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US DEPARTMENT OF LABOR

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ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH

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WEDNESDAY

OCTOBER 11, 2006

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The committee convened at 8:00 a.m. in room N3437 A/B/C on the third floor of the Frances Perkins Building, Department of Labor Headquarters, at 200 Constitution Avenue N.W., Washington, D.C., Thomas Broderick, Acting Chairman, presiding.

Present:

THOMAS BRODERICK Acting Chairman
STEWART BURKHAMMER Designated Federal Official
SARAH SHORTALL Solicitor
KEVIN BEAUREGARD
MICHAEL BUCHET
MATT GILLEN
STEVE HAWKINS
MICHAEL HAYSLIP
THOMAS KAVICKY
DAN MURPHY
EMMET RUSSELL
GREG STRUDWICK
MICHAEL THIBODEAUX

Also Present:

EMANDA EDENS
JOHN STEELNECK
CAROL JONES
EDWIN FOULKE
HANK PAYNE
RUTH McCULLY

Attending:

STEVE MILLER
SHANA BAILEY
MICHELE MYERS
ELLEN B. STEWART
JON FENTESS
UNA CONNOLLY
STEVE BROWN
RICHARD DRESSLER
STEPHEN KINN
KEVIN CANNON
SCOTT SCHNEIDER
BETH O'QUINN
ADELE ABRAMS
BEN SCHNEIDER
GEORGE KENNEDY
CHIP POCOCK
CHRIS TRAHAN
GRAHAM BRENT
STACY SWANSON
DAN GLUCKSMAN

A-G-E-N-D-A

Opening Remarks and Introductions
ACCSH Acting Chair, Thomas Broderick

Remarks, Directorate of Construction/DFO
Stew Burkhammer

DSG Session, New Fit Test Approval Presentation
John Steelneck and Carol Jones

ACCSH Member - Crane/Derrick Comments

Welcoming Remarks
Assistant Secretary Foulke

Public Comment

OSHA National Response Plan/Annex
Director Ruth McCully

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

8:07 a.m.

ACTING CHAIR BRODERICK: I would like to welcome you all to this advisory committee meeting. It's good to see the faces that I've known for awhile in ACCSH. It's also good to see a bit of new blood on the committee. It's also good to see some familiar faces and some new faces in the audience. My name is Tom Broderick and I'm sitting in as acting chair for Linwood Smith. And in a few minutes we'll have a little update on Linwood's health. He has had some health issues and Stew Burkhammer will give us a bit of a report on that.

To get started a couple of housekeeping things. For those of you who are in the gallery there is a sign-up sheet located on a table right outside. Actually, there are two sign-up sheets. One is just to let OSHA know that you're here and the second one is for public comment. And we will have a public comment period today, according to the latest agenda that we have from 3:30 to 4:00 p.m. So again, if you intend to make a comment towards the end of this meeting, if you would sign the appropriate sheet we would appreciate that.

The committee has been asked to weigh in on several important things. One is the crane and derrick standard. And this is the second standard that we have seen go through the process of negotiated rulemaking. And we are at a juncture where the agency seeks the advice of ACCSH on this important standard, so a large amount of the agenda over the next two days will be spent in deliberations on the crane and derrick rulemaking. We also have other issues that will be presented at this meeting.

I would like to turn to Stew Burkhammer, oh, I'm sorry. Michael Buchet?

MR. BUCHET: Good morning, Mr. Chairman.

ACTING CHAIR BRODERICK: Would you help us to understand what to do should there be an emergency?

MR. BUCHET: I will read the evacuation plans. We have several options here and depending on what we're ordered to do by the security in the building we either evacuate, which is to follow in an orderly manner out the doors. There are exit signs behind you that you can find. You will find stairwells. Take the stairwells down, out onto the street. Those of us in the Directorate of Construction will try and lead you. We have a muster point that is up by a small memorial to our east. We also have shelter in place and shelter in place is in rooms that are equipped with supplies to keep us in shelter in place, and again follow myself, Stew Burkhammer, the other staff in the Directorate of Construction because luckily enough our offices are shelter in place and I guarantee that we will be willing to share with you the food and water packets that have been stored there. They have a shelf life on them. We haven't exceeded it yet, but we will do that. So out the door, down the stairwells, out onto the street, follow us to our muster point, or if we do shelter in place out the door, left down the hall to the Director of Construction office.

ACTING CHAIR BRODERICK: Thank you, Michael.

MR. BUCHET: You're welcome.

ACTING CHAIR BRODERICK: I would like to make a note in the agenda for today in the 9:15 to 9:40 a.m. time slot there's an indication that DSG staff will provide an update on Hex Chrome and APF update. The assigned protection factor update will be moved to the 10:00 - 10:30 time slot and it will be combined with the new fit test approval presentation. So from 9:15 to 9:45 we will have Hex Chrome.

Let's see, another point of business, the solicitor has indicated that we do have a quorum so the minutes can show that, please. Also, at this time we would normally be approving the minutes from the last ACCSH meeting. I'm reading from a note here that says there are no minutes from the December 8, 2005 meeting to approve at this meeting. OSHA does, however, have the complete transcripts from that meeting and we can expect to approve the minutes of both that meeting and this meeting at our next meeting. And I see that on the agenda later on we'll have some discussions about when the next meeting should happen. And it also says here it's possible that the contractor did not deliver the meeting minutes for the December 8, 2005 meeting. So again we will look forward to approving the minutes for both meetings at our next gathering.

So without further ado I would like to, it's so nice having counsel on my left and staff on the right. I nearly forgot a very important part of this process and that's introductions. So I would like to start off with Tom Kavicky and go around with the members and then we'll have the members of the gallery.

MR. KAVICKY: Thank you, Mr. Chairman. My name is Tom Kavicky. I represent the United Brotherhood of Carpenters and Joiners of America. I am an employee representative of ACCSH.

MR. HAWKINS: Mr. Chairman, my name is Steve Hawkins. I represent the Tennessee Occupational Safety and Health Administration program and thank you.

ACTING CHAIR BRODERICK: Welcome.

MR. RUSSELL: Good morning, my name is Emmet Russell. I represent the International Union of Operating Engineers. I'm an employee representative.

MR. STRUDWICK: Good morning, my name is Greg Strudwick. I am a safety coach, compliance consultant and directly connected with the NUCA Organization and AGC and live in Dallas, Texas.

SOLICITOR SHORTALL: My name is Sarah Shortall. I'm in the Office of the Solicitor and I'm the counsel for ACCSH.

ACTING CHAIR BRODERICK: My name is Tom Broderick. I'm with the Construction Safety Council in Chicago and I am a public representative on ACCSH.

MR. BURKHAMMER: Stew Burkhammer, Directorate of Construction. I'm the designated federal official for this committee.

MR. GILLEN: Hi, I'm Matt Gillen. I'm a senior scientist and coordinator of the NIOSH construction program. I'm the new NIOSH representative as the federal representative to ACCSH.

MR. BEAUREGARD: Kevin Beauregard. I'm with the North Carolina Department of Labor. I also represent the Occupational Safety and Health State Plan Association and the state representative.

MR. THIBODEAUX: Mike Thibodeaux with Lennar Corporation, employee representative.

MR. HAYSLIP: Mike Hayslip, NESTI, public representative.

MR. BUCHET: Michael Buchet, Directorate of Construction. I'm here to support the committee.

ACTING CHAIR BRODERICK: And on that note when those of us who are on the committee or who are at this table speak, it is important for the people who are transcribing that we state our name so that when they create the transcripts they will know who they're listening to and able to attribute the remarks to the proper person. So with that I would like to have the people that are in the gallery introduce themselves.

MS. MEYERS: My name's Michele Myers. I'm with AGC of America.

MR. KINN: Stephen Kinn with the Construction Employers Association out of Cleveland, Ohio.

MR. DRESSLER: Good morning, Dick Dressler, the Association of Equipment Manufacturers in Milwaukee.

MS. TRAHAN: Chris Trahan, CPWR.

MR. SCHNEIDER: Scott Schneider, The Laborers Health and Safety Fund of North America.

MR. PAYNE: Hank Payne, OSHA Training.

MR. CANNON: Kevin Cannon, National Association of Homebuilders.

MR. FOULKE: Ed Foulke, Assistant Secretary of Labor for OSHA.

MR. BROWN: Steve Brown, BNA Publications.

MS. STEWART: Good morning, Ellen Stewart with the U.S. Army Corps of Engineers Headquarters Safety.

MR. FENTRESS: John Fentress, safety specialist, Corps of Engineers.

MR. SMITH: Bill Smith, Nations Builders Insurance Service.

MS. O'QUINN: Beth O'Quinn, Specialized Carriers and Rigging Association.

ACTING CHAIR BRODERICK: Well thank you everyone for being here and having an interest in construction safety and health. We appreciate your attendance and support. I'd like to turn next to Stew Burkhammer to give us kind of an update on what's going on at the directorate and anything else that he wishes to weigh in on.

MR. BURKHAMMER: Good morning. Welcome to the 2007 version of ACCSH. This is our first meeting since December of last year and we're happy to be back and meeting again. And welcome to the new members of the committee. This is the first meeting of the committee in the post Bruce Swanson era. And we wish Bruce well. I know a lot of you see him on a regular basis and talk to him and I know from the conversations we've had he's happy in his afterlife promotion all the years he spent running this committee as the designated federal official.

As Acting Chair Tom Broderick indicated earlier, Linwood Smith, who is the Secretary's appointed chair of this committee had a quadruple bypass recently. He really wanted to be here and attend this meeting but the doctor squelched that and told him he's not quite ready to travel yet. And he did send in his comments for C-DAC which will be read into the record later this morning. He's hopefully wanting to get back to work about an hour a day, but I think there's also the doctor's trying to calm him down a little bit and get him back. But I talked to him yesterday, he's doing well. He feels good. The pain is pretty much all gone, but he has a little cough that's affecting the fluid in his lungs and the doctor's working on that. So he hopes to be back at our next meeting and really sends his best to the committee and apologizes for not being able to be here today.

As you're aware, and some of you have commented to me and to Michael, we did not schedule work groups for this meeting, and there's a reason for that. As we've had a change in the committee membership, several of the committee members who were chairing and/or on work groups are not on the committee at this time so Linwood had made a decision that we would take a look at all the work groups and reevaluate each work group and make a decision as a committee which work groups we wanted to retain and what new work groups, if any, we wanted to add. Because of our full agenda this time, Linwood asked that we wait until our next meeting to do the work groups. I don't think we would have time to do them this time anyway, but he has some thoughts on the work groups. He has some ideas on where he would like to see the committee go with the work groups and he will express those to you at the next meeting when he comes.

As you can see from the agenda, C-DAC, we had scheduled a lot of time for C-DAC and for C-DAC comments. How we want to do this is to make it orderly for sure. I think the microphone is now working. Those of you in the back can certainly hear now. We want each of you to have time to make comments from you or your constituents. So we're going to go around the table. Tom is going to ask each of you to state your name, your affiliation and then provide up to 15 minutes of comments of your choosing on C-DAC. All of you got the material. Michael sent it out a month ago. We tried to give you as much information as we could and was available for you to look at and discuss.

There has been a question come up about SBREFA and waiting for, if you will, the results or the notes from SBREFA. SBREFA and ACCSH are two separate items in the track of a standard. You would not get the SBREFA comments nor did SBREFA get ACCSH comments. They're two different animals and they're done two different sets of ways. SBREFA is finished. The SBREFA comments are due sometime this week or the first of next week. Their time period, their window is up for submitting their comments. But the comments would not have been available at ACCSH for review anyway. And any comments you make would not have been available to SBREFA had SBREFA followed your meeting. So that hopefully will put that question to rest and that's why we need to move forward. SOLICITOR SHORTALL: Stew?

MR. BURKHAMMER: Yes?

SOLICITOR SHORTALL: Can I just say one thing? However, you know, persons who are interested in your comments will be able to see them in the record for our meeting today. And if any member of ACCSH has an interest, once the comments from people on SBREFA are submitted, they will be entered into the record of that rulemaking and available on our OSHA webpage for you to view as well.

MR. BURKHAMMER: Thank you. Three ACCSH members couldn't join us today, Frank Migliaccio from the Ironworkers, Bob Krul from the Roofers and Linwood, but each of them has sent in written comments for the record which we will be reading into the record later this morning. So once each of you has had an opportunity to go around the room and comment, and we would appreciate during this period of time, this comment period of time, that we don't have a lot of debate and questions back and forth to the person that's giving the statement. These are just statements for the record so we have all of your comments on the record. We will have an open discussion period after, a little later in the meeting.

Now, if you have any questions that you want to ask Noah and the standards team that is working on the standard, please give the chair your questions in writing. We'll give them to Noah after the meeting. Noah will have tonight to work on and tomorrow to work on the answers to the questions. Noah will be here tomorrow to answer any questions you have and have a discussion with you about the comments that you've made today or any comments you want to address with Noah tomorrow. Once that is completed, the acting chair will ask for a motion and based on our time period, the Assistant Secretary has indicated to Noah and I a certain amount of time that he's allotting us to finish this standard. And there's a process that we're going through and a timeline that we've given him to share with him all these different things that are going to take place during this time period window, and this is one of them. So prior to you leaving here tomorrow we would appreciate a motion as to your thoughts on C-DAC standard.

The confined space standard is moving right along and the date for the notice of final rule is January 2007 and we're on track to make that. And it should be in the Federal Register in January of next year.

Last week I had an opportunity, it was my first opportunity to meet with the state plan folks. They had a meeting in Atlantic City, a nice place to get to go for our first meeting anyway. And we had a discussion with them on trenching. And as you know, over the last three years I've shared with the committee and those of you present that attend the ACCSH meeting about our initiative on trenching, and where we are and the number of things we've done, the reduction of fatalities from the 58 to 53 to 49. And now we're in our fourth year of the study and early indications are that we're going to see a continued decrease which I'm really pleased about. One of the things, as you know, during the study we've only studied the federal states and we've gotten input on the federal fatalities, but we were not able to get input from the state fatalities. But I discussed this at OSHSPA and they were kind enough to say that they would more than be happy to give us the state plan. So Mr. Hawkins shared with me his today. We gave them the same form that we've used for the federal and we're going to be getting all of the trenching fatalities now from the states, so we'll have the total number to review and study. And I think now our numbers will really have some serious meaning because we've got all the fatalities. So that's going to really help us and I'm anxious to get those in and complete our study for the three past years so we can really see where our numbers are.

As of today we've given out about 400,000 trenching quick cards, 40,000 English/Spanish trenching posters and roughly 4,000 NIOSH CDs. And poor Matt is getting tired of me beating him up to give me more CDs, more CDs, but he's kind enough to do that and I want to thank Dr. Howard at NIOSH for approving the funds for Matt to be able to give us more trenching CDs. Now I'm talking to Matt about doing it in Spanish so we have a Spanish version of the trenching CD also and he's receptive to that, it's just we've got to work through the process to be able to make that happen. So I'm pleased about that. And that's all I have, Mr. Chairman.

ACTING CHAIR BRODERICK: Thank you, Stew. The next item on our agenda, and we're somewhat early for this.

MR. BUCHET: Can I have a few minutes to get the conference call started, Mr. Chairman?

ACTING CHAIR BRODERICK: Yes. Michael is going to go ahead and turn the phone system on so that those ACCSH members who are not here that wish to weigh in or to be a part of this ACCSH meeting will be able to do so remotely. So we'll just have a moment where you can talk among yourselves and we'll be back in session in a minute.

(Whereupon, the foregoing matter went off the record at 8:30 a.m. and went back on the record at 8:33 a.m.)

ACTING CHAIR BRODERICK: I believe that Michael is still getting the bugs worked out in the telephone system, but we have a couple of other little housekeeping things that we would like to take care of. First of all I would like to give Sarah the opportunity to enter some documents into the record.

SOLICITOR SHORTALL: Okay. First of all I would like to enter into the record the SBREFA materials from the proposed cranes and derrick standard as Exhibit 1, the written comments of Robert Krul as Exhibit 2, the written comments of Frank Migliaccio as Exhibit 3 and the written comments of Mr. Linwood Smith as Exhibit 4.

(Whereupon, the above-referenced documents marked as ACCSH Exhibit Nos. 1-4 for identification were admitted into evidence.)

ACTING CHAIR BRODERICK: Thank you, Madam Solicitor. We don't need a -

SOLICITOR SHORTALL: No.

ACTING CHAIR BRODERICK: The next item of business I would like to do is to let Stew Burkhammer orient us as to the materials that are in the packages that have been provided to us.

MR. BURKHAMMER: Thank you, Mr. Chairman. On the left side of your package you have the latest revised list of membership of the committee, copy of the Federal Register notice of this meeting. You have a Drug-free Workplace Alliance poster and some Drug-free Workplace Alliance stickers. If you would like any more of these or anybody in the audience would like some of these, please let me know and we'll make them available to you. On the right side of your package you have the letter from Linwood Smith, the letter from Frank Migliaccio and the letter from Bob Krul that will be read into the record as far as C-DAC goes. And you have the ACCSH meeting final rule fit testing which will be discussed later on in the meeting. And you have the quantitative fit test protocol draft which will also be discussed later today. And you have, and the last thing on the right side is a cover letter from Hugh Pratt, president of Insulatus and a backup PowerPoint. As you look through the PowerPoint you will notice a couple of places that says, "This slide replaces the graphic image of an electrocution burn and exit wound." If any members of the committee would like to see those pictures I will make them available to you. Thank you.

SOLICITOR SHORTALL: I'd also like to note that the original submission from Mr. Hugh Pratt including the images will be marked and entered into the record as an exhibit.

ACTING CHAIR BRODERICK: Thank you. Are we ready for the Hex Chrome update?

MR. BURKHAMMER: Yes, we are.

ACTING CHAIR BRODERICK: Emanda Edens will give us an overview of where we are with Hex Chrome.

MS. EDENS: I'm sure most of you have committed the standard to memory so there shouldn't be too much about the standard I need to tell you. As you are probably aware, we published the final standard for Hex Chrome this past February. There is a new PEL of five micrograms per cubic meter and there is an exclusion for exposures to Portland cement which we have discussed at previous ACCSH meetings. There is a separate standard for construction and that standard is virtually identical to the general industry standard, with the exception that there are no provisions for regulated areas or housekeeping.

I won't get into a lot of the details of the standard, I'll just kind of give you what's been going on since we published the standard back in February. I would mention though that the first compliance date is coming up pretty quickly here. The first startup date is for all the provisions of the standard except engineering controls. And the first date is for those employers who have 20 or more employees. So all of their provisions except engineering controls have to be in place this coming November 27. So that's the first date. The second date is for those employers who have fewer than 20 employees and all of their provisions except engineering controls have to be in place May 30 of 2007. So they get a little bit longer time to get some of their provisions in place.

All employers regardless of the number of employees they have at their work sites have to have their engineering controls in by May of 2010, so that's about four years from the effective date which was this past I guess April or so. So that gives you kind of a timeframe for when all the provisions of the final standard have to be in place. And as you might suspect, there have been some suits filed with the Court of Appeals on the elements of the final standard. We have currently four different petitions for review. Some of these were filed in different circuits, but all of them have been consolidated in the Third Circuit which happens to be the circuit that placed us under the court order for the final standard. So all of those will be going into the Third Circuit. The first group that filed the petition for review is, for lack of a better word I'll call it a consortium of different industry groups. One of the main groups in there is the Surface Finishing Industry Council which represents job shop electroplaters. The next one, the group with them was the National Association of Manufacturers and the Specialty Steel Industry of North America. They represent steel manufacturers within the United States. The fourth group that was with them was the Georgia Industry Association who has since dropped out. And I suspect that they were primarily there because they wanted to file in the circuit court in Atlanta, and since it didn't get placed there they sort of didn't need to be in the suit anymore, so they're no longer a part of that petition for review.

The second group that filed a petition is Public Citizen and they, along with some of the other groups that have filed a petition, are a major player in the rulemaking. They were the group that originally petitioned us for the standard and petitioned the court to put us under an expedited schedule for completing the proposal and the final.

The third group, a group familiar to this committee, the Building Construction Trades Department has also filed a petition for review, and as you remember, one of their main concerns was with the exclusion for Portland cement. The fourth group is Edison Electric Institute. They have a lot of concerns with regard to fly-ash which has a trace amount of hexavalent chromium and they feel that they are sort of in a situation similar to the Portland cement folks. They also have some concerns with welding.

A number of these groups or a part of the people that have filed petitions for review have also approached the agency to enter into settlement talks. And I can't really give you a lot of details on what's been going on in terms of those sort of settlement negotiations because we're still sort of negotiating what would be the terms of those agreements. And those are still subject to approval by the Assistant Secretary, so really, until he okays it it's really not going to be a done deal so I can't really talk a lot about the details of that. I can tell you the groups that have come to us. One is the Surface Finishing Industry Council. As I said, they represent electroplaters and they were one of the most, I guess I won't say, under the new PEL they're not adversely affected but they had one of the greatest potentials to be impacted by this rule because of the need for respiratory protection in some sorts of occupations. If you had a lower PEL and some economic considerations. They were one of the few groups that at the proposed PEL of one had economic feasibility constraints. The second group that has come in is Edison Electric, and as I mentioned, they have some concerns about fly-ash and some welding and how we would use objective data in representative sampling for welding operations. The Building Trade Construction Department have also come in to talk about some interpretational issues with if we do end up after the litigation not covering Portland cement, how would we interpret the existing standards in construction and how they apply to that.

And the fourth group that just recently came in, they were sort of a late joiner to the settlement table was the Specialty Steel Industry of North America and NAM. And we just met with them yesterday to try to get an idea of some of the concerns that they would like to try to see if they could negotiate. So some of these groups, they may not totally drop their suits with these settlements, but they may get some of the issues off of the table and carry through with some of the main concerns through the litigation process. Right now because we are in some settlement negotiations, the court has given an extension on the filing for briefs under the petitions for review, so right now I believe the briefs for the initial litigation of the petitions for review are due in early November, but that could possibly be delayed a little bit more if the court sees that the agency is trying to negotiate and wants to kind of resolve some of these issues that way. So I can't say for sure if that'll happen, but at any rate, that's just the first deadline for filing briefs. Then the agency, they'll give the petitioners a certain amount of time to file a brief. Once they've filed their brief, OSHA will get a certain amount of time to file their response brief, and then they'll get a certain amount of time for people to respond to OSHA's response. And at a certain point they will file an oral argument, or set up an oral argument. So the point I guess I'm trying to make is this issue is pretty still far down the road until the point it gets to the court to make some sort of decision on these petitions. So that's a little bit off, but there's no talk about staying the current enforcement dates, so those will still be in place.

In terms of guidance and outreach, last week we published our Small Entity Compliance Guide. So for those of you who are interested, it should be up on the web and hopefully very helpful to some small entities. The Compliance Directive is still under development. What has been a good thing, even if we don't come to resolution on some of these settlements, is that we've gotten a lot of questions about how some of the provisions will be interpreted. So hopefully we'll be able to make the Compliance Directive better and answer some of these questions that we keep getting on some of the more performance-oriented provisions of the standard because it's better to do it, you know, through the Compliance Directive than to have people keep calling in and asking questions. So hopefully some of those questions, they are good questions that these folks are bringing up. We can address it at the Compliance Directive. That's coming out of the, obviously the directive enforcement programs that Rich Fairfax runs, and I can't really promise a date on that. I know that they're trying to get it done as quickly as possible with the hopes of getting it done before this first November date. But some of these settlement negotiations, the questions have been raised and have been, you know, slowing that down a little bit because we do want to make the Compliance Directive an effective tool and since these questions are coming up, we'd like to get them addressed first before we release it, then have to like re-release it again. So that's the hope for that.

So I guess I don't really have, in terms of other guidance and outreach that we might have, there are a lot of questions about performance-based monitoring and a lot of questions about welding and how you do exposure monitoring and welding, different kinds of welding techniques. So we are interested in putting together some guidance in those areas to give people a better idea of how you would approach performance-based monitoring for welding because welding does occur in a lot of different places, and sometimes it's very short, and so it does present some challenges for exposure monitoring which is one of the reasons why we included a performance-based option in terms of exposure monitoring. So people could use something besides our typical scheduled monitoring approach we've used in previous standards. So although it gives people flexibility, as you might imagine it also gives people a lot of questions about how would we interpret that particular provision. So we're feeling that maybe some guidance and some direction through the Compliance Directive will help people understand how they can take advantage of that flexibility. So that's all the prepared comments I had. I'd be happy to take any questions if you have some.

ACTING CHAIR BRODERICK: Does the committee have any questions? How about a comment?

MR. STRUDWICK: For those of us that could not, this is Greg Strudwick. For those of us that could not spell hexavalent chromium prior to you -

MS. EDENS: You want me to spell it?

MR. STRUDWICK: No. We certainly appreciate all your hard work. And it has made an impact even though it excludes construction in the way that we view our wet Portland cement and the way we view our welders. And so we appreciate all your hard efforts.

MS. EDENS: Thank you very much.

ACTING CHAIR BRODERICK: Sarah?

SOLICITOR SHORTALL: I'd like to enter into the record as Exhibit 5 the handout that Ms. Edens provided to ACCSH entitled Hexavalent Chromium Update.

(Whereupon, the above-referenced document marked as ACCSH Exhibit No. 5 for identification was admitted into evidence.)

ACTING CHAIR BRODERICK: Thank you, Sarah. Are there any other questions or comments? Thank you very much. The agenda tells us that we are at a break point. Why don't we take a break until, well I thought we were going to get out a little bit early for a break, but staff has reminded me of a few things that we could take care of before that, not the least of which is that we have additional visitors that came in a little bit late. And if we could go back around through the gallery for those of you who have not introduced yourselves, we would all love to know who all is here.

MS. ABRAMS: My name's Adele Abrams, Law Office of Adele Abrams, Beltsville, Maryland, representing the American Society of Safety Engineers.

MR. GLUCKSMAN: I am Dan Glucksman, International Safety Equipment Association.

MR. MILLER: I'm Steve Miller. I'm with Cole Miller Safety Consulting in Denver and the Steel Erector Safety Association of Colorado.

MR. POCOCK: Chip Pocock with Buckner Steel Erection, Graham, North Carolina, and representing the Steel Erectors Association of America.

MR. BRENT: Good morning, I'm Graham Brent with the National Commission for the Certification of Crane Operators.

MS. BAILEY: Good morning, I'm Shana Bailey. I'm a law student, administrative law student, and I am doing some studying for OSHA and I'm here this morning for that. And I'll be doing some research.

MR. KENNEDY: I'm George Kennedy from the National Utility Contractors Association.

ACTING CHAIR BRODERICK: Thank you. We are glad to have you all here and I have been reminded to remind you that there are, right outside the room there's a table with two sign-up sheets, one we would like for you all to for the record just let us know that you're here. So give us your name and affiliation. The other sign-up sheet is for those of you who would like to make public comments. I understand there are only three people signed up so far for public comments, and as I look around the room I see there are a few more people here who I suspect have something to say. So that we can make sure that we have plenty of time in the agenda for everyone to have an opportunity to address the committee if you please would sign up on that second sheet.

What we're going to do is kind of jump ahead on the agenda for a moment and we're going to have, when he gets back to his seat, Mr. Burkhammer enter the three letters from ACCSH members into the record regarding their comments on the crane and derrick standard. The solicitor tells me that Stew may read them.

