in hazards and protection required from electric arcs.

The main concern there was that the requirements for protective clothing may introduce additional hazards to employees, that they would be beyond what was needed to protect employees from exposure to electric arcs.

The comments we got back were maybe a little more wide-ranging here. Some of the employers would like to see cotton still permitted for working on electric power transmission and distribution equipment, up to some representatives suggested that a requirement for FR clothing was okay, but that it was not necessary to go ahead and estimate the exposure and provide clothing that was consistent with the employee's exposure.

The last issue that was addressed was primarily an issue for tree trimming contractors. We have two tree trimming small entity representatives that were concerned with the requirement in the standard to use harnesses as part of fall arrest equipment rather than body belts.

Of course, if you're doing construction work and you're in an aerial lift, you're either using a restraint system or you're using fall arrest equipment using a harness.

On the general industry side, that would not be the case. Some of the small entity representatives for the tree trimmers were concerned that they didn't want to be required to wear harnesses.

I guess I should bring up one other issue that we raised before the small entity representatives. It's an issue that was too late to include in the proposal, but we raised it with them. We asked them some questions on it and this is something that hasn't come before this committee before.

That's the desire or the expected -- or we're questioning the need for requiring automatic external defibrillators in electric power generation, transmission and distribution work. We currently require, in 1910.269, that employees be trained in CPR and first aid.

Most CPR courses, or many CPR courses that are offered now, provide training in the use of automatic external defibrillators, or AEDs, as a matter of course that's provided in that training.

The natural next question is, well, if the employees are trained in it, should OSHA require AEDs? So we got some information from the small entity representatives on what they're doing now, what equipment is out there, and what would be the utility of providing that kind of requirement.

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: Just if I could briefly add.

CHAIRMAN KRUL: Go ahead.

MR. SOTELO: Dave has given a very general overview. We received a lot of comments on many issues. Furthermore, the written comments we've received so far are extremely detailed and go into a wide variety of things that the panel report will want to address.

MR. O'CONNER: Let me, with changing hats slightly from SBREFA chair to head of Office of Regulatory Analysis, say that there were a number of comments we're going to need to account for and we're revising our economic analysis, I believe.

But these are just some initial impressions we have, the panel report. We have yet to meet with the other panel members and talk to them about what they made of it and where we want to go from here. Thank you.

CHAIRMAN KRUL: Mike?

MR. SOTELO: Based on that follow-up, that kind of answers my question. The only concern, or do you have any rationale on how you're addressing the issues by the employers about tort exposure? I mean, because that, as a contractor, is a concern.

MR. WALLIS: We do understand it's a concern, and we'll obviously consider that in the panel's deliberations. I'm sure that the panel will address that in one form or another.

MR. SOTELO: And maybe this is too soon for you to answer this question, but, I mean, the idea of having an employer -- the evaluation process that you talk about can seem to be extremely vague and can be all over the board.

It could be a bad relationship and they could get a bad evaluation. I mean, what is the rationale for having some other contractor--you said the host contractor--evaluate?

MR. WALLIS: The host employer. The host employer is defined in the rule as basically being the utility, the owner or operator of the system, in selecting a contractor to work on the system. This work is highly specialized, and you want to make sure you have a qualified contractor.

So, the idea here behind this is that you want a contractor that's capable of doing the work, that's qualified to do the work. The idea behind this is not to expose additional employers to third party lawsuits. That's certainly not the idea here, and that's something we'll be trying to avoid if we can.

CHAIRMAN KRUL: I'd be disappointed if you didn't have a question.

Manny?

MR. MEDEROS: Well, David, it's good to have you here.

MR. WALLIS: Thank you.

MR. MEDEROS: This host contractor thing. That was, in fact, raised at the stakeholders meetings. These meetings have been going on for, I don't know, four or five years now that we've been discussing this thing.

The contractors were kind of upset because they didn't know what the hazards were for their employees and they had some problems trying to force the host employer into telling what those hazards were.

So, I think this is kind of an attempt to make it a level playing field that everybody has the same information. The utilities, on the other hand, didn't want to be exposed to any litigation either. I think this will take care of some of the problems.

The AED is kind of an interesting thing, because they hadn't had any discussion on that. However, I know that Hawaiian Electric has put them on all their trucks on the big island, and they were looking at doing it in Maui, due to some problems that they had in the field with a fatality. So, this is going to be an interesting discussion on that.

MR. WALLIS: The information we were getting indicates that employers are looking, first, to put them in their plants, but they are starting to think about putting them into trucks, too.

CHAIRMAN KRUL: I know this is an issue that OSHA is looking at. I'm not sure that in your presentation I heard a direct answer. We have an action item here. William Perry took an action item to report back to ACCSH on the issue of who pays for fire-retardant clothing for the protection of overhead line crews.

MR. WALLIS: Right now, the proposal doesn't address that. It will either be addressed in the proposed rule or we'll raise it as an issue with respect to who pays for it.

One of the reasons we didn't put it in the proposal at first, was because, as you're well aware, OSHA imposed an employer payment for PPE. We had a proposal out there.

The original thought was that that proposal would take care of this. The proposal hasn't been finalized yet, so we're thinking more that maybe we'd want to address this directly in the rule now one way or another.

CHAIRMAN KRUL: I know OSHA is tired of hearing this from the building trades, but I'm going to raise it again from personal experience. I just think it's patently unfair when you have an owner or a client that has a requirement for specialty-type safety equipment, whatever it may be, steel-toed boots, fire-retardant clothing, that that cost is passed on to the worker.

That just does not seem fair. I know what the employers are thinking. I don't want to see the employer stuck in the middle of this where he thinks it's fair and doesn't get reimbursed from the owner or client.

But there has to be something wrong, when you're talking about sometimes in excess of $100 worth of either clothing or equipment, that that onus is put on the worker. It just doesn't seem fair. Just an editorial comment.

Manny?

MR. MEDEROS: I don't disagree with you on that. I think the original 1910.269 that this is coming from, FR clothing, if I remember right, was not considered as protective equipment.

CHAIRMAN KRUL: That's correct.

MR. MEDEROS: Whereas, in this case I think it's going to be hard for anybody to say that FR clothing to protect against second-degree burns is not protective in nature. I think it's a different ball game. You can't go down to Penney's or your local store and buy this stuff. You have to look for it and it's a lot more than $100.

CHAIRMAN KRUL: I was thinking more on the line of steel-toed boots, and they're not $100 either. I'm giving my age away. Inflation has taken over.

Anyone else for Dave, Bob, and Steve?

(No response)

CHAIRMAN KRUL: Well, thank you. Thank you for all three presentations, Steve. Good to see you again. Thank you to your folks for a good presentation.

MR. WITT: Thank you.

CHAIRMAN KRUL: Okay. As much as that is the completion of the agenda items for today, I am not going to propose an early dismissal. What I would like to propose, is that perhaps we spend a little bit of time on these workgroups, members of the committee.

