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The Committee convened at 8:00 a.m. in room N3437 A/B/C of 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.
MR. BRODERICK: Ladies and gentlemen, welcome. We're going to go ahead and get started.
MR. BRODERICK: That would be for the training cost and the auditor issue as well?
MR. THIBODEAUX: Excuse me, Mike Thibodeaux. I don't know that the auditor's cost was in there. The training cost was addressed, $275 or something for four different B- there's going to be an additional cost, but I don't know that any one has come up with a number. I don't know if Noah even has an idea of what that is. But I think that's something.
MR. BRODERICK: So, we would like to have Noah address the auditor costs?
MR. THIBODEAUX: Please.
MR. BRODERICK: Okay, if he can. Okay, is there anything else? Good. Well, that takes a couple of them.
MR. CONNELL: Okay. I'll try to go quickly here.
MR. BRODERICK: Well, I'm sorry, and I didn't mean for you to construe this as me rushing you, because the next bits of business on the agenda has been dispatched by Mr. Burkhammer.
MR. BURKHAMMER: I'll be back after lunch.
MR. BRODERICK: So, we have until then.
MR. CONNELL: Okay. Will the proposal address issues and precautions related to the topic of critical lifts? What's the definition of critical lifts? Should there be a section devoted to critical lifts?
We had a lot of discussion in the Committee about critical lifts and there was a lot of debate about how you would define a critical lift, and the basic idea was, well, if you could define a critical lift, you would presumably want some special things done to deal with them.
But the bottom line is that we could not come to a consensus on what should constitute a critical lift for purposes of kicking in additional requirements, except that there was consensus that where you have more than one piece of equipment lifting a load, that needs some special planning.
And so, there is a provision in here on B- it's called multiple crane Derrick lifts. That's Section 14.32 that addresses that scenario, and there are some requirements for additional planning and implementation of the plan.
This is not to say that the Committee simply ignored the broader concept that in the industry, there are different schools of thought about situations beyond that, that some consider to be critical. But we couldn't reach a consensus on those others. So, that's how we wound up where we are on the critical lifts issue.
The term critical lift, you will not find in this document, I believe, for that reason.
MR. BRODERICK: Noah, did the Committee B- I can understand what a quagmire this could become. Was there any thought given to, say a non-mandatory appendix that would address critical lifts for those, sort of as an instructional?
MR. CONNELL: Well, I think the debate centered around this concept, that for some operators, something is a critical lift, largely because it's beyond what they typically do and it has some inherent risks and complexities. For others, they do it all the time and it's routine for them. And I think that was a big part of the debate. It's critical for some, and not critical for others.
So, I think it would be hard to come up with even a non-mandatory kind of approach because you'd still wind up with this basic question of, "What do we mean by a critical lift?"
Now, I think, as a practical matter, if you look at 14.32, somebody who wanted to apply the kind of approach that is delineated there, which is really a planning and implementation of a plan kind of approach, I think that could be kind of a model for those who wanted to do something special in certain situations, in terms of planning and preparation. But it's hard because you have these different views.
I think I already addressed the issue of certification. Why isn't the training certification delineated by size, type, configuration of the crane? Just two things to say there. One, I'd want to emphasis the distinction between training and certification. What's being referred to here is a certification, part of the testing provision. And we did attempt to have -- as I said before, to avoid a one-size-fits-all. MR. GILLEN: Noah, before you go to the next question, I had a couple of questions on the critical lift, before you moved onto NIOSH.
MR. CONNELL: Okay.
MR. GILLEN: I was bringing this issue as an issue that the researchers in Business Safety Research asked me to ask about.
I can see, now that I spent more time with the standard, that you've incorporated some of the issues, like hoisting personnel is another one that some people consider part of the critical lift issue. There's quite a few details there.
Some of the ones I didn't see, and I was wondering, because you have a better knowledge of the standard, for example, environmental conditions, a high wind condition. In looking through there, I saw that there's something for hoisting personnel, but I didn't see any general language about that.
Could you walk me through a situation where you have a crane, the ground conditions are not perfectly level, maybe just a small one percent grade, it's at 95 percent of the rated capacity, there's a 20 mile per hour wind. What does the standard B- the proposal, does it have any extra thought into that or guiding the lift or anything? How would something like that be addressed under the proposal?
MR. CONNELL: Wind was a very controversial topic in the negotiations, and I know there was B- I recall there was a lot of back and forth about it and there was some interest in trying to set a specific threshold for wind, and I don't even remember exactly.
I know we have a reference to wind, it think it's in hoisting personnel.
MR. GILLEN: It's a 20 miles per hour, there's a cut off there.
MR. CONNELL: Right. Well, there's a B- yes. More broadly though, I think there B- generally speaking, the Committee members B- I think what you were describing, with the possible exception of the grade issue, there are probably members on that Committee who would say, "Gee, you just described a typical work day."
That again, guides into this discussion of some people saying, "Look, we operate in stuff like that all the time. That's just what we do," and that's not B- it's not the environmental conditions in isolation that are causing the accidents, I think is what they would say to you.
So, other than to say, there is B- you have to operate the equipment within B- this standard taken as a whole, sets out some parameters that you can't go beyond. But in terms of just environmental conditions, they were not singled out, except when it comes to hoisting personnel. Is that it, Emmet?
MR. RUSSELL: Well, I think there's two issues that helps with Matt's question. On page 50 at the top, it talks about the operators shall test a break each time a load is more than 90 percent of capacity, 90 percent or more of capacity. And I think what that's saying is that clearly, where you have capacity you need B- in checking the brakes, you're actually checking the whole crane to make sure that the crane and the operator can actually handle the load. So, this is somewhat of a test procedure.