MR. BURKHAMMER: The first one was submitted by Bob Krul. "United Union of Roofers, Waterproofers and Allied Workers supports the current form of the cranes and derricks rulemaking with no changes. This rulemaking is about to surpass the record for the time it takes to develop a standard within the Occupational Safety and Health Administration. The negotiated rulemaking process that was used to develop this proposed standard is comprised of many segments of the industry, each of which lent its expertise and comments to the development of the current proposed standard. It is time to move forward on this standard and stop the incessant tweaking and rewriting that only generates more and more discussion and disagreement creating a perpetual motion machine, an endless cycle that further delays the standard-setting process." With that, Michael will read Frank Migliaccio's.

MR. BUCHET: This is Michael Buchet reading the comments, October 3, 2006, from Frank Migliaccio, Labor Representative. He represents the ironworkers. "I apologize for not being at the meeting in person, but due to a previous commitment at the request of my general president I am in West Virginia attending the Mine Safety and Health Tram Conference which was planned over a year ago.

I am writing to you in response to the crane and derrick advisory committee C-DAC document that was completed July 2004 and submitted to the Department of Labor. I personally sat on this committee for one year and prior to that was on the subcommittee for three and a half years. There was a lot of time, effort and money spent on this standard by all involved. Serving on this committee were members from manufacturing, insurance, owners, suppliers, users, wire rope industry, electrical contractors, labor and government officials. There were three-day meetings held monthly with the exception of August 2003 and April 2004, with many more phone calls made to complete the final draft so that we'd be done on time. This was not an easy process with 23 individuals on the committee, but with the excellent direction of Susan Podziba and Alexis Gensberg, things did run smoothly.

There was a lot of materials that were processed and many votes were taken to come up with what I feel was an excellent final draft. Not everything was agreed upon at first, but with time the process of negotiated rulemaking was accomplished. I agree with the final outcome of C-DAC, and I support this standard in its entirety. With respect for the committee, it should be put forward the way it was written without change. I would like this document put into the records of the meeting. Thank you. Respectfully submitted, Frank Migliaccio, Executive Director of Safety and Health, International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers."

MR. BURKHAMMER: The last written set of comments came from Linwood Smith, October 11, 2006. "Dear ACCSH members, Please accept my apology for not being able to attend the ACCSH meeting. However, due to health reasons I am unable to travel. Thank you all for attending this meeting and taking the time out of your busy schedule to participate. As a safety professional with over 30 years of experience in the construction industry, I would like to first thank all of those involved in the crane and derrick SBREFA process at OSHA, SBA, OMB and the various small entity representatives for all of the hard work that was put into it. I feel that this is an important step in producing a final rule for C-DAC. I feel that the revisions and updates to the cranes and derricks in construction standard is a necessary and essential step in keeping our workers safe and healthy.

However, I must express some concerns that I have with the draft proposed standard. As a member of the AGC and a representative of employers within the construction industry, I believe that there are some issues that would be an undue hardship among many contractors. For the most part, the construction industry is predominantly made up of medium to small firms. After speaking and listening to many of the general contractors and subcontractors in the industry, there is a great deal of concern over compliance with the crane operator certifications. Prior to making a recommendation to the Assistant Secretary of Labor for the Occupational Safety and Health Administration, we should review all materials and reports that are available. I would like to have the opportunity to review the C-DAC SBREFA report once it is published in the docket since the proposed draft standard will have a great impact on the small- to medium-sized firms. I believe that it would be premature to make a recommendation prior to reviewing the SBREFA report.

In reference to the certification of crane operators, I have personally sent employees to be trained and the cost of the exams, written and practical, and prep class was $1,375. Total cost of wages, loss of production, travel and lodging, and the training and certification exams was $5,068.20 per person. According to research that was done for AGC, the average cost for a crane operator would be approximately $2,900 per person for training, exam and wages. The average cost for the exams are $382, with training or prep costs averaging $1,260 and the wages for the operator of $1,255. Additional costs for math and reading classes, if needed, would be averaged at $750, which was not factored into the total cost of $2,900. I believe that these costs would become an undue hardship for small firms and that the requirements for the draft proposed standard could be better suited for the industry.

Additionally, several alternatives were discussed during the C-DAC negotiated rulemaking and the SBREFA process. However, no alternatives were seriously considered. Crane operator certification programs should meet some performance standard within the OSHA standard that defines minimum criteria and knowledge needed which OSHA has defined the minimum knowledge and skills needed in Section 1427 Operator Qualification and Certification, which would allow for the flexibility that a contractor would need to comply with the standard while keeping safety a priority on the site. Many general contractors have excellent crane training and qualification programs that are specific for their company and job site. A one-size-fits-all national certification program that distinguishes between lattice boom and hydraulic, crawler and rubber-tired, and above and below 17.5 tons is not adequate in determining the competencies of operators when operating a specific crane for a specific job. Additional training and qualification will have to be completed even if an operator already obtained CCO certification. Currently under the draft proposed standard a small crane operator is required to meet the same certification requirements as an operator of a several hundred ton crane. Certification requirements should be graduated based on load capacity using an existing third-party institution of higher learning such as the USDA Cooperative Extension Service, U.S. Army Corps of Engineers, TEEX, or city, county or state certification programs could prove to be an adequate option.

Additionally, drug testing is ignored in the current draft standard at a time when my experience within the construction industry shows an increase in drug abuse. This increase has amplified the importance of enforcement for a drug testing requirement for certified operators. To eliminate this aspect of the certification process is to negate the balance for any reason to even modify the existing crane standards. I deeply believe in this particular issue and seriously question any attempt to leave out a drug testing requirement.

OSHA has also left out requirements to meet minimum physical requirements. Physical exams are a necessity in this particular field. Determination of vision, hearing and potential for seizures, epilepsy, emotional instability, high blood pressure and other physical impairments should be a part of the requirements for safe crane operators. Another alternative is that OSHA requires the construction industry employers to follow physical examination and controlled substance and alcohol testing guidelines similar to the guidelines that the U.S. Department of Transportation already requires for the transportation industry.

OSHA could also grandfather certain portions of the standard. In reference to crane operator certification and qualification, operators who have a certain number of years of experience and a certain amount of training could be grandfathered in the draft proposed standard. During many of the discussions that I have been party to, there are also concerns with the notion that there is only one organization that is currently offering the crane operator certification. How would this affect the nation as employers across the nation must comply with the standard if it becomes final as is. Would the NCCCO be able to certify all of the crane operators in the nation within the allotted time? How does this one-size-fits-all certification ensure that the crane operators are able to perform the duties that are necessary to ensure that the work site is safe?

There have been several reasonable alternatives presented for certification and qualification of crane operators which will keep employees safe and protected on the job. There are already a few training programs that could easily be adapted and utilized without the incorporation of the required accrediting by a nationally recognized accrediting agency. I would like to emphasize that I feel that it would be premature to make a recommendation prior to the SBREFA report being released and reviewed. I appreciate this opportunity to comment on the crane and derrick proposed draft standard. Thank you. Linwood O. Smith, TA Loving, Chairman of the Advisory Committee on Construction Safety and Health."

ACTING CHAIR BRODERICK: Thank you Stew and thank you Linwood in absentia. At this point with no objections I think we'll take a break and reconvene at 10 o'clock. Okay. We have a nice long break. We'll reconvene at 10 o'clock.

(Whereupon, the foregoing matter went off the record at 9:04 a.m. and went back on the record at 10:06 a.m.)

ACTING CHAIR BRODERICK: I'd like to go ahead and get started. The next item on our agenda brings to the advisory committee's attention some issues regarding respirators and to bring us up to date on that we have John Steelneck and Carol Jones. And they will be discussing both fit testing as well as assigned protection factors. So with that, John?

MR. STEELNECK: Thank you, Mr. Chairman. I'm John Steelneck. I'm the project officer on OSHA's Respiratory Protection Standard Revision. Basically OSHA has finally finalized the assigned protection factor and on August 24, 2006 we have published the final respiratory protection standard, the APF factors, to go along with our existing revised respiratory protection standard, 1910.134. This new assigned protection factor standard establishes a table and I have a set of tables here for the committee which assigned various categories of respirators, their individual assigned protection factors all the way from half masks, collapsed filtering facepieces, half masks through supplied air respirators, powered air purifying respirators, all the way up to SCBAs. Basically what we have done as part of this rulemaking is we did a full, complete review of all the existing studies and performance work that has been done. Simulated workplace testing and workplace protection factor testing has been done with these various classes of respirators to determine what is the appropriate level of assigned protection factor that OSHA can give to these various classes of respirators as they are used.

Now, the standard was published on August 24. It goes into effect on November 22 so people still have a little time left to get up to speed before the standard actually goes into effect, the assigned protection factor part. This will finalize OSHA's respiratory protection standard and it basically means we have finished with the rulemaking on that particular major revision of the respirator standard. However, there are, as usual, other pieces of the respirator standard that continue on because there's always interest in respiratory protection and in revisions, and that's one of the things I'll get into later.

But now I'd like to discuss the APF table itself. We have, as you see, Table 1 and the first thing there is a quarter mask has been given an APF of five basically because it does not fit as firmly to the face in the studies that we have shown and the rest have shown that they actually don't perform as well as other respirators. Therefore, it gets an APF of five.

For the half mask, we have basically given them an APF of 10. We had looked and had extensive discussions as part of this rulemaking over the performance of filtering facepiece respirators, basically the ones where the mask facepiece is the actual filter and elastomeric half mask respirators. When you have, and we looked at all the studies that were available, and there were an awful lot of studies, one of the largest, better than 1,600 different performance levels on individual half mask, either filtering facepieces or elastomeric half masks. A large data set to look from and we did an extensive evaluation of it. When you have a respirator and it's performing as part of the required OSHA comprehensive respiratory protection program as required by 1910.134, with training, fit testing, and all the rest that's part of a comprehensive respirator program, these two types of respirators, the filtering facepiece and the elastomeric half mask, both performed minimally at the same level or better than an APF of 10, and therefore they have both been assigned an APF of 10.

We went on and looked at the full facepiece respirator, the air purifying full facepiece respirator and some of the older respirator standards, the substance-specific standards had given them an APF of 100 in some individual cases, but it has been lowered to 50 because we have some respirators in this simulated workplace and workplace protection factor studies that did not perform at a 100 level. They performed less than that. Therefore it gets a lower APF of 50. I'm also part of the ANSI Z88.2 subcommittee and they have been looking at the same information. And this area of lowering the full facepiece down to 50 seems to be the way the world is going to be going.

We also looked at the other respirators, powered air purifying respirators. Basically the numbers for the half mask at 50 and the full facepiece at 1,000. But on the hood and helmet we have added basically a 25 or 1,000. Now you only can get that 1,000 when you have done additional testing on that individual respirator. Basically as a footnote, it says the employer must have evidence provided by the respirator manufacturer that testing of these respirators demonstrates performance at a level of protection of 10,000 or greater to receive an APF of 1,000. This level of performance can best be demonstrated by performing a workplace protection factor or simulated workplace protection factor study or equivalent testing. Absent such testing, all other PAPRs and SARs with Hamilton hoods will be treated as loose-fitting facepieces and receive an APF of 25.

Right now that is already part of OSHA's compliance program. As you know, we have letters of interpretation for Bullard, ClemCo, abrasive blasting respirators which allow them an APF of 1,000, and that continues for those particular models. Also we have the studies, and simulated workplace testing that was done by the pharmaceutical industry which granted some PAPRs and SARs hoods and helmets an APF of 1,000. We're also looking at setting up a system in the interim for handling future certifications in this area, but that isn't quite done yet. When it comes to supplied air respirators, basically the numbers have not changed, but again, for the helmets and hoods, the 25 and 1,000 with additional testing still applies. Basically because there are supplied air respirators out there and under the original ORC study one of the supplied air respirators that was supposed to perform at 1,000 did not. It didn't even perform up to 25 and it in the essence was withdrawn from the market. But what that means is there are respirators out there that need to be tested to prove that they perform at 1,000 before they can be granted that number, and therefore we still have this 25/1,000 split.

For SCBAs we have the traditional, in the demand mode, you get the same values as you would as an air purifying respirator of 10 for a half mask, 50 for a full facepiece, and the hood or helmet gets a 50. But in the pressure demand or other positive pressure mode, they can get up to 10,000 and we're continuing with the one provision which allows that you can use a supplied air SCBA with an auxiliary tank at that 10,000 level. Basically that's for entry systems, especially we get that in the Department of Energy which has a lot of areas where it's very hard or impossible to get in with an SCBA, but they need that high level of protection and therefore we're continuing with the exemption we've already allowed before for those particular respirators.

That pretty well covers it. The other thing to remember is that the existing substance-specific standards used to have their own respirator selection tables. Now they have been removed from all the standards except for 1.3 butadyene and they all go back now to the new 134 table as being the sole source for assigned protection factors for respiratory protection. That pretty much is what's happening with the assigned protection factor standard. Luckily it's finished, but there are issues still going on. As part of the original respiratory protection standard revision all the way in `98 there was a provision that allowed respirator manufacturers and fit testing operators, fit testing machine manufacturers, if they wanted to change their, as part of the standard, they have required fit test protocols that they have to follow. In order to make a change in that protocol, they then have to submit data to us and that is what this is right here. This is what was distributed to you folks on the committee. It basically is a notice of proposed rulemaking. The 3M company has submitted to OSHA a request, along with a couple of articles and additional testing to show that they have an abbreviated Bitrex qualitative fit test that changes the fit test protocol for the Bitrex system of qualitative fit testing. It has shorter fit testing intervals and their testing and additional studies have shown that the actual, the new protocol performs as well at identifying poorly fitting respirators as the existing OSHA required fit testing protocol. And they have requested that we go through the process of approving this new fit test protocol.

As usual, in changing something like that, that's part of what we have to come to the construction advisory committee for, and that's what we're doing with this one. We also have a second one which is not as far along as the 3M model. There's a second one by the PortaCount manufacturing, the ones who make the PortaCount fit test method. And they also have done some additional testing and they want us to look at a new PortaCount protocol with 30-second fit test intervals as opposed to doing it for the minute that is required by OSHA's existing fit testing protocol. I will be preparing a notice of proposed rulemaking similar to this one to go forward on that one, and in the future we will be back to present that.

But those are the two things that are going on now with the respirator standard that the new APF table goes into effect November 22 and then we do have these two additional fit test protocols that we will be going out with a notice of proposed rulemaking seeking public comment. And that's it. That's why we came to the committee. Thank you.

ACTING CHAIR BRODERICK: Thank you, John. Before I solicit comments and questions from the group, just so that I understand, these requests, the request from 3M and the subsequent one from PortaCount are attempts by these manufacturers to have OSHA approve their proprietary methodology.

MR. STEELNECK: Well, it's to approve an additional fit test along with the existing fit test, okay. What it is, is we're not going to be replacing the existing OSHA protocols. We're just going to be adding an additional alternative protocol that can be followed. It basically gives people an additional chance of a different protocol to follow once they've proven that they perform at least as well as the existing OSHA protocol.

ACTING CHAIR BRODERICK: And so that I understand and the committee understands the process, there will be other opportunities for other manufacturers to come forth even at a later date with other options or other developments and enter those into the rulemaking process?

MR. STEELNECK: If there are new fit test protocols, new ways of doing it, somebody finds a new way of doing fit testing that they can demonstrate is at least as effective as the existing OSHA protocols, then this is the process they would have to go through to get it approved. And until it's approved, basically it's not usable basically as an OSHA approved process because we have, as part of 1910.134, OSHA required fit testing protocols that have to be followed. In the past it was, that was one of the things that 134 was designed to correct, which was the manufacturers must change their protocols as they felt the change was needed, and things would keep changing all the time, and you ended up with a system where people didn't know exactly what was the most current and best protocol to follow and which ones had actually been shown to perform as well as OSHA required. Now we have the OSHA required protocols that have been validated and proven that they perform and once you've passed those fit tests you can guarantee that those individuals will achieve the APFs as part of the new APF standard.

SOLICITOR SHORTALL: Can I ask a question for clarification?

ACTING CHAIR BRODERICK: I'm going to ask one first and maybe that would make it go away. Again, just so that we're completely clear here, are these additional approvals proprietary in that 3M brought them, or would the technology be that which is being approved? In other words, could another manufacturer utilize this alternative of a truncated period for doing the fit testing if they feel that their process fits into the 3M approval? Or will this be the named 3M?

MR. STEELNECK: It will be a Bitrex protocol, it won't be necessarily the 3M protocol.

ACTING CHAIR BRODERICK: Okay.

MR. STEELNECK: That's already what we have in the respirator standard itself. It's the Bitrex protocol, it's not the 3M protocol, even though in the case it was 3M who invented it, the Bitrex protocol, in the first place. Along the same thing with the saccharine protocol.

ACTING CHAIR BRODERICK: And in the same vein, that which PortaCount is looking for is going to reflect their technology, not necessarily their brand.

MR. STEELNECK: Right. It reflects their technology and their equipment, but supposedly if you wanted to invent a machine that could get around the patent and other problems, you could use that same protocol.

ACTING CHAIR BRODERICK: Okay. Madam Solicitor?

SOLICITOR SHORTALL: I'd like to ask a point of clarification here. The committee members received three things from you. I'm talking about the two documents other than the table. The first is entitled ACCSH Meeting Future Rulemaking on Respiratory Protection Fit Test Protocols, which I would like to mark as Exhibit 6 at this time.

(Whereupon, the above-referred to document was marked as ACCSH Exhibit No. 6 for identification.)

SOLICITOR SHORTALL: And then the notice of proposed rulemaking and request for comments on abbreviated Bitrex qualitative fit testing protocol which I'd like to mark as Exhibit 7 at this time.

(Whereupon, the above-referred to document was marked as ACCSH Exhibit No. 7 for identification.)

SOLICITOR SHORTALL: Are you coming to ACCSH at this time asking for a recommendation on this proposal? Because on Page 2 of your two-page handout you said if OSHA decides that this protocol meets the criteria we'll submit a draft proposal to ACCSH. And this does seem to look like a draft proposal. So are you requesting at this point that ACCSH consult with you and provide you with its recommendation?

MR. STEELNECK: Yes. That is part of the rulemaking process already, which is that for items like this we have to bring them forward to ACCSH and make a presentation.

SOLICITOR SHORTALL: And that's what you're asking at this time?

MR. STEELNECK: That's what we're doing because that's also, as it says basically back here in the document itself is a paragraph that says that we have presented this here at this particular meeting and then there's a sentence in there that says you looked at it and then told it to proceed or whatever.

MR. BEAUREGARD: It's on Page 23.

SOLICITOR SHORTALL: Yes, but Page 2 of the two-page document suggests something different. I just want to clarify that this is the formal request -

MR. STEELNECK: Yes.

SOLICITOR SHORTALL: - to have ACCSH consult with you and provide its recommendation on this proposal.

MR. STEELNECK: Right.

SOLICITOR SHORTALL: Thank you. At this time I'd also like to mark as Exhibit 8 Table 1 Assigned Protection Factors from the final rule that was published on 8/24/06.

(Whereupon, the above-referred to document was marked as ACCSH Exhibit No. 8 for identification.)

ACTING CHAIR BRODERICK: And I guess I'm going to ask one last question then open it up. Is it my understanding, then, that you have reviewed this documentation and you are coming to us with assurance that the science is good science and that -

MR. STEELNECK: Yes.

ACTING CHAIR BRODERICK: - a positive recommendation is.

MR. STEELNECK: We have looked at the studies and the rest of the material that 3M has provided for this new fit test protocol. We have looked at it and basically said it meets the criteria already set in the 1910.134 for new fit test protocols to be submitted. Now we're going out for public comment from the rest of the respirator community to see their comments on the performance of this new fit test and their comments on the actual studies that support it. And from the comments that we get back from this notice of proposed rulemaking we will then do an evaluation and determine whether or not to accept this new fit test method.

ACTING CHAIR BRODERICK: Very good. With that I would like to open it up to my colleagues on the committee for questions and comments.

MR. HAYSLIP: John, Mike Hayslip at NESTI. Just for the record, would you compare and contrast the difference between qualitative and quantitative fit testing? Just so we have it on the record so we know the difference?

MR. STEELNECK: All right. Qualitative fit testing is basically one where you have a substance like Bitrex which tastes bitter, or saccharine which tastes sweet, or you have irritant smoke which is irritating. Basically you're relying on the individual being fit tested, their sensitivity to that substance to determine whether or not there's been a leak or there is leakage around the seal to the facepiece to the face and that determines whether or not they pass that particular fit test. Now quantitative fit testing is where you are actually measuring either, in the original case it was corn oil, basically you're generating a corn oil atmosphere, or like the PortaCount you're doing it with ambient aerosol, basically particles in the air and determining whether or not particles are getting inside through the seal of the mask in sufficient quantity to show that the facepiece is not fitting properly.

MR. HAYSLIP: Thank you.

ACTING CHAIR BRODERICK: I would remind the group, this is our last bite at the apple. These folks are here to answer our questions and then it will be up to us to deliberate and I think tomorrow decide on recommendations. Kevin?

MR. BEAUREGARD: Kevin Beauregard, North Carolina Department of Labor. I had one of my stakeholders really raise a concern more than an issue with the protocol. Their concern was that the current OSHA standard requires a 60-second test per item, the ANSI requires a 30-second test and this new protocol cuts it down to 15. And the concern was on those that have Level 1 sensitivity it was going to be approved at the 15-second one, but the concern lied on that the stakeholder felt that over time many employers would make that the standard practice among all their employees and so that those with higher levels of sensitivity would be folded into that group by the employer. And so whenever anybody was doing the fit testing they would just do 15 seconds for everyone. And so they had a concern with lowering the amount of time for that, that that may happen over time. And the person that brought this up does a lot of work with public sector municipalities. And they indicated that over time that they had already seen a reduction in time, that people aren't already complying with the 60-second requirement and they had a concern that, like I said, that they'll drop everybody down to 15 seconds if this is passed.

MR. STEELNECK: Well, that's one of the concerns we want to seek public comment on. That's one of the reasons why we're going out with this notice of proposed rulemaking is to get the public's comment on issues like that. We also have looked at the problems of 15-second fit test intervals and reduced fit test intervals. Thirty seconds seems sufficient. Fifteen seconds is kind of stretching it in a way, but that's what we're looking for public comment on as to what people have been doing. We know that OSHA has currently 60-second fit test intervals and we know that there have been a number of organizations and the rest who have not been doing 60 seconds. They've been doing quicker fit tests. That seems to be the way the fit test world is going these days, faster and faster. But that's part of what this rulemaking, this future fit testing rulemaking is going to be about is what's the minimum you have to have. Is 30 seconds the cutoff, or should 15 seconds be a cutoff for this particular test?

Now they did submit a number of studies in performance to match that 15-second interval, and as you said, the more sensitive individuals, you have to be more sensitive in order to do that 15-second test. You have to demonstrate getting increased sensitivity before you can do that. The reality is, like you say, will that actually drive a number of people to the 15 seconds, whether or not they have that increased sensitivity. And that's one area we're seeking public comment on.

ACTING CHAIR BRODERICK: Greg?

MR. STRUDWICK: Greg Strudwick, contractor and compliance consultant. Typically when we have someone go and have a physical performed on their respiratory system, at that juncture is when they do their fit testing. And so those are professionals. And everybody knows that there are people in the world that cheat. And we're not going to have a great effect on the cheaters, honestly. But in the way that I reviewed this, there's a number of different exercises that are done during a fit testing protocol. I think the number was 10. Is 10 correct, or around 10?

MR. STEELNECK: Originally there were 10, yes.

MR. STRUDWICK: Okay. And so during those protocols, 15 seconds with an individual is probably time enough in my opinion, because we've been governed by timetables in a number of different testing situations, and 15 seconds times 10, or if you take 45 seconds times 10, that's a significant amount of time when it comes to an employer that's having that person tested. So just being relative to the situation, if it's a professional performing the test, I think they'll comply with the 15 seconds. And I think that their interest is in protecting the employee and I give 3M great credit for going back and making the test and saying, you know what, we can get 10 individuals passed quicker and have the same amount of protection and be very confident in it that we have not cut corners. And that's the way I read it. It was something that we certainly appreciate as far as the industry is concerned, 3M or whoever it might be, and that anything that can make it more efficient for us to get people in and out and make sure that they're protected is what we're interested in.

ACTING CHAIR BRODERICK: Kevin?

MR. BEAUREGARD: I just want to respond real quick and just to be clear, I wasn't questioning the 15-second requirement or change in the protocol. The concern I had was for people that didn't have Level 1 sensitivity, them doing those folks at a 15-second interval because it may not be applicable or appropriate because they won't know whether or not it's effective at that level.

MR. STRUDWICK: Only one response. It would be interesting for me to know how many people test in-house versus send out to the clinics to have the test fit done immediately after the physical. And that would be something interesting to know, I think. But 3M did a great job.

MR. HAYSLIP: Mike Hayslip with NESTI. The 15-second protocol revision, I'm not too keen on that in that it seems that if it's 15 seconds, that's easy to become five to seven seconds in practice. I think if you're doing it for 60 seconds then you surely get your 15 seconds. I like the thought of cutting it down to save on costs and stuff, which is minimal I believe. But why go upstream with what ANSI's got? Why not just go in line with ANSI's 30 seconds?

MR. STEELNECK: Well, we had looked at what ANSI has, which is the 30 seconds, but ANSI is also in the process of revising their fit test protocols as well. And the chances are 3M will also, they're also members of that ANSI fit test committee, as I am, by the way, and that's one of the issues they're going to be looking at. Dr. Roy McKay is the one who did the actual testing as part of some of this new fit testing protocols. And he's the chairman of that new ANSI that's going to be updating it. So the reality is that 30 seconds from ANSI may not be carved in stone.

MR. HAYSLIP: I think that's probably the better way. I think that ANSI might be better served to be more restrictive that people, if they choose under contract can go with the 15 seconds. It just seems that when you're going down to 15 seconds in lieu of the 30 or even the 60 which we have now, you lose what might be a little bit of a safety factor if you will. People kind of jump in and out pretty quick.

My experience is also that these tests are somewhat subjective. I'm not necessarily a big fan of these tests per se. I see the limited value in it. I've had many occasions where people want the job and they want to do that work and they say they have a sensitivity and yet it's obvious that they don't. I'm not sure I'm a fan of this test. But beyond that I think 15 seconds is too short. I think 30 is better.

ACTING CHAIR BRODERICK: Thank you, Michael. Tom?

MR. KAVICKY: Mr. Chairman, a clarification if you would. This protocol was done by 3M on 3M respirators only, correct?

MR. STEELNECK: Yes. The respirators they did are very similar to other respirators from North and Voltex and others. That style, the cup-shaped respirator basically, it's not the style of the respirator that really determines the fit test. It's more the individual and how well they can get that particular mask to fit them.

MR. KAVICKY: But the study was only done on 3M?

MR. STEELNECK: It was done on 3M respirators basically because it's a 3M study, yes.

MR. KAVICKY: Okay. I don't know if I mentioned who I am, Tom Kavicky with the carpenters. I'm in agreement with my co-ACCSH committee member Mike Hayslip. I am a trainer for confined space and hazardous waste with the United Brotherhood of Carpenters and Joiners of America and during the fit testing protocols that we put the individuals through following the 60-second requirements, we've noticed that we have found members that don't break a seal, or aren't sensitive till the 40 - 45-second point. And if we allow that 15 seconds, I'm not saying it's not going to work, or things like that, but it concerns me very much. If we start shortening that period of time, will that member really be guaranteed a proper fit? So I guess I've got a real concern with that.

MR. HAYSLIP: To add to that comment is you want to be sure that obviously these people maybe have had a sip of water, they haven't just finished eating, they don't have gum in their mouths. There's a whole lot of things that in 15 seconds you might miss the opportunity to capture.