Keep in mind, I don't want to lead this thing. I'm leading it only in the sense of directing it as the chairman, but I need your help in looking at three things, as I see it: work scope definitions, brief, but yet accurately describing what the scope of that workgroup should be doing; combining some of these workgroups where there's commonality so that we won't have as many; and three, getting some type of balance.

When I said tripartheid chairpersonships, maybe I said that wrong. I mean, somebody on that workgroup has to be the leader and have the necessary time to do what needs to be done.

But I'm looking to get balance from labor, management, and the public sector as participants in that committee, even though you may have to put yourself in a couple of these.

And maybe we can't. But I certainly think there are some topics there where we just have to have the balance when you look at it from the standpoint of OSHA looking at it from recommendations for rulemaking. We've got to have more of an input from all three sectors.

So, having said that, I have a listing here from Steve Cloutier that lists the workgroup names with the existing chairpersons and the DOE liaisons. How about if we look at this first one? I think it's pretty easy, as far as combining goes.

It's Certification Training, which is currently Tom Broderick and Joe Durst, and combine that with the OSHA Training Institute Course Ideas and Delivery System that Jane Williams and Frank Migliaccio are sitting on.

Would there be any major objection to that combination?

MR. BRODERICK: At first blush, I was thinking that that made sense. But then Joe and I got to talking about it, and there really are some different issues. I mean, the OSHA Training Institute Course Ideas and Delivery System is a fairly narrowly defined scope.

The definition of the scope is in the very title. The issue of certification, especially in this day and age with OSHA pushing to get their people certified in a number of different ways, in the private sector, the sea chest, the BCSP has been aggressively coming up with--finally, after years of push from our industry, I would say parenthetically--certifications. I think there are some pretty major differences in these two groups. So, I think Joe and I would like to maintain the certification and training.

CHAIRMAN KRUL: Kevin?

MR. BEAUREGARD: I was looking over the list and I was wondering if the certification and training could somehow be combined with the safety and health programs as opposed to the OSH Institute.

CHAIRMAN KRUL: Jane?

MS. WILLIAMS: The Safety and Health Program, from where it initially stated, is semi-retired. It was determined some time ago that it would not be prudent for us to pursue a standard-making process for Safety and Health Program.

But where it was left, was we would possibly look at guidelines as, a small employer would be able to get a list, these are the things he should have in a safety and health program. So my recommendation was to retire that fully and pool that under the OTI Ideas, Training and Delivery.

It basically was all training. We were training and it was to develop training mechanisms from the workgroups, and then those that would benefit, compliance, understanding what we're training in construction to bring them on board.

So, originally it was OTI training, so that was what that was. It was my intent to put in the Safety and Health Program, as a guideline writing, into the training, because it was part of the training mechanism.

The certification and training here came up at the last meeting as an offshoot idea, that maybe we need to go somewhere else with the CHT or whatever. But that was being created by other people, so it didn't fall in line, as I see it.

MR. BEAUREGARD: Mr. Chairman?

CHAIRMAN KRUL: Yes, Kevin?

MR. BEAUREGARD: If the intent for the Safety and Health Program would be to develop guidelines, which, don't get me wrong, I think that's fine, I actually think the guidelines are already out there and developed, so I don't think there would be a need for that workgroup there.

MS. WILLIAMS: And quite frankly, Kevin, that's where the conversations more or less stopped. The only reason it resurfaced again, was when the booklet from OSHA went out of print listing some of those suggested factors. I don't believe it's been reprinted.

It was thought that maybe we could just reiterate those issues in something to provide to any employer who asked the question, what should I have in my program, and which ones require training? I'm totally flexible, Mr. Chairman.

CHAIRMAN KRUL: I have a tendency to agree with Kevin. If my memory serves me right, I think ANSI is still working on the Safety and Health Program guideline, so why should there be duplication of efforts if it's just going to be a voluntary deal.

If this committee is not going to recommend standard setting under that heading, then I would suggest that we retire the Safety and Health Program.

MS. WILLIAMS: I concur.

CHAIRMAN KRUL: Without objection, that takes care of that one. Okay.

Let's address what Tom brought up then. I'm not trying to steer. I understand where you're coming from. I even made the comment that perhaps your subcommittee should work closely with OSHA and with the Assistant Secretary, under his presentation, to use those resources that are out there today within the building trades, within the contractor associations, and other places where safety and health expertise exists to assist the OSHA compliance officers, the Training Institute, whatever.

MR. BRODERICK: Mr. Chairman, under Training, one of the things that the Assistant Secretary talked about, and we've talked about too, is the need to get safety and health curriculum into the high schools and certainly into any of the graduate and undergraduate construction management programs.

Dan and I have been pretty active in working with universities to integrate curriculum, and so forth. We think we've got some good models. I think there are a lot of things that, given the latitude that certification and training gives us, that we would like to put together a scope document that would be broad in nature and maintain the identity of that workgroup.

DR. SWEENEY: Mr. Chairman?

CHAIRMAN KRUL: Go ahead, Marie.

DR. SWEENEY: Would it be worthwhile changing the name of that? I mean, Certification and Training sort of takes you all over the map. Why not think about dealing with the issue of bringing training to schools, or other kinds of programs?

You at least focus your efforts then. That probably will never get finished, but when it gets finished it can go on to something else, unless you want to deal with the issue of certification.

CHAIRMAN KRUL: Well, I think that's one of the reasons I'm asking for work scope definitions. Because if we could do that briefly, but yet with enough meat on it to say what it is, what you call this workgroup doesn't really matter, as long as you know what it is that you're working on. Does that sound fair?

MR. BRODERICK: Absolutely.

CHAIRMAN KRUL: I mean, just for our purposes we left it at Certification and Training. But if we had a work scope definition that basically led the folks that are going to work on that to know what it is they're aiming for, how you achieve that is entirely up to you.

Tom, if you want to take a stab at it, go ahead.

MR. BRODERICK: Well, I guess going down and looking at a lot of these, I think they all need to have what you're suggesting. Some of them, we created the Multilingual Issues in Construction and we are just getting fired up on it. We're going to be at the OSHA Hispanic Task Force in San Diego next week. So we're looking at moving that along as aggressively as we can.

But then you look up a couple of workgroups, and you see Diversified Construction Workforce Initiatives. It could be argued that, among the issues in diversified construction workforce initiatives, and yea, there could be many, you could have the multilingual.

Again, in the multilingual issues and construction that's fairly well spelled out in its title, diversified construction workforce initiative is very broad.

CHAIRMAN KRUL: Hang on, Jane. I'm going to make a suggestion because I won't put myself or anybody else on the spot. We're going to broaden the workgroup members. I think the fair thing to do, is to have those members of the workgroup maybe think about it tonight, and by tomorrow, maybe -- because it's going to take some wordsmithing to try and get this narrowed down to where it's a good deal.