I think the other issue is on page 51, 14.18, where this was very crucial in terms of, if an operator thinks that there's any variables where he cannot safety handle whatever needs to be handled, he has the ability to just stop the operation and force people to take whatever safety concerns, so that whatever is being done can be done safely.
MR. GILLEN: Can I just ask, is there information available to operators, so that they would know, so they could have a conversation like this and so everybody knows if there's a wind speed of 20 miles per hour with a load like this, it means that it's going to affect the rated capacity by this much. This is part of the body of knowledge that we have, so you can have that conversation. Or is it really more of a judgment issue and there's not a lot of information available?
MR. RUSSELL: No, what we talked about was, just about every crane manufacturer, depending on the configuration of the crane, has some limits as to when you should operate or stop operation of a crane. And that would be in the individual crane's information and I think what we were depending on is the operator would know that information and the operator would know that limit, those limits per the crane and the configuration, and make the necessary judgments based on each crane's limits.
For instance, you could take one crane with 100 foot of boom and the crane is safe in this condition. You can take another crane, you put a luffer in, you put 200 or 300 foot of boom in, and all of the sudden for that same crane, you have two different conditions, where one condition, an operator can meet, another condition, the operator should not meet.
But again, that would be in the individual crane's information per the manufacturer.
MR. GILLEN: Okay. I mean, our interest in this is just from the fatality investigations. They tend to be ones where B- where just margin of error is part of the circumstances. And so it's B- I just want to make sure there's an objective basis in this standard for recognizing these events and doing something about it.
MR. RUSSELL: Well, I think at our deliberations, we knew that the variables were there, but I think we had a hard time trying to put something in a document that would be acceptable to all cranes, I think is where the problem came in.
MR. GILLEN: Thanks.
MR. BRODERICK: To add onto what Matt's question is, I think when and if the standard comes out that the requirement for training and then the resulting certification, through that process, one will then know they have the authority, plus the knowledge to base a decision and they would know that they know this. I think the standard, in and of itself, answers the question.
MR. CONNELL: Okay, next is really a question about data, what type size cranes are responsible for the fatalities and how they occurred and how did they occur, what kind of data did C-DAC use?
What kind of data did C-DAC use? We had B- first of all, we had some BLS data. The problem with BLS data, on the crane incidents, is that they combine construction and general industry. So, that's kind of an imperfect source.
We had some aggregated insurance company data. The problem with that data was that it was a list of incidents that resulted in claims. So, it was combining property only incidents with incidents involving injuries and fatalities, and we couldn't tell which was which.
We also have OSHA, some OSHA data and a study has been done B- was issued very recently. The Journal of Construction Engineering and Management, September 2006, Volume 132, Number Nine. This is a study of OSHA fatality case files. And so, they looked at the B- our investigative files in fatalities cases from, I think, 1991 through 2000-and something. Anyway, they looked at about, I think, 250 fatality investigations and looked in detail at causes and they even looked at crane types.
I can tell you that B- and so, that data, with all their imperfections, and the Committee members with their own experience, we came out with a picture that basically focused on struck-bys, electrocutions, crane overturning, were really the, I think B- and assembly/disassembly, were the key focal points. And I think if you look at these different B- the data, the data that I just described, in all of those, you will see very prominent, electrocutions, very prominent.
I think the number one incident in the aggregated insurance data we looked at was cranes toppling over. I think a common theme is that you have struck-bys. Now, the struck-bys can have many different B- you'll see in the study of the OSHA fatality files, you'll see struck-by associated with falling loads, for one reason or another, very prominent. Assembly/disassembly fatalities, very prominent.
So, I think even though these different data sources, you'll have a different number one or a different number three, cause of fatalities, there are certain themes that emerge from all of them. And those are the themes, I think, that the C-DAC Committee really focused on. And so, we have this whole new section on assembly/disassembly. We have this major emphasis, this major focus on electrocutions and preventing them.
So, we tried to B- with the data sources and the experience of the C-DAC members, we tried to be focused on what are the key hazards that this industry has to deal with, and how can we do a better job dealing with them?
Let's see, the auditor costs, I don't know the question about whether auditor cost was included in the preliminary economic analysis. We'll have to go back and see.
Who is qualified to be an auditor? Well, the way the certification provision is written, the auditor would have to be certified by an entity that is accredited for certifying operators.
So, the auditor would have a B- let's see, if we look at operator certification, this is option two, qualification by an auditor employer program and in paragraph C1(ii)A, the auditor is certified to evaluate such tests by an accredited crane/derrick operator testing organization. So, that's who would be the auditor.
What number of auditors are available? Well, this is kind of a new concept, and so, again, the Committee was assuming that B- especially with the phasing period, there would be a ramping up to meet demand.
What's the number of incidents/fatalities involving licensed operators versus non-licensed? I don't think we have B- the only data that we had that relates to that in some way, and it's to some extent indirect, there was a study done in Ontario, which had a licensing requirement and instituted a mandatory training requirement to get B- or they had both of those, and this study purports to show a dramatic decrease in fatalities.
So, that study is one indicator of the potential effectiveness of improving the crane operator training and B- you know, certification or licensing is a way of assuring that the training is had B- is taken. So, when you combine licensing and training together, so now you know that someone didn't just attend a class, they actually learned what they were suppose to learn, I think the Ontario study is some indication that that's very effective. I don't think we have any B- in terms of data, I don't think we have data, other than that on that.
MR. HAYSLIP: Can someone lose their certification?
MR. CONNELL: The operator certification provision in C-DAC does call for having procedures in effect to be re-tested, in the event that an operator applicant either fails a test or is de-certified. So, there is a reference to de-certification, although there's no details about what would trigger a de-certification in the document.