ACTING CHAIR BRODERICK: Thank you, Mike.

MR. STRUDWICK: One more comment. Fifteen seconds is not the entire time period, okay? It's 15 seconds per test. Per exercise. I just want to make sure that everybody's aware of that.

MR. HAYSLIP: And another thing, Mike Hayslip of NESTI, to be noted that these were experienced users. The people being tested by definition aren't going to be experienced users. Fifteen seconds may be enough if you're experienced and you know what's coming down the pike. If you have a new person, I think it's kind of a little tight for that reason also. The nature of who's being tested.

SOLICITOR SHORTALL: I'd like to ask Mr. Steelneck another point of clarification, and that is make sure that I understand. Was it your intention to say that you plan to ask for public comment on whether 15 seconds is appropriate length for time and plan to insert that type of question in the public comment, issues for public comment section?

MR. STEELNECK: We can do that, yes, if that's the recommendation of this group.

SOLICITOR SHORTALL: All right.

MR. STRUDWICK: One more point of clarification is that this is an option. In other words, the professional doing the testing can go to 60 seconds if they need to.

MR. STEELNECK: Yes.

MR. HAYSLIP: Mike Hayslip with NESTI. I think Greg makes a good point, you have the option, but I would argue that makes it confusing. Pick one, pick the best one, go with it. Don't give the option. You confuse. The regulations are tough enough, there's so many other things we have to deal with over and above IH issues. Pick one, pick the best one, go with it. This option in, option out I think confuses at times too.

ACTING CHAIR BRODERICK: Very good. Tom Kavicky?

MR. KAVICKY: Tom Kavicky with the carpenters. I agree with Mike. It appears that we're confusing the standard. If an employer has the option to do a shorter, briefer test, I think that they're going to go that route.

ACTING CHAIR BRODERICK: Thank you. Any other questions or discussion?

MR. GILLEN: Matt Gillen with NIOSH. I just was going to add that I did ask our respirator folks to look at the protocol and to sort of give me their opinion if the protocol was sufficient to show that it was effective. And they did agree that that was the case.

ACTING CHAIR BRODERICK: Thank you. Michael? Any other comments or questions? If not, well, thank you for coming before us and giving us this information.

MS. JONES: Thank you for your valuable input. Appreciate it.

MR. STEELNECK: Thanks.

ACTING CHAIR BRODERICK: Well moving right along we have come to the time slot when this committee is going to have an opportunity to weigh in on the crane and derrick standard. And we have several time slots allocated for that. And we are allocating 15 minutes for each member of the committee to make those comments. And when that period is over, we will then have the ability to have a discussion. And I can imagine it will be a rather lively discussion. So without further ado let's go ahead and do we have volunteers? Tom? You look ready.

MR. KAVICKY: Thank you, Mr. Chairman.

ACTING CHAIR BRODERICK: Tom Kavicky.

MR. KAVICKY: Tom Kavicky with the United Brotherhood of Carpenters, employee representative of ACCSH. I think the panel that was tasked with this assignment did a superlative job. I don't want to take that away from them. They did a great job. It's great to see it being updated, or the chance to have the standard updated. I do have several concerns.

The accreditation of a qualification certification program, I'm a little confused. OSHA in all their rulemaking has never brought in, correct me if I'm wrong, any kind of accreditation program into the standard. Why we need to do that here I don't understand. I would want to know what makes this accreditation organization accredited. How will they deal with employers large and small as far as monitoring accreditation. I know that's just Option 1, but those are some of the issues and questions I have for that.

Also, looking at the certification and qualification, I noticed that there's not much clarification regarding the qualification or certification of an operator using a small DROT on a job site as opposed to a hammerhead crane or a 100-ton lattice boom with a luffing jib on it. There's no extra qualifications for an operator in one group as opposed to another. I'm wondering why grandfathering wasn't considered. We've got, speaking back in Chicago, the Operating Engineers 150 has what I consider a great program in place for qualifying their operators, and it's a labor management thing. And would that be grandfathered into this proposed rule? And I guess just why that may not have been considered.

Also, for signaling, the signaling qualification. Would apprenticeship and training programs, we've spent a lot of time and a lot of money, we've developed a lot of skills and testing for our signal persons on job sites. Would that program be grandfathered in or would we have new criteria for qualifying our people for signaling cranes?

Those are just a few of the comments and questions I had, Mr. Chairman. But again, just to reinforce, I think the group did a great job on the proposed rule. Thank you.

ACTING CHAIR BRODERICK: Thank you, Tom. Our new member to the committee, do you have comments?

MR. HAWKINS: Steve Hawkins with the Tennessee OSHA program. Just a couple of comments from our staff who looked at the rule in preparation for my being here at the meeting today in an attempt to represent other state OSHA programs. The one question I guess that I don't really understand and perhaps someone can explain it, of course the big thing is operator training. Our staff believes that there is definitely a need for a standard for training. We have investigated crane fatalities where untrained and unqualified operation of the equipment was a key factor in the accident. I did not understand the non-portability of the military certification because state OSHA programs generally don't have jurisdiction on a military site. Like in Tennessee we have several military sites. Federal OSHA has jurisdiction of those to the limited degree even that they have, and so why would we have the inclusion of military training and then say it's non-portable. I guess I would hope someone on this board could answer that so I could be better informed as to have an opinion on the standard.

And then the only other thing was we do still see, at least in our state, there are crane operators who are not able to read and write, and this requires of course written testing. And should there be language for those people that does clarify that that exam could be administered orally and the answers be given orally and that be satisfactory. Because I think there may be some employers in Tennessee at least, and I'm sure other states as well, that may see that as a hurdle. But while I believe that there are probably laws on the books now, ADA and otherwise, that would allow a person to do that, it seems that the language in the standard should be amended to clarify that you could give that test orally and respond orally. And I think that might be a problem for some of our employers in our state, and I'm sure other state plan states as well.

And then having made those two comments, having reviewed this, I'm very impressed with the content and absolutely do believe from an occupational safety and health standpoint that this standard is needed. And those are my comments, Mr. Chairman, thank you.

ACTING CHAIR BRODERICK: Thank you. This is the chairman. Just so that I understand, you Stew are taking notes, and each of these items will be addressed prior to us weighing in?

MR. BURKHAMMER: Yes, I'm taking, Stew Burkhammer, shorthand notes. I may have missed something, not on purpose, but I may miss something. So if you have a specific question, like the two of you had some specific questions, if you could give the chair just those questions written out and then Noah can review the questions and have the specific answers you all need for those questions rather than me trying to interpret my shorthand to him. I may miss something that you would want to hear. So it would be a lot easier for Noah if you all would give your questions, everybody, in writing to the chair at the end of the day or whenever you want to so I can give them to Noah so he can work on them this evening.

ACTING CHAIR BRODERICK: Steve, I do know that that issue has been an issue that has received much discussion, and sort of a point-counterpoint. The responsibility for operating a crane does carry with it some need to be able to read load charts and to use the manual, the operator manual, for that crane. So I think that we have to keep that in the back of our mind so that unless the company that is employing someone who is unable to read and write has a provision to have someone explain to that operator some of the language that's in the manual, if in fact the operator is stumped and has to refer to the manual, then that would make me feel better. But if we're talking about a person that would not be able to read any of the warnings or any of the other things that would be necessary for that person to safely conduct the functions of an operator, then I have a problem with that. So.

MR. HAWKINS: Well, I think my concern is not that you would have a person who was completely illiterate, but I do know we have a lot of people in construction who have a limited ability to read and write. And while sitting with the manual and saying, okay, I've been operating a crane for 20 years. I don't understand this one part right here and being able to refer to the manual, and you know, with time to read slowly or maybe get some help with a word or two, that person who might be very capable to operate a crane, very able to read the limited wording that's on most warning stickers that you see on a crane and that kind of thing might also have a problem with a sit-down, especially were it to be a timed test, might really struggle to complete that. And so I do agree with you, Mr. Chairman, about the ability to understand the warning stickers that might be on a crane, and also be able to read the operator's manual, and certainly critical that you be able to read the load grade chart, but that we actually might be talking about two different things. A person might have the ability to do that, but then if you say here's this written test, you've got 30 minutes to complete this, depending on the language of that test, that person might be a capable crane operator but might struggle with the test, especially if it were timed. I didn't see that it was a timed test, but I have a daughter trying to get into college, and the ACTs and SATs and talking to her, I understand that people struggle with timed tests. Not that I was thinking about that when I was reading this, but testing is a big deal at my house right now, so. Just wanted those points clarified. And I apologize for being a new member and not being as up on the discussions about these issues, you know. But being new I would like those questions answered.

ACTING CHAIR BRODERICK: Absolutely. They're important questions.

MR. HAWKINS: Thank you, Mr. Chair.

ACTING CHAIR BRODERICK: Thank you.

SOLICITOR SHORTALL: Can I make one clarification about the intersection of the OSH Act to the ADA?

ACTING CHAIR BRODERICK: Yes.

SOLICITOR SHORTALL: Okay. Mr. Hawkins, I'd like to make one comment about the intersection of the Occupational Safety and Health Act and its regulations and the Americans with Disabilities Act. Under the Americans with Disabilities Act the employer has a variety of defenses for why they may be doing an action which on its face may seem discriminatory. One of the defenses an employer has is that a federal regulation requires them to act in a discriminatory manner. If OSHA issues a regulation that says you must do something in a certain manner, then in essence it preempts the ADA. It's not going to be the opposite way, the ADA preempting the OSHA regulation. This is a little bit different because under the OSH Act Section 4(b)(1) usually says if there's another federal agency that has taken over responsibility for something and has exercised that authority statutorily, then they preempt OSHA. So this is sort of a reverse situation. So I wanted you to be aware that the ADA will not be preempting OSHA on the written exam situation.

MR. HAWKINS: Thank you.

ACTING CHAIR BRODERICK: Mr. Burkhammer?

MR. BURKHAMMER: The notes that Michael Buchet is putting up on the board are just to refresh all of our memories about items that have been discussed or things that have been brought up. So you can look at the board and tweak your memory about something that's already been done. Thank you.

ACTING CHAIR BRODERICK: Moving right along. Another new member on this committee, but one that feels I think to some of us like he's been here forever, Emmet Russell. And Emmet represents the operating engineers.

MR. RUSSELL: Good morning, Emmet Russell. I sat on the committee that actually put the document together, the negotiated rulemaking committee, and I have to say, the committee spent almost a year in lots of deliberations on putting the document together on each one of the issues. And I'd have to say I think the one main issue is if you were to look at cranes 20 - 30 years ago and cranes today, they're actually almost two different animals. Twenty or 30 years ago I'd say that the operator's main concern was turning the machine over. Now every machine is designed with failures where you can actually collapse the machine, you can turn the machine over. I think the other major item is that any crane, there's a liability issue in that if you were only concerned about the operator hurting himself by the lack of competence or the lack of ability or qualification, I think that's one issue. But clearly where you have a crane you have a risk to other construction workers, you have a risk to the public and you just have a lot of risk there that can't be negated or can't be looked at in a different manner. I think a lot of the OSHA standards relate to a worker and what that worker might do to his or herself.

But again, going through the document and the amount of time and energy the committee put in the document, I think you'll find that even the committee in some cases did not agree totally on everything, but I think as a consensus document clearly the committee came to a consensus as to what was best for the industry. And based on just a lot of discussion and a lot of deliberation, the end result you see here was what we felt as though was best for the industry. And again, I personally would like to say that I would hope that everyone would really look at everything that's in the document with an open mind, understanding a lot of the liabilities at hand with the crane operator and the fact that again, a crane operator has to know what they're doing. I think the time has gone where you can take for granted that a crane operator should know. Nowadays with the new cranes out there now, a crane operator has to know. So again, my recommendation is that the committee was professionals from the industry, and my recommendation is that the document be accepted as is.

ACTING CHAIR BRODERICK: Thank you very much, Emmet. Greg?

MR. STRUDWICK: Greg Strudwick, and associated very closely with NUCA, the National Utility Contractors Association. Been a member for 21 years. And also in the same 21 years been a member of AGC. And I can appreciate the employers' concerns as far as the accreditation of the training, their concerns as far as the grandfathering of current operators that feel very qualified. I've operated a crane myself and the way I learned to do that is that it just started to tip and I started to feel a certain twinge, on parts of my body I stopped the lift, okay. And that's not something that we want to see continued.

And the literacy as far as being able to read is important. I think that there are people out there that can be coached honestly because I do that. I mean, a lot of manner, in a lot of ways in a lot of different venues as far as training is concerned that can honestly learn and absorb new material and be able to pass a comprehensive test that will allow them to operate a crane safely among the group of workers they're probably operating cranes among right now. And so what I'd like to see is a controversy turned into clarification. And I think a lot of the questions that come up in our committee meeting will entice us to listen a little more closely when we start to represent the American worker, not just the American worker, because a lot of people in the world listen to what we do here in this meeting and follow suit in a lot of cases. I mean, we're just setting the standard and the pace.

And what happens in the future, I don't want to see another incident like that happened at Miller Park in the late `90s where we have a crane that has a huge capacity that supposedly can't fail to fall and have three employees killed in the process, and would have been more had there been people working under that lift. And so I am of the opinion that we need to go forward with this. I think we need to listen. I think we need to talk. I think we need to make a lot of clarification about some of the reasons that accreditation is necessary. I'd like to see a roadmap to accreditation. I'd like to see the number of different organizations that are going to be involved in accreditation. I want to know who, if that auditor comes into an employer, and the employer or the accredited program is in violation, is he going to be able to shut it down, or is he going to be able to revisit. So I'm kind of like you, Tom. You know, there's a lot of things I have questions about, but it's not just me, it's everybody. And I think that this process is necessary. I think that the group that has been working on this for so long deserves a round of applause in my opinion, in my heart. Because the very first meeting five years ago that I attended in December, Jim Ahearn got up and made a comment about trying to get consensus in a group where consensus is typical and still couldn't come up with it. And we did not honestly accredit their recommendations. We just passed it along as a living document. And if you go back and review those recordings or transcripts, you're going to find out that it's been a tough road to hoe all the way up. And honestly it needs to stop. And we need to go forward, and if some of it is not acceptable to some groups, then you know, so be it. But I'm one that would very much like to see this move forward in a manner that makes everybody lean more towards a consensus and an agreement that it's necessary. That's my comment.

ACTING CHAIR BRODERICK: Thank you, Greg. Matt?

MR. GILLEN: Okay. I'd like to hand out this NIOSH alert on preventing worker injuries and deaths on crane tipovers, boom collapse and uncontrolled hoisted loads to the members. NIOSH has some safety researchers at our Division of Safety Research. We've been looking at crane issues. Basically they've been looking at the fatality cases involving cranes over the past few years. I believe they actually did make a presentation to the C-DAC committee back in February. And there was one issue that they asked me to reiterate here today.

This alert, hopefully people will find that it is a good general overview of crane issues. It has a tear-out sort of piece that we can use as well for training and for worker refresher issues. And it provides targeted recommendations to workers, to riggers, to crane rental folks. I'd like to draw your attention to Page 4. The one issue that NIOSH would like to raise is this issue of critical lifts. And this has been an issue where certain types of hoisting operations that require special considerations to ensure worker safety. Basically it identifies hoisting operations for which the margin for error is reduced. And we list several examples there. We also say the definition is now as important as the planning necessary to safely perform the lifts. Defining something like this, you know, it could involve quite a few types of scenarios, but here's some of them. For example, where the weight of the hoisted load approaches the crane's maximum capacity, where two or more cranes simultaneously lift the same load, where personnel are being hoisted, where non-standard or specially modified crane configurations are being used, or where there are special hazards associated with the lift, and some examples are given.

The basic concern about critical lifts is because of the fact that some of the ratings for the cranes are based on the crane operation under ideal conditions and that additional loads may be imposed on the crane by other factors present in the work environment. And so that when a hoisted load exceeds 85 percent to 90 percent of the rated capacity, there's not much reserve left to counter unanticipated loads. And the idea of critical lifts following an engineered lift plan based on a comprehensive evaluation of the most accurate information available for all factors affecting the crane's stability. And several federal agencies require written lift plans for critical lifts conducted under their jurisdiction, such as the Army Corps of Engineers, Department of Energy, NASA and the U.S. Navy. So we wanted to bring this concept up once more.

I believe that the standard probably addresses some of these issues, but I guess the question would be does the proposal address some of the issues and precautions related to critical lifts would be the question that we would pose and see if there's agreement that this is an important issue.

MR. KAVICKY: Thank you, Matt. Kevin?

SOLICITOR SHORTALL: Mr. Chair, before Kevin starts his comments, I'd like to mark as Exhibit 9 the NIOSH Alert Preventing Worker Injuries and Deaths from Local Crane Tipovers, Boom Collapse and Uncontrolled Hoisted Loads so it can be entered into the record.

(Whereupon, the above-referred to document was marked as ACCSH Exhibit No. 9 for identification.)

MR. KAVICKY: Thank you.

MR. BEAUREGARD: Kevin Beauregard, North Carolina Department of Labor. First I'd like to concur with a lot of the previous ACCSH members in that I know a lot of work went into this product. I sat on that committee with Jim Ahearn years ago, and a lot of the people that I think are on the C-DAC consensus committee also served on that committee and I know they not only put time on the C-DAC committee but they put time in before that. And the areas that were contentious back then are the same areas that are contentious now, primarily the operator qualifications and the certification issues. And I know that for a fact because that's the section I worked on, and I spent a lot of time talking to people on that. But overall I think the document is very good. I commend the group for putting together a draft standard in a very quick period of time. They put it together in about 12 months, I believe. And OSHA has gone through the review process fairly quickly as well. And I also recommend that the group go forward with the standard. However, I do have a couple of issues that I wanted to bring up after reviewing the standard.

And the first one comes from the standpoint of someone that's going to be administering this standard or enforcing this standard, and it's a very comprehensive standard. And when it goes into effect, I think there needs to be an ample amount of time for both employers and compliance entities to get their own staff up to speed on the standard before it goes into an immediate enforcement mode. It's much lengthier than many of the standards that have come out in the past, and I think it's going to take some time to go through that with the staffs of the OSHA program as well as the employers out in the workforce.

Secondly, there is a section in the standard that addresses fall protection, particularly in the assembly and disassembly section. And there's two different fall heights in there. There's a 15-foot fall height and there's a six-foot fall height. And as someone who is really wanting to get the standards to be more in line so there's not a bunch of different fall heights requirements, we already have a lot of different fall height requirements out there. I would hope that at some point in time it is considered and looked at to standardize that and make it one or the other, or something similar to some of the other OSHA standards. Because right now you've got a six-foot fall, you have a 15-foot fall, you've got a 10-foot fall, you've got a 25-foot fall, and I think that's very confusing for employers, I think it's very confusing for employees and I think it's confusing for the people that enforce the requirements.

The other thing that I would address somehow, and I don't think this needs to be addressed in the standard per se, but I would encourage that OSHA, the state plan states and government entities work together on some type of memorandum of understanding where if there is a licensing procedure or an accreditation process, that they have a reciprocal agreement. Because again, I think it's going to be confusing if the State of North Carolina accredits or issues a license for an operator that operates in six different states, but it's only good in North Carolina. Then that person's going to have to go in and get training in Tennessee, or Georgia, or wherever else they're operating. And so if there's minimal requirements that everybody can agree upon, in the MOU I think it would probably be in the better interest of everybody to do that. And I also know that a lot of states don't have licensing programs, so I'd like to accept one. If Tennessee has a good program and they've issued a license, I'd like to accept that in the State of North Carolina as opposed to saying that it's only good in Tennessee.

And the final thing I want to bring up is it's my recollection, just like Member Steve Hawkins, that we have had a number of accidents and fatalities associated with cranes in our state, and that there's various contributing factors, but one of the things that we have found in the past is that visual acuity is one of those factors. And I know there's no physical requirement in the standard, but I think there should be some type of minimum requirement of vision established because it's kind of scary to me that the standard doesn't address that somebody actually has to be able to see at a certain level to be a crane operator. The other physical issues I think can probably be overcome, but the issue of vision is a concern to me because I know that we have had issues where that has been the issue associated with an accident or fatality in our state.

And with that being said, again I just want to commend the group for putting together a well thought out standard. I do think it's a good idea to have a comprehensive crane standard in effect and a lot of work went into it. And I know not everybody's going to agree on every little item that's in it, but overall as a whole I think everybody would probably agree that it's a very good standard.

ACTING CHAIR BRODERICK: Thank you. Mike?

MR. THIBODEAUX: Mike Thibodeaux, Lennar Corporation, National Association of Homebuilders. I talked with a number of the folks who were on this C-DAC group putting this together, and I know they did a lot of hard work and they did a great job in putting this together and something that we in construction really need. And some of my comments are going to repeat what some of the other ACCSH members have said, and I have a few other items that I'd like to bring up also.

Obviously the training certification is one issue that I think everyone's mentioned and the portability of that certification. Why isn't there a "grandfather clause." Maybe someone who's been operating a crane for five years, you know, what kind of crane have they been operating, have they had any incidents or accidents that have occurred during that period of time. What about the employer that that person's been working for. What accidents or injuries have they had over that period of time, whatever that period is. I'm just making this suggestion. Those kinds of things, you know, I think are something that we need to look at to see whether that is feasible because we've had folks operating cranes over the last, as Emmet said, 20 - 30 years. Those cranes have changed. They've been retrained in the new cranes and operations and maybe there's something that we can utilize all of the work that they've done over these years and if they've done it safely, and maybe have a more condensed or not the full-blown certification that's shown here.

Secondly, you know, is this certification broken down, is it just one standard for all cranes, or is it broken down by size of crane, type of crane? Because operating a cherry-picker on a homebuilding site is a lot different than operating a barge crane or a tower crane, obviously. Another thing, since about 80 percent of our quarter of a million members are small businesses, is the cost of this training, and I've heard, you know, I saw that OSHA said it's $2,900 and Linwood in his comments said it was over $5,000. You know, which of those costs is realistic? I don't know, but that's something that I would assume that the SBREFA panel will address and suggest that OSHA look at that very closely.

Also, the auditors. You know, and it says auditors shall certify the employer's training program to make sure that they're following it properly and they're doing it properly, et cetera. Who are the auditors? Where do they come from? Are there going to be enough to be able to certify timely the employers who have a good training program or a bad training program? What is the time period from the time that, you know, hey I've got to have these guys certified by X date, and I'm ready to do this next week, how about you? Well, I can't get to you for six months. Again, at least I didn't see, and maybe I missed it, the number of incidents, actually fatalities, involving licensed or trained operators versus unlicensed, untrained operators. I don't know if that data is available, but I would think it should be.

I noted in the document that it talked about residential construction doesn't rent or lease cranes for their operations. And that's not, you know, it said there's 168 companies that have their own cranes in residential construction, but it says we don't rent or lease and that's not entirely correct because that's what we do quite often. It may not be for a long period of time. It may be for half a day or an entire day. But mainly in trussing operations and lifting other heavier loads at homebuilding sites. So it looks like that area may have been overlooked.

And there was one issue concerning the controlling entity that I had a question about. In saying the controlling entity, whoever's responsible for preparing the ground where a crane is going to be used. And I don't know how it is with other companies, but in homebuilding we hire or lease the cranes, and we expect that crane operator to tell us what they need, and then we can respond to it. I don't know of any of our guys, and I may be wrong about that, very few, would know exactly what the crane needs are and the crane operator's needs are from that standpoint. So yes, somebody needs to make that determination and somebody has to have that responsibility, but I'm not certain that we as residential builders are qualified to say, all right, here's what you need for this crane, just pull it up there. I don't think that was the intent of the statement there, but that's the way I would.

And again, I want to reiterate that I think this overall is a very good document. It's needed. I think this negotiated rulemaking is probably a very good way to go because you get all the folks involved, and as you said Greg, not all of them always come up with a consensus of what is the right thing to do, but I think this is a lot easier and better way to reach a standard, especially for cranes and derricks that are so detailed and so technical. And I think they've done an excellent job.

ACTING CHAIR BRODERICK: Thank you, Mike.

MR. THIBODEAUX: You bet.

ACTING CHAIR BRODERICK: The other Michael.

MR. HAYSLIP: Thank you, Mr. Chair. I believe I can be brief. Mike Hayslip, NESTI. I want to comment first, superior work. I serve on ANSI A10 committee, so I appreciate when Emmet's saying that this was a consensual byproduct, that means something. There is a lot of effort to that and I'll conclude with that thought as I continue on.

In reading Linwood's letter and others, I share those thoughts and concerns. In the interest of time, to be brief, not to say that those aren't some of my primary concerns, but I'm going to skip over those because they've already been mentioned. We can address them at a later time. Some of the stuff I intend to mention isn't necessarily primary as what Linwood's comments were.

Moving on. I think Thomas brings up a good point and Mike also in that there's different types of cranes. For instance, the guy that is unloading the trusses has a different need and setup requirement versus the guy that's going to ultimately install it. I think there may be a difference between the delivery person and the construction crane, if you will. And I think that goes along.

In Section 1402 it talks about firmness of the ground. It's a reasonableness standard, if you will. I think that makes sense, that's a good thing, but I think there should be some accountability appointed to that, that perhaps we should say and assign a competent person or someone's duty to say it's firm. Granted, it's got to be firm, but we don't necessarily through the standard say who's to make that call, that decision. I think in part that puts a supreme burden on a lot of generals and in some cases homebuilders that they assume a lot of burden that is over the top.

Comment. It's unfortunate, and I understand that's the way it is, with the standard that people can't read. There's several people that will test out, and if they won't be able to be crane operators anymore. And in part that may be a good thing. However, I fear and I'm concerned that the problem is we may lose a lot of institutional knowledge. There's a lot of good operators that may not be able to pass a written test which is unfortunate. There's a huge difference. In working in heavy marine construction, when you're making a lift on a barge, it's not the same thing as lifting on dry ground. If we lose that operator with that skill, who teaches our young and upcoming operators?

A question about the relationship with (b)30.5 standard. I'd like some insight that someone looked at it and discussed it, whether it happens to be the 1968 version or this new 1995 version, and I'd like a little comparison and contrasting with respect to two items. One is physicals, what is included in (b)30.5 which may not be included in the standard, why. Color-blindness, et cetera, and others which have been mentioned. Also with respect to inspections, distinguishing between the monthly and the daily inspections. But I'd like a little bit of lookback on what was done, compare and contrast with the (b)30.5 ANSI standard.

Concern about who's going to certify or accredit these people. I don't know. I'm not looking to put a stick into somebody's cage, but I wonder if there will be any grant opportunities to get some of these people up and running. It seems to me that it could be a very expensive process to be a certifier, for lack of a better term. Is OSHA willing or the government willing to help some of these people get up to speed? There's only one dog in the hunt. They can ultimately perhaps control who gets tested and when. I tend to think that people will wait. They'll wait, wait, wait, see what their brethren are doing. They're all going to wait until the last minute. All of a sudden a big rush, we need it now, and I don't think the marketplace is going to be adequately served when the time comes, potentially.

In Section 1433 on Page 86 of our handout, Section 7(b) talks about a 200-pound rate for the cab. I'm not sure OSHA needs to be in that area. Maybe they should just say manufacturer's recommendations. Make it more performance-based than put a 250-pound.

Having said that, and I have a few other things which I'm going to put aside for now, I agree strongly with some of what Emmet said. There is a point where you need to get and go, and it is consensual. Sometimes you don't want to always know what goes into the sausage. This has been a result of some tradeoffs which we are not privy to, I am not privy to, and I respect that. I respect what the committee's best efforts were. It's unfortunate that in this world of regulation and the way OSHA does business we can't just throw it out there and modify it easily after. We know we have a learning curve. That's unfortunate. I would not like to see my comments or others' used in order to delay the process. If they help, good. We're close, let's push it through is my thought. Thank you.