MS. WILLIAMS: And I think that's an excellent idea, Bob, because I have the scopes on the ones that I was responsible for. For Tom's information, as an example, the Diversified Construction Workforce Initiative originally included the multilingual, and ACCSH felt at that time that the multilingual issue was so dominant, that they wanted to take it out so one workgroup could focus just on that, and then the remainder of all the issues, which were cultural issues, site-specific, temporary workers, there's a whole bunch which I can talk about in the scope that we did after we pulled it out and amended the scope accordingly.

CHAIRMAN KRUL: Bruce?

MR. SWANSON: Yes, a couple of thoughts. One, these are internal workgroups to this committee, so I don't want you to think that OSHA is suggesting how you organize your work. You can do it any way you want to do it. If you want to have 28 committees, please do so. I get a little heartburn over how I'm going to come up with enough staff people to cover you.

But I have heard from so many of you off-camera that there are too many committees and we have to cut down on the number of committees. I agree with that wholeheartedly.

Your chair is talking about increasing the membership of the workgroups. If you're going to increase the membership of the workgroups with people all from this committee, why doesn't that facilitate you combining more of these committees that aren't identical, but are similar? One is broader than another, one can absorb another.

The advantage that you as committee members have with three or four of you there rather than two, is that if you can't make a meeting, you don't make a meeting but it's still covered. I don't quite understand what I'm suspecting is a pride of authorship here on some of this stuff.

As I walked through this, just off the top of my head, cranes, Subpart N, great work was done on that committee for the last several years. It laid a basis for what OSHA is now doing.

Many of the people who came to your subgroup meetings are in that first 20 that were named and are going to be present. They have their copies of your work product with them. Personally, I don't see why you would need a Subpart N workgroup any more.

MS. WILLIAMS: We retired it.

MR. SWANSON: Okay. Data collection. I thought we were just going through this. OSHA hasn't been told what you've retired so far. But cranes, I don't think you need. Data collection, targeting.

MS. WILLIAMS: We were just told he wants one. It sounds like he wanted one. But my concern is, we don't have a charge yet. So targeting --

MR. SWANSON: I was here for John's address and I have an assignment from John to produce out of my shop something that makes some sense on construction targeting. I have reached the same point of frustration as I hear from your committee.

Until OSHA makes some decision as to what it's going to do with its own IMIS system and how it's going to change that, how it is going to change the status of data collection in the mind of the individual compliance officer and have data collection compares to the importance of getting a valid citation against an employer.

I mean, we have some real basic cultural issues inside OSHA that you can't fix the targeting system until you've fixed the foundation of the house, you know. This is not something we can put new shingles on.

I would welcome you folks to come bathe in misery with me, but I don't know what you can accomplish as a targeting workgroup. The Diversified Construction Workforce Initiatives, I agree with the comment made, I believe by Tom, that it is much broader than, but probably includes, the multilingual issues.

That might be something ripe for a combination. Homeland security for construction is an issue that is brand-new, alive, well. This administration wants that topic addressed. It would seem suitable for you guys to have a committee on it.

On the hexavalent chromium, noise, and construction, and one other, silica, over here, I don't know if there's any room to combine those or not. I know that they're different subjects, but, as you look around your workgroup, who on your workgroup is interested in which of those?

I mean, noise kind of goes across everything. Hexavalent chromium goes with your background, Marie. You probably are more interested in it than some others. But if you've got three or four members of this committee, I don't know.

As you look at MSD, I'm not sure what this committee would do as a workgroup with MSDs. What is the workgroup going to do on MSDs? This committee as a whole, I think, ought to do what it can to keep that issue alive and well, and maybe a workgroup is the vehicle to do that, but maybe the committee as a whole ought to interest itself in that subject.

On Safety and Health Programs, I agree with Kevin that that's RIP. Sanitation. I'll let Jane handle that one. State Plan states. Kevin, I don't know what that, as a workgroup, is going to do.

MR. BEAUREGARD: We had the same questions about that. I believe what we decided at the last meeting, was that we were going to keep it, but we weren't going to meet unless an issue that came up that involved State Plan states.

That's how we left it there. Because originally when that workgroup was formed, it was formed for an entirely different purpose and that purpose has been served.

MR. SWANSON: Okay.

MR. BEAUREGARD: It was introduced by, I think, Owen about three years ago and it had to do with a completely different issue. But I think it is a committee, but right now it's not an active committee.

CHAIRMAN KRUL: I'm just reminded that the former chair retired that committee as one of his last actions as chairman of this committee. So, until and unless we get --

MR. BURKHAMMER: Retired MSDs.

CHAIRMAN KRUL: MSDs. That's what I'm talking about.

Dave?

MR. BUSH: Mr. Chairman, I've got a thought.

CHAIRMAN KRUL: Go ahead. Go ahead.

MR. BUSH: In trying to simplify this--and I agree with you and am trying to broaden the base in these and the representation, and there's so much effort put in to get all facets of our industry represented in this group--why couldn't we do something like this? I'm going to throw this out.

You have a workgroup, and within that workgroup you have tasks. The workgroup would be training, and under that main heading you would have a certification leg. You would have Institute Course Ideas and Delivery System.

I mean, you could even push this further and say that you're going to have the multilingual under training and that that's what's faced in the multilingual situation. Marry these groups together, and that gets your broader representation.

Now, you may go not to just three, Mr. Chairman. You might end up with six or seven of us under it. It would be within that group to decide, 1) what's their most critical issue.

I go back to what the Secretary said and what I've watched even since the time of Joe Deer, that there's been some tremendous ideas at OSHA, but there have been so many of them that they don't get any of them done.

We could fall into the same category if we would group these under there, and then that group of -- let's say they end up with six, or seven, or eight of us under there, we as a group could start saying, okay, this is the most critical issue, and three of the people in the group want to work on that issue and really push it forward. That way you consolidate this a great deal more. You'd have a hit list of issues to always go back and go after, and that would grow. You'd add to it.

But you could keep those basic elements always in front of the group and that would expand the group under the list, and then there would be some manipulation and changing of the topics, the tasks under the group depending on their importance, and things happening at the time in our industry.

CHAIRMAN KRUL: Here's why your suggestion makes a lot of sense to me. This committee is no different than any other safety and health committee, advisory or otherwise.

I just counted the heads. There are 12 people who could be counted on to participate actively in subgroups, some more than others, but 12. I'm excluding myself from that number.

With all the committees that we have, we come here and ideologically we look at what's important as we sit at this table. Then we all go back to do whatever it is we do in our lives and we don't find time to come back here for meetings, and that's being manifested in these workgroups.

So, I think what you said and what Bruce said makes a lot of sense. How can we better use our time? Maybe what you're suggesting, Dave, is something that we ought to look at as taking broad categories, and then making tasks or subtask groups under that category.

We're probably not making enough use of e-mail. There's no reason that we have to come to Washington, DC or someplace else to have a meeting regarding putting things together.

I mean, I'm not discouraging meetings being held in Washington, DC, but when we look at the numbers of workgroups we have and the availability of the time and effort for people, I mean -- if you wanted to get everything done with all the workgroups we have, I'm seeing a whole bunch of work being dumped on about five or six people, and that's not fair, for one thing, and it's not going to get it done, for another.