MR. BRODERICK: Also, I see the Graham Brent is here and today, he will be giving public comment and we will have a chance to ask him about CCO and how that certification process works, and I believe there is a provision in that, as well.
MR. CONNELL: I guess the last question is, why was residential construction noted as not renting/leasing cranes when that statement is not correct? That was an error in the economic analysis and they're going to fix that.
MR. BRODERICK: Okay. I was wondering, Noah, if the Committee could be provided with a copy of the fatality report that you referenced, a most recent one?
MR. CONNELL: The study?
MR. BRODERICK: Yes, and then also, we would be able to enter that into the ACCSH record.
MR. CONNELL: We can certainly enter it into the record. We can certainly make it available to the Committee. There is an issue about making copies of copyrighted material.
MS. SHORTALL: Well then, Noah, what we could do is, if you provide us with a copy, we'll enter it into the record. OSHA's procedures, in fact, the whole Federal Government -- pretty much the Federal Government's procedures on copyrighted is, the material will be available for public inspection, copied in our Technical Data Center, but it will not appear on the OSHA website.
MR. BRODERICK: Okay. Are there any other points that have been brought up? Mike?
MR. THIBODEAUX: I just thought of another question. I noticed in the document it excludes powered industrial trucks, forklifts, and then when you go into the definition, you're talking about multi-purpose machine, it says B- excuse me, "When a forklift is configured with tongs and used, it's not covered. Then when it's configured with a wench pack, gib with a hook at the end or gib fused in connection with wench, it is covered by this." Do you know why those distinctions were made?
MR. CONNELL: Well, the multi-purpose machine, which is, as I understand it, is a relatively new animal. It's a machine that's designed to be configured in a whole variety of different of ways. It could be configured as a forklift. It could be configured as crane, and it can be configured as other things, presumably.
And so, the Committee, in the scope section, said, well, with that kind of machine, when it's configured as a crane it's covered.
Now, a machine that is designed to be a forklift, that's what is B- that's excluded. Now, people use forklifts to hoist things by dangling chains off of the tongs, but that's still excluded, because that's B- you're using a forklift.
So, the Committee was trying to make this thing a little more up to date, in terms of the recognition that there are some of these machines that are designed to be configured in these different ways, and that's different than just taking a forklift and using it to hoist something. So, I think that was the thinking.
MR. THIBODEAUX: Thank you.
MR. BRODERICK: Mike?
MR. HAYSLIP: Mike Hayslip with NESTI. No comment is required. Just observation. This standard seems to cast a pretty wide net and it's one motivation is to protect the public trust, public policy, arguments and so on.
From that viewpoint, I'm personally a little disappointed in the drug testing, and even to a lesser degree, physicals are not integrated more closely or more directly with the standard.
MR. CONNELL: Well, I would like to address that, just by way of noting that those two subjects were debated pretty thoroughly in the Committee. And with respect to drug testing, there was a lot of interest in having a drug testing requirement and we spent a fair amount of research time looking into it.
What we presented to the Committee, what our team presented to the Committee in terms of information on drug testing was, look, if we were going to have a drug testing requirement, it's going to have meet certain constitutional requirements, because it would become a requirement by virtue of a Federal standard. So, you'd have to have constitutional protections.
The Committee as a whole was not comfortable with having to, as employers, having to change or B- many of them already have drug testing programs on their own. They'd have to modify those programs to provide some of these protections.
So, once we got into that detail, that's really, in my view, my recollection, that's really why we were not able to come up with a consensus for a drug testing provision, because it would have to have these protections required. Employers right now, when they're doing these programs on their own, they don't have to, in most cases, they don't have to have those kinds of protections.
So, it wasn't from a lack of interest in the subject area. It was, when you started to get into the nitty-gritty of what all the bells and whistles that would have to be attached to it, that's when the problem arose.
Physical qualifications also presented some really tough legal problems. Different kinds of B- first of all, there is no well established, universally recognized set of physical requirements that's generally accepted as being necessary to run every crane. Different cranes require different kinds of physical abilities.
Running an old friction crane versus running a tower crane that's operating on a joystick, you're looking at some very different physical demands.
So, in the absence of B- you also have some other issues like the ADA and some other tough legal issues that would have to be dealt with. The bottom line was that there wasn't going to be a straight path to identify what are the physical attributes that would be required? And it was going to take B- I think it would have taken an enormous amount of time and effort to try to come up with something that would be workable and the feeling was that it just wasn't going to be productive.
Also, we don't have data that links crane accidents with these kinds of physical problems. I'm not saying that it's not the case. I'm just saying that we don't have the data to support something like that.
And so, in the absence of having data like that, that's another major obstacle to putting something like that in the standard.
So, I just do want you to be aware that those were looked at very closely and those were the reasons why you don't see those provisions in there.
MR. BRODERICK: Emmet?
MR. RUSSELL: As I stated yesterday, the other thing the operating engineers really struggled with was drug testing had to extend beyond the crane operator. And just to give you a mini list, the operator, the signal-person, the rigger, the foreman, the assembly/disassembly crew, the mechanic, even the crew using the crane, would all have to be drug tested.
We felt as though the standard could not be expanded to cover everything a drug testing situation should cover, and most employers felt comfortable that most of the progressive employers had drug testing programs that covered the whole job site, which was better than trying to regulate drug testing beyond the crane operator.
MR. CONNELL: I would like to say one other point, just on the data question. Those of you who look at this recent study, you'll see that one of the leading causes of fatalities, according to the study, was what the study calls struck-by load, other than failure of a boom or cable.