ACTING CHAIR BRODERICK: Thank you, Michael and I appreciate that last comment a great deal, and I think I saw a couple of heads nod up and down. And I will now exercise the bully pulpit here and make a couple of brief comments.

First and foremost I think we all can agree it's about time. We've gone for so many years with an antiquated crane standard and we went to the industry and said we want a change, we want a new standard. We found a group of people that were willing to give a year of their lives to meet and grind through a process that after SENRAC we all knew was not exactly a walk in the park. And I think that they have done an incredible job. And I look at my copy of it, all dog-eared and notes in the margin and so forth and I'm just impressed with the degree of detail that went into this. And I agree with Mike, I'm sure there were deals cut to arrive at some of the language that we have, but all in all I think it is an excellent standard.

A couple of the things that in my career I know to be very important: power lines. The inexcusable persistence of horrendous electrocution accidents where people contact power lines. I think the standard will go a long way to addressing that. And the amount of detail that went into addressing power line contacts and the number of places in the standard that draw attention to power line contacts as being a priority down to the learners in the seat or the apprentices not being allowed to make picks in an area where an experienced operator would. There's just an incredible amount of intuitive thinking that went into some of these parts of the standard and for that I'm very, very thankful and I think there will be generations of people who both run cranes and work in proximity to cranes that will be thankful that this time was taken and the standard was developed.

The issue of breaking versus tipping is one that I think we all are familiar with. And we run into people who are powerful voices sometimes in a certain area, or maybe even in a segment of the industry that harken back to a day when cranes were indeed built without much regard for the weight of the machine and the amount of steel that went into it. And unfortunately that thinking that the operator who knows how to run a crane by the seat of their pants is someone who should be held up as the model operator, we have to get beyond that. Because operating a rig by the seat of their pants indicates that they know when they have a larger weight on the hook than the crane can take because the back of the crane begins to get light. And I notice in here we can't use bulldozers anymore for counterweights.

(Laughter.)

ACTING CHAIR BRODERICK: But these new cranes will indeed break. And even large and mighty cranes as we did see up in Milwaukee at Miller Park can break and have terrible consequences. I think that all these things that have been critical to the lives of those who operate the equipment, those who rig the equipment and make a living using the equipment, and then those in the public as has been stated before, and those who are just on a job site where there is a crane are going to benefit from this standard. So I want to echo those comments from my colleagues that said this is not a perfect standard. There probably is no such thing nor will there ever be such thing as a perfect standard. But this is close enough to it, in Tom Broderick's way of thinking, to say let's jolly well get on with it. Thank you.

So with that I believe this, unless you on the committee, my brethren on the committee would like another bite at the apple, this is in fact our committee comment period. And the next part of the process will be to have the agency come back and respond to our comments, and in particular we were asked to jot them down and give them to Stew so that Stew and Michael and Noah and the staff will be able to come back and address them. So I know a few of you said that these were some of your comments, indicating maybe you have held back. I just want to make sure that we're crystal clear here that other than having a discussion, this is the time to make sure that you've gone on record with your comments. So does anyone else have? Okay, very good.

MR. STRUDWICK: One small, minor comment. Just to add to mine if I wasn't clear, but in my canvassing of the members of NUCA last week in Keystone, Colorado where I was having a hard time breathing anyway, most of those are associated with small or are small contractors, and a lot of what happens as far as crane service is supplied by a vendor or an outside source. I just got off the phone an hour ago with a contractor that's a $200 million to $300 million contractor, and when it becomes a critical lift situation they hire it done. And so I just wanted to make sure that small entities in most cases including myself over a period of time don't try to accomplish a critical lift on our own. We normally bring in the professionals from the outside. That's it, Tom.

ACTING CHAIR BRODERICK: Thank you very much. Well after advice from the co-chair, I am given permission to turn us all loose for an hour and a half lunch break. And we will reconvene back here at 1:00 o'clock.

(Whereupon, the foregoing matter went off the record at 11:34 a.m. and went back on the record at 1:07 p.m.)

ACTING CHAIR BRODERICK: I will make my impassioned plea one more time. Thus far there are but three people, four people, five people, that have signed up to make public comment. And I would encourage those of you who would like to do that on the C-DAC issue to try to do it today. We're going to have - we've lengthened the comment period and I, just judging from having been on this committee for awhile, believe that you would get the biggest bang for your constituents and your own personal buck for weighing in on these issues today. But you're perfectly welcome to wait until the end of the meeting or towards the end of the meeting tomorrow. It's your choice. But if you do intend to make comments, please sign the sheet out in the hall.

And with that I'll look to my right. Mr. Burkhammer, do you have any?

MR. BUCHET: Excuse me, Mr. Chair. They may also sign up and speak again tomorrow.

ACTING CHAIR BRODERICK: They may as well speak a second time tomorrow or not speak until tomorrow. Do you have anything for us?

MR. BURKHAMMER: No, I do not.

ACTING CHAIR BRODERICK: We're ready? Okay. What we're going to do, what we have done is taken some questions that have come in already from the members of the committee and these will be submitted to the agency for their response this evening or early tomorrow morning to get back with us. We also thought that these questions would provide some good fodder for us for discussion right now. Because if there's questions that you had, maybe there's some issues in here that would support our discussion over the next couple of hours. So I think that, is this the first one Michael? Where's Michael? There you are.

MR. BUCHET: Yes. No particular order because I just typed them as I go.

ACTING CHAIR BRODERICK: Okay, so we're not going to attempt to go through in the order that they appear in the standard?

MR. BUCHET: Not unless you would like to arrange them that way. But may I make a suggestion that we do a topic called training, a topic called certification, and the standard number doesn't make much difference at this point.

ACTING CHAIR BRODERICK: Okay. Then I would suggest, Michael, that you help us by having had the luxury of reviewing the questions as you typed and go ahead and present them in that order.

MR. BUCHET: That'll take me awhile because I didn't order them. I simply typed them in.

ACTING CHAIR BRODERICK: Well, why don't we do this. Why don't we start off with accreditation, training, and so forth, and that is the first one, and the second one, and the third one, and the fourth one. Perhaps we don't have as many different parts of the standard to fret about as we thought.

MR. BUCHET: Well, these are organized according to the people who submitted them. I believe everybody else thought that there was going to be an opportunity later to write questions down. So if somebody wants to jump in, let's just take clarification for accreditation, and we can type some more questions in there.

MR. BURKHAMMER: Right. Any of you that want to add a question as you're going through here, Michael can type them.

MR. BUCHET: And that way we'll come up with a topic.

ACTING CHAIR BRODERICK: Tom Kavicky, you wrote this. Clarification of accreditation of the qualification certification program and how will it work. The agency is being asked to explain who will monitor the accreditation process and how will the process be implemented. I'm not going to answer that at the moment. Does anybody have an additional question on that topic that we can add to this subcategory? I think we've got some from Mr. Thibodeaux that we could stick up there if we want. So to boil this one down, we're saying that the proposed language that you all have read is too general, a little vague, or we're looking for more specifics. Is that? I'm not moderating the discussion here. You guys can come up with your own.

MR. THIBODEAUX: Yes, more specifics.

ACTING CHAIR BRODERICK: All right. ACCSH would like to see - anybody that types better than me is welcome to come up here and do this. What sort of specifics are we looking for? The accreditation process, are you asking OSHA is this an OSHA accreditation process? Is that a question?

MR. STRUDWICK: No, I think in my reference to a roadmap is how the accreditation process will work for outside providers. In other words, say another educational institution, how did they become accredited. Is it just ANSI? Is it who is going to actually do the accreditation of the entities that will provide the training or of the in-house training program that may be used that's not portable.

ACTING CHAIR BRODERICK: Tom Broderick. I think that that is a question that I had as well because it alludes to auditors who would be available to employers to verify their examination based on the criteria given. But right now I'm not aware of the existence of those folks. I think that the auditors, the accreditors are an accrediting body that would take an application from a group like CCO and do their due diligence to ascertain that the test meets the rigorous standards that a test should meet. So I think that we're looking for where do the auditors come from. Is that?

MR. STRUDWICK: Well, the auditors and third party entities.

MR. BUCHET: The roadmap question I guess is also about the levels of types of people involved in the process. There are trainers, then there is some kind of validation of the training material maybe, then there is some kind of appraisal of the results of the training, that is test the operator.

MR. STRUDWICK: - there are two different entities. In other words the training entity is one, the test group's another.

MR. BUCHET: Test group is another one. How does the test group get its test protocols accredited?

MR. STRUDWICK: Exactly.

MR. BUCHET: Okay, I like the roadmap.

ACTING CHAIR BRODERICK: Anybody else? Does anyone else have any thoughts along those lines?

MR. BUCHET: Next one concerns regarding levels of training certification of the operator. Is an operator that is running a DROT moving materials as skilled as the operator running - tell me if I'm wrong Tom. The operator running the hammerhead crane as an operator running a multi-hundred ton lattice boom crane.

ACTING CHAIR BRODERICK: You could remove the second "the operator."

MR. BEAUREGARD: Yes.

MR. BUCHET: There we go.

ACTING CHAIR BRODERICK: And - Tom Broderick. I believe for our discussions that my understanding is that the certification process that we understand is in existence now, the CCO exam, does have different types of machines, and so a small machine. And when you say DROT, you're talking about the forklift that has an extendable boom so it can either be used as a forklift or as a -

MR. KAVICKY: No. A DROT in our neck of the woods is a mobile crane, small mobile crane used for going up to the yard, getting material, bringing it back on a small basis.

ACTING CHAIR BRODERICK: Okay.

MR. KAVICKY: That small, little, mobile crane capable of lifting less than 5,000 pounds, is that operator qualified to go to a hammerhead.

ACTING CHAIR BRODERICK: No. I mean, the answer would be no.

MR. STRUDWICK: You need to clarify hammerhead as far as the crane itself.

MR. KAVICKY: Tower crane.

MR. STRUDWICK: Tower crane, okay.

MR. BUCHET: Tower crane with a counterweight on one jib and a trolley on the other because you have nothing -

SOLICITOR SHORTALL: So is the question you're asking in general terms: is an operator who's certified in operating one type of crane, is that certification portable to another type of crane.

MR. KAVICKY: Exactly.

SOLICITOR SHORTALL: So short of general, is that what you're trying to get, a general question?

MR. KAVICKY: Yes.

SOLICITOR SHORTALL: And then using that as the example?

MR. KAVICKY: Yes.

ACTING CHAIR BRODERICK: Kevin?

MR. BEAUREGARD: I'm not going to attempt to answer those questions and certainly I guess the Directorate of Construction will, but I think in the certification section, in the training section it refers you back. If you go to the training section of the proposed standard it refers you back to the certification section. And when it starts talking about a written test, I think it indicates in there it needs to be specific to the type of crane that you're operating, so I would think it would be different. If you're going to be operating a bunch of different cranes then you need to get training on a bunch of different cranes. If you're only going to be operating one specific type of crane then I think that's all the training has to include. I didn't write it so I'm not sure if that's what it means, but that's How it reads to me.

MR. STRUDWICK: And just to follow up on Kevin, and that's consistent in, say, the forklift training standard, okay? The type of machine trained on is the type of machine that you're accredited to operate.

ACTING CHAIR BRODERICK: And I think we'll hear in public comment some more with more specificity the CCO scheme, but my understanding is that it does differentiate between hydraulic cranes and lattice boom cranes and different sizes from a very large rig down to the small carry-deck. There are different examinations for those different levels and because a person was certified to run a small hydraulic crane, they would not then have a certificate that would say they were able to use a large lattice boom crane, for instance, nor would an overhead crane operator, like a bridge crane or an overhead crane, be able to, with the certification for that, get into or operate and have the certification cover a lattice boom crane or a hydraulic crane. So there is some specificity within that particular certification program.

MR. KAVICKY: Tom Kavicky. I didn't read that. I was looking at OSHA seeing training as size/type/configuration-specific.

MR. BUCHET: Mike Buchet. Certainly the committee can add that in its recommendations. I mean, you ask the question today. Get a chance to think about the answer when the answer is presented tomorrow. And then when you deliberate about what the wording of your recommendations are, that could be one of them.

SOLICITOR SHORTALL: As a global issue, I think. I'm not even sure I picked that up with your last question, Mike. Maybe adding it.

MR. BUCHET: No, these aren't Mike's questions. These are Tom's.

SOLICITOR SHORTALL: I mean, your interpretation of Mike's question. Maybe adding a parentheses that says portability of training to other types of cranes is what he seems to be addressing.

MR. BUCHET: No. The portability issue is the ability to take the licensing from one jurisdiction to another.

SOLICITOR SHORTALL: No, that's absolutely true, but what he is asking about is portability to take the training he receives to one type of crane and apply it to another.

MR. BUCHET: That's size, type and configuration-specific training. The use of portability there is going to confuse the issue. Portability is the ability to take a New York license and move it across the state lines.

SOLICITOR SHORTALL: That is one way to use it, but it's not exclusively.

ACTING CHAIR BRODERICK: I think the next question about grandfathering is one that we could beat to death and we're not going to. That's a question that's going to have to come from OSHA. Certainly I didn't see in my read of the proposed rule that there was any provision for grandfathering. And if the committee wishes to make a recommendation along those lines to the agency to consider that, then we can do that.

MR. BUCHET: Signaling qualification. Will current international - and this international doesn't mean frank border, it means international union?

MR. KAVICKY: Correct.

MR. BUCHET: Skills and safety training for signal persons be acceptable, and another grandfathering issue. But there are two parts to this. One, will it be acceptable, and the other one, will it be grandfathered in.

ACTING CHAIR BRODERICK: Tom Broderick here. The training is only an issue around how workers become acclimated with a standard set of signals. So I think we're operating from a given set of hand signals for a lattice boom crane and a hydraulic crane has some unique features, obviously, and it has some unique signals for it. But I don't think that the agency is going down the road of allowing people to come up with new signals unless they fall into that category of new signals that, as I read it, would be required because of a technology that the existing signals would not cover. So I don't know that the agency is trying to prescribe what that training would look like to get people to be able to utilize the set of hand signals that are given now. We didn't have any of the artwork dropped into this draft, but I'm guessing that one of the pieces of artwork would be the ANSI hand signal chart. And that would be a question for us to ask.

MR. KAVICKY: Tom Kavicky. I guess my question, Tom, is it talks about a third party qualifier evaluator in the standard, in the proposed rule. Who is that? And are they going to take a look at the current programs that are out there and say yea or nay? Who's the third party qualifier?

MR. RUSSELL: The signal for the signal person?

MR. KAVICKY: Yes.

MR. RUSSELL: In the standard it's the employer. The employer actually has the responsibility of training and qualifying the signal person.

ACTING CHAIR BRODERICK: That's Option 2.

MR. KAVICKY: That's Option 2, Emmet.

MR. STRUDWICK: Well, I think - this is Greg Strudwick. I think the question, Tom, is the same question I'm having about auditors. Is this the same guy? A very similar guy? Or can this be a third party individual that's specialized in signaling, you know, and not accredited through the agency that accredits the training program or the testing program. So who can that be? Now the second option is the employer option that Emmet referred to.

MR. RUSSELL: The first option could be, for instance, your training program. It could be any amount of different entities that would actually train and qualify a signal person. But the end result is that this is just to make sure that the person can properly signal the crane to avoid accidents. And the standard is mandating that a person be trained before they can signal the crane. That was the result. We just had a couple of steps on how you could possibly get there.

MR. KAVICKY: Tom Kavicky again. I apologize, you know, for my comments from the standpoint I wasn't involved in the committee negotiating. And when I see third party, I question who this third party is.

MR. RUSSELL: It can be a union, it could be someone that the employer might invite in to actually train their signal people.

MR. KAVICKY: Okay. That's acceptable, thank you.

ACTING CHAIR BRODERICK: So it is not the same credentialing body that we're talking about for operator certification?

MR. RUSSELL: You're right. That's two separate, completely different, independent things.

ACTING CHAIR BRODERICK: Good. Okay, I think we cleared that up.

MR. BUCHET: If we look at this last sentence, is that going to capture what you want the agency to talk about tomorrow when Noah comments?

MR. KAVICKY: Based on - Tom Kavicky. Based on what Emmet just said, our international could be the third party or the - looking at the big picture, the training centers across the country could be the third party and that would be acceptable.

MR. BUCHET: I know, but I have no way of knowing if that's what the agency is thinking. So do you want to ask Noah if he can answer that question tomorrow?

MR. KAVICKY: Sure, yes. I would like the clarification.

MR. BUCHET: All right, now we move on to Kevin Beauregard's questions. Not to leave you cold after lunch, but what is the different of cold as it refers to proximity of approaching minimum distance to power lines. Good question.

MR. BEAUREGARD: It should be "could."

MR. BUCHET: Oh, "could"?

(Laughter)

MR. BUCHET: Well, I consulted with NIOSH on that. Okay.

MR. BEAUREGARD: And - this is Kevin Beauregard. If I could just clarify on that, coming from a state plan program that will be enforcing these requirements, whenever we see language such as "could" or "should" it immediately sends up red flags to us as an enforcement agency because it sometimes leads to different interpretations depending on who's saying it. And if you look at Section 1407(a), Section 1407(a)(3)(ii) or even going into 1408 where it's talking about power line safety crane operations, it uses language in all three of those areas that basically says you need to determine whether or not part of the crane load line or load, if operated up to the crane's maximum working radius in the work zone, could get within 20 feet. And I just wanted to see if there was any definition of "could" because when we go out on site I'm sure that we're going to hear a lot of different interpretations from the employer as to whether or not they think it could have gotten into the working lines or not.

MR. BUCHET: How about this? Or even "should."

SOLICITOR SHORTALL: How about cold? Michael?

MR. BUCHET: Yes.

SOLICITOR SHORTALL: On the reference to Section 1407, would you please add after that (a)(ii) so Noah will know the specific reference?

MR. BEAUREGARD: It's actually 1407(a)(3)(ii).

SOLICITOR SHORTALL: (a)(3)(ii).

MR. BEAUREGARD: It's also found in 1407(a)(2).

MR. HAWKINS: This is Steve Hawkins. Just to add to what Kevin said, I can certainly hear the answer when we might ask a crane operator or an employer if the crane could get into the line from where he's at. And an answer I absolutely know we might hear is no, it can't because I'm not going to do that. And so I really do appreciate the clarification there from a regulatory standpoint. The word needs to probably be "possible." Is it possible given the configuration of the crane, the radius, and so forth, as opposed to "could." Because we'd have an operator that would certainly say well it can't get that close because I'm not going to get that close, and that's really not what we're looking for.

MR. RUSSELL: Well, you know, just one caution. Be aware that this section deals with assembly and disassembly and not the operation of a crane that's fully erected. So two different things. But I just want to raise that issue.

MR. BEAUREGARD: Well, that is true, I think 1407 does, but I believe 1408 deals with crane operations. They both have the same language.

ACTING CHAIR BRODERICK: And also, in 1407(a) itself the word "could" appears.

MR. BUCHET: Why don't I just leave it as (a). Where in 1408? Same place, (a)?

MR. BEAUREGARD: I found it in 1408(a)(2), yes, 1408(a)(2).

MR. BUCHET: I'm just going to leave it like that. That'll point him in the right direction.

MR. STRUDWICK: I think you need to add, just for clarification, (a)(1)(ii). In other words, the 360 degrees as the work zone around the crane. Define work zone as the area 360 degrees around the crane up to the crane's maximum working radius. It's just before (2).

MR. BUCHET: Hang on a second. In Section what?

MR. STRUDWICK: 1408, it's just 1408(a)(1)(ii). The paragraph is (ii). It's the last paragraph before (2) starts.

MR. BUCHET: The 360 degrees around crane at maximum working radius.

MR. STRUDWICK: The way it reads is define the work zone as the area 360 degrees around the crane up to the crane's maximum working radius, and then (2), determine if any part of the crane, load line or load, including rigging or lifting accessories, if operated to the crane's maximum working radius in the work zone would get within 20 feet of the power line. So you're just clarifying working radius is all you're doing. That gives Noah something to look at to answer to.

MR. BUCHET: Okay.

MR. STRUDWICK: I can see someone operating a crane with a counterweight within 20 feet saying there's no way, you know, I'm 90 feet away.

MR. BUCHET: Section 1402 outlines requirements for the controlling entity in regards to ground conditions. Will OSHA determine who the controlling entity is in the same manner outlined in the OSHA Multi-Employer Work Site Policy. Good question for Noah. Good question for this committee because this committee worked on the definition of - or the Multi-Employer Work Site Policy years ago. Any more questions?

ACTING CHAIR BRODERICK: I guess before we get away from that, does anyone on the committee have some thoughts? Ground conditions were a big factor in the steel erection standard if you'll recall.

SOLICITOR SHORTALL: Mike, would a question arising out of yours be should the definition of controlling entity change or be differently defined depending on whether a builder is renting or owns a crane?

MR. THIBODEAUX: That would, yes, Mike Thibodeaux. That would be a delineation because if they own the crane, then they are, you know, the knowledgeable person. But where I'm bringing the crane, you know, I don't have the knowledge of that, the ground conditions and what that crane operator specifically needs as far as at that location.

SOLICITOR SHORTALL: So maybe be how should or does the definition of controlling entity apply when a builder rents rather than owns a crane? Is that a broad enough question?

MR. STRUDWICK: Let me broaden it and just say small contractor or any entity that would rent in lieu of own a crane. Small business owner.

SOLICITOR SHORTALL: So I guess the question is how does the term "controlling entity" apply if an employer rents rather than owns a crane?

MR. STRUDWICK: Correct.

ACTING CHAIR BRODERICK: Emmet?

MR. RUSSELL: Let me give an example for Mike, I think. For instance, let's talk about a housing project. Okay, in a housing project you may have a house that has let's say electric utility boxes underground. Okay, a crane operator comes onsite, the ground's smooth, he can't see it. Let's say you've got a septic system underground. He comes onsite, he can't see it. There should be somebody on that site that should know that electric utility vault is under the ground. There should be somebody onsite who knows that that septic system container is underground and they should be able to direct that crane not to set up there. What we intended with the committee was that whoever has some control over the site in general should have that knowledge and should be able to direct that crane operator not to set up over that vault. Because if the crane operator comes onsite, he has no way of knowing that vault's there, and when he sets up over that vault that's an accident that's going to happen. Not might happen, it's an accident that's going to happen. And that was the committee's intent in terms of making sure there was some responsible party who had some knowledge of what was under the ground in terms of giving the crane operator some direction that would allow him to safely set up.

MR. THIBODEAUX: Mike Thibodeaux. I got that from that, but it just says ground conditions, and that's not just underground. I mean, you know, what type of compaction you have to have, you know? How close do you need to be to the home? Those kind of things. We as contractors don't know that. So I understand what you're saying. Yes, you know, if I've got an excavation that was there that was backfilled, obviously the crane operator needs to know about that. If there are underground utilities, obviously the crane operator needs to know that. We have the plans that show that. So that's not what I was getting at because I think obviously we are the ones that know about that because we're the ones that had it constructed. But as far as just the ground conditions, and I guess maybe that's the question.

MR. RUSSELL: Well, let me say, I think the crane operator can clearly, if he can see a mud puddle, if he can walk on the ground and the ground's sinking, the crane operator knows what to do with those type conditions. What we were trying to get at after is the conditions that there's no way the crane operator can have knowledge of. And for us that was completely two different things. So in other words, the obvious conditions he can see. He can bring matting in, he can do all of the things he needs to do to take care of himself in the obvious conditions, but there was no way he can take care of the conditions that's not obvious.

ACTING CHAIR BRODERICK: And I think that there has been a re-framing of that that would pretty much clear it up for Mike. What conditions are being considered in the term "ground conditions." So.

MR. RUSSELL: Yes.

MR. BUCHET: Do we want to go back to the question about rental versus own? Because I think if we do that, we need to clarify what kind of rental. Is it their rental where the employer rents it, puts their own operator in it, or is it a rental where the crane comes with an operator who directly has the expertise?

MR. STRUDWICK: I think for clarification in my comment was to rent a crane and operator, or the crane service to come out and provide the service -

MR. BUCHET: A manned rental.

MR. STRUDWICK: Yes, and be professionals doing it. In other words, whether they can recognize ground conditions as part of their service.

SOLICITOR SHORTALL: Change the analysis of which, controlling entity or ground conditions?

MR. BUCHET: We're going back to controlling entity I take it.

SOLICITOR SHORTALL: Okay.

MR. STRUDWICK: I know we have a number of standards that refer to host employer making sure that the operator, the entity is informed of all conditions that they're aware of. And so this is kind of referring back to that is to make sure that whoever's there that has asked for that service has done due diligence in their research as far as what they know and can provide that information to the crane service as they come. But the crane service, the operator, the signal man and all that should be a single autonomous entity in itself. And I shouldn't be responsible for that as a small businessman hiring somebody that's supposedly an expert.

ACTING CHAIR BRODERICK: So is the rephrasing, Greg, are we doing a good job of fleshing that out for you?

MR. STRUDWICK: I think - that was just clarification on my part, but I think that works. As far as Noah's concerned.

ACTING CHAIR BRODERICK: Okay. Right. And then we can discuss it with Noah ad nauseam. The next one I was very interested in, and I'm glad that Matt and the folks down at DSR brought it up. The critical lift. I think most crane companies, most companies that have fleets of cranes have their own definitions of critical lifts, some more inclusive than others. And it would be interesting to see where the agency and the members of C-DAC were going with that, or why exactly they didn't have in one area a nice section on that. I think that having said that, other than asking - I hate to keep doing this, but we only have one C-DAC member and I'm sure that there are people who are going to give public comment that are taking notes and are going to come back with some additional information. But Emmet, the issue of critical lifts, what was the thinking on the part of C-DAC?

MR. RUSSELL: Well, I think there's a whole section that deals with critical lifts. And what we attempted to do was to make sure that critical lifts were done in a safe fashion. And I think just about everything Matt talked about I think is in the document and I did not look at the documents until I looked at Matt's document. But I think most of it's covered.

MR. GILLEN: I did notice, for example, that hoisting personnel is listed in Section 1431 as an example.

MR. STRUDWICK: Is critical lift identified in the definitions by any chance?

MR. GILLEN: No. I can think of three ways to handle this. One is that some aspects of it are covered, like hoisting personnel. They're not calling it critical lifts, but it's covered under that part. Or that it's not covered and if so it might be useful to have language describing what isn't covered and an expectation that a professional engineer might be involved or something like that.

MR. STRUDWICK: That may be a question. As my understanding from the contracting side is anything that exceeds 75 percent of the capacity of the crane, no matter what kind of crane it is, anywhere between 75 and 100 percent is considered a critical lift.

MR. GILLEN: I guess the question is for the regulation, you know, should it speak to that issue or should it help people resolve that issue.

MR. STRUDWICK: Well, it would give them the point at which it's considered a lift versus a critical lift, okay? I would make a recommendation that critical lift was defined in a more specific manner as in the definitions section. It would certainly help if that's going to be a compromising situation based on the type of crane that's there, whether or not you're going to go to capacity or if you're going to move up to a different size crane when you're making a lift.

MR. BUCHET: If we ask this question, is that going to help you get to form your recommendation?

MR. STRUDWICK: Yes.