Greg?

MR. STRUDWICK: I concur with Dave, but I'll tell you how I feel about this. I don't mind spending week every three months or four months, however long it is. But I want that week to mean something. Of course, we've had three meetings that were actually a part of my interest.

In other words, the first one where we had training, we were all in there the same way, in the same group, in Certification and Training and the OSHA Training Institute, then we turned around and had Silica. The only one that I really missed was Towers, and I had things I could do on some other training issues.

But I would just as soon sit through one that I was less interested in, but be a part of that situation to fill the entire day or the entire three days prior to the ACCSH meeting and be on top of the situations and offer assistance than I would to have an afternoon off. You know what I mean?

I would rather have all of that going and be a participant in a larger group and have only four, you know, or only have five or the groups, the wide topic. So, I concur with Dave.

MR. BUSH: Mr. Chairman, I might add that a way to do this, would be to try to get main headings, subheadings for targets or goals, and in each group try to get the number up to half a dozen of the people on the committee, even though there's going to be a lot of overlap, a lot of change, but that each topic has a champion. It doesn't need co-chairmen or co-persons. You just need one of them to be the champion. I agree with you on e-mail. A lot could be done ahead of time.

I mean, I would never give up the experience we had yesterday with our silica discussion. It was a great discussion. And you need some face time. You need to be able to look at people and really figure out what's being said.

CHAIRMAN KRUL: Now, don't misunderstand me. E-mail for preparation. I believe face-to-face is where things get done, absolutely.

MR. BUSH: Right. I'm agreeing, Mr. Chairman. What I'm saying is, we could use e-mail and we could use that kind of thing to get that good preparation, so when you go into that meeting -- we had some pretty good silica stuff ahead of time so that when we went in we had good discussions. I mean, that was ideal.

CHAIRMAN KRUL: Bruce?

MR. SWANSON: This evening as you go into your study sessions on this topic and put your thought to it, let me suggest you back up a little bit and take a look at a broader picture. While I agree with what the Chairman said here, the disadvantage of e-mail, we could not have done the Steel Erection Workgroup -- excuse me, the Crane Workgroup with e-mails.

The benefit of the Crane Workgroup is 20, 30, 40 people were able to come in to Washington, DC and talk to each other. As important as it was that they talk to Jane and to Jim, they were talking to each other and they were working out their differences of opinion and they were laying the groundwork for something that OSHA could do downstream. That is a benefit.

And, while again I'm not disagreeing with you, Dave, in this town certain people carry -- we all, everybody in this town, carries a label. If a product is going to come out of this Agency, there is a time when I would like to be able to point to -- by God, we had two guys from the building trades who authored this.

This might not be a good time to have that label. There might be a better label to put on it right now, if you follow my thought process. So, it does make a difference who we have and who we can say is our main partner. We all work together. That's fine. But out there, I want to be able to use a particular label.

MR. STRUDWICK: I concur. I think I wasn't clear. What I was trying to say, was that to serve on more committees, but have the diversity of every public/private, whatever, management, that kind of stuff, does give credibility to the workgroup.

MR. SWANSON: Okay.

MR. STRUDWICK: So, it can add those multiple levels. Because we saw that in our damage prevention. We had everybody in the room, even though sometimes we didn't like to talk about certain things or we weren't as interested. But I concur with that.

CHAIRMAN KRUL: Marie?

DR. SWEENEY: Here's another sort of take on that. We have right now on the front burner hexavalent chromium, silica, and noise and construction on the regulatory agenda. Every single person in this room on this committee will be affected, or their constituents will be affected, by each one of those regulations.

I think it's very important that we have input from everybody here, as well as from the outside. I would recommend that we only have those three groups, and maybe one more that Mr. Henshaw really wants, for example, like homeland security.

The others may be extraneous for now. Or maybe have one on Hispanics. Because they're going ahead without us. If we don't get our input into those standards, they're going to go ahead without us and we're going to have three months to put our hands on them.

If we have a workgroup now, hexavalent chromium is moving so fast, if we don't jump on it, we're going to be at the end, we'll be at the tail, and we won't have our input into it. Silica is moving fast, too. We haven't heard anybody from noise yet, but that's on its way.

So, I think that energies really need to be addressed to those three areas. And maybe we want to have something on Hispanics, and maybe we want to have something on homeland security, but the rest of this can go by the wayside until we get these three issues out of the way.

CHAIRMAN KRUL: Okay. We're starting to get there. We're starting to get there. I heard retirement of some of these. Right now, we're looking at 15. Can we go down this list? What is retired so that we're not looking at it?

Cranes, MSDs, at least as it was originally proposed and the chairman retired last time. So let's forget MSDs now, because for construction it's not on the regulatory agenda. What was the other one? Safety and Health Programs is retired, and Sanitation. State Plan states.

MR. DURST: Use it as needed.

DR. SWEENEY: But we can take it off and then reconvene it.

CHAIRMAN KRUL: We could be reconvened when Kevin tells us it needs to be reconvened.

MR. BEAUREGARD: I meet regularly with all the State Plan states, as does OSHA.

CHAIRMAN KRUL: And could report back to this committee.

MR. BEAUREGARD: Yes. So any issue anybody has in regards to State Plan states, bring that to us.

CHAIRMAN KRUL: Marie, something you said about something that's on the Assistant Secretary's agenda. I just want to move -- well, when we start talking about moving things off, at the same time, he made remarks here where -- and both of us were making notes.

The OTI workgroup. That was something that was going to make recommendations back to the Assistant Secretary as to how he could use the existing resources, and resources they've used in the past, and future resources to improve the training as OSHA compliance officers. I'm trying to keep everything in perspective here as what is something that we want to look at, so when you go down the list --

DR. SWEENEY: Can we retire Data Collection until such time as --

CHAIRMAN KRUL: Even though Tower Erection is not on the regulatory agenda, that's something that I think needs a hard, hard look for collection of data, for presentation. I know NATE would like to probably be part of that workgroup. Mr. Dody has left, I believe, but he'll be here tomorrow and I'm sure if we ask him -- so we're getting to where we need to be.

The thought that you provoked in me, and is not only the assigning of priorities, as it were, but also that there can be ad hoc committees, that this doesn't have to just be a workgroup, and now I'll include myself back in the mix, you know. Maybe the chairman ought to be one of the people that helps to share the load on this as well. I'm more than willing to do that.

But I think what we need to do, is to take what's left of this, do what you did, do what David did, and can we look now at what we have left? If they have to remain independent, let them remain independent. But we're going to need a couple of things. We're going to need people who are currently on those committees, and anyone who would -- there's two things involved here. I want to have more management involvement in these workgroups.

So if you would like to be on these workgroups, even if you're not listed now -- those that are listed, those that would like to be on it, please come up with a definition for what the work scope ought to be and your ideas for prioritizing and/or combining, as David suggested, putting them under one title and tasking or subtasking them under that title. We've gone now from 15 to 10, I think, or 9, so I think our task will be a little bit easier. Kevin, I cut you off.