In short, many of these are rigging failures. And there was some interest on the Committee early on to get into the issues involved with rigging. But we have to draw the line somewhere, in terms of what we were going to tackle, and the focus B- ultimately, that we decided was, we were going to tackle the crane side.
That's not to say that there aren't problems out there with rigging. But that's B- we had to do what we could do.
So, the other major items in the study were after this struck-by that I just mentioned, which is really associated mostly with rigging.
Electrocution, second; crushed during assembly/disassembly, third; failure of the boom or the cable, fourth; and crane tip over. The last three all had about the same number of fatalities. So, they were all more or less equal in ranking.
Anyway, I just wanted to point that out.
MR. GILLEN: Just a brief comment. I just very briefly went through the section on the costs and all, and I was wondering if this is an interesting standard to, perhaps, refer to the secondary benefits of the standard and regarding catastrophic damage to properties and things, it can be significant. While maybe you couldn't rely on it totally, it might be useful to point out in the preamble of the standard, secondary benefits from the standards, because they're likely to be conceivable.
MR. BRODERICK: Any other questions? Comments? Noah, thank you very much for the time here and for the amount of time that you have spent, not only negotiating this regulation, but also the steel erection standard as well.
MR. CONNELL: Thank you, Tom. I appreciate that and I want to also say, my thanks to our team. This is very much a team effort in OSHA. We've got a lot of people working on this and they're spending most of their time on it and we're going to keep doing that until we get this done.
MR. BRODERICK: Sarah?
MS. SHORTALL: As a housekeeping item, I'd like to reserve as Exhibit-15, the article from the Journal of Construction Engineering, regarding the study of OSHA case files, which Noah referenced in his question and answer period, and which I understand, you or your staff will provide to Stew Burkhammer. Thank you.
(Whereupon, DOL's Exhibit-15 was marked for identification and entered into the record.)
MR. CONNELL: Yes, thank you.
MR. BRODERICK: We have an action packed afternoon set up for ourselves. As soon as we get back from lunch, we are going to try to get caught up and address the respirator fit-testing issue. I think that will go very quickly.
And then we have a generous amount of time to again, deliberate as a Committee, on the issue of the C-DAC proposal.
Immediately following the respirator issue, we will have Mr. Brent, if he would stick around, and do his public comment from yesterday. We will then have our deliberations and I believe that is followed by another public comment period.
I see there are more people that have filed into room, so one more time, I'll let you know that there is a sign-up sheet outside, just to let OSHA know who came. There is another one for anyone who would like to make public comment.
Thus far, I have two people signed up for making public comment today. One on C-DAC, the other on hex chrome. If there are any others in the gallery who would like to make public comment, please, go ahead and make those intentions known by signing that sheet.
We'll meet back here promptly at 12:30 p.m. Thank you.
(Whereupon, the foregoing matter recessed at 11:42 a.m. and resumed at 12:41 p.m.)
MR. BRODERICK: Let's go ahead and resume, darn near on time. The next piece of business that I would like to take care of is the new fit-test approval.
Well, I'm not sure I understand that they were not coming to make further comments. Is there any further discussion, prior to us moving to making a decision on this? And if so, is that discussion something that would be enhanced by having someone from B- return from that department?
If not, I would entertain a motion. Greg?
MR. STRUDWICK: Mr. Chairman, I'd like to make a motion. After due deliberation and discussion, ACCSH approved the proposed recommended fit-test protocol as written.
MR. BRODERICK: Thank you, Greg. I have a motion. Do I hear a second?
MR. THIBODEAUX: Mr. Chair, I second that motion.
MR. BRODERICK: Motion made and seconded. Any further discussion? If not, by show of hands, those voting in favor? Those opposed? Any abstentions? Okay. I count one abstention.
MR. BUCHET: Do we need a count for the record, since they can't see the hands?
MR. BRODERICK: One abstention and nine yays. Thank you, gentlemen.
The next piece of business I would like to tackle is to invite Mr. Graham Brent to take advantage of the public comment period that he was not able to enjoy yesterday. Graham?
MR. BRENT: Thank you, Mr. Chairman. My name is Graham Brent. I'm Executive Director of the National Commission for the Certification of Crane Operators, and the first thing I'd like to do is apologize for not being here this morning. I had some personal business to take care of.
I'm also conscious that I'm following some very well informed and erudite speakers that you've heard as a Committee over the last day and a half. So, I certainly have no wish to be redundant in anything I have to say or to take up the Committee's time on issues that are no longer issues, if you will.
So, I'll just start by giving you a brief snapshot of who we are and maybe what we've been doing over the last 10 years, and then kind of throw the floor open for any questions you may still have. I did have some prepared comments, as of yesterday, but I know you've had a very capable briefing from the Acting Director or the Directorate. And so, like I said, I don't want to cover some old ground.
By way of introduction, the National Commission for the Certification of Crane Operators was established in 1995 and it was established as a non-profit organization to establish a national standard for the knowledge and skills that crane operators need to have. And then to develop a valid and reliable system for assessing knowledge B- those skills and knowledge.
It really was established as a grassroots effort. This was not something coming down necessarily from on high, if you will. This was generated from the ground up by some very concerned contractors in the industry who felt that that prevailing crane accident rate was unacceptable and that something needed to be done about it. In fact, our main focus, even pre the formation of CCO, was on training.
Now, as you've heard, the National Commission doesn't do any training, and the main reason for that is that we wanted to be able to provide an independent third party assessment through a written exam and through a practical exam of the knowledge and skill that's considered necessary for the safe operation of cranes.