MR. BUCHET: Because we're tracking most of the stuff that's up there on the wall behind you, but when you get to make your recommendation you can say critical lifts, whatever you want to say about critical lifts, and then go back to remember what Noah said, and then make a recommendation based on all the information we can get you.

MR. STRUDWICK: Well, and where I pick that up is there's a number of different types of machines in the definitions that are not something that I'm aware of.

MR. GILLEN: So it's possible that, you know, it was addressed by breaking it down into the categories. There is a section on floating cranes, which is one of the examples given. Equipment modification. But it might be useful to be as explicit as possible about it.

ACTING CHAIR BRODERICK: Well, I think that critical lifts, I think a recommendation that we may come forward with is that there be a discrete section on critical lifts, perhaps with an appendix that gives some boilerplate language of what a critical lift plan would look like and how to approach it and so forth. You know, I guess there's more specific language on a two crane pick that's in here, but you're going to be doing critical lifts a lot more than you are a dual crane pick, so.

MR. STRUDWICK: Yes, and typically the counterweight's a `dozer.

MR. BUCHET: Leave in what sections will be relevant?

ACTING CHAIR BRODERICK: Or I guess the other thing is would we consider having a section that would be titled critical lifts?

MR. STRUDWICK: I'm more inclined to -

ACTING CHAIR BRODERICK: That would be a question for Noah.

MR. STRUDWICK: Yes, but I'd be more inclined to believe we just need a definition. Instead of a section, just a definition.

MR. BUCHET: Take out what sections will be relevant or leave it in?

MR. GILLEN: That question could be left in, but that to me sort of begs the question of should there be a section titled critical lifts.

MR. BUCHET: Don't look to us to answer that.

MR. GILLEN: No, you're the one that's typing the questions that are going to go to Noah.

SOLICITOR SHORTALL: He said -

MR. GILLEN: Should there be -

MR. BUCHET: Oh, that's a question, okay.

ACTING CHAIR BRODERICK: Michael, if we could skip down because we've talked about certification. Not real far. The issue of what type, size cranes are responsible for the fatalities and how occurred. I think that that would be something that would be of interest to all of us. What kind of data did the committee utilize as a backdrop for their creating this standard?

MR. BUCHET: Wait a minute. Let's put this after the parenthetical expression.

ACTING CHAIR BRODERICK: And Mike, that was your question. I'm guessing where you're going with that is we would hope that there were some good data that were utilized and the various parts of this were reflecting actual hazards as evidenced by a history of incidents and injuries or fatalities. And if in fact we find that there are parts of the standard that seem onerous and there is not or there are not data to back up why or justify it, then that is a concern. Is that correct?

MR. BEAUREGARD: Yes, that is correct.

ACTING CHAIR BRODERICK: Well, I'm sure Noah will help us understand that better. Did you, Emmet, have injury and accident data available?

MR. RUSSELL: Yes, we did. And we had some talk at lunchtime where we might be able to supply something to give you some semblance of what you're looking for.

ACTING CHAIR BRODERICK: And I know that the people that Matt is familiar with at NIOSH at the Department of Safety Research, DSR, have done studies on crane fatalities and sponsored studies.

Going down to the bottom, what is the number of incidents and fatalities involving licensed operators versus non-licensed operators. In areas where we have a requirement for licensing or certification, and I know this is a relatively new thing, are there data available yet?

MR. RUSSELL: There's a study that was done in Canada before - I think it was one of the provinces in Canada had licensing. And clearly there was a difference in terms of requirements and training after licenses than before licenses. And we're going to see if we can get you a copy of that study that clearly shows here is, I think it's a 20 or more year period where they can actually show the effects before licensing and the effects after licensing. And I think that might be something good for us to look at.

ACTING CHAIR BRODERICK: Well, as we speak, this appeared in my hand, actually. And it is an article about an experience in Ontario, Canada that compares pre and post training as I'm reading this. And the fatality rate declined by about 80 percent despite a 35 percent increase in the industry. And it does show a chart. And we can have this copied and make it available for the committee. Is this your only copy, Steve? Thank you. Can we have that entered?

SOLICITOR SHORTALL: I'll have him make copies and then enter it.

ACTING CHAIR BRODERICK: Okay. And one of the issues that I heard people talking about on the break is it seems to be a pretty big disparity in the cost estimates of training people to be able to become certified. And in my experience that is not the first thing on OSHA's mind when developing a standard, but it certainly is on the minds of the people who are governed by the standard. Any discussion around that issue?

MR. RUSSELL: Well, at lunchtime we did have some discussions, and we just want people to be careful that there is a responsibility to train even under the old standard. And I think that you have to put a cost on properly training an operator, properly keeping an operator updated. And then if you look at some of the costs that might be associated with the new standard in comparison to the old standard, the cost might not be that different. But if you were to look at the new in a vacuum, or the draft in a vacuum, the numbers look like it might be greater. But I'd just like to caution that there is a responsibility to train even under the old standard. And again, people have to look at that cost also.

ACTING CHAIR BRODERICK: I think one of the differences that I saw is that the amount of time times the hourly rate for the worker was included in one set of numbers and not in another. Is that possible that that may have created some disparity? The hourly rate for an operator times the number of hours in training was included in one set of numbers and not in another. Actually, I'm not sure that that is a question for the agency. I'm just trying to, for the purposes of our discussion -

MR. STRUDWICK: This is Greg Strudwick. And in comment to your reference to the agency, as a contractor, typically our training is cumulative. Now, if it has a significant impact on a one-time basis that does have an effect, okay, because you might have multiple employees being trained at one time. But in the case where a number of the operators have reached a certain level based over time, whether that's training on load charts or taking the responsibility to do the training that was required by the original standard, in a lot of cases that's just part of the job. So I think it's more of a cumulative type of cost versus an impact at one time.

ACTING CHAIR BRODERICK: Tom?

MR. KAVICKY: Mr. Chairman, the comments that Linwood Smith had in his letter from this morning, he included the wages, lost production, travel, lodging, et cetera, et cetera. That's where that $5,000 came from.

ACTING CHAIR BRODERICK: Okay, thank you. Well, we have by my watch about two minutes until the committee has some welcoming remarks from the Assistant Secretary. So I think we should maybe wrap up this segment of discussion. Anything else? Michael, you're usually not at a loss for words?

MR. HAYSLIP: Everything's fine, no problem.

ACTING CHAIR BRODERICK: Okay. Anyone else have any discussion?

MR. BUCHET: Do you want these titled ACCSH comments and questions or leave the individual submitters whose work has now been changed significantly?

ACTING CHAIR BRODERICK: If you're asking Tom Broderick, the temporary chair, I would say the submitter is not really a big deal now. I think these are all ACCSH questions. We've actually had some time to discuss them and I think that we're agreeing that these are questions from the committee to the Directorate of Construction.

MR. STRUDWICK: I agree.

SOLICITOR SHORTALL: Before we take our break, Mr. Chair, I'd like to enter into the record Upwards and Onwards: An Ontario Vision by Gerry Hughes as Exhibit Number 9.

MR. KAVICKY: Excuse me, I believe you had Number 9 on this document.

SOLICITOR SHORTALL: Thank you. That means that I'd like to enter it as Exhibit Number 10. Thank you so much, Tom.

(Whereupon, the above-referenced document marked as ACCSH Exhibit No. 10 for identification was admitted into evidence.)

MR. KAVICKY: You're welcome.

ACTING CHAIR BRODERICK: I'm guessing from the crowd that his presence is eminent. Imminent or eminent? So if we could just sort of stay in place here for a couple of minutes. We'll take a break immediately after the Assistant Secretary has an opportunity to come in and address us.

(Whereupon, the foregoing matter went off the record at 2:03 p.m. and went back on the record at 2:06 p.m.)

ACTING CHAIR BRODERICK: We are coming to the point in the meeting where we will soon have public comment and I couldn't help but notice the number of people in the gallery continues to grow. And I have the sign-up sheet for those who would like to make public comment. So if there are any new people who would like to make public comment today I would be happy to provide the sheet for that purpose. Are there any people who have not signed up to make public comment? Mr. Sant? Okay. Just wanted to make sure everyone had their fair crack at it.

While we are waiting for Mr. Foulke, one of my colleagues on the committee would like to give some background on one of the comments that we had earlier today, and that was the issue of drug and alcohol testing. Emmet, if you would?

MR. RUSSELL: Yes, when the committee had its deliberations on drug and alcohol testing for crane operators, as a matter of fact one of the things the operating engineers brought up was that you could not have an accurate program by only testing the crane operator. You'd actually have to test the signal person, you'd actually have to test the riggers, you should test the foreman, whoever's in charge of the crew. So when you started looking at everyone that had to be tested to have a drug-safe operation, it literally came down to the whole crew if not most of the people that the employer employed. Then the next question becomes should an OSHA standard mandate that you literally drug test the job. Because if you have a safe crane operation, you literally have drug tested the job. So after all of the discussions, I think one of the things we decided to do was just back off on the drug testing for the crane operator because, again, you can't drug test the crane operator alone and have a safe operation. So that was a lot of the discussion deliberation, and it was felt as though most progressive employers would and should have a drug program that should include everyone working around the crane. So again, that was one of those things where we absolutely did not have a problem with drug testing the crane operator, it's just that everyone else involved in and around the crane should be tested also. So hopefully that gives people just a little bit of guidance as to the difficulties we ran into when we talked about drug testing.

ACTING CHAIR BRODERICK: Thank you, Emmet. Well, here's that part of the agenda that we've all been waiting for. And we have no drum roll, Mr. Assistant Secretary. However, we're very glad that you could join us.

MR. FOULKE: I'm excited to be here. Do you just want me to go ahead and start?

ACTING CHAIR BRODERICK: I guess it would be best if we let you know who we are.

MR. FOULKE: This is the Fraternal Order of Firemen?

ACTING CHAIR BRODERICK: This is the funeral directors.

MR. FOULKE: Funeral directors? Okay. No, I'm glad to be here. I really do appreciate it. And I guess I'm going to start off by first - I was here and so I got to hear everyone introduce themselves. But I would like to first start out by just saying thank you for being here, first of all, and agreeing to be on the ACCSH committee. Because I know you all have other things you could be doing, probably a lot of other pressing things in your work and your businesses and with your organizations, but I appreciate taking the time because this is very important.

When I talk to the OSHA people and I talk to safety and health people generally, I say I really appreciate the job they do because, you know, we get to do some things that most people don't get - very few people get to do. We get to kind of do things that will help people go home safe and sound to their families every day. And that's a pretty significant thing when you really think about it. And so I wanted to say thank you because I know you probably don't get too many thanks, or congratulations, or whatever else. And I suspect that you all didn't get into this business for the accolades and the congratulations. I'm assuming you just got in it for the big money.

(Laughter)

MR. FOULKE: But no, we do - what we're doing is very important. And so what you all are doing here is very important because the other thing is you being here gives us a conduit to knowing what the construction community from all sides, their concerns, their needs, their information too. Because you know, at OSHA, we don't have all the answers and we don't have all the knowledge, but you as a group have some tremendous knowledge and it's going to be helping us very much to move along that particular knowledge. So I just want to say thank you for what you're doing.

Secondly, I guess we're going to talk a little bit about - I saw the agenda and I was in the back of the room when you all started this morning because I kind of wanted - I wish I could spend the whole time here listening to all the information that you're providing and all your comments and stuff like that because I am very interested in the issues. And one of the issues I know you're talking about today has been cranes and derricks, which is a very important issue. And I will say this to you is that I'm committed to get the cranes and derricks standard through before the end of the Administration. Now that's going to take some doing, unfortunately, and I don't know why we haven't moved along as much as we should have I guess in the past, and I'm not exactly sure why. But I'm not here to point fingers at anybody on blame or anything else like, but just to tell you my goal was to move it along. Unfortunately, I don't have total control over that. But I promise you that whatever I have control over, or whatever I have any type of influence over, or if there's somebody I can at least go talk to and say you need to move this along, you have my word that I'm going to be doing that because I am committed. I think this is a good standard. I think it will be something that we can really, would be helpful to the industry, will save lives.

And on our reg agenda we have a number of things that are on the construction side of the equation. Confined space is another standard that we're working on. We're going to continue - we're working on that, I was talking about that. We're going to see, you know, we have a couple of others, lead in construction I know is a big issue for you all and we're going to be looking - we're looking at that issue and trying to move those things along. So all of the reg agenda, you know, I've encouraged our folks to say, I told them, I really want to move things along. This is an opportunity I think that we have, so we're going to do that.

This year we're celebrating our 35th anniversary, OSHA is as an organization. And we've done some really great things, to tell you the truth. I'm very proud to be here. I'm very proud that the President appointed me or nominated me and I appreciate Secretary Chao, her support on having me on board on her team. We've done a good job in 35 years. We've reduced fatalities. When the Act was passed in `71 we had roughly 17,000 fatalities. Last year in 2005 we had about 5,700. Now, and the fact that - that in itself is a good accomplishment, but the fact that in itself we - during that whole time period the American population or the working force of the population doubled in size during that time period kind of makes it even more important that we've made that incremental increase - or reduction in fatalities I guess. But I think you agree with me that one fatality is one fatality too many. Flat out that's How it is. And our goal has to be to reduce that number to zero. And I don't know if I'll be around in my lifetime to see that number, but we're going to keep working, at least while I'm here in this job I'm going to be working very hard to reduce that number to zero. And that's where you come in too, once again. Your expertise helps us to do the things we need to do to make good work on that number.

And I was looking at the - there were some figures that we got on fatalities. You know, of the 5,700 fatalities last year, 1,186 were in construction, 394 of them were construction due to falls, 131 were from struck-by incidents, 111 were caught in or in between, and 107 were by electrocutions. So we've definitely got our work cut out for us on those things. We're going to try to do - we're going to focus on those things. We know where the problem is, so we've got to keep working on that.

Secondly, we've got to work on, you know, in the construction, particularly residential construction, the falls in that area is one of our big concerns. And it's the hardest area that we have to deal with, to tell you the truth. Of all the things, if you really look at everything we're doing, that's one of the hardest areas. And what I'm trying to do is to try to bring together the top residential contractors in the country together in one room. Now you could say, well, that shouldn't be very hard, but it's not that easy. We have brought together something like the top nine electrical contractors together in one room. And I was talking to them when we had a partnership signing with them. We renewed the partnership signing, and I was talking to a couple of them, and they said you know when we met the first time we had never been in a room together. All of us had never been in a room together ever. But they determined, they figured it out that we had to do something because they knew they were in a dangerous industry and their profession was very dangerous. They knew they had a lot of fatalities because of electrocution. They knew that they had a lot of transient - their employees would be working with them one year and then the next year they'd be with another contractor and the next year on another contractor. Well you know, that's the same scenario we have pretty much in construction across the board. And now they're doing the training program. Well, they're going to have everyone trained where they will have - a person has a card, and even if he or she changes jobs you're going to know, that electro-contractors going to know that person has at least the minimal training that we've set here in order to get that card. That and also they've driven it out to their vendors and their subs, and that's made a tremendous difference.

My goal and my hope is that we can do the same thing with residential construction, with the major contractors because to tell you the truth, it's hard for us to get to the subs, their subs. Because you know they're here one day framing up a house or roofing a house and they're not there the next day. So we've got to - they're going from contractor to contractor doing the work. Well, if we can capture, if we can get to those, if we can get the 75 percent of the companies that are doing residential construction and we can get them to get into the group together and we can work to make sure that they push down to their subs that they have a comprehensive safety and health program or they're not going to get work, it doesn't take much to figure that out. They're going to understand this is something we've got to do. And we're going to be here, OSHA is going to be here to help them do that. So I'm hoping we're going to get all those in a room in the next six months. If we can do that, that'll be a tremendous accomplishment. And if you can help me on that, I would deeply appreciate it because we can really do a lot in that area.

We talked about another thing that's come up is the BPPP in construction. I think all of you are aware that a couple of months ago I made an announcement that we were going to start October 1 with a BPPP mobile workforce demonstration for construction. We have seen the benefit of BPPP in general industry and we have pilot projects around the country with construction companies and they proved to be very successful, so that's why we decided to move on that. It's going to be a little bit different than the traditional BPPP in general industry because you have the constantly moving sites. Your sites move from one place to another. But I think the success of BPPP in general industry has been just tremendous. The companies that are in there are reducing their injuries. Their injury and illness rate is 50 percent below the industry average. Well, if we can help employers reduce their workers comp rates and their injury and illness rates 50 percent below what they are now, we'll make some serious - we're going to help do a lot.

And that's going to help the country because if you think, the more that we can get and that's kind of the message I've been trying to put out is that if we can get employers, and especially the small- and medium-sized employers because they're the ones that don't have great safety and health programs. They're the ones if you tell them, well Lord, you can have - if you put some money in safety you're going to save more money. Well, they don't have money to put in safety. We've got to be honest about these things. They're worried day to day. They don't have time to almost think about safety because they're just trying to survive, a lot of them, trying to make a profit. But if we can go out there, and this is where OSHA is going to come in here, and this is where you can help us because we can help develop more of the tools and things that we need. If we can develop those things and we can provide the assistance and we can tell them we can help you have a comprehensive safety and health program and it's not going to cost you a dime. Well now I've got their attention because if you say it's going to cost them money, they leave. They're tuned off, pure and simple. But if we can tell them we're here to help you, we're going to help you, we're going to have a helping hand, OSHA has a hand out to help you. We have the tools available to you to have a comprehensive safety and health program. We have the policies. We have the training programs. We have the consultation, everything there is here to help you and it's not going to cost you a dime. Well, then we're going to start talking to more and more people, and the more people we get into that program in construction, general industry, doesn't matter. The more that we can get in there, that's going to help us accomplish our mission, and what's our mission? It's a simple mission. Reduce injuries, illnesses, fatalities. It's not rocket science here. We've got a pretty straightforward mission. Well, if we can do that, if we can help the small- and medium-sized companies have a better safety program, that is going to help them reduce injuries, illnesses and fatalities. And if we can do that, that's going to help reduce the workers comp rate, which in turn is going to make them more profitable, which means it's going to be more competitive, which means maybe we're going to keep more jobs in the United States. So if we can do both of those two things, if we can meet our mission at the same time keeping jobs in the United States, we're not doing a bad job. And you all are going to be part of that. Well guess what. You all are not going to get any credit for it. But once again we didn't get in it for the credit, did we? We did it because we know what we're doing is right.

So that's the message I'm trying to get to you. And it's hard. And I also need your help trying to get our message out because in the past we haven't done - we're still kind of seen by a lot of employers as kind of being the bad cop, you know what I mean? We were the ones out there, we kind of got off to a bad start, you know. We kind of had the OSHA cowboy, remember that? You all probably remember seeing the OSHA cowboy there with the - and everything, at least some of you all. Some of you all are a little bit too young to remember that, but we had the OSHA cowboy. So we were seen kind of as - we weren't seen in the best light. Kind of seen as the bad cop. My goal was to kind of change that. But we've got a better image now than we've had ever. Our image has dramatically improved. But there are still employers out there that are afraid to deal with us. There are even employees that are afraid to deal with us. And we've got to change that mindset. We've got to be seen kind of like the neighborhood cop is the cop that if you see him, you don't run away. In fact, you may even be willing to talk to him and get assistance, or ask him for directions, or whatever. But you know that same neighborhood cop if you run the red light is going to give you a ticket.

And I promise you one thing. I've already promised a couple of things already, I've promised a bunch of things, but one other additional thing that I'm going to promise you on. For those employers that don't want our hand out to help them, well Lord knows they're going to get to see the other side. And that means we're going to have strong enforcement. And I've already told my people, the employers that don't care about the safety and health of their employees, the ones that thumb their nose at OSHA, they're going to get to know us up front and personal, and we're not going to back down. We're going to go after them strong on the penalties, we're going to go after them on contempt citations if they continue to do this. These are the things we're going to go. So we're going to have a strong enforcement. But we're still going to have the hand out trying to provide compliance assistance to them to help them if they want it. Companies can clearly, if we can prevent injuries and illnesses, that's the key. Because a lot of times enforcement comes after somebody's been hurt or somebody's been killed. And when all is said and done, the more injuries, illnesses and fatalities that we can reduce, you can't put a price tag on how that is for the employees that go home safe and sound every day. You can't. There's no monetary price tag you can put on that.

So that's the goal that we're going to try to be doing, and we're going to be outreach to them strong. You're going to see us do things. We're going to be outreaching to people we haven't done. We want outreach to the construction business much more. We want to go out and meet with those small employers, those medium-sized employers that really need our help. But I need your help to help us get to those people too. So whatever I can do to help you I'm here to do that too.

But once again, I'm going to just say thank you for the job you're doing here. Thank you for your commitment because I understand that it is an imposition that we're asking you to do this. But we deeply appreciate it here. And we're here to help you. I'm here to help you because you're going to be helping us too. So I've talked long enough and I appreciate you all putting up with me. So I don't know, do you all have any questions for me? You've got a note for me or something? I thought he'd have a note for me.

ACTING CHAIR BRODERICK: I think we have a question.

MR. STRUDWICK: One question. This is Greg Strudwick. Have you given this encouraging talk to all the region administrators? Have you? Because let me explain something. We might have a problem with consistency. Any RAs in here?

MR. FOULKE: They know this is - I am pushing them out of their comfort zone right now because we're going to places. We've done a good job of going to like the National Safety Council and Industrial Hygienists Association over the years. We've done a real good job. But we haven't gone to the - we've got to get the small employers and the medium-sized employers. They're the ones that don't have the great programs. They're the ones that have the injuries the most. The data is there.

MR. STRUDWICK: Well, there's a number of associations represented that concur with your enthusiasm to get the word down to small employers. And consistency through the directorate and consistency down all the way through the regions is what we're looking for. And we can help. NUCA, AGC, ARTBA, they're all in this room, and we can really, honestly carry that message forward and intend to do so.

MR. FOULKE: Well, as you might not know, I'm not really a wallflower. I kind of come across that way sometimes, but you know, I'm out here to help and I'm not afraid to ask for help, you know. I want the unions too. You know, I want to make sure, you know, one of the things I'm trying to do too is whenever I go out and speak, because I get asked to speak a lot, but I want to touch base. I want to be out there with the unions, with their training people. I want to make sure that everybody knows what we're trying to do. I want both employers and employees.

But clearly it's the small businesses and the medium-sized businesses I've got to get to because two-thirds of the businesses in the United States are small business. Two out of three. And so we've got to help them. And like I say, we've got to get - there's a distrust out there to a certain degree. I used to have clients when I used to tell them how great the website, I'd say go out to the OSHA website, they have a great website. You need to - now you do have a question. No, I'm going to do that. I'm glad you reminded me. I was going to do that too. I used to tell them OSHA has a great website. And they'd say - I'd say you need to go on the website, they've got all kinds of stuff, they're real helpful. Oh, I can't do that. I said why not? They said, well, OSHA will know where I am. So. Now I want to clarify, it takes us a good two hours to find out where you are.

(Laughter)

MR. FOULKE: Just teasing. Put that on the record, just teasing. No, we're not. But you see that, you have to understand that mindset because perception is reality and if you don't know that's how they think and that you have to overcome that, because you have to overcome that before you can - then you've got to get in touch - I talk about touching people's hearts. I've got to touch the employer's hearts, I've got to touch the employees' hearts, the workers' hearts. I've got to two hearts that I've got to touch and that's kind of, people kind of snicker at that when I say touch their heart, but actually I guess I'm talking about motivated. But if you don't touch somebody's heart, you don't get anything done. Nothing changes. Everything stays the same. Because now you've not motivated them to make a change. I've got to touch the employers' hearts to convince them that they need to have a comprehensive safety and health program. And it's not just me. I've got to get OSHA and I've got to get everybody else helping us do the same thing, and I've got to touch the workers' hearts to convince them that safety is important and that doing their job safely is critical. So I've got two people, I've got two groups I've got to touch their hearts. But that's How we do it.

But yes, the answer is we're - and I push them, you know, we're going to be pushing more. You're going to see us. We're going to be outside our comfort zone. We're going to places that people may not like us. We're going to be talking to people who may not like us. But they're the ones that need us. And we can't not afford to go there.

MR. STRUDWICK: Well, personally I've been to the website with a group of people as large as the group we're in now that didn't - weren't aware of the resources, and showed them all of the different quick cards that were available to them, and it was just enlightening. And everybody came back to say, you know, we didn't realize that OSHA had the ability to provide this type of resource and information. And it's just a matter of spreading the word.

MR. FOULKE: I agree. I think 65 percent of the employers in the United States have no idea what resources OSHA has. And that may be a conservative figure. That's why we have to get out. We've got to get our message out. We've started kind of getting some of the smaller chambers, get the - and I want to get my area office people, I want to have my regional people, I want to get our national office people. This is where we have to get out to. And when we go there, I'm going to say we're bringing a booth. If you want to have us, part of the deal here is if you want me to come speak, I'm bringing my booth and we're going to set it up. I'm going to have my OSHA people there that are from that area so you can see them, that they're good people, that they're hard-working people, that they really want to help, and then we're going to have the materials.

And the places we've done this, the small chambers, we've done a couple of things. We did one at the Hispanic LUNA meeting and we sent boxes of stuff there. We got wiped out. Nothing left. I mean, it is that - we've got great stuff. You know, and I'm just, I'm holding back here. We have great stuff that can really help a lot of people, but we've got to get out. And we haven't had a really good communication message. And that's the other thing. We're meeting next Monday, Tuesday and Wednesday. I'm bringing in all the leadership. They've never had this type of meeting ever. We're going to talk about leadership. We're going to talk about communication. We're going to have about 220 of the OSHA regional administrators, deputy administrators, our area directors, their deputies, all the director heads and all their deputies. We're going to have about 220 people for a leadership conference. We've never done a leadership - we've had a mangers meeting, but we've never had a leadership conference where we were trying to say we're going to - we're looking to take OSHA to the next 2020 and beyond. And we're going to help make sure that our leadership is ready. But part of what we're going to talk about is communication skills, getting our message and having for the first time a comprehensive communication strategy for OSHA. We're going to be talking about this, talking about safety and health as also a tool for companies to be - for economic viability.

And you've got to look where we are as a country right now. We've got some things we've got to work on. When we look about losing jobs like Ford and stuff like that, we've got to figure out some ways we can save money. And it is amazing, but workplace safety and health. I've talked to too many people that are BPPP. You can go talk to the Titleist people, Hasbro, go over to the naval shipyards, they will all tell you they're in business. Titleist and Hasbro, they have said we're here doing - we're making golf balls in the United States, we're making games in the United States when nobody else is because of safety and health. You go to the three shipyards that are BPPP. Last year they estimated that they saved $2 million, just three sites, three shipyards saved $2 million workers comp costs from this, from being in BPPP. So we've got to get that message out to all the businesses. We've got to help them be safer which will help them be more competitive. Yes? Just shoot it out there. Don't be shy.

(Laughter)

MR. KAVICKY: Tom Kavicky with the United Brotherhood of Carpenters and Joiners of America. You touched on a subject that's near and dear to my heart, residential construction and fall hazards in that construction field. If there's anything that we can help you with?

MR. FOULKE: Well, once we get this group - I mean, this is a hard area for us. I mean, when you think about it, residential construction, because it's hard to figure out where they are and by the time we get there, figured out where they are, they've moved on. So we've got to figure out a better system than that. But yes, I want to - like I said, I want to make sure when I'm out speaking, I want to come to your training centers because I know you guys, I know all the unions have some really great training centers that I want to come talk to, get to see, figure out how we can leverage that even more. That'd be great, I'd love to do that.