MR. BEAUREGARD: I just wanted to comment on what Marie said. I don't disagree with her on the issues about having this group be able to have input on some of the issues that are currently active. However, I'm not so sure--and I'm speaking for myself and for our State Plan states--on an issue like hexavalent chromium, that OSHA is going forward with a standard; they're under a court order to go forward with that standard.

I think it would be better, if possible, for us to directly converse with OSHA as opposed to having a separate workgroup working on separate issues concurrently, because I don't know if they'll ever get together at some point.

DR. SWEENEY: I agree, Kevin.

MR. BEAUREGARD: There are several different standards that are in the process of being regulated and promulgated, whether we have a workgroup or not. I just feel that it's difficult for a workgroup to look at an issue like that, first of all, without looking at what the draft standard is or what's going on there. But I just find it difficult to have a workgroup working side by side with another group working on the same issue.

CHAIRMAN KRUL: Marie, did you want to respond?

DR. SWEENEY: I guess maybe I don't understand, but I thought our purpose was to actually provide input to OSHA relative to construction, because it was obvious to me yesterday from the silica workgroup that there was a lot of input that needed to be given to those who were writing the standard about the construction situation, about exposure, about controls, what's a wet method, what do we define as X, Y, and Z, what do we consider a proximity exposure.

So what we lend to that group is another perspective, particularly when construction would become underneath that law and the constituents would be --

MR. BEAUREGARD: And I agree with that process. I just want to be doing it with OSHA as opposed to being doing it in the workgroup separate from OSHA. I mean, OSHA had a couple of people there.

DR. SWEENEY: Right. Right. But what we did -- I think you had gone. But what I had asked Bill Perry to offer to us, is to write a list of questions that they had relative to construction.

In fact, I think our workgroup is going to get back together again at some point in the near future to talk about things like process, requirements, and other things like that that we would offer to them as suggestions for integrating into the standard. So it's not parallel. It really is working together and talking a lot to them.

CHAIRMAN KRUL: Manny, then Greg.

MR. MEDEROS: Basically what Kevin has said -- I don't disagree with Marie, either. Like chromium, they don't have any information. I'm not a scientist to try and figure out if someone's working in the vicinity of something that's going to be hazardous, and if it is, what do I do about it. I think they need to provide us with some information, probably not to Marie, but to me.

There's three things on the fast track. I kind of agree somewhat with Kevin, and I think Marie kind of hit on it a little bit. I think OSHA has to ask us what they need from us. If we're going to keep on the fast track with OSHA going forward, what do they need from us as far as --

CHAIRMAN KRUL: And I don't disagree with that. I wish Chris -- Chris, you're still here. I mean, I don't know enough about hexavalent chromium to put underneath my fingernail, but I think there's enough information then on current exposure levels that have already been done, that they could either use or not use. But I think a workgroup could be helpful in doing exactly what you're saying, Manny.

MR. SWANSON: It sounds to me like underneath your fingernail would not be a good place for hexavalent chromium.

CHAIRMAN KRUL: No, I know. And a lot of other things, too.

MR. SWANSON: The benefit that OSHA could get from this committee having workgroups on something like hexavalent chromium, is OSHA would then be able to use that workgroup as a vehicle for talking to the construction community.

Steve said very early on in the process, there are things that they don't know about how the construction industry works, how the exposure to these various hazards work in the real world environment. For them, for us, for OSHA to call a meeting, it's a different process than if a workgroup is having a meeting that OSHA comes to as a group.

We are not justified in running off and meeting with small groups that we select. That's a violation of law. We can't do that. That violates the FACA Act.

You folks, though, the 13 of you that are here, anyhow--and I really believe we're probably down to 13, aren't we--are already people we can meet with under FACA. If we have a meeting with you and we open it to the public, others can come in. Your constituents can come in and talk to Steve and his staff about the issues. So, it's a useful conduit.

Not that the committee is going to go off by itself and solve a problem and work on another track away from OSHA. I agree with you totally, Kevin, that would be a waste of everyone's time, and counterproductive. I would not be serving my boss if I were encouraging that, sitting here.

But to use the workgroups, to continue certain workgroups and use them as a way of getting information to those offices of OSHA that need the information, I think, would be a very useful function, it seems to me.

CHAIRMAN KRUL: I am looking at nine topics here, without getting into grouping or subgrouping. I still think that can be done. I don't know that it could be done for all -- Greg, I'm sorry. I forgot you. Go ahead. I forgot you. Go ahead.

MR. STRUDWICK: I was doing the same thing. I was looking at the different topics, and how am I going to go back and report this to the associations, whether that's AGC in my function in the Safety Committee, or where. Okay. So I can combine them myself. We can go in, here's three or four of them.

But if you took data collection and targeting, every one of those, silicosis and hexavalent chromium, in every case, we talked about data collection in each one of those. So, it's kind of a subpart to each one of them anyway.

We have a committee, an acting committee, in the association on data collection for damage prevention, data collection for a number of different things. Okay. So I think they can be combined. And, if you look at 10 or 12 of them, like I was relating to before, I don't want to miss one when I come.

In other words, honestly, I don't want to miss a topic or not be able to talk to somebody that had some input on that topic, like multilingual issues. We didn't have that. I went and talked with John Miles and Joe Rena, thinking that we might have a discussion on multilingual. But we didn't. Or a workgroup. We really didn't.

But if we have two days, or two and a half days to fit all that in, I don't think we ought to leave one of them off, you know. That's the gist of it. We don't have to if we can combine those into four-hour settings, or however it works out. Prior to the ACCSH meeting we will address every one of them, you know, or somebody will, then we'll be able to feed off that.

CHAIRMAN KRUL: Jane?

MS. WILLIAMS: Well, I think you can, going back to some of the original premises on which these were started, as an example, you could have one workgroup for health, and under that do hexavalent chromium, noise, and silica. You could get a day of workgroup meetings and limit them to segments, just like we did day one of this week.

Training, OTI certification and programs, program developments. Totally each person then having a particular interest would be able to get that in that maximum of half a day.

Homeland security, separate. Tower erection, separate. Diversified construction, multilingual, and targeting. Get it down to six. They all fit the interests of the overall category.

That's where we originally had those back at some point. Then we started breaking them out and I think that's when we got ourselves into a little bit of a mess. So, maybe we should go back to the original way we had it when Stew was first coming in. Just a thought.

CHAIRMAN KRUL: Well, it would take care of having too many workgroups that don't meet, because the few people that are working on the issues that are up there in the higher priority don't have time to do it all, because it's not lumped under all. I think, again, that's where David and others have sort of focused in on that. All right.

DR. SWEENEY: Mr. Chairman?

CHAIRMAN KRUL: Yes, ma'am?

DR. SWEENEY: I would recommend that we retire Data Collection until such time as things sort of -- I mean, data collection is an issue, but it really didn't have to do with health effects, it had to do with what was going on at OSHA.