I heard some discussion yesterday about accreditation and why that's important, and it's important for a number of reasons. But one of the things that accreditation does for a personnel certifying body like us, is that it ensures that we've gone through due process, in establishing what that knowledge and skill should be.
This was arrived at through a very comprehensive system called a job task analysis, part of which involves sending out surveys to operators, to superintendents, to those involved in the industry, and establishing exactly what it is the body of knowledge is that a crane operator needs.
So, we're not just testing something for the sake of testing it. We're testing something that an operator says that he uses on a regular basis, that is critical to the safe operation of the crane, and then developing a practical exam that captures, in a test environment, the actual skills used during the operation of cranes in the real world.
So, we started very small, as a small non-profit working on the basis that if you build it, they will come. We did have a lot of support in the early days, and still do, from major contractors, from the manufacturers of cranes, from industry groups, and we have partnership agreements with a dozen of those industry groups, membership groups. Some of them are represented here today.
As the program has grown, both in volume and in breadth, we've clearly amassed a considerable amount of data and experience in how to do this well and how to do it scientifically and most important, to do it fairly, so that no operator is disadvantaged by the process of testing, to the extent that we're able to do that.
During the process, we've established a voluntary program. We've been adopted by several states. In fact, 10 of the 15 states that either have a program in place or plan to have one within the next 18 months, use either CCO or the CCO model, which involves accreditation by a third party, which involves a process of test development and administration, which meets accreditation standards, so that not only do you know what you're testing, but the manner in which you're testing at is secure and reliable throughout the entire certification process.
We tested right around 45,000 crane operators in 50 states in the last 10 years, which equates to about 250,000 individual exams on the written and on the practical test.
The accreditation that we have is from the National Commission for Certifying Agencies and that's one of a number of options. The current C-DAC proposal provides for accreditation by a third party, personnel certifying body, and it's important to distinguish between accreditation that you may be familiar with in a training environment, and the accreditation that's required of us as a certifying body. It's still accreditation, but the substance of the accreditation is entirely different and the new program that ANSI has developed in the last few years, gives a lot of attention to the management system that we use, as well as to the psychometric validity of the test itself. And psychometrics is just a rather fancy and specialized way of describing the actual process and the mechanics of the test development in the test administration, to make sure that that process is sound and fair and legally defensible.
There was five points that I was going to focus on in my remarks, had I made them yesterday, which I believe have been answered. Those were the costs of the exam, the types of tests that we offer, going from the general to the specific and whether or not these tests are machine specific or more generic than that, the sort of accreditation that we have, whether or not grandfathering was considered, and one of the issues that I know that's come up quite a lot is to whether or not we're a sole source provider for these types of tests. The answer is that we're not. We're not the only organization that is nationally B- excuse me, that is accredited by a third party organization. The same body that accredited us, also accredited Operator Engineers Local in Southern California. That state has mandatory certification for crane operators, and they went through exactly the same process we did. They started from scratch. They developed tasks. They brought in experts. They brought in a psychometrician to ensure that the process of test development was valid and reliable. They did their job analysis to make sure that the knowledge that they were testing was appropriate to crane operation. And then they went to the National Commission for Certifying Agencies and made their application and they were accredited, just the same way we were.
There's no mystery to that process. We didn't create the process. We didn't create the standards on which we based the content of the program. We didn't create the process by which the program itself became accredited. They've been available for many years. All we really did was assemble a series of exams, the current B-30 standard, which was in itself in development, there was a very large additional component made to the 1996 edition of the B-30.5 standard, and as we went along in our creation, 1995 perhaps, of this program, we drew on that.
But I guess the point is, is that that process is available to anybody. It was mentioned yesterday, another organization that was working on this too. So, in so much as I represent a means B- a body who meets the requirements, or would seem to meet the requirements of any future requirement within the C-DAC, we don't really have any doubt that there will be others that may choose to do this, and perhaps use a slightly different model.
There are many ways of meeting the accreditation requirements of either NCCA or ANSI, and they are not prescriptive in the sense of what the content the test should be. They do have requirements as to how you do what you do, and that you prove that you're doing what you do on a regular basis, and then ANSI will send in auditors and they will be sending auditors to us to make sure that we not only have a good program on paper, but that we actually do do what we say we do.
I guess at this point what I'd like to do is pause, for fear of being redundant, and just ask the Committee if you have any specific questions you'd like me to address before we go further forward?
MR. BRODERICK: Graham, I will throw it out to the group in just a second, but I know that one of the things that you indicated had been touched on. I think it might be instructive for the group to hear about the categories B- the specific categories of exams that you have now, and maybe a brief comment on the process by which you and CCO add new categories to that menu.
MR. BRENT: Well, the basis for determining what kind of categories of cranes we would have in the program was the B-30.5 standard, which identifies several types of cranes and in the proposed C-DAC document B- in the C-DAC document under the proposed requirement, similar reference to types is made there too.
One of the things that became evident during an analysis of the responses to what crane operators themselves and their supervisors felt were important areas of knowledge and skills, was just how different that knowledge or skill was between different types of cranes.
If you think about testing on a crane, you could go all the way on a continuum between machine-specific, the actual machine an operator is about to operate in the next five minutes, and all the way to the other end of the continuum, which would be any crane you saw in any place, in any environment.
Clearly, neither one of those really works very well in a testing environment or in a comprehensive analysis that's meaningful to issue a credential.
So, what we really had to find was a happy medium. What is it that needs to be tested and to what extent does that knowledge and skill vary between pieces of equipment? And if you will, an analogy might be probably all of us in this room can drive, and we all have a particular car that we drive, but when we go to rent a crane B- excuse me, rent a car from a car rental office, we may not get the car that we drive regularly. It may be a car we've never driven before. We know how to drive, but we have to familiarize ourselves with the particular controls and the operating characteristics of that particular car we get given. That's the kind of principle that we based our approach to the categories that we arrived at.