ACTING CHAIR BRODERICK: Mr. Secretary, I don't get an opportunity very often to volunteer people, but they did give me an opportunity to sit in as the chair today and Tom came forth and volunteered. We also have another member on the committee, Mike Thibodeaux represents the residential contractors and homebuilders and is one of a number of high-volume large homebuilders. And I don't think I would be going out of school to say that Michael's support would be right there. Is that true?

MR. THIBODEAUX: Absolutely.

MR. FOULKE: Well good. I'll catch him tonight when he's leaving.

ACTING CHAIR BRODERICK: Are there any other questions? Mike?

MR. THIBODEAUX: Yes. I have two for you, Mr. Secretary. Mike Thibodeaux. Is OSHA planning on having more Hispanic training, not just for residential construction, but for us a very large portion of our workforce is Hispanic. And you know, English is not a second language for some of them. Does the Administration plan on expanding a Hispanic training program in safety?

MR. FOULKE: Well, we're going to continue doing what we're doing which I think - I actually have a book about this big just on Hispanic, what we're doing on Hispanic outreach and other stuff we're doing on Hispanic things. We have actually a subgroup which actually we're changing the name. It's been the Hispanic - we want to try to change it to more, because our focus will still be on Hispanics. I think probably our primary focus will be on Hispanics, but there are a lot of other ethnic groups, and depending on which part of the country you are, that we need to make sure that we're addressing too. I don't want to leave them behind either. But clearly, the Hispanic issue is a big issue for us. But we do have a committee, it's been a Hispanic outreach committee that meets four times a year within OSHA strictly to focus on what we can do with dealing with Hispanic issues. So we've been doing that already. We already have a Hispanic website on our OSHA website, so we're doing that. We are doing - all our quick cards, if you look at them, one side's English, one side's Spanish. What we're trying to do too, because what we found out is that even when we do Spanish language, we find out that there's a percentage of that group that cannot read Spanish even. So we're trying to go to more on our quick cards and our handout materials, whatever it may be, that is also in Spanish, but more pictures to try to identify what the hazard is from just pictures. So that, we're actually working on that, focusing more on that right now.

We have agreements with the Mexican consulates all around the country, a number of Mexican consulates. We find that we don't get - there's some concern about the Hispanics won't bring complaints to OSHA but they will to their consulate, so we're actually working closely with the Mexican consulates and some of the other South American consulates around the country. We have, as part of our website we actually have our training materials in Spanish also. So we've done a lot in Spanish.

We're going to continue to do more, and like I say, we're going to - there are other groups here that we need to look at. We've got an Asian-American group that we need to be more cognizant to. You go to certain places in the country. There's a group that'll be like Vietnamese or Portugese or things, so we're trying to outreach to all groups, but clearly we recognize the importance of the Hispanic workforce in the United States and also how its impact on the fatality. The rate went down this year on fatalities among Hispanics, but the total number went up of fatalities among Hispanics. So we are very cognizant of that issue and we're continuing to work on more training opportunities on that. But we're doing a good bit of it.

And we probably have more COSHOs. We probably have more Spanish-speaking COSHOs than - or inspectors than any other department in the government, to tell you the truth. Well, maybe not, that might be a little bit broad statement, but we have a lot of that. We've been focusing on that too on making sure that we have enough. We're also looking at ways that we, even for our non-Spanish speaking COSHOs that are out in the field that they will have access to - there's a phone service that we've been trying to work on that actually we can contact them and literally give them any language we need, and then we can ask the question, hand the phone to the person, and that person on the other line will ask the question in that particular person's language. We're looking at more of those type of things so that we will be able to do instantaneous interviews and not have to, no matter what our language our COSHOs speak or whatever language the person we want to interview speaks. So we're doing a lot on that. But we're going to continue more. What's your second question?

MR. THIBODEAUX: Second one is -

MR. FOULKE: See, I didn't forget about the second one.

MR. THIBODEAUX: Concerning the director of construction. Do you have any kind of timetable when a new director is going to be selected?

MR. FOULKE: Yes, I want to try to do it in the next month or so. It'll be in the next month or so I'm hoping to work out. I've got to get on that. And that, I've got to say, I've got my two new deputy assistant secretaries. Where are they? Brian Little is my one, and Don Shalhoub. Brian came from the Office - what was it? Congressional Affairs. And Don used to work in the Solicitor's office in the OSHA department and then was the ombudsman for Energy Employees Occupational Illness Compensation Program Act. So they have both come on in the last month or so. Don just started this week. Or last week. Brian's been here a little over a month. So now we have that on there. We're going to have a new chief of staff. Our chief of staff, we've selected him and we're hoping to have that person on board. And then once I get all that on, then I can kind of move on to the directors and get everything else finished, so.

MR. THIBODEAUX: Thank you.

MR. FOULKE: Somebody else had a question, I thought.

ACTING CHAIR BRODERICK: Michael, do you?

MR. HAYSLIP: Yes, Mike Hayslip, NESTI. I commend your approach with regard to soft skills, people skills, communication. Obviously that's very important. When you get your group and people together either now or in the future, do you intend to bring in the small guy themselves? The person that will be communicated to? For instance, NFIB members that say, hey, my executive boardroom is my kitchen table. That's a mentality that sometimes is hard to get across. My executive secretary is my spouse. Do you intend to bring them into the mix as you discuss communication skills within your own reach?

MR. FOULKE: Like I said, next week we're going to do some communication training skills on that and we're probably going to - I want to try to do more intense. Also, we just added, we're getting ready to add a course and I know Hank Payne's here with the OSHA Training Institute. We're adding a course on interview techniques for our new COSHOs and all the new people coming on board. We're really focusing - professionalism is something we're going to be talking about at this meeting and that encompasses a whole series of things. I mean, you know, part of professionalism means that the COSHOs, or whoever it is, it doesn't really matter, whoever is at OSHA, if they're showing up at somebody's door, they have to know what they're talking about. They can't just show up and kind of be guessing. So we're really committed.

You know, when I started practicing law at OSHA, because I kind of pretty much started early on. I've been doing OSHA law for 25 years. You know, the OSHA Training Institute was the place you went for training. And our COSHOs that went through that training, they were trained and they knew that stuff. And we kind of let that slip. But we're going to come back to be the premiere. One of our goals is to have the OSHA Training Institute one of the premiere training places in the country. Right Hank?

MR. PAYNE: Yes, sir.

(Laughter)

MR. FOULKE: So and I can't accept anything less on that. So we're going to be doing some more of this type of thing. But, and also make sure that they have the tools - when they come to a facility or when they go to a presentation, it doesn't matter. You've got to have the tools there to be able to do the job. And I'm going to make sure our COSHOs are properly trained, that they have the information and whatever tools they need to be able to do the inspections. You know, efficiency, you know, thoroughly and efficiently. You know, no one needs us to be spending months and months there if we could do it in weeks. We've got to be cognizant of the fact that people have their companies to run too. But at the same time we want to make sure that everybody's safe. If we're on a site, we want to make sure that when we leave that we helped them and provided them with whatever assistance we can. And like I say, if they don't want our assistance we can show them that we can do the other thing too pretty easily.

MR. HAYSLIP: I agree, if I may follow up. That seems like an excellent point, kudos to that. It seems once you start the enforcement, you've got their attention. And that seems a shame to turn them south once you've really got their attention, that you can bring them into the - unless their company closes up, they're still in business.

MR. FOULKE: Right. The only problem is, and unfortunately, there are employers that for some reason, and I don't know why, think that it's okay to endanger their employees' health and safety.

MR. HAYSLIP: Business risk type?

MR. FOULKE: Yes. It's just - well, I don't know exactly what it is. I don't know what's, you know, to me it's almost a moral requirement that you keep your employees safe and sound. It's a legal responsibility too, but to me I would think if you're, you know, it's a moral issue to me. If they don't want to - but unfortunately there are people out there, employers are out there that don't seem to care about their employees. And I promise you when I find them, because every time I go out to a region, I ask you, do you have any bad employers. And I want to know. And we're going to go after them. It's plain and simple. I'm not going to pussyfoot around it, we're going to after them hard because I don't put up with that kind of crap.

MR. HAYSLIP: Good. To follow up, in working with Greg and others on the trench work group that we had, it seemed that a lot of people were repeat people. It seems like in part we already know who some of the bad players are. When they get to the second, third, it's almost shame on us, OSHA that is, for not stopping it at two or three and God forbid beyond that.

MR. FOULKE: And we're actually doing something - the last, I'd say it's been about the last two months. And this came up when I was out at one of the regions and I asked that question. I said do you have any bad employers? And they said, well, now that you mention it, we do have this one guy, it's in the construction industry. And I said well tell me about the guy. And they said, well, we've inspected him a bunch of times and he just ignores us and he tears up citations in front of the compliance officer and he mails back subpoenas and you know, we've got a picture of him giving us the double finger to the compliance officer. And I said well that's enough, I don't need to hear anymore, I want you to send me what you have on this man. And we're going to go stronger. We're in the process of getting ready to go after civil contempt charges after him in federal court. We're going to do that.

But as a result of that, I started asking that question of our people here. I said why do we have it? Why haven't we moved quicker on this particular person? Because this person has been cited a bunch of times. And the regional administrator told me when he was telling me about this guy, he said well we're just waiting for this a fatality from this guy. And I said stop right there. We ain't going to wait, not on Ed Foulke's watch are we going to wait for somebody to have a fatality. We're going to go after this guy and we have gone after him pretty strongly. And you know, but I don't know what it is about this. As a group, there is a small group, it's not very big, but there are a small group that think that this is just the cost of doing business. And they're going to find out that the cost of business has just gone up fairly dramatically from us because I ain't going to put up with that. Yes?

MR. STRUDWICK: Just one more thing, before you slip out. I was part of the contingent that went to Mexico City in a NAFTA situation. Hank was there, there were a number of us there, and I think that had a great impact, but there was never any follow-up. We had talked about a card that would be recognized similarly, like you talked about, throughout Mexico, the United States and Canada where training was applied and it was consistent. And I think that's honestly an opportunity that we still have as far as NAFTA is concerned and would give us credibility on this side of the border if the Mexican government was behind what we were doing and imparted that to the folks that are going to come over on a legal visa and work for all of us. And that right now we're suffering a cultural whiplash as far as the Mexican folks in the field are concerned because they're moving from labor to skilled labor to supervisors to superintendents and we're going through the same cultural clash that we went through 30 years ago ourselves as far as being bulletproof and having the ability to make our own decisions in the field irregardless of what anybody says around us. But NAFTA is another avenue that I think would add credibility to the training that we're trying to do here.

MR. FOULKE: Well, we need to look at whatever we can. I mean, on the training issue, you know, the unions started off by having the training. They had the card. If you were coming out of the union hall, you had that X number amount of training. And we just need to make sure that we expand that as far as we can. You know, training is obviously critical to that so we've just got to work with whatever we can. So yes I agree.

I mean, you know, all I can say is I've got a little over two years here. I'm going to do what I can. We need your help. Hopefully I can do some good here and move the ship in the right direction and do these things and really help people, make a difference. I mean, that's all - I really want - my goal is to make the agency the best it can possibly be. I mean, I haven't come out with any big new initiatives or anything else like that because I honestly believe that we've got all the tools we need, we just need to be focused and just go after it, and go after where we need to be. So anyway. I appreciate your time and I hope I haven't put you off schedule.

ACTING CHAIR BRODERICK: Well, we really appreciate your taking the time to be with us and it's wonderful to meet you and we look forward to seeing you at future ACCSH meetings.

MR. FOULKE: Well anytime, whatever I can do. Thank you.

ACTING CHAIR BRODERICK: We'll take a 15-minute break.

(Whereupon, the foregoing matter went off the record at 2:58 p.m. and went back on the record at 3:16 p.m.)

ACTING CHAIR BRODERICK: Thank you. We are going to head on to the next segment of this meeting where we'll have some public comment on C-DAC. And to kick things off we have Chip Pocock, and Chip if you want to introduce yourself and address the group we'd truly appreciate it.

MR. POCOCK: Thank you, Tom. My name's Chip Pocock. I'm with Buckner Companies out of Graham, North Carolina. I had the honor and privilege of representing the Steel Erectors Association of America on the C-DAC committee and I also appreciate all the comments about our hard work. It was a great year. I think we had a good committee, one that was represented by all aspects of the industry. And I know looking at the draft standard that you have in front of you it's hard to - if you didn't attend all the meetings and hear all the interjections back and forth it's kind of hard to understand some of the issues and the give and take that are neatly tucked sometimes in a word or a sentence. But be that as it may, I'll attempt to address some of the concerns.

I was here last night. I got my start in the construction industry here in Washington, D.C., probably 30 years ago, maybe not quite that long ago, but pretty close. And riding around town last night looked, you know, there were a lot of cranes in the air, a lot of different kind of cranes and how this skyline and those cranes have changed since all those years ago when I was a laborer here in town and got my start in the crane industry and then the safety industry. Steve Miller and I walked up to the Capitol last night and I thought how great it was to be involved in this whole process in the country we live in.

But I wanted to point out. I had some notes here. I wanted to thank the NIOSH guys for their timeliness in the piece that came out of the NIOSH alert dated last month and go to some of the statistics that are in there. Somebody earlier pointed to Page 4. I'd like to call your attention to page 6 of that document. And we talked earlier, or the committee was talking earlier about data. We didn't have real good data from OSHA during the C-DAC meetings. This data that's contained here on Page 6 is probably the best data that I've seen in quite awhile. And I'll just call your attention to the fact that in a period from 1992 to 2002 there were 719 fatalities involving cranes in the United States. And of that, 53 percent of those were in the construction industry. And I think that's a sad fact.

I got involved with C-DAC actually early on through the work group that was a part of this committee, ACCSH, and this thing has been going on four, five, six years. And we need to make a change. Whether you like every word in the draft document, whether you like this and you don't like that, we negotiated to get where we are today. And I would also point to the Ontario statistics where mandatory training, and I like certification more than licensing. We opted to go the direction we did with C-DAC because we wanted something that Kevin Beauregard could accept in North Carolina that could just as easily be accepted in Virginia or Tennessee or Georgia or California. Right now that tends to be CCO but there's other groups coming. There's other approved entities that, you know, once - they're going through the process of being accredited now. I think that we will have a lot of different vehicles, or at least several different vehicles to handle the volume of operators once the standard goes into effect. I believe that it's like the field of dreams. If you build it, they will come. Anyway.

If you just look at the Ontario standards which were also entered into the record, they saw a 77 percent drop in their fatality rate after mandatory training and certification. And I think that just speaks volumes. I actually on the C-DAC committee, I was interested in trying to do something about the number of electrocutions in our industry. And I told Susan Podziba, the facilitator for our group when we got started, I really wasn't sure whether we really needed that because the bottom line was to me if you follow the current standards you wouldn't have people being electrocuted in this country. But we tweaked those, and I think we came up with something that's better than what we had. And I hope that, you know, that you guys will understand that and understand the work that we went through and give the standard its blessing and send it on its way so that by the time this Administration is finished we can have a new crane and derrick standard. And that's really the essence of my comments unless you guys have any questions.

ACTING CHAIR BRODERICK: Any questions for Chip? Thank you very much.

MR. POCOCK: Thank you for your time.

ACTING CHAIR BRODERICK: Steve Miller.

MR. MILLER: Thank you, Mr. Chairman. Thank you, committee members for allowing me this opportunity to come and speak with you today. I am a career crane operator and I have somewhere around 35 years experience in and around cranes. I'm also a safety professional. I've been in the safety business for some 15 years now. I've been training crane operators one on one for going on 20 years and I am also an accident investigator. And we travel nationwide, unfortunately, investigating crane accidents and injuries and fatalities. So that's the experience and the position that I bring to the table here today.

I also served on the initial ACCSH committee several years ago with Mr. Ahearn and several other of you here today. I thought that was a good effort and I do agree with everyone else that said here today that this effort is something that needs to move forward quickly because of the fact that every day this standard is not out on the street someone is being injured or killed and cranes turned over and millions and millions of dollars of damage and lost lives and production. So it is that important and I don't think that falls on deaf ears.

As a trainer and an investigator, it becomes evident through interviews with students and operators that the design and complexity of these new cranes today, this whole new generation of cranes is confusing to say the least. It's confusing for those of us that are instructors out there trying to train operators on booms and luffing and all these different things and the computer systems that go with them. And it's not like seat of the pants operation like we talked about this morning. That's the school I came from, the same school that I think you did. I've had that same feeling all too many times. So new and experienced operators alike share this same view. They are confused, they're dismayed, they're feeling somewhat insulted and betrayed to be totally honest that the manufacturers put this much on the individual operators. In other words, we're left to have to figure out this much about this crane and that's not right, okay?

Especially with the fact that as it was mentioned earlier today that many new cranes on the market today, especially the smaller boom trucks and things like that that we see in light construction, in residential construction, many of these cranes are 100 percent of their chart is structural. And that's scary when you think that with the boom fully extended boomed out flat it still will not show signs of tipping over. Something's going to break. And in our investigation we find case after case after case of cranes snapping off the carriers at the turntable bearing and things like that just because persons just keep pulling on something until it either comes off the ground or the crane breaks. And it's that simple. And it's a tragedy.

Load charts and associated rates and notes and warnings that used to consist of a single page on the side of the cab now include full 3-ring binders and sometimes two 3-ring binders of information just on the load charts and different configurations of these cranes alone. Not to mention the operators manuals and the responsibilities again that are passed on to the operators through that language, some of it, needless to say, liability protection, but it's still being passed on to the operators. They need this training and they want the training.

Computers in cranes today give a false sense of security and because these computers are in the cranes, many or most operators, it's been my experience, choose to ignore the load charts and simply they're dumbing down the operating community by giving them these fancy computers. Okay? It's not unlike an accountant that sits there with a calculator all day long and their life and their career is all about numbers but you take their calculator away and they can't do simple math because they relied on that calculator for so long. And that's the position we're in today with computers in cranes.

Interviews with operators and other people involved after accidents reveal that accident causes are usually simple oversight of basic but essential crane safety requirements. Failure to use outriggers and not enough blocking on soft ground and setting up over, in the case of one homebuilder out in Denver, Colorado, he set up over an area with his outrigger where they had just laid their natural gas line, covered it up with a ditch witch, there was no compaction to speak of, and this guy just happened to set up over it and the crane went through the hole and it was a pretty serious accident. So those kinds of things. Understanding capacities or totally relying on the computer, and let's face it. The computer only knows what you tell it. So you program in the wrong information, just like the fatality we had in Colorado Springs earlier this year, crane operator was working on rubber, told the computer he was on outriggers, tipped the crane over and killed him. That same job site, by the way, two weeks later tipped over another exact same model and type of crane on the same job site a hundred yards down the street. So what the Assistant Secretary just said about some people need some whack, those are the types of contractors that need some whack, but on the other hand, tools for crane operators today must include comprehensive training.

We desperately need uniform requirements in training and certification and crane safety standards out there in the industry. Colorado was reluctant to adopt an operator certification standard simply because of budgetary constraints and confusion and unwillingness between the various government agencies to take the ball and run with it in terms of who will enforce this, what will it cost, you know, how do we comply with this kind of thing. And it seems burdensome to the State of Colorado and so it made it through to the House for a vote and it narrowly was defeated. We look to OSHA to be the best people nationally to enforce this thing. They're all set up. They have the vehicle. They're on job sites every day and it's as simple as let me see your card, let me see your certification card and move on. And if you don't have your certification card, out of the crane. It's got to be that simple, okay?

It has been my experience being a trainer, and we do train operators in preparation for the CCL certification. It's been my experience in the past several years that many operators have taken study materials and done their own home study and just simply come in and test it out on test day rather than go through the 2- or 3-day training course that we have. And most have not had problems and they've passed the certification. So in that respect we're looking at, you know, a couple of hundred dollars from start to finish for the certification process.

We talked about grandfathering operators in, okay, and if they are in compliance with current standards then they should be able to go in and pass a fairly simple, in my opinion, fairly simple but comprehensive test to prove their skills and certification, especially in the seat. When we talked earlier about some of the operators that are 20- and 30-year operators, they start to lose their edge and many of my personal friends I've had to take out of crane cabs after accidents and things like that and say, hey look, it's time to go do something else. Okay, you're losing your edge. And that's what the practical part of these tests prove. Maybe a guy can go in and study up and pass the written test, but it's just - he's to a point where he can't get in that crane and pass certain skills, operating skills tests, and that is vitally important in my opinion.

And that's basically what I had to bring to the table today. I certainly appreciate the opportunity because this is so important to me. And I would be more than happy to answer any questions.

ACTING CHAIR BRODERICK: Michael?

MR. HAYSLIP: Good afternoon, Mike Hayslip at NESTI. Do you have any handle on the projected cost as far as you see it with regard to getting a certification for someone that might have limited experience? What's it cost? What might it cost, if you know?

MR. MILLER: I would say in the neighborhood of - we hold 2-day classes and the third day is for the written testing, and then we do a follow-up day for a practical test. And start to finish our costs, including the CCO fees, is somewhere in the neighborhood of $1,200, but that's not - obviously that's just our cost. I'm not talking about lost time, or their wages, or that kind of thing. But again, many operators come in, they buy a set of books that we have through the St. Paul and AGC. They cost a hundred dollars for the set of books and they use those texts to prepare for the test and usually do very well. If they're experienced operators. If you're asking about a newbie crane operator that's never been in the seat, you know, I'm a firm believer that that individual needs to spend an extended period of time with an experienced operator in the field.

MR. HAYSLIP: Thank you.

ACTING CHAIR BRODERICK: Greg?

MR. STRUDWICK: Do you see much movement in the way of technology as far as simulators or that type of technology being used to actually train young, new operators in the effects of crane?

MR. MILLER: That has not - I have not seen it. I've seen ads for it in Craneworks Magazine, that kind of thing, and I tried the simulator that they had out at ConExpo with Manitowoc last year and to be totally honest it didn't seem very effective to me. It wasn't as good as getting out on a crane and spending a little time and with an instructor on the catwalk walking you through this thing and starting out with simple tasks and one of those kinds of things.

MR. STRUDWICK: The reason I bring that up is because we don't want the wool pulled over our eyes. And you can tell us that from your background as an operator and a trainer is that, you know, the hands-on, the real experience is proof in the pudding, basically. Because we've had, or I've had people tell me that simulation could simulate just about any capacity that a crane was capable of. And I'm not sure if I believe that yet or not because they haven't been able to do it with much else other than maybe an aircraft, and of course we know about that. But I just wondered, just kind of an open question.

MR. MILLER: I was not very impressed. I only spent 15 - 20 minutes on the simulator out there and I thought it was limited. You know, one thing that I have not heard too much comment about today is the fact that there is just an extreme shortage of crane operators across the country today and that's adding to this people are taking individuals and putting them in cranes after very little training or sometimes no training and running down to a rental outfit and just picking up a boom truck and have at it. And I was telling some people earlier today, I investigated a crane accident in Aspen, Colorado last week and it was a boom truck on a residential site and they tipped it over the side of a cliff and they called me up to figure out how to rig this thing to get it back down on the ground and I offered my advice on that. And they said, well, you know all the other times we've tipped this thing over we didn't do it this way. We didn't rig it this way. And they had tipped the crane over three other times. And you know, that's not comforting to me, you know?

So in my opinion, you know, there used to be, you know, assistants to the operator, and oilers, and people that worked on and around cranes for extended periods of time before they were cut loose in the seat. And we just, it's my experience we're not seeing that out there in the industry that much anymore and it's probably in my opinion the number one cause of crane accidents today.

ACTING CHAIR BRODERICK: Matt?

MR. GILLEN: Yes. Would you have any opinions you want to share, any thoughts on the critical lift issue and how to address that in the reg?

MR. MILLER: Well you know, a critical lift could be a half a bunk of plywood or a couple hundred pounds and all things are relative with a 15-ton crane or a 150-ton crane. Sometimes the block and ball alone is a critical lift. If you're booming down to the ground under 40 degrees you don't put the block and ball to the ground, you'll tip the crane over. So I think it would be difficult to define in black and white this is a critical lift and this is not because I think it would be far too easy to leave things out that are critical and not have them in that list and then have there be a perception that, well this is not critical, it's not on the list. Or, you know, some people do use that excuse as, well, OSHA didn't say I had to do it so I'm not. So I think it would be good. I think it would be constructive to have a guideline, an appendix, that could say here are some examples of what could be considered critical lifts, and here are some ways of addressing it, and here's a sample critical lift form. I think that would be wonderful.

ACTING CHAIR BRODERICK: Any other questions? Thank you, Steve.

MR. MILLER: Thank you for your time.

ACTING CHAIR BRODERICK: We appreciate it. Our next speaker is no stranger to this group. Bill Smith has worn a number of hats going back to when he was the safety director for the operating engineers and before that he was a crane operator and since then he's worked for one of the largest crane companies in the country and now he's working on the insurance side. So we welcome Bill Smith.

MR. SMITH: Thanks Mr. Chairman and members of the committee. Thanks for the opportunity to speak before you. You busted my opening with my history, but years ago I sat at the same place you all are when I was a member of ACCSH and that was way back in the Joe Adams chair days and Knut Ringen chair days. So I've been there two terms as well so I know what you guys are up against.

I'm going to try to present some information today that hopefully will clear up some confusion. I made a little note here about Secretary Foulke saying perception is reality. And it seems to me there's a lot of perception going on about what it is versus what it really is. The hardest part of this committee, and I sat there so I know it, is that you all are given four and a half years worth of work, three and a half of work group from this group and a year's worth of work with the C-DAC committee and several other years prior to that and basically in a few days, or a day and a half, or two days digest that language and then try to come up with recommendations. And that's a tough task because of the fact that as we all said, you don't know what the background is of certain words.

So what I'd like to do is just start out and talk about what Tom said, a little bit about my history for those who don't know me and the ones that do will be redundant. But I was a crane operator, worked many years in the field, went to work for the operating engineers safety and health in training department where Emmet's at. I did that for a number of years and then went to work with Maxim Crane, the largest crane company in the United States, as risk manager from the labor side to the management side, which is a change. And we would put out 1,200 crane operators a day in the field in many states so we were subject to a lot of risk and a lot of liability and a lot of issues. Then I went to work for the government with Bruce and with this committee as well, and now I'm with insurance, so two things you get out of that. One, I can't hold a job.

(Laughter)

MR. SMITH: Or two, I've had plenty of opportunities to move the industry forward, and I hope it's the latter of the two based on my experience. And also, history-wise the (b)(30) issue came up and I've sat on (b)(30) main committee for about 15 years. I was fortunate to sit with SENRAC on Subpart R and C-DAC with Maxim as a company rep. And also several other national committees including A10.

Everybody knows it's 23 members that sat three or four days a month for 12 months with the years prior. And just for the committee, we had to - our first mission was to vote on what consensus was. And in SENRAC, consensus was 100 percent, which made it very difficult. One person that said no, it was no, and it made it hard. So what we on the committee said was consensus for C-DAC is three or more. So if an individual had an issue or any one of the issues presented that they didn't like or their membership didn't like, they had to convince two other people on the committee out of 23 that their position was right and that issue doesn't move forward. So essentially you can kill an issue, crane certification or power lines or signal people training. You can kill an issue if you are strong enough in your opinion and you had two other allies of the 23, basically one-eighth of the committee to agree to stop that from moving forward in a consensus document. And what you have in front of you is a result of the fact that out of 23 people from the industry, that didn't occur, and if it did it's not there. So you don't have it in front of you. But what you do have is you have a consensus document that was very difficult to hammer out, and like I said, consensus was three or more against it, it didn't move forward. Which made it good because you had to convince the industry and all the reps from the industry that what we're saying in a document is not the right thing.