I would still offer to Mr. Swanson and his staff, that if they would like us to participate in sort of the mind searching, we'd be more than happy to assist you.

MR. SWANSON: I don't think data was one of your nine, was it?

CHAIRMAN KRUL: No. She did that on purpose after I wrote it down, after I skipped it in the first group. Then she went and retired it. Okay.

Here's where we stand. Tom?

MR. BRODERICK: I think I'm the lone voice here, but maybe I don't quite understand the down side of having this broad a pallet of subjects. But I just get the feeling that at some point in time each of these subjects was either relevant or someone was particularly passionate about and brought it forth, and it had relevance.

What I'm hearing on some of them, is that they may not have relevance today, or it might not be a hot topic, but it certainly could come back around at some point and become a hot topic.

Now, for some of these, I understand that each of these workgroups has to have staff assigned to them. But if it's just a name on a piece of paper right now and the workgroup is not active, then it's really not impacting on DOC staff time.

MR. SWANSON: That's correct.

MR. BRODERICK: And I guess I feel that if my name is assigned as the chairperson or a co-chair of one of these groups, then I'm going to be accountable to get something done on it.

I'm just afraid, if these morph into something that doesn't have individual leadership for the tasks or the subjects that are named here, that we're not going to get as much done as we could if Marie and I, for instance, on this Multilingual Issues in Construction, can take the ball and run with it and call various entities together, and say we're co-chairs of this official OSHA workgroup, that's my concern.

DR. SWEENEY: I agree with him. I was just thinking of Data Collection and Targeting. I mean, I look at that every meeting and say, gosh, we didn't do anything. What do we have to do? It's like a big monkey on our back.

I do agree, though. I feel that there's a sense of responsibility when you are chair, that you need to get something done. Then, in fact, for the multilingual, we are. We didn't meet this week because we're meeting next week. So, I kind of agree.

MR. BRODERICK: Some of these issues are not real glitzy, like hexavalent chromium. It's probably not going to turn into -- like the cranes workgroup that went on and had a lot of people. But I think some of these issues have the potential to do that. I just think that there would be more critical mass if some of these maintain their identity.

CHAIRMAN KRUL: Dan Murphy?

MR. MURPHY: I'm in agreement with a number of people around the table. I have a suggestion for you to at least think about. Tom is very concerned about having a chairperson for a specific topic that we're trying to work on or work with OSHA on.

I would suggest that we maybe group -- most of the work that is done in this committee is done in three topics: safety, health, or training. I think if we have those three titles with a person responsible for making sure the subgroups under there are doing what they're supposed to be doing --

For example, if you said, Murphy, you're responsible for training, and there's three topics under there that we're working on, and we prioritize those three, then maybe I'd put Certification underneath training, and I'd say, Broderick, you're the chair of that.

Now, he's accountable for it and I now have three groupings. I have the hot topics. You say, well, Data Collection, we haven't done anything. It should be there, but we're not going to assign a chairperson until we have to revisit that issue.

Then it would seem to me that we would get three things rocking and rolling. I'd know what I'm a part of, what I'd need to help with. I'd know what the second thing is, I'd know what the third thing is. It's kind of the same thing I do every day with the crew I run, is we've got to prioritize and get the stuff done.

So, that's food for thought from my perspective in listening to everyone, and yet we still have a chairperson for each topic.

CHAIRMAN KRUL: Joe Durst?

MR. DURST: Mr. Chairman, I don't necessarily agree that we need to start whacking away at these subcommittees. I'll just give you an example of the musculoskeletal disorder one that I guess now Stew says he retired as his last act of his papacy here. So, that's probably dead and gone.

But that is an issue that, someday, the big "E" is going to come back to construction and this committee ought to be looking at where ergonomics training is really being done in construction. We've got thousands of people trained, members trained, in the Carpenters in ergonomics.

We've got contractors that we know are experiencing great reductions in musculoskeletal disease and injuries simply from the training that has been done, because almost every worker, carpenter, apprentice who's working for them have gone through an eight-hour ergonomics course. They think about when they pick things up, and they think about the work that they're doing.

Contractors have changed some of the things that they're doing. Some of the drywall contractors actually are using panel lifters instead of having the guy standing there and do this number with the screw gun and balance himself.

The thing is, trying to gather those statistics from those contractors without the contractors thinking that OSHA is going to come back with a big stick if they get to know what our real numbers of injuries and illnesses were before we made the change, and now here is the number that puts us in the good light. This takes time. This takes time and trust to get this information away from contractors.

It isn't like you just waltz into somebody's office and announce that you're on the subcommittee of the OSHA Advisory Committee, and here is a subject that someday is going to have a lot of relevance, and you are a prime candidate for proving that ergonomics training has great benefit. They're just not going to give it to you on the first shot out of the box.

CHAIRMAN KRUL: I don't disagree, Joe. And not reading the former chairman's mind, I think MSDs were taken off of the workgroup because it wasn't on the radar scope of the regulatory agenda for MSDs in construction to be considered.

Like all of these things that we're talking about retiring, they're able to be brought back at any meeting when and if this regulatory agenda even gives a hint that that's something that this committee and its workgroups ought to be participating in. That's my personal opinion.

MR. DURST: Well, Mr. Chairman --

CHAIRMAN KRUL: Go ahead.

MR. DURST: OSHA Training Institute Courses, Ideas and Delivery Systems is not on the regulatory agenda either. I mean, that is a whole system that runs all by itself. OTI. We have the Education Centers. The Education Centers meet. They petition OSHA to do certain courses as Education Centers. So, let them come and tell us what it is they're going to do.

CHAIRMAN KRUL: Joe, there's a big difference in looking at training OSHA compliance officers or adding things to the curriculum at the OTI versus putting a workgroup together on MSDs and getting all kinds of statistics and examples to present to OSHA.

What are they going to do with it? I mean, if putting together a standard for construction on ergonomics or preventing CTDs and MSDs isn't on the regulatory agenda, we're trying to keep from diluting the available man- and womanpower around this committee and the expertise by getting too many workgroups going.

It's not that we don't think that those are important, but how many can -- if MSDs and ergonomics will be the ox that's gored for Joe Durst, how about somebody else bringing -- I mean, everybody could bring those things, too.

I think that what Marie was alluding to, is that we have to set priorities on what needs to be done first. As those go away, then we can focus on working on other workgroups. But we can't have 15 workgroups that nobody shows up for, half of them.

MR. DURST: Mr. Chairman, I remember the day in a previous life on this committee when the building trades waltzed into, not this room, but a room in the south end of this building and announced to the chairman of the Advisory Committee, the then General Peal, that the building trades had a proposal called the asbestos standard for construction that they would like this committee to review.

And the committee started to go through that proposal one paragraph at a time, and each member of the building trades -- each employee representative had every paragraph. Well, after an hour and a half of that, the whole document was given to the committee. The committee read it.

We had a lunch break, came back. The employer representatives in the afternoon agreed that this was a good thing, and that this ought to go to the Secretary for proposal.