So, in the analysis, in the job task analysis of the skills and knowledge, that we did for all types of mobile cranes, and mobile cranes was our focus when we began, we felt B- the Committees felt, that put this together, that there was a significant difference between the operating characteristics of stationary cab or stationary controls, fixed control cranes and swing controls. And that, therefore, led to the distinction in our program, between small telescopic and large telescopic.
We also felt there's a distinction between the way a wheeled, mounted or a mobile lattice boom crane was positioned and set up as a track mounting crane. And so, therefore, two divisions in that area were made.
The particular tasks that were required, we felt to evaluate the physical skill were very similar. And so, when you take a practical exam through the CCO program, as a practical test side applying to offer that, you will first of all, need to supply the detail B- specific operating details, characteristics of those cranes or cranes that you wish to have tested on, and we develop a CAD which shows the specific placement of all the various test items that are needed for the practical test site lay out and then you as the test site, would lay the test out specifically to meet the characteristics of that particular machine. But the actual skills that are tested are similar across all four categories.
So, when it comes to capacity, there's a general sense, I think, that why is it that an operator of our, maybe a 35-ton crane, certified through CCO as a large telescopic crane operator should then be allowed to go out and operate a 300-ton crane?
Well, that's the difference in, I guess, the certification, the line between the certification and what it can do and what the operator's response B- the employer's responsibility still is. What we as a certification body do is to, through the certification, through the issuance of the certification card, attest to the fact that through the written exam and through the practical exam, that operator has demonstrated sufficient skill and sufficient knowledge that justifies giving him a certificate of competency. It remains the employer's responsibility to check that individual out on the specific piece of equipment.
And I guess it's important to understand that certification is a component in the array of information that an employer needs to have in order to match a particular operator with a particular crane. That's where experience and safety record and those other pieces of information, that we don't attempt to capture through the certification process, come into play.
So, we're certainly not saying as a certification body that all you need to have is a CCO certification card. We are saying that having a CCO certification card demonstrates that the person holding it has demonstrated that he or she has a certain level of knowledge, a certain level of skill, that we feel comfortable issuing a certificate of competency, which will then go to assure an employer, to a certain degree, that that individual may or may not be competent for a particular machine. But there is piece there, which will always, and I believe is the way the OSHA rules are written, will always rest on the employer's responsibility to have that individual checked out on the particular crane.
MR. BRODERICK: Any questions? Mike?
MR. THIBODEAUX: Mike Thibodeaux. What is your average or normal cost of your accreditation for, let's say, one crane operator or an employer sending five? I mean, it is the exact same amount for one as it is for five?
MR. BRENT: It's the same for five as it is B- well, it's the same per candidate. When the founding fathers, if you will, when the contractors and rental firms and steel erection firms and so forth, put this program together, as employers, they were very concerned, as concerned as I'm sure this Committee is, about the cost of the candidate. They were concerned that maybe even more than they were concerned about the viability of this organization, there were concerned that this non-impact, the operator financially -- certainly would not preclude an operator from if he were paying for the fees himself, to pay the fees then become certified. That should not be an impediment to being certified.
So, that was very much on their minds when those fees were set. They've been increased slightly, once only, in the 10 year period. And I can tell you, were it not for the financial support of the industry, I wouldn't be sitting here right now. We wouldn't be having this conversation because it's only relatively recently in our experience, in our lifetime, that we've been financially viable. And up until that point, we've been subsidized through manufacturers, through contractors and through other industry organizations that have funded this program.
MR. THIBODEAUX: That still doesn't answer my question. What is that cost?
MR. BRENT: Okay, that cost specifically, is $165 for the core exam and that gives you a core exam of one mobile crane specialty. These fees, incidentally, are all plainly listed on the website and in all the candidate hand books. All of that information is freely available on the website.
If you were to take the entire mobile crane program, that's four categories, that's five written exams, three practical exams, it would cost you $275.
If you're looking at cost, there's many way to slice and dice it. It actually works out at a matter of cents per hour. Actually, if you just simply strip out all of the training, our position would be that B- as I think you've heard here before, that most, if not all of the training, is already an employer's responsibility and all really certification does is ensure that the training has been effective.
Then a basic five year mobile crane accredited certification, which will actually cost B- would cost $225 for one category, works out at about a little bit under four cents an hour, because what you have to remember is, this is for a five year certification. You don't pay this annually. You pay it B- actually, you only really ever pay it once, because the re-certification fees and the re-certification does involve a written exam, are less than the initial certification.
So, where you would be paying $165 for one written core exam and a specialty initially, you would pay $150 only when you come back through for re-certification.
MR. BRODERICK: Any other questions?
MR. HAYSLIP: Good afternoon. Mike Hayslip from NESTI. How close are you to B- in what you do, meeting the mandates set out in this OSHA document?
MR. BRENT: Well, as I understand the OSHA document, the category that we fit into would be the first option, that would be a national accredited certifying body.
MR. HAYSLIP: And you're there now, at that level?
MR. BRENT: Correct.
MR. HAYSLIP: There's not much more you need to do -- once and if this comes into play, you're already there ready, willing and able to serve the market?
MR. BRENT: That's correct.
MR. HAYSLIP: What would cause someone to lose their certification before the five year period elapses?
MR. BRENT: There's several areas that would come into play. One, the most obvious, would be evidence of culpability in an accident. There are others. Misrepresentation of certification credentials, lapsing and not re-certifying and so forth. But the most egregious would be being the cause of an accident.