The parties representative, you all probably have a list, hopefully it's in the document, but it was very broad-based, manufacturers all the way down to users, consultants, safety guys, industry people, leasing companies like myself at Maxim. The argument we had on training that was brought up earlier about the fact that it's going to cost so much for training, training in the document is not really different from what it has been. It's just further defined. Basically it said, the last 40 years we've said that every employer must train his employees on how to run a piece of equipment. I don't care if it's small DROT or a crane with 300 foot of boom with a 200-foot luffer, you've got to train that guy to run it the way the current 40-year-old rule is written. Forty years from now as we change the reg, the training requirements are going to be the same. You still have to train your people to do what they do. So the training costs, the training money, the training issue at the committee level, it may have been a little bit more dollars than what you may have spent in the past. If you didn't spend any money it might be a lot of money. But our bottom line about it was the fact that if we're going to move forward, training is an issue but not a dollar issue because you're already doing that or you should be doing it. Certification, however, the testing part is something brand new. Testing to national standards is what is in place. Some criteria and some guidelines, that is a cost. But when you lump training cost, time off and certification all together in one because it's so new of an animal that it's a brand new cost to the industry, chop that training section off because you should already be doing it. And if you're not, you're turning cranes over.

We feel that actually there's many good work practices in the document. Regardless of the issue of one or a couple of controversial issues, but there's many good work practices in the document. I'll give you a background of where I'm at now on the insurance side. We insure 500-plus crane companies and we insure 5,000-plus builders. So I'm in a dilemma. I've got a homebuilding industry or builders' side that might or might not all agree with certified crane operators and I've got a crane side that agrees and some don't with crane certification as well. But in the insurance industry, our CEO of our company said look, if it's a regulation that's going to promote and reduce risk, and you do it in several ways and hopefully reduce claims for our business, the insurance business, and in the end hopefully save lives and reduce injuries, how can we not be in favor of that? That's what we do. We do loss prevention, we try to mitigate risk and we try to prevent, before the act and then after the act we have to protect underwriting because we bound them, so we have to do the best we can to try to litigate and get rid of and pay off, take care of the claim for whatever reason it is. But our main goal is to stop it before it occurs, both in residential homebuilding and in cranes. And in our case they both go together because we may have a crane mount company that we bound that sends a crane to carry trusses to a homebuilder that we bind in insurance, so we have both. And our job is to eliminate that and to reduce that.

That issue again of training. I don't care whether we move forward with certification in the document and it's tied to training and it's going to cost $5,000 as one said and $1,200 another. Bottom line about training is, and somebody said earlier, cranes are getting so more sophisticated in the future it looks like a cockpit of an airplane if you'd been in a new one. Training is going to take place whether we do this or not. That cost of training doesn't have to be there. And the way it's done is when a company buys a new crane that's so sophisticated in technology, chances are they're going to bring in the manufacturer and they're going to have a training class of one or two or three of their operators to run them through so that they're capable to go out and start to run that crane and it'll take one, two or three days of time off to do that, and they have to do that if they want to stop/prevent the accidents. So training is going to continue based on new technology and sophistication.

The argument, and somebody said earlier about run it by the seat of your pants because I grew up that way because cranes were stout. Now it's almost 100 percent structural. A lot of the old crane manufacturers used to have a bold line or a shaded area where one was structural, one was tipping. They're doing away with that and they're just leaving it a blank open chart because they don't want operators to worry about the tipping end versus structural end. They want them all to be structural. Classic example was the outriggers won't move and the thing will break in half. He might think he's in tipping but he was in structural and they don't want to separate the two. So they're doing away with the bold lines in a lot of cases and they're making just a flat chart and you've got to follow the rules based on the capacities of that chart for whatever project you're in and that's it. Forget about I can pick up more because it's tipping, so therefore I can give it a little bit of boost. They want to take that away.

The other issue too is that the crane charts are 75 percent or 85 percent of capacity already by standards. And I sit on the (b)(30). So that means you've got a built in margin of 15 - 25 percent by design plus - and that's to 100 percent of the chart, plus they test them at 110 percent regardless. So you can have 25 - 35 percent margin on top of that. So you already have it in there. I'll talk to you briefly in a second about critical lifts and where I stand, but it's based on that premise that you already have a huge design factor built in, and we'll go from there.

Recently I was fortunate enough to sit at a Small Business Administration conference call with the SBREFA panel and I know you all are hoping that you get a report. One of the comments that really struck me, and Steve Miller talked about the issues he'd had and I can give you tons of experience, but there was an individual on the conference call that talked about his company and what he does. And he has the same thing. He has a non-English speaking workforce. He takes the operators out of the seat when he gets to a critical lift or a big lift, puts in a supervisor to make the lift that understands a little bit more which somewhat means that his current operator may not or may be qualified to do it, and he feels as though that after so many years of being in business and no accidents reported by him, at least on the conference call, and the fact that he knows his operators well enough to know what they can and can't do, and he's trained them, and he's got all the documentation, that he doesn't feel as though he needs this regulation to affect him. And then the question was asked to him is if he would hire an outside crane company that came in the door with an operator, would he then expect that company to have the same guidelines and principles, and the answer was no, I would expect them to be certified. And it's almost do as I say, not do as I do, and that's a hard one for all of us to swallow.

And is it somewhat of a burden with a new regulation? Yes, it is. I'll give you the example that if we do away with everything else but power lines, because power lines is the top of the list and it kills the most people. And if power lines is the only focus we're going to worry about to protect lives in the industry of cranes around power lines, and that's the highest rate of fatality, if that's the case, that alone is a burden because it would change the way you currently work around power lines. Nobody would want that burden. They don't want any of the burden. So when you have a new rule that's 40 years old, you're going to have a lot of burden.

We talked about the fact of grandfathering and the issue of where companies are. And currently we at the committee looked at it. And you figure we're, Ed said in two and a half years he has here he'd like to get something out before his Administration leaves. So we're two and a half years away, let's say, if that's a fast pace and if that's true that he can get it done. Two and a half years away. Then we're four years of a stay of operator certification in the current reg, so we're six and a half years away from even starting. And when OSHA promulgates the rule, they're going to give a one-year or six months to a year leadway before they enforce, so we're seven and a half years away from operators needing certification. To us that was grandfathering, and that's the way we see it. And that's if it happens on a fast pace. So we might be 10 years away from starting crane operator certification. The old timers that we're worried about are 10 years closer to the end of the tunnel and they may make it. But that's not a reason not to, and that's not a reason to grandfather everybody because if we grandfather all operators today, we are probably generations times over away from getting to what Ontario has where we can put all the pieces of the puzzle in one group and say, look, from the time we didn't have it to the time we did have it the fatality numbers have went down. That's the only way we can do it. Because statistically you can't do it now because not everybody in the nation has certified or licensed operators, so it's apples and oranges.

A few of the other things I'd like to talk about in the standard, the power line issue, the signals, ground conditions, testing requirements are in there as far as crane goes and inspection requirements. Like I said, training costs are already there. If I could, if I have just a few minutes because I sat on the committee to try to clear up some confusion, I'd like to try to address some of the concerns that I heard that was commented on. The critical lift issue, Matt, my position. We sat around the committee and tried to do it. The (b)(30) standard right now is trying to come up with what is a definition of critical lifts. The problem we all have with it is that lifting people is somewhat critical because now you have human lives in a load situation, not just under it but in it. When you have two cranes making a pick you have critical factors because one will overload the other in a heartbeat. In fact, as an insurance carrier I just investigated one a month ago where two cranes were picking and the smaller crane overloaded the bigger crane, believe it or not, and put that crane in tipping mode and it tipped over. So two crane picks are critical because there's too many factors involved.

Picking a single load over top of a live line in a petrochemical plant may be critical if you blow the whole plant up. But the issue of chart, which is what a lot of people go to, is hard because I've already said, you've got a margin built in to the chart. If you go 100 percent to the chart, you're still 15 - 25 percent in that safety zone before tipping and structural curves by design. If critical lift means you have to have a plan and a meeting and some document put together to be a critical lift, not just call it that, but steps to do when you get to critical, it means that on certain jobs you're going to shut a crane down five, six, seven times, fifty times a day. Maxim Crane, I was standing on the side of a crane that was a large lattice boom, fed the whole job and all the crafts and all the subs. Doesn't know what he's picking because he's working off a radio and he's feeding everybody. And he's told swing around here and pick up this pallet of brick or block. So he picks them up and he says put it all the way over there on the other side where the cart is. Well, he picks it up, he's way in his chart, swings around, but as he booms down his LMI or his movement indicator starts reading 65, 70, 75 percent, 80 percent of chart and he's setting it down out there. Well, if we use a number, 75 or 80, technically he's in that critical lift mode just putting that pallet of block far away. Does that mean he needs, like Steve said, shut down, have a plan, have a meeting, make sure? And you can't do it that way. We think that any single crane that picks within its chart up to 100 percent, providing everything is right, is not critical. However, the closer you get to maximum the chance of recovery gets slimmer and slimmer, and we all know that. But unforeseen conditions, ground giving away and things like that, it's hard to determine even in a critical pick where you've got everything laid out and it still does that.

We talked about conditions, ground conditions. Mike, I think the word is "known" that's in the standard. And if it's known conditions, it needs to be relayed. If it's unknown to everybody it's unknown. We gave a good example of a crane coming in where there's known utility lines and the crane turns over. That should have been conveyed. The second part of that ground conditions being vague enough is that if it's unlevel, three feet of mud, whatever the case may be when you show up, it's up to some controlling entity to be able to improve that to make it more level to set up. So that the crane's not sitting like this before it gets started and then has to try to level itself out. Where there's ways to modify the ground and get it level and firm and remove three feet of mud, then it needs to be done, and that's why ground conditions was left open.

There's a bunch of other issues. I know I'm running short on time. There's a bunch of other issues out there. Fall protection was one about the height. I agree with you, Michael - or Kevin, I agree with you on 6-foot, 10-foot, 15, 25, 35, 30 feet, but what we did in there was we said that six foot's the rule except under assembly/disassembly because if we do it a different way than we've been doing it - we don't have a lot of data on fatality of putting the boom together. We have fatality of being under the boom when you remove pins that causes the death, but not on installing the boom or assembling when you're walking it. And that would either mean tie-off points that you can't tie off to because nothing's above you, everything's at your feet and by the time the lanyard pulled out you already hit the ground. Or man lifts on every job following every crane around and that's a tough task too. And in addition to it, once the crane goes up on outriggers and gets up, the working platform that the operator walks on, a walking working surface with no guardrails which is the deck is already above six feet. So technically for him to walk from A to B he'd have to be protected and he can't be.

So there's a lot of issues that we, and you had three members of the committee, but there's a lot of issues that we could help clear up. I'm sure Noah will tomorrow. I'd like to say the same thing that everybody said, that once the questions that you have are answered and hopefully your comments don't stall this process and move it forward that we've sat around for a year plus and worked out a good consensus document with a lot of history. And we'd like to see the committee try to approve it and move it forward. And if there's anything that really gives anybody heartburn, just make it a part of the public comment questions and let the public also help comment on it. With that, if there's any questions, Tom?

ACTING CHAIR BRODERICK: Thank you, Bill. Questions? Mike?

MR. HAYSLIP: Yes, it seems that when the tests are taken often, my impression is that one thing commonly failed is sometimes how to read the load charts. That's one thing people tend to fail on, if anything. Question: how big of an issue is literacy and English as a second language in the industry?

MR. SMITH: My personal opinion is depending on what geographical region you're in. But the further you go south to the Texas and Florida and southern California handles, you'll see more and more non-English speaking people trying to enter the marketplace for cranes.

MR. HAYSLIP: I mean, any amount is significant.

MR. SMITH: You know what? I think what's happened is that, and somebody talked, I think Craig talked about it, coming as a labor force and through time they work their way up. And I don't see evidence of that much of an issue in the crane operator side yet. I'm not saying that in time it won't flip, but for right now they're still working their way through the system of doing manual labor-type work first instead of a more technical-type labor trade such as the electricians and different trades. So I think they're working their way through the system, but Mike, I don't see it. I'll give you an example. Maxim Crane, largest, 1,200 crane operators, we didn't have an issue. And we're the largest in the world. But smaller ones down south might.

MR. HAYSLIP: The question is, is this too much of a standard? Granted it's a lot of stuff and it's all good stuff, but is there a value in kind of little by little focusing on what's important rather than focusing on everything that's important? Does that make sense?

MR. SMITH: Yes, except for this. The current standard that exists is 40 years old is only six pages, let's say. But it references documents in complete that end up being 150 pages. If you reference (b)(35)-(68) you have to take the standard the way it's written. That becomes part of the rule. Because if it says anything but this, it's in there. So whatever's in there is now part of OSHA's regulatory act. They go to (68) version and they do it. What's not in there is that can be upgraded, they can either do it through general duty by saying this is industry standard which changes the direction, but they can still do - we don't say it in the reg, (b)(35) doesn't, (68) doesn't say it, but (b)(35) 2005 does, so under general industry and general practices and standards of care we can use that as a tool. Now, having said that, the committee said should we make it six or seven pages and reference all these that the industry has to go by and now it's this big when you put it all together, or should we put it all in together and have it a one-stop shop. And that's our election. Now it's 180 pages and I agree with you.

Now, what we did focus on though, to be honest with you, was we focused on the fatalities. And what we said was - and that's why you see very little wording on derricks and very little wording on other parts of the old rule because we didn't have a lot of statistical information on fatalities. So the problem we have with it is we knew power lines was an issue. We made it drastically different, including insulated lights. When you get inside that zone, we allow you now to get in there, but you've got to do a bunch of things to get in there whereas in the past you never could. But for some reason people die, so that means you're in there and we know that. So we said, okay, if the industry's going to go there we're going to tell them how to go there. So we changed that drastically and that was the number one cause.

The other problem we had with not certifying, or certification in general is that everyone around the table and everyone in the industry, people talk about why do accidents occur, and there's a range of 70 to 80 percent are caused by human error, miscalculations and operator error. Well, 40 years of training, which is what the rule says, if 40 years of training hasn't fixed that and we know the industry's changing fast and drastically in new technology, if all we do in the future 40 years is put in training again, we probably haven't fixed anything. What we need is we need training conducted and testing to some minimum standard of testing guidelines that at least, like Ontario did, and like we do with our driver's license for kids that are 16, we at least assure the community, the public and the people around you that they've met some minimum criteria by testing to national standards. My 16-year-old who passes his driving test with that card in his pocket thinks he can drive as good as me. Now, my 90-year-old grandmother may never pass a test and probably shouldn't be driving. But it's a balance. And we're thinking that the balance in the next 40 years is whatever test you give, you give to some minimum testing criteria standards which encompasses a bunch of things. Because if not, we're going to have just what we have today. You hire a company, there's no criteria on the testing, there's no criteria on the training, training is a day and a half, testing is 50 questions, you pass your test, you're out of here.

I'll give you one other example, and I don't know if the website is still up, but I can - when C-DAC was going, you could go to a website, take a test on the web and print your own operator certification on your printer. That's how bad it is. And if that's what we're looking for is some piece of paper that certifies that you've passed some test, that's How weak it is out there, and we don't want that to take place.

MR. HAYSLIP: So you're saying this is an industry issue that we're in part protecting the public trust?

MR. SMITH: I agree totally with that. I agree totally with that because the public is at just as much of a risk.

MR. HAYSLIP: So it's a public policy argument as much as what's right.

MR. SMITH: Totally.

ACTING CHAIR BRODERICK: Bill, thank you very much for being here.

MR. SMITH: Sorry about taking more time.

ACTING CHAIR BRODERICK: Oh no, this is critical information and we are here to deliberate on the standard and we appreciate the time you've taken.

MR. SMITH: Thank you for giving me the time.

ACTING CHAIR BRODERICK: You're welcome. We're going to - I'm looking at two of the three remaining public commenters. I'm looking at all three of you, and two of you I know are from the local area. We have a very important presentation that Ruth McCully has prepared for us that is on the agenda. What I would propose to do is invite you back tomorrow morning. Adele, you can't? Beth you can. Graham, can you? Tomorrow morning before the committee takes up the balance of our deliberations because the three of you are here to discuss that very thing that we are deliberating on. So that would be at - okay. Yes. Adele, you can stick around until Ruth - how long do you need?

MS. ABRAMS: Five minutes.

ACTING CHAIR BRODERICK: Five minutes. Ruth, would that?

MS. MCCULLY: I'm real flexible.

ACTING CHAIR BRODERICK: Okay. We'll get Adele in on the record and then if you two would like to stay we have until 5:00, but it's going to be Adele and then Ruth.

MS. ABRAMS: Well thank you for letting me make some comments here. My name is Adele Abrams and I'm president of the Law Office of Adele Abrams in Beltsville, Maryland. I am a certified mine safety professional and also an attorney, a member of a number of construction safety organizations as well as a professional member of ASSE's construction practice specialty. And the comments I'm making now are on my own behalf and not representative of any group that I'm affiliated with. And I should mention I also write a legal/safety column monthly for MetalMag which is a trade publication for the structural steel construction industry. And I have been covering this rulemaking since its inception for that magazine and reporting on it.

I'd like to commend the participants of the C-DAC as well as ACCSH for taking the time to really explore the issues here in depth. And there were just a couple of things that came up during your discussion earlier that prompted me to wish to speak today. I didn't come prepared to make a statement, but just a few things for you to think about as you continue tomorrow. There was discussion about whether there should be different testing, different certifications required depending upon the type and size of equipment being operated. And you know, I'm aware that under current testing for the most part somebody can take multiple tests in a relatively small time framework. And I would hope that as other organizations become accredited to provide this testing and certification that the scheduling would be such that a small employer who might have multiple types of cranes would be able to send an employee just once and be able to get the multiple certifications that would be necessary in a single trip. Otherwise, the time away from the work site, the travel expenses are going to be increased substantially. And I do represent in my legal practice a number of small crane operators who would be heavily affected by this. I should mention also that I have done my share of investigation of fatal crane accidents and I in fact have a fatal crane case right now for an accident that occurred this month. So I am well aware of the seriousness of this as well as the role that appropriate training can play in preventing accidents either fatal or of the serious variety and even near-misses.

Another issue I just wanted to address was the auditors. There were questions brought up about who would audit these training programs. And putting my legal hat on for a second, it's going to be, I think, very important that there be some kind of recognized criteria for those auditors so that employers who do bring in a third party to review their programs or review testing will have some assurance that the steps that they have taken in good faith will be recognized by OSHA or in a tort litigation forum should a catastrophic event happen despite best efforts to prevent that. If you leave it wide open as to who is qualified to be an auditor, if you don't require there to be some showing of competence or certifications in the safety field, you're leaving the door open to potentially fly-by-night folks coming in and marketing their services to unwary small contractors to their detriment.

Another issue was brought up about drug testing. A couple of people have mentioned that. And I would just note as a reference for you that the federal Mine Safety and Health Administration, OSHA's sister agency, MSHA, is engaged in a rulemaking now about substance abuse prevention in the mining industry. And it is - they've already done an advanced notice of proposed rulemaking and the comment period closed on that. A proposed rule is supposed to be coming out either before the end of this year or in early 2007. One of the things they are looking at is mandating drug testing for all miners and following potentially the DOT criteria for that. Now, I bring this up for two reasons. One, that crane operators who provide services at mine sites may well be subject to this in the future because anybody who's at a mine site is considered to be a miner. And the construction companies that come to a mine site are going to be subject to this. It is consistent with the Department of Labor's 21st Century initiatives on drug-free workplaces in the private sector. And so I would encourage you to just monitor what is going on with MSHA's rulemaking because if in fact you decide to go down this road, you would probably want to have some harmony between what the two sister agencies require in this regard.

And then the last thing is the controlling entity issue. Again, putting my legal hat on here, it's going to be very critical for you to be clear if you are using the term "controlling entity" in a way that is different from the multi-employer work site policy. There was a recent ruling in the U.S. Court of Appeals D.C. Circuit just within the last couple of months in a mine safety and health case, Twenty Mile Coal. And in that decision the U.S. Court of Appeals held that the Secretary of Labor has unreviewable discretion to cite a prime employer or a general contractor equivalent, a subcontractor or both for the subcontractor's safety violations. That particular case had to do with safety equipment defects, by the way. And the decision, although it dealt with an MSHA citation case, the basis for the ruling was the Martin v. OSHRC decision which said that in a matter where the commission, the Occupational Safety and Health Review Commission differed from OSHA, that deference was to be given to the agency. Now, again, even though this decision deals with a mine contractor citation that was issued to the equivalent of the prime employer, the rationale that was used by the court came out of the OSHA field. And I think, we haven't seen it yet, but I think it's only a matter of time that somebody is going to extrapolate that decision into the OSHA multi-employer work site arena and say that OSHA too has unreviewable discretion. Therefore, if what you mean by controlling entity here is different from what is meant there, you need to make that clear, because the court also indicated that that deference, you know, is evaluated by whether there is statutory or regulatory language to the contrary that would place limitations upon the scope of who would be held legally liable for a subcontractor's behavior. So you have an opportunity here to get it right and if you want to place limitations and not have every general contractor held responsible for the acts of a crane subcontractor, you have the opportunity to narrow the scope of this regulation. And I would encourage you to consider that as you make recommendations to OSHA. So thank you for giving me the time here and I look forward to working with you and with the agency as this rule continues on to fruition.

ACTING CHAIR BRODERICK: Thank you, Adele. I'm about to turn the floor over to Ruth McCully. Stew Burkhammer has asked me for a second to make an important announcement.

MR. BURKHAMMER: I apologize for flying in and out of the room so often today, but we have just received notice that in New York City a fixed wing aircraft has just flown into a 50-story apartment building at the twentieth floor. Several fire units have responded, as you can imagine. OSHA is on the scene right now. The Assistant Secretary has been notified and that's all we know at present. So with that here's Ruth.

ACTING CHAIR BRODERICK: Well, sorry to have upstaged you, Ruth, with this.

MS. MCCULLY: I was watching it in my office, so.

ACTING CHAIR BRODERICK: Oh gosh. That's horrendous news, but we welcome you here. The National Response Plan is probably in the process of being triggered as we speak.

MS. MCCULLY: I don't know. I mean, this really does not look like a World Trade Center type of event. I mean, you can clearly see the apartment building. It's a very small part that's affected. And you know, it doesn't seem nowhere near that same level. As I told Stew, NORAD is scrambling aircraft in the area and around other American cities, at least that's what CNN is reporting. And there's conflicting information at this point on fatalities. So it hit at the twentieth floor which is pretty low, actually.

ACTING CHAIR BRODERICK: Well, I'm sure all of our evenings are going to be spent in front of a television set with a clicker in hand going between CNN.

MS. MCCULLY: Upper East Side, 72nd Street they said, so. Anyways. That is how our world has changed and when we got into safety and health early on and certainly for me I never really thought that we'd be talking about these types of issues and these types of hazards, but you know, the world's changed and we change with it. It's not up yet, huh? Who is the computer guru here?

MR. BURKHAMMER: He went home at 4 o'clock.

MS. MCCULLY: Did he really?

MR. BURKHAMMER: Reboot it.

SOLICITOR SHORTALL: While we're waiting for the rebooting, I'd like to mark ACCSH Committee Crane/Derrick Comments and Questions as Exhibit Number 11 and enter it into the record.

(Whereupon, the above-referenced document marked as ACCSH Exhibit No. 11 for identification was admitted into evidence.)

MS. MCCULLY: Don't you love it? It was so much easier when we had slide carousels. All right, the OSHA logo, so we're almost there, huh? No. All right. Thank you.

All right, this afternoon, thank you very much for allowing me to give a presentation here. I know that some of you are new and for some of you, you may have heard similar parts of this before, but my goal here is to talk about the National Response Plan, the Worker Safety and Health Support Annex under the National Response Plan and OSHA's role. And I'm going to be focusing on the hurricane response. And that's the predominance of the slides that I'm going to be using.

A little bit about the National Response Plan itself. It was created as a result of Homeland Security Presidential Directive 5 which also created the Department of Homeland Security and the National Incident Management System. I view it, and I also refer to it as probably the federal government's largest memorandum of understanding. It was a document that was developed in really pretty record time but then also signed by every cabinet-level secretary, every independent agency head as well as the American Red Cross and other basically non-governmental organizations. So it was - so that's why I call it a very large memorandum of understanding. All the signing parties basically agreed that they would work together and provide assistance as part of a cohesive interagency response which is for us in the federal government would be something that would be really something for us to do and that's what we're all geared to work towards. It was based on existing plans and the most important one is probably the Federal Response Plan. In fact, the feedback we got from state and local entities was keep it as close the Federal Response Plan as you can because we're familiar with that, we're familiar with that structure and we're familiar with those terms. So for the first responding community at the local level that was very important. Doesn't impact any legal authority of the participating departments of agencies and this is one of the things that I think is unique about this plan is that it's an all incidents, all hazards plan. In fact, I like to think of it as all incidents, all hazards, all workers type of plan.

And that was key because prior to 9/11 the federal government had four emergency response plans. It had the Federal Response Plan which was basically for natural disasters, it had the Federal Radiological Emergency Response Plan for Radiological Events, it had the National Contingency Plan which was for spills, basically oil spills or other types of large spills on land, and then it had the CONN plan which was basically a terrorism response plan. So they said no more four plans, we want one plan and try to bring it all into place. It's based on what is called the National Incident Management System, NIMS. NIMS, there was what they call a double I in NIMS, which is the National Interagency Incident Management System, which was really developed by the Coast Guard. But it really sets up how the federal government will respond, and that it will response within an incident command structure. ICS is now used universally, whether it's from the local first responder all the way up through our response, it's all based on the Incident Command System. So that's kind of like a summary as to the National Response Plan.

A little bit more. The National Response Plan was signed in December of 2004. That's when it was signed by all the cabinet-level secretaries. It went into effect in April 2005. We were doing rollout of the plan to basically seven different cities between May and June of 2005 and we really didn't have time or the lead time to really exercise it or become familiar with it as a federal government. The only opportunity we had to exercise it was in TOPOFF3 in April and then we got hit with the country's largest natural disaster in hurricane season. So I think that it's important to keep that in mind when we're talking about response, because what happens when you go to respond and something is new and you don't know it, you fall back on what you do know. And so for example, for many of us we were familiar with the Federal Response Plan, but we really hadn't had an opportunity to really integrate the National Response Plan and have all those things worked out as to how we would actually respond under that plan.

The National Response Plan is divided into several sections. One is the base plan and it really talks about the coordination structures. And that's things like the National Response Coordination Center, the Regional Response Coordination Center, how the federal government will all come together and work together in a response. It also has a number of annexes. There's three different types: the emergency support function annexes or ESFs, and that came directly out of the Federal Response Plan, support annexes, which we're one of those, and then incident annexes. If you want to look at this as a picture, sometimes it's easier to see things as a picture, up in the upper left-hand column is the base plan, which is a foundation. It's relatively short compared to the ESFs. Then up at the top of that diagram are the emergency support function annexes. The green one is ESF5 which is emergency management and that is really led by FEMA. And that really talks about how the response effort is actually going to be managed. The ones that are in purple are ones that OSHA is identified as a support agency to that ESF. Each ESF has a lead agency and then there are a number of support agencies. For example, ESF3 which is public works and engineering, the lead agency for that is Army Corps of Engineers. Ice, water, housing, that type of thing. ESF10 which is hazardous materials, that is - the lead agency for that is EPA. And that's really where the National Contingency Plan is located. So that upper part was really familiar from the Federal Response Plan. Everything below that, the support annexes, the incident annexes and the appendices were all new and really had not been dealt with before.