There was a lot of work that was not on the regulatory agenda because there wasn't going to be an asbestos standard for construction. There was an asbestos standard for general industry. That's what OSHA had proposed. A lot of work went into that and that drove that becoming a standard. It's protected a lot of people since then.

CHAIRMAN KRUL: Joe, I hate to get in an argument with you. Do you not believe that general industry MSDs and ergonomics will be addressed before construction?

MR. DURST: I think that, given the right collection of information and proving that it can work in construction, that it can be forced to be done at the same time as general industry.

CHAIRMAN KRUL: So you're volunteering to be the chairman, along with volunteers, of an MSD workgroup?

MR. DURST: Sure.

CHAIRMAN KRUL: Would there be employer representatives interested in being in that workgroup?

MR. STRUDWICK: I think I'm confused.

CHAIRMAN KRUL: I don't want to be the leader of this thing. I want to hear from the committee members.

MR. STRUDWICK: I think I'm confused. I thought we were going to try and organize this to where that might be a subpart of another group, or there would be in a collection situation. Then I could say, yes, I want to be a part of it. But, no, I don't want to be a part of the individual group by itself.

I think we have to give a lot of attention to the time that we have and how quality that time is. That's what I'm trying to relate to, is that we serve and somebody in those organized areas are a chair, just like Dan was talking about, with maybe one or two co-chairs, or three.

Maybe we should have the private, the public, and government co-chairs, three co-chairs, in there. But I think I have to refer back to, Mr. Chairman, where are we going with this?

MR. AHERN: Mr. Chairman?

CHAIRMAN KRUL: Jim Ahern?

MR. AHERN: What I think I have observed about these workgroups, is it can be one of two things. It can be relevant to the agenda that's set by the OSHA staff, or it can be important enough to one of the members of this group that it be highlighted through the development of the end product by a workgroup to point out to the OSHA staff that maybe their agenda needs to be broadened. That's number one.

I don't want to be here just responding to what the Secretary tells me I should be paying attention to if I know, in fact, there are 300 people dying on cell phone tower erection. That's number one.

Number two, I think the chairpersons--my observation, again--should not be spread too thin. I think we all feel a need to be a player and to volunteer for these positions, but in reality we all have a job back home.

I think it's incumbent on us as committee members not to put our hand up unless we're willing to really make the commitment to be, as Tom said, passionate about the topic.

In my one real participation, which was the cranes, there was tremendous cooperation, I thought, between labor, both union and non-union, management, and the professional safety people, both within OSHA and within the private sector, to work together. You could hardly tell which entity any one of those groups was representing in our workgroup discussions.

I feel like these workgroups are empowered and required to broaden the base, to go out and find the people across the country that are concerned about the topic, and get them to the meetings and get their opinions and try to find the middle ground. I don't think we should be driven by an absolute number of topics. I think we should be driven by what topics are really important to this group. Thank you.

CHAIRMAN KRUL: Well said.

Since I invoked his name earlier, the chair recognizes Stew Burkhammer.

MR. BURKHAMMER: As being a member of this esteemed group for 12 years and chair for two and a half, no one on this committee was more passionate than I was when it came to MSDs.

I led that workgroup and I made several presentations to the workgroup and to the stakeholders on MSDs. We compiled three, probably 12-inch thick volumes of data on MSDs. In the previous administration, as you all know, there was a drive for an ergonomics standard.

Under the current administration, however, they took a broader view, and the Secretary came out with a four point plan to get industry and labor to work together to come up with best practices and implement some things on MSDs to help reduce, as Joe discussed, the injuries and illnesses that are derived from the problems we have with musculoskeletal disorders.

I retired the workgroup because I felt--and I still feel very strongly--that the four point plan -- and I don't feel strongly because I now work for OSHA. I felt strongly before that.

But I think now that the Secretary's four point plan, and our having an opportunity to see what various industry associations, and employer groups, and even employers are doing now to promote MSDs, to come up with safer practices for employees, to come up with new ideas and best practices to make it safer and healthier for workers to do the kind of work, where before we were getting heavy vibration and all kinds of things, shoulder strains, knee strains, ankle strains, back strains, et cetera, that we are seeing a difference. We are seeing an improvement in that.

To have an MSD workgroup, knowing the current stance of the administration and understanding that industry and labor are working hard together to do something, I think, is futile. That's why I retired that workgroup. Thank you.

MR. BRODERICK: Mr. Chairman?

CHAIRMAN KRUL: Tom?

MR. BRODERICK: Let me take another whack at playing Devil's advocate. To your point, Stew, if that is a viable approach to ergonomics for our industry, more viable than rulemaking, it would seem as though a title of musculoskeletal disorders is broad enough that a legitimate role for such a workgroup would be to help advance that agenda to our industry.

I mean, because the history was leading up to turning over all the data that had been collected to the agency for the rulemaking process for an ergonomic standard, maybe that has taken a detour. But once you take -- and I guess it's already been done, so maybe it's a moot point.

But it seems to me, once this goes away and people look at what this ACCSH group that I'm sure we're all proud to be a part of, once it goes away, I think that kind of sends a message to the industry that, well, ACCSH is not concerned about it.

I would say that the challenge to this group would be, what can we do to help our industry however we can deal with a very serious issue?

DR. SWEENEY: Mr. Chairman?

CHAIRMAN KRUL: Marie?

DR. SWEENEY: One of the things that I've seen on OSHA's plate, is a series of guidelines for various industries. There's one on nursing homes, there's now one out on supermarkets. They're going to be looking at poultry processing, which is going to be like meat packing. I think there's one other that hasn't been started.

After I saw the nursing home guidelines, I thought it would behoove us, there is plenty of information out there, to write some guidelines on our guidance documents for musculoskeletal disorders in construction, or reducing them in construction.

I know OSHA hasn't taken the ball on that yet, but I think it may behoove us to at least keep some eye to at least preparing. Even if we didn't have all the workgroup meetings all the time, we could at least be preparing information.

There's so much out there. There's just a lot of work practices that we could talk about that people are holding up as best practices that OSHA really hasn't put together in any guidance documents.

So, I kind of agree with Tom. If we take it off, we're sending a message. And Joe is right, we have a ton of data out there, not only on carpenters. I'm sure that roofers have it, ironworkers.

Everybody would benefit from a really well-written guidance document. Maybe we can just sort of slowly walk OSHA up to that point of producing one. We'd have to provide the data for them.

CHAIRMAN KRUL: Mike Sotelo?

MR. SOTELO: Mr. Chairman, there's been some really good ideas and thoughts and good dialogue. What we might want to do, is think about this tonight. You had suggested this earlier.

Let's think about this and where we think it will be most effective, and then tomorrow come back with some suggestions, because there are a lot of really good ideas, and right now I couldn't give you an answer of where my head is at on this thing. I think a little bit of time would be good, if I could suggest that.

CHAIRMAN KRUL: Let me do just a little bit of back-pedaling. Something that Jim Ahern just said rang a little true to me. That is, that a concern of a member -- as chairman, I'd be remiss if a health and safety concern of this committee wasn't considered, at least considered, by the balance of this committee, whether it makes the regulatory agenda or not, and understanding what Stew Burkhammer said, and I think everybody in this room understands where the administration went and is going with the standard for ergonomics as far as construction is concerned.

But I think it would be unfair, given the participation that I've seen, some of the curriculum that the carpenters have put out on this and going along with what Tom said, and Marie just got done saying, that the information that could be useful, whether it's today, tomorrow, sometime in the future, guidelines, something, that we could show the cooperation between labor and management that there have been voluntary efforts to curb MSDs on construction sites, that perhaps if some of these guidelines were followed, a standard setting process wouldn't be necessary if contractors would do them.

So I think I'm going to do a 180 here, Joseph, and agree with you, agree with Jim Ahern, and Tom, and Marie, that if that is something that this committee and these workgroups can work towards that would be beneficial at some point in time to the safety, health, and well-being of the people we all represent, then that's what our charge is here and I think we ought to consider it.

Going along with Mike's suggestion, I want to repeat. We now have 10 categories, at least 2 of which could be combined, I believe, and possibly more, going along with David's recommendation.

Let's take a look at how those could be combined or structured, number one, whether it's a co-chair position, leadership position, whatever, somebody has to take the lead for however this gets structured. Now, it will be the same person in some respects, but again, as Jim said, if you make a commitment, let's make it a full commitment.

It could be in a co-chair. You could have someone help you If you're going to be absent, out of town, you don't have the time to devote to it, have somebody that will work with you.

Again, the diversity of having representation from all sectors of this committee, labor, management and the public, as much as possible -- I'm not suggesting that every contractor get on every workgroup. We all know how difficult it is to allocate our time to these endeavors.

But I'd like to have more management participation. It seems like labor and the public sector have basically overtaken these workgroups. Going along with what Bruce said, if we're going to come back with recommendations, it ought to come back that we're all agreeing as a committee and not get into those fields of, what's the word I'm looking for? Where we get into complete disagreement because there wasn't full participation in the workgroup development.

Manny?

MR. MEDEROS: Mr. Chairman, this kind of gets back to where Dan was coming from. We've got them down on paper and we've done away with some already. It ties into what Marie has said. We've got three issues apparently that we have to do something with very quickly, or OSHA is going to go on without us.

As the chairman, can you say that these are our priorities and I'm assigning certain people to it, and this is our priority now until we get it done, notwithstanding what our paper says here with what committees we have?

CHAIRMAN KRUL: I can, but I'd much rather be more unlike Saddam Hussein and have that come from the committee back to the chairman as a recommendation tomorrow.

I don't disagree with what you're saying, but as long as we're all going to be having an input on this, I'd much rather prefer you folks think about that tonight under the three things that we said to look at. That could be the fourth. If we need to put a priority on it, let's put a priority on it.

Kevin?

MR. BEAUREGARD: I have just a process question about the committee work. I just can't recall the last time we put a committee together. But do we do that by vote? In other words, we say yea or nay that we want a certain committee or does the chair decide that this group wants a certain committee? How does that work?

CHAIRMAN KRUL: If you want to open this up to Roberts Rules of Parliamentary Procedure for the appointment of workgroups and committee members, it's going to be very difficult to do. I mean, if someone wants to make that motion, that that would be the way to handle it --

MR. BEAUREGARD: I am not making that motion.

CHAIRMAN KRUL: No, no. I know you're not. I'm merely stating a fact. It would be much easier for that to be the privilege of the chair for appointing workgroups that the full committee agrees on. If there's not majority agreement, we're wasting our time.

Somebody could make a motion, and it wasn't even a motion, it was a suggestion that came back that we need to retire some of these groups, without objection, that would be done.

The Solicitor is here to guide me through where we stay out of trouble, but I'm thinking that that would be the best way to go about it without making it a strict up or down vote on these things, as long as we have agreement, formally or informally, around this table and that we have a selection of folks based on what I had said, asking for volunteers to get more involved, especially from the management side, on these things.

We could talk about that a little bit tomorrow once we see the structure of this if it makes you feel more comfortable.

MR. BEAUREGARD: The reason why I bring it up, is I do chair the Assistant Secretary's desire to -- although there is a myriad of items that we could be working on, to at least make sure that we are working on some of those items. Once we get those off our plate, then we'll move on to other items as opposed to having 15 or 20 items out there that just sit idle.

I really think there's something to be said about that when we can go back to the groups that we represent and say, we've done something on this issue and now we're moving on to this issue, as opposed to saying, well, we've got these dozen items, we had them last year, we had them the year before, I think there's some complacency there when that occurs. That's where I'm coming from.

CHAIRMAN KRUL: I see five items, Kevin, that I numbered here that looked like they should have a high priority. The rest of them would be in an advisory -- you know, even though hexavalent chromium is ready to go, it's just that we're looking at that, that we could provide some input and exposure levels that might be helpful to OSHA in the standard setting process.

We're not forgetting about tower erection, we're not forgetting about certification and training that will all come under a different topic. But let's let everybody think about it a little bit. We're going to have time tomorrow for further discussion. I'm glad we got this out of the way.

I'm glad we had a little time to do this because I think a lot was on people's minds, including mine, as to how they should be restructured, how we can devote more time to things that are important, and I think we had a real good discussion.

Mr. Swanson?

MR. SWANSON: Mr. Chairman, if I might, I was reminded earlier this afternoon by counsel of something and it might be worth reiterating here.

As we talk about these workgroups and everyone is concentrating on the issue of workgroups, the idea of having a cross-section of folks on a workgroup is so that when you come back to this committee, everybody should feel like they were represented on that workgroup.

The Secretary of Labor does not hear from workgroups. The Secretary of Labor hears from this committee and this committee only, and it has to be an action of this full committee. I hope no one is confused about that.

CHAIRMAN KRUL: Okay. Anyone else?

MR. BRODERICK: Just one last thing to say.

CHAIRMAN KRUL: Go ahead, Tom.

MR. BRODERICK: Yesterday, we had a combined meeting of two workgroups that Jane scheduled and put the agenda for. I think if we do more of that -- I think the industrial hygiene issues that are now really cooking, that if each of those were to remain as separate workgroups, it would make a lot of sense for the workgroup meetings to be scheduled so that those who are interested in these topics could be available to be resources for each of them and still maintain the identify of each.

CHAIRMAN KRUL: Something to think about in your self-deliberations tonight. Okay.

With that, thank you, everybody. It was a very productive day. This meeting will stand adjourned and recess until 8:30 tomorrow morning. Thank you.

(Whereupon, at 4:00 p.m. the meeting was recessed, to reconvene at 8:30 a.m. on Friday, May 23, 2003.)

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the Advisory Committee on Construction Safety and Health (ACCSH), U.S. Department of Labor, Occupational Safety and Health Administration, held on May 22, 2003, were transcribed as herein appears, and this is the original of transcript thereof.



LISA DENNIS
Court Reporter