MR. HAYSLIP: So, there is, obviously as you said, there is some process that someone could ultimately be de-certified?
MR. BRENT: Well, there is, and actually, that's another benefit of having the accreditation requirement in there because both major national accrediting organizations and NCCA require certifying bodies to have a provision for revocation or suspension of certification.
MR. HAYSLIP: Is there any requirement or need for continuing education during that five period span? Are there yearly, monthly, bi-yearly, bi-annual requirements to keep up with your education, your knowledge, experience?
MR. BRENT: Well, we certainly encourage that, but we don't require it. We don't require, actually, any original training. In other words, when a candidate comes to us he or she will fill out the candidate form, include B- because we do have a physical qualification, will include a medical form, evidence of having B- an attestation of having taken a drug test, and that's it.
Now, we do know from experience, and we learned this very early on in the program, that candidates without training don't do very well on the test. And in the very early days of the program we had some test sites which had 100 percent failure rates because their candidates, as it turned out through our subsequent analysis, hadn't been trained.
The assumption was that experience and a good safety record would carry the candidates through, and while both of those two lasts things are extremely important, clearly, there weren't sufficient to meet the knowledge and skill level that was required.
MR. HAYSLIP: One final question, if you care to answer it. We talked a fair amount with the degree of the cost to the individual, and maybe his company that sponsors him or her to do this. Can you project or give us some idea of what is the cost to become an entity like yourself, say Mike and Mike and Mike want to go off and form an entity? What's that cost?
MR. BRENT: Well, I can certainly say that it's not a cheap process, and there's a good reason for that, because there are a lot of steps involved.
There's actually two ways of analyzing that cost. I can give you a dollar value, which is in the several hundred thousand dollars for it to be established initially, and through that first seven year period, where we created the mobile program and were funded through industry contributions.
The real cost, however, really is in the volunteer contributions, which are kind of an unseen cost. None of our subject matter experts are compensated. In fact, nobody, apart from the staff of NCCCO is compensated. They all serve voluntarily. They give us their expertise willingly for the betterment of the industry. It's truly, as I mentioned, was a safety initiative at the very beginning and it has maintained itself as that throughout.
There is a cost of accreditation, but there's a good reason for that too. The job, for instance, that ANSI does is extraordinarily thorough. They'll be sending two auditors to each of our three offices for two days apiece when we go through that process, and their management system requirements are easily equal to ISO-9000. In fact, the ANSI requirements are based on an ISO standard.
So, any national certification body that becomes accredited through ANSI will have met, at one other same time, the requirements of International Standard ISO-17024, which for some organizations, is of particular importance.
MR. BRODERICK: Tom?
MR. KAVICKY: Tom Kavicky with the Carpenters. Is there any qualification or requirement, once the candidate takes the testing process, both the exam and the practical, does he have to maintain so many hours per year or for the lifetime of that five year period?
MR. BRENT: There is a requirement during that period of 1,000 hours in the five year period, if the candidate does not want to be tested again on the practical. In other words, to put in another way, any candidate demonstrating that they have 1,000 hours experience during the five year period does not have to re-test on the practical. If they can't, then evidently by definition, our definition, they haven't really been operating as a crane operator. So, we need to put them through the practical again.
But we felt it was redundant to re-test a crane operator that does this every day and we're not in the business of just testing for the sake of it. So, if there's no reason to do it, we wouldn't do it.
MR. BRODERICK: Graham, when you talked about the categories and the number of categories, I believe that that number was discussing those categories that are contemplated by C-DAC, and in addition, there is a B- the overhead crane and is there another category?
MR. BRENT: Currently, I mentioned that the breadth of the program had increased too and currently, we do have additional programs, most of them I already remarked on the costs and so forth, and were confined to discussion of the mobile program, although the costs of the other two, which are tower crane and overhead crane, the costs of development of those was substantially less for us than it was for the mobile program, partly because we knew what we were doing this time and we had an understanding of what was needed. I think with all due deference and respect to the founder fathers back a couple years ago, we really didn't know where we were headed before the concept of certification was thought out as a means of determining the training was taking place and was effective.
But we do now have a tower crane program that has been in effect since 2004 and has been well received. Actually, we certified around 1,500 tower crane operators since then and the overhead crane program was finished up at the very beginning of this year, and that's addressing a somewhat different audience, although there are some overhead cranes clearly used in construction environments, as defined by OSHA. But the majority are not. They need more maintenance shops. And so, we're looking more at the general industry application.
There are plans for further expansion next year. In fact, the Commission meeting next scheduled will be in San Antonio on November 6th through 9th. Like this meeting, all of our meetings are open, and anyone who wishes to attend is welcome to attend. On Thursday, November 9th, the Commission will be making a determination as to which direction further expansion we'll take during 2007.
MR. BRODERICK: There was a concern expressed by one of us, about sort of the small end of the spectrum, or the smallest end of the spectrum, a drott, is one of those B- is that type?
MR. BRENT: Yes, that would fit into our small crane category, which is also by definition, a fixed cab, which my understanding is, most drotts are fixed, would fall into.
But we're talking about a fixed cab crane and the difference is, actually, between a fixed cab crane and swing cab crane, are much greater than between a swing cab crane of 20 tons and a swing cab crane of 200 tons. They may appear to be more, because the machine is so much bigger. Maybe the risk appears greater. Maybe the risk is greater. But in actual tasks and actual skills tested, there is much greater difference between that small crane with the fixed controls and the swing cab. And in fact, our failure rate on the fixed cab is higher than it is on the swing.
Maybe there's a corollary there between the accident statistics that we see, which are much higher with the smaller cranes than they really with the larger ones.
MR. BRODERICK: Any other questions? Matt?
MR. GILLEN: I had a question. Do either the written questions or the practice questions include scenarios with like a reduced margin of safety, similar to the critical lift issue we were discussing earlier?
MR. BRENT: Well, there certainly will be questions relating to, for instance, load jack calculation questions, which will be important in a critical lift. We have over 700 items in the item bank, so I'm not familiar with them enough to tell you if there's any specific questions about critical lifts.
But certainly, a lot of the processes that a crane operator you would hope, would need to go through and be aware of, would be components of what would be required in a critical lift and would be tested on the exam.
In the mobile crane program there are four categories, as I mentioned, and in those specialty exams, the crane operator is required to calculate in six of the questions on the test, from a load chart and they're given real life questions and during the exam itself, are required to do that calculation, come up with whatever the net capacity or configuration is required in the test.
MR. BRODERICK: Mike?
MR. HAYSLIP: Briefly, you had mentioned 1,000 hours of operation. I didn't catch the time period.
MR. BRENT: Five years.
MR. HAYSLIP: All right, thank you.
MR. BRODERICK: Are there any other questions for Graham? Well, thank you very much for coming, Graham.
MR. BRENT: Thank you. You're very welcome.
MR. BRODERICK: Well, we now have a block of time, quite a generous block of time, with which we can deliberate on how we will be ultimately voting.
As I see it, we have two options, because I think I've talked to everyone here, or just about everyone. And I don't think among this group, there's a feeling that we want to walk away from this table today without making a recommendation to the Agency about a long over due, in my opinion, crane standard.
So, what it comes down to is do we want to recommend the standard as it has been presented to us, or do we want to recommend the standard with modifications/improvements that we may think would enhance the standard? Mike?
MR. HAYSLIP: Question on the impact of those two decisions.
MR. BRODERICK: Mike Hayslip.
MR. HAYSLIP: Mike Hayslip, NESTI. What's the impact of those two outcomes? If we offer a lot of comments, how far back does that send it? What's the impact of that?
MR. BRODERICK: Sarah, please, if you would.
MS. SHORTALL: There's one special requirement in our OSHA regulations that applies to ACCSH and only to ACCSH, and that is that according to the Construction Safety Act, every time the Agency proposes a rule that has a substantial impact on construction, we must come and consult with you and get your recommendation.
Now, if you recommend something other than what is in the proposal, the Agency will have the duty to explain why it did or did not adhere to it.
Now, they will have to also include some section in their preamble to the proposed rule that said that they met the statutory requirements. They came before you, what your basic comments were, and what the outcome of that consultation process was.
So, they have yet to put that particular piece in, and so, they have to do that. But there is not obligation on the Agency to automatically adhere to your recommendations, but they will have to give some explanation.
MR. BRODERICK: Gentlemen, the floor is yours.
MS. SHORTALL: Could I do a housekeeping item while they're thinking and deliberating?
MR. BRODERICK: Certainly.
MS. SHORTALL: Since we finished our part, the last of our public discussion, public comment on cranes and derrick, I would like to enter into the record B-
MR. BRODERICK: We still have one more session.
MS. SHORTALL: But not on cranes and derricks, right?
MR. BRODERICK: Yes, we do.
MS. SHORTALL: All I want to do is enter this into the record as Exhibit-16, which is the public comment from Insulatus, Hugh Pratt, writing it for them, and this copy that's going into the record is the non-redacted copy. It will be placed in the record, but my understanding, the graphic images will probably not be placed on the website.
(Whereupon, DOL's Exhibit-16 was marked for identification purposes and entered into the record.)
MR. BRODERICK: Thank you, Sarah. And just B- I saw some nervousness in the gallery there. There will be another public comment period prior to us taking a final vote.
At this point, we are just having an opportunity to candidly discuss the direction in which we want to go. Then we'll give the final commenter's an opportunity to have the floor and when that is complete, we will then take it to a vote.
It's unusual to have this group have a loss for words.
MR. RUSSELL: Emmet Russell, I have a question, and I'm not sure that this can be answered. But I think initially, between yesterday and today, we came up with a list of questions and I guess my question would be how many of the questions have been resolved to most of our satisfaction and how many questions or issues are still out there? Not that I'm asking anyone to necessarily say that we answered everything, but I think it might be good just to know what we did resolve and kind of what we have not resolved, if I'm making sense.
MR. BRODERICK: Yes. Tom?
MR. KAVICKY: Mr. Chairman, Tom Kavicky with the Carpenters. I think the accreditation, we beat up pretty good and I learned a lot from that, the discussions with the members in the audience.
The one issue that was made aware to us from Matt Gillen, about the critical lift issue, I don't quite understand why you can't label a critical lift a critical lift. If you're working in a petrochemical plant, lifting a huge piece of machinery or a vessel, over other operating process B- processes that are running, would that be a critical lift? Would that require B- I know there's something in the standard regarding planning, extra planning, but I think Matt makes a very good point about the critical lift issue and I don't understand why we can't get a little more clarity on that.
MR. BRODERICK: Mr. Burkhammer?
MR. BURKHAMMER: I think, Tom, one of the reasons why is because different types of work may constitute different definitions of a critical lift. Lifting a vessel in a refinery is a critical lift. Lifting a vessel in a power plant may not be, depending on where the vessel is. Owners, sometimes, depending on their processes in an operating plant, determine what's a critical lift and what isn't.
So, I think the hardest thing, and
Emmet can certainly clarify this, from the deliberations that I sit in on and listen to, that was the biggest problem that the Committee had, was defining it, because there's so many different types of construction, defining a single term critical lift, and there's isn't any.
Is it tonnage that