The support annexes, I have a separate slide on that. These are issues or areas that would cross all responses. The incident annexes are specific for a particular type of incident. And I think if you read them, if you can, you'll see for example there's one on cyber response if there was a cyber attack. A biological response. A radiological type of response. A catastrophic incident response, for example if there were an improvised nuclear device that went off, that would be a catastrophic incident response. So those are specific for those incidents. And then there are appendices. Probably the most important ones is acronyms and abbreviations because once you get into this world, you start sounding like you work for the military or something. I have all kinds of acronyms now and you know, I remember when I used to work with the Navy I had to get through the acronyms before I could understand what they were saying.

All right, here's a slide on the emergency support function annexes 1 through 15. Before there were 1 through 11, so there's four new ones. And beside that is the lead federal agency for that emergency support function annex. Those that have asterisks by them are ones where OSHA is identified as a support agency to that lead agency. You'll notice, for example, on Mass Care Housing and Human Services, it's joint with DHS and Red Cross. So here's a non-governmental organization that is identified as having a lead in our National Response Plan.

Support annexes. There are a number of these. You might not be able to see it on this slide. Financial management, international coordination, logistics, private sector, public affairs, science and technology, tribal relation, volunteer and donations management, a big issue in a response, and worker safety and health. All of these are issues that would carry over any type of response regardless of the type of incident or whether it was a terrorism event or if it was a manmade or a natural disaster. You'll see for all of these except for two, DHS has the lead on these. Department of State has the lead on international coordination, and OSHA is the lead coordinating agency for worker safety and health. I think it's really clear, and I always make this out that it's the worker safety and health support annex. It's not an OSHA annex. It's a worker safety and health support annex. OSHA is the coordinating agency, but it covers a lot more than just what OSHA would normally cover in its normal operations.

The worker safety and health support annex. There was an NRP writing team and through DHS and through the national response team, particularly from the work or the response work that came out of World Trade Center and the anthrax attacks, it became clear that there had to be greater attention on worker safety and health. So there was a call from a lot of different ports in the storm, if you will, to have a worker safety and health support annex. OSHA drafted the worker safety and health annex in cooperation with NIOSH and then we shared it with our cooperating agencies who had a role and input in the drafting of the annex. So you'll see that there are things in there that aren't typical OSHA things, but there are things that are needed for worker safety and health type of response.

OSHA is the coordinating agencies. We have a number of cooperating agencies. In Department of Homeland Security we have FEMA and the Coast Guard, in DoD the Army Corps of Engineers. In HHS our cooperating agencies are CDC, NIOSH and ATSDR. EPA and DOE are also cooperating agencies. The scope for the annex is really for incidents of national significance where there are coordination of health and safety assets are needed. You know, there are a number of types of natural disasters and so forth. FEMA calls them 3-county floods. They don't really rise to the level that you really need to coordinate the worker health and safety assets. So it really is thought that this will be called out for an incident of national significance.

It covers response and recovery workers, and I think that this is key to bring out that, for example, in drafting this, one of the things that we made sure and even in drafting the National Response Plan because we had a lot of opportunities to comment on the National Response Plan, was we wanted to make sure that emergency responder, the term "emergency responder" accurately reflected the types of workers that would be responding to an incident of national significance. In the past an emergency responder typically referred to fire and police. And clearly in an incident of national significance you're going to have other types of workers there. You're going to have skilled trade, operating engineers, labor, utility workers. You're going to have medical personnel. So in the definition of the National Response Plan, the term "emergency responder" has been expanded to include those types of workers. And that is reflected in this annex. So in that way we cover all hazards related to those workers.

The actual scope of the annex will really be dictated by the incident itself and the type of mission assignment that's given to OSHA to implement the annex. There are a number of activities that can be brought out to bear on an incident, but you really have to look at what is the incident, what's the hazard and what's needed. The annex covers key activities that need to be coordinated to support the response and these were really, if you read what's in the annex, you'll see that many of these read as the types of activities that were conducted at World Trade Center. And many of these will fall over to other types of responses as well.

Nothing in the annex preempts the statutory authority of OSHA or its cooperative agencies to work under or operate under its statutory authority, and that's key. For example, in the hurricane response, we basically exercised our enforcement discretion to provide technical assistance. But it doesn't mean that we didn't conduct enforcement. For example, if there was a fatality or a catastrophe or a complaint, we still responded as we would under our enforcement authority in those types of events. So we don't give away our statutory authority, but we will integrate ourselves into that response. We'll be part of the Incident Command System and part of the unified command in responding to an incident of national significance.

I think the last point there is important. The annex doesn't cover public health and safety and that was one of the lessons learned from World Trade Center where we seem to commingle public health and safety and worker health and safety, and they're both very different. For workers, they tend to be right in there where the operation is ongoing. They have higher exposures to contaminants. They're right in the face of hazardous conditions which is different than what the public is facing. So we try to make sure that HHS covers public health and safety and the annex covers worker health and safety and in particular when we're dealing with the press we try to make sure that we're talking about workers here and not the public. And what has been good about working within the unified command is that it then allows us to work at those coordination centers with EPA and HHS to make sure we're getting out the message that there's public health and that's that message, and worker health and safety has a separate message.

All right. So other key concepts. We coordinate all safety and health response assets under a mission assignment. We do not cover FEMA employees and staff at FEMA facilities. Just like any other federal agency that has the responsibility for the health and safety of its own employees, FEMA has the responsibility for the health and safety of its own employees. The other thing is that there are FEMA managed facilities, joint field offices, disaster field offices and so forth. FEMA is responsible for the health and safety of those folks who are working in those structures, like safety code types of issues. We'll provide staff to support the coordination structures.

And the other area that we get involved in is the Worker Safety and Health Support Coordination Committee. We knew that, for example, this annex was new. People weren't familiar with it. How were we going to work together as cooperating agencies to really address worker health and safety. So in the annex we included a Worker Safety and Health Support Coordination Committee that works pre-incident, if you will. Like we meet monthly and we talk about what are the different types of guidance documents that are needed, what are the types of SOPs we need to have in place. For example, to make sure that if there is an incident we will be able to respond and not inhibit the response.

All right. Pre-incident coordination. I talked about that already. I talked about we work with federal stakeholders. We also utilize other existing organizations. We are members of the National Response Team. I represent OSHA on the National Response Team. And the National Response Team just created last year a worker safety and health subcommittee. So we have a second federal interagency group that is also focusing on worker health and safety. This is new. We didn't have this prior to the National Response Plan, either one of these committees, or attention to worker safety and health in national disasters such as this.

I talked about activities covered under the annex. And this slide lists the different types of actions that may be initiated during an incident of national significance. And as you look through this, those of you who are familiar with our response efforts at World Trade Center, these will be very familiar to you. The first one isn't because we didn't work at the JFO during World Trade, but we provide safety and health expertise at the joint field office. First thing that we try to do is make sure that we have a site-specific health and safety plan, 24/7 industrial hygiene monitoring and safety monitoring if it's needed. Implementing a personal protective equipment program for responders. Collecting and managing worker exposure data so it's made available to federal agencies and others who need it. Working with labor unions and contractors regarding safety and health issues. Coordinating and providing incident-specific training. The coordination of psychological first aid. And also working with HHS on vaccinations and prophylaxis for workers. And also then facilitating resolution of technical disputes affecting worker safety and health. Some of these may apply to a response, others may not. The mission assignment will dictate the types of actions that we will be doing under a incident of national significance response. So that gives you an overview of the National Response Plan and the annex and how it relates to worker health and safety in a nutshell.

ACTING CHAIR BRODERICK: Wonderful.

MS. MCCULLY: All right. Let's talk about last year's hurricane season. We had a little fire drill with the 2004 hurricane season where we had four in basically about a 6-week period. The difference between 2004 and 2005 was 2004 we were operating under a Federal Response Plan. 2005 we were operating under a National Response Plan. So basically the roadmap for the entire federal government had changed.

Now on this slide there's a mention of another plan. We're all into plans these days. In response to Hurricane Katrina, Acting Assistant Secretary Jonathan Snare activated OSHA's National Emergency Management Plan on September 2. OSHA, we have our own National Emergency Management Plan which lays out for us as an organization, and its on our website, how we will respond during an incident of national significance. It basically puts us as an agency into an incident command structure. The Assistant Secretary is the incident commander. We set up operations, planning, logistics and finance sections. We have a safety officer. We have our own, you know, informational. So we start operating in that format so that when we're talking to others, we'll have our finance people talking to that finance people, our logistics talking to that logistics people, our operations people dealing with operations issues. So it gets us all trained that way. So that's our own plan that we operate under.

All right, so I think that is Hurricane Katrina on this slide, but here's another picture of it. And you can see, for example, those red circles are where it was a Category 5 storm, where winds were 150 miles per hour, when it actually hit land it was a Category 4 storm. But you can see it really went straight up the State of Mississippi. Early response efforts, and this really was a result of the 2004 hurricane season. We had some things organized, and that was what to do in advance. And we had basically some fire drills earlier on in the hurricane season, but now Region 4 in particular and Region 6, one thing about a hurricane, you do have some warning and you can do some things to get ready. So we go into our mode where we contact utility companies. They expect to hear from us at this point. We identify where the staging areas are so the day after the storm passes we can be there. We are - in July we had already taped public service announcements that could be put on our website that could be downloaded. We updated and reposted all our hurricane response fact sheets. We had this done in July. And we had already as that storm was approaching started contacting our state emergency operation centers, our area directors started doing that so they knew where we were. And then we contacted our VPP companies in the area because we might need assistance from them. There's other types of things that we do. For example, we rent hotel rooms because everyone else is going to come in and rent hotel rooms, so we try to get those done. We didn't do that very well in Louisiana. The other thing we do is we make sure all the cars are filled with gas. We lift all the equipment and computers and stuff up off the floor. I mean, these are just nuts and bolts stuff that we do as an organization. All right.

I'm going to go through a series of slides, some of these that have you see, and I'm going to go through these kind of quickly, but they just kind of take us back a year ago. This is the Biloxi area where there used to be a Bombay Bicycle Club and you can see it is completely gone. This is the Grand Casino Gulfport Barge where the entire structure was tossed onto land. And now, for example, in Mississippi all gambling will be done on land rather than on barges because it's a safety concern. This is Highway 90 which went from Biloxi to Ocean Springs which was completely disrupted. And the next slide will show you an aerial view. And that basically what's sticking up from the ground in the right-hand column, on the right-hand side of that slide, that was a yacht club that was there in that facility which is missing.

The Gulf oil rigs. Hurricane Katrina shut down more than 90 percent of the region's oil production, which amounted to 1.4 million barrels a day. And this is one of scores of oil rigs that were broken from the moorings and pushed inland until it basically was stopped by this bridge. This one is in Mississippi, but there were 20 oil rigs that were completely destroyed by the storm. I want to show you some Mississippi landmarks before and after Katrina because we see a lot of pictures about Louisiana, but I think when you see this you will see the difference. Mississippi was storm surge, Louisiana was flooding. Two different impacts.

Here's a tourist attraction that was in the Gulfport region, the before and after slide. It really gives drive-through a new meaning here. But again, this is storm surge. This is the force of the water. Here's a plantation mansion before and after. Completely destroyed. Debris is moved miles and miles inland. This is a turn-of-the-century home that existed before the storm and it basically survived for over a hundred years, and after the storm you can see that it's completely gone. Another substantial mansion that was completely removed by the storm surge. This one, this homeowner was left with the front steps. It stayed, but everything else was washed away. So completely different types of response in these types of situations as compared to New Orleans where you had destruction from the breached levees.

And this is New Orleans going into the Ninth Ward. Basically the bathtub is broken here and the water's flowing in. Here's a good aerial view of the 17th Street breach. And if you drive down there into those neighborhoods you can see basically there were houses where that breach occurred and those houses are completely gone. This is in Plaquemines Parish where the water tower just fell. And this is what was left of it. Here you can see the streets of New Orleans. New Orleans was flooded with over 250 billion gallons of water. And there were a lot of abandoned cars. And even as late as March and April of this year you could drive through New Orleans and underneath those overpasses is where all the abandoned cars were. They had problems letting that contract. And it wasn't until basically July before they were starting to remove the cars that had been abandoned that were just all one after another in those underpasses. People were just kind of scavenging them for parts and just lost and abandoned cars.

This is a home on Humanity Street. You can see where the water line went. See where up on the left-hand side there's no paint on that building? That's where the water line went. It took the Army Corps of Engineers 43 days to unwater New Orleans and the biggest challenge that they had was finding generators with enough capacity to run the pumps that were needed to unwater New Orleans. There's some red marks up there, many of you have seen them. This is where they went through, they would go through many times more than once to search the buildings for any type of human remains or even pets. This is the Ninth Ward. Even in July and August it still looked like this. Today there's still no electricity in the Ninth Ward and there's thousands of structures there that are waiting to be demolished. One thing, down in this part of the country, houses are really built on, there's like stacks of bricks, for example. And one of the reasons they do that is for the ventilation. So for many of these buildings they weren't on firm foundations to start with. And you would go through there in March and April and you'd still find buildings that were sitting in the middle of roads. They had just been completely removed and they were in the middle of the street waiting to be demolished.

Okay. So OSHA responds. One of the first things that we did and the first thing that any organization does is we immediately focused on accounting for all our personnel. And fortunately for us we were able to locate all our people really rapidly. And the one thing I will say about our folks down there, we had area offices in Baton Rouge, Mobile and Jackson. And although they had damage to their homes, basically the day after the storm passed they were out at those staging areas with those utility companies giving safety and health briefings prior to sending them out to start doing power restoration. We talked about - and this is dangerous work in that you have to understand that, you know, there are no road signs, gas for vehicles is scarce, there's debris everywhere, so you really have to send people out in crews, one to drive and one to navigate and make sure that you're getting around in the area.

And that's one of the things even when CNN and FOX and so forth say where's the federal government, why aren't they here. I remember being in an exercise for the State of Virginia and there was a Category 4 hurricane exercise that hit Norfolk and wiped out Norfolk and we're 30 days out and the feds are going, well we'll send this and we'll send this and we'll have these people there and we'll provide you this. And finally the Director of Transportation for the State of Virginia said, you know, we really appreciate your help but we really don't know where you think you're going. There are no roads. The roads are clogged with debris. We'd like to take advantage of your help, but we've got to do it ourselves because there's no place for you people to go and we don't have anyplace to keep you once you get there. And so I think that that's an important lesson for us as feds. You know, all response is local and there's only so much you can do. All right.

This is in New Orleans. And you know, New Orleans of course you know the next day everyone thought they had dodged a bullet on New Orleans, but basically when they started evacuating, people went to Baton Rouge. And between New Orleans and Baton Rouge there isn't very much, if you've been there. So there wasn't anyplace at the end for anyone to stay. And so for us, what we did, one VPP company Entergy did give us some of their hotel rooms, but we basically rented RVs from Colorado and Texas, went to Wal-Mart and bought sheets and linens and we drove them to the New Orleans area. And we kept them at an Entergy site, they gave us a couple of sites, and they were great. They fed us. They had showers in their plant so there was a place for people to bathe. And you know, I give the folks credit, we were putting three to four people in an RV. These are people who didn't know each other, hadn't met each other before. These are pretty close quarters to be living in for an extended period of time. But basically our folks slept, ate and worked in RVs.

And one of the first groups that went down was our health response team and our specialized response team. MSHA was kind enough to give us their mobile command center so we had internet access and that type of thing, satellite access, communications access, but this is where folks were working. They started working, we had crews down there working 12 hours a day, seven days a week. And we provided our field work was out there in the field working with workers and employers, providing technical assistance as well as doing monitoring. And we used our Katrina response workers who were basically volunteers from the federal OSHA and state programs and our state consultation projects, rotating them through on two week cycles.

We also received a mission assignment from FEMA. We received a $21 million mission assignment to provide assistance to Mississippi, Alabama, Louisiana, Florida and Texas. And one of the first things that we did was develop a health and safety plan. Now, when I showed you a slide a little while ago, it was supposed to be a site-specific health and safety plan. In this situation we had an area of 90,000 square miles affected, roughly the size of Great Britain. And so instead of having a site-specific safety and health plan we had an incident-specific safety and health plan which we developed. We had it sent to a regional administrator down to Dallas, brought in folks from Region 4, Region 6 who had been on the ground, developed the plan and then made it available to our federal agencies in the joint field office kind of as a guide for them to use and for them to amend their plans to it.

We did exhaustive employee exposure monitoring. I would say that we - response to a hurricane is now characterized and you'll see slides in the future on that. We also created an employee exposure data management system. And we have that operating on tablets. Folks can go out, they can take all their information, we can upload it at the end of the day. And we provided safety and health training through one of our cooperating agencies. That was through the National Institute of Environmental Health Sciences. We sub-tasked them under the mission assignment and their folks went down there and provided training. I'll show you some slides on that.

We also coordinated psychological first aid through a new term that we hadn't heard about before called bibliotherapy. And you know, we are not mental health specialists in OSHA, but it is included in the annex, so we worked with FEMA, SAMHSA, which is the Substance Abuse Mental Health Services Administration out of HHS, to come up with bibliotherapy. And what that means is that there were counselors on site, but a lot of people won't go and get help. They're afraid of the stigma of saying, hey look, it's getting to me and so forth. But in working with professionals and so forth, including federal occupational health, they basically said that if you look at a Bell curve, there's going to be some people who are going to be on the extreme and they are going to need the therapy. They're going to need one-on-one counseling. There's going to be people at the other end of the extreme where stuff will just roll off their backs. They can just go through and deal with the stress. Then there are others who are basically most of us that if they can have something that they can read, that they can touch base with, something that they can say, hey, you know, I'm not alone, these are normal types of feelings, here's some things I can do to get myself back on track, bibliotherapy, that's what they need. And so as a result of that we've developed four packets, one for supervisors, pre-deployment, post-deployment, one for the people being deployed, and then another packet for their families, for spouses and children so that they could deal with the deployment as well.

All totaled, we sent 430 staff down there. We conducted over 17,000 interventions. You can see the number of serious hazards eliminated. We distributed over 200,000 fact sheets that were plasticizec so they wouldn't get affected by the rain, distributed over 4,000 pieces of equipment and we took over 650 air samples and 1,300 noise samples. We also coordinated training.

So what were the hazards? Many of these you've already seen. The first ones are electrocutions and falls. It follows a progression. First think you want to do is get power and utilities back up. In this case it wasn't only electrical, it was telephone service as well. So we were working with both groups on that. And trying to keep, for example, you know one of the things we learned from Hurricane Isabel when it came through three years ago was that within the first two weeks we had four electrocution-related fatalities. So that's why we stay, we want to make sure we're on board with those utility restoration workers early.

Blue tarp operations, falls from roofs, were major. And in fact this next slide will show you that, for example, the Army Corps of Engineers installed over 40,000 blue roofs. And in fact they have publicly stated that the assistance from OSHA and the annex resulted in their loss to workday injury illness rate of being at a level of 0.34. Yes, it's phenomenal. Because the rate for construction as a whole is 3.4. So they just really stayed on top of this issue. And we had folks from our health response team basically working with the Army Corps of Engineers, coming up with their work plan on blue tarping operations. Here's another person working with an individual making sure that they're using the fall protection correctly.

Trenching. This slide always makes me a little nervous. Common hazard, broken water and other utility lines and what do you have down there on the coast? We're talking about areas that are sandy soils to begin with. So that was a real problem in stopping and working with these folks and dealing with the whole hazard of trenching.

Our number one concern that we saw over and over again was work zone safety. It was the number one hazard that we really saw down there. The lack of work zone safety was the most frequently identified hazard. It was found in utility repair, tree-trimming, debris collection out in the communities, but then also when you come to debris reduction sites, these trucks, these employers are getting paid by the load. So they want to get in there, they want to pick up debris, they want to get to the debris site, they want to turn around, they want to drop it off and get out. So having people with vests, having the work zone set up, but also dealing with that whole issue of speed. I don't have the slide here, but you'll see these trucks that lined up just waiting to get into those debris reduction sites. They go in and they try to direct them as close to one another as they can so that they can drop the load and come back. In 2004 we had a situation where basically the truck fell on top of the truck next to it and we had a fatality. So we really - that was what we really focused on a lot was the training on work zone safety.

I mentioned debris site safety. That was another concern to make sure that folks were working safely around heavy equipment. And here, we found that zones were not set up, people weren't wearing vests. There was a fatality at one of these sites. The Army Corps of Engineers had a stand-down day where basically after that fatality they said, okay, we're going to have a stand-down day and everyone's going to go through a day of training. And so we through NIHS put on refresher training for the Army Corps of Engineers.

Talk about roadside collection of debris. You can see, for example, how these roads just continually get narrower and narrower as things get clogged. But it's not only having the debris there, it's then you have to separate it. Hazardous debris from non-hazardous debris, flammables, paints, caustics, and then of course there's asbestos hazards that will happen, particularly down there in New Orleans.

For our over-exposures, we did find over-exposures to silica. We found exposures to silica not only with folks working on debris sites such as this. The cabs were open. They weren't enclosed. But also in beach-type areas, or ocean-side areas where they were moving the sand back to the beach. We were of course finding over-exposures to silica there as well.

Asbestos. I put it on the slide there for you. More than 90 percent of the structures in New Orleans were built before 1980. And many were built using asbestos materials. And if you have structures that were built prior to 1980, then we deal with what we call PACM, you know, Presumed Asbestos Containing Material. So for example, in New Orleans and in Louisiana there's an estimated 50,000 structures that are slated for demolition. So we spent a lot of time working with the Louisiana Department of Environmental Quality, EPA, contractors and so forth, coming up with what were going to be the methods to remove the asbestos. Not only to remove it safely and do the demolition, but then also make sure that when you're taking that truck to a debris site you're not spreading asbestos-containing material through the community. Our highest asbestos exposures were found during roof removal and curbside collection of dry asbestos debris.

We monitored employees and I told you the numbers. We actually did not find, as you might not expect, we didn't find that many over-exposures. But what we did do that is that whenever we monitored, we made sure that we sent a follow-up letter to the worker letting them know what their results were. A lessons learned from that is that many of these letters were returned because many of the people who were working there were people like us who were just coming in to work for a short period of time and then they were leaving. So one of the things in our lessons learned is that if we do this in the future, if we have to do it in the future, we're going to give them a card that will basically give them a website with their own identifier that they can go in and get their own information rather than, you know, generating letters that then only get returned.

Gasses and vapors. What were our highest exposures? We found exposures - this is not an over-exposure, but we did find levels of carbon monoxide that were 20 percent above the action level during building assessments and in burning operations, which you would expect. It's a byproduct. We did find over-exposures to formaldehyde. Now, here in that lower slide in the lower right those are formaldehyde - I mean, those are FEMA trailers. Those are FEMA trailers waiting to be given away. And so, and they have to be installed. And we did find levels as high as five times the PEL. And in fact FEMA asked us to come out and do the monitoring for these trailers. And you know, this should not be surprising. These are new trailers. What's used? You're going to have glues, plywood, carpeting, that type of thing. They're sitting out in the sun. It's hot. You're going to have off-gassing going on of formaldehyde. And so basically what we did is we worked with them. We showed that if you aired these things out for 20 minutes you're down to basically none detectible. So that's basically what we worked with them to say hey look, this is the guidance that you give to people. Just make sure that you air these things out.

Worker training. This was not fancy classroom training in many cases. The only way to do this was to take the training to the workers. And NIHS did an excellent job at this. And they did everything from this type of training to formal training in the classroom. But people become tired, they're working 12 hours a day, so we also did refresher training to make sure that people were staying alert.

In addition to the technical assistance that I talked about that we did in July prior to the hurricanes hitting, we created and updated 50 fact sheets and quick cards. Many of them were translated into Spanish and some were translated into Vietnamese. And we also had the psychological first aid materials.

So what was the upshot of this? Well, here's some testimonials I guess they call them. But for example, the one at the top we really took a lot of pride in. This is from an Army Corps of Engineers safety officer. You know, after the storm passed the heat index in New Orleans was like 105 degrees. Hot, high humidity. This particular incident occurred in May of this year. Basically there was someone who was working near a debris tower, you could tell he was speaking with a thick tongue if you will and so forth. They took a look. Up in the tower they had our heat stress quick card posted and they brought it down. They said this guy's going into heat stress. And so they started to basically take him out of the heat, give him first aid and so forth. By the time the EMTs got there they said this guy was going into heat stroke and basically having to do that response probably saved his life.

FEMA, the federal coordinating official. You know, we were new to the scene here and the FCO down there in New Orleans basically says I want OSHA to keep on going. I mean, in Louisiana we had four fatalities related to the hurricane response which is, you know, one fatality is one fatality too many, but for the size and the magnitude of this response, four fatalities is a remarkably low number. And EPA told us, for example, that they saw a greater awareness of safety and health than they have during any other response.

Of course the White House had to weigh in too. And in March they issued their Katrina lessons learned report. And under it, they had 125 critical challenges. And under the critical challenge of environmental hazards and debris removal, the White House under - this is Recommendation 86(b) said that OSHA should lead the development of operational procedural for worker health and safety. We have developed those worker health and safety operational procedures. We are releasing them now. We have developed standard operating procedures with FEMA as part of this process, and we have also developed our data management system.

But the last item that we have developed which I think would be of greater interest to you all is a hazard exposure and risk assessment matrix. This is a matrix that covers response and recovery operations for a hurricane response. It's based on our OSHA sampling and monitoring data. It's based on our safety intervention recommendations. It's built from our health and safety plan, our situation reports and our job hazard analyses from the JFO and other fact sheets. It has - it's going to be available on the web. We're in the final stages of review at this point. It gives general recommendations for all workers, including monitoring, training and PPE, and also has a section on employer/employee responsibilities. This is what it will look like on the web. You can see there's a section that is purpose and use, employer/employee responsibilities, general recommendations. There's one section on sampling and monitoring summary, which is based on all the samples that we took, over 8,000 samples. So that's why I think you can say hurricane response is pretty fairly characterized, as characterized as it will ever be.

And then there's a list of activity sheets. And so I'm going to the activity sheets here. Here's all the different types of activity sheets that can be clicked on. So for any part of the operation in response and recovery, depending upon what's going on, you can go to these activity sheets and they're basically a one-stop shop for hazards, controls, training, PPE for that particular type of activity. And it's everything from roofing to tree-trimming to locating, collecting, housing stray animals. There's also sections here on diving operations. It's a pretty comprehensive look of response and recovery operations for hurricanes. And for example here's one on roof inspection, tarping repair and replacement. There's pictures here that are from actual hurricane response. And you can see it talks about the activity description, general recommendations, hazards associated with the activity, additional medical needs, additional training needs, and then related activity sheets that you may need to refer to if you're going to be engaged in that type of operation. As I said, it's fairly thick, it really is best used on the internet because of the hyperlinks and we're hoping to have it up on the web by the end of this month. And that is the National Response Plan and hurricane response. And we're very grateful that there's no activity off the coast of Africa currently and there's been very little all season. So I'd be happy to take any questions that anyone may have.

ACTING CHAIR BRODERICK: Any questions from the committee? Thank you.

MS. MCCULLY: You're welcome.

ACTING CHAIR BRODERICK: Very good presentation. Well, we are at a quarter after 5:00 so I would entertain a motion to adjourn for the day.

MR. THIBODEAUX: So moved.

ACTING CHAIR BRODERICK: All in favor? All right. We'll see you all tomorrow at 8:00 a.m.

(Whereupon, the foregoing matter went off the record at 5:15 p.m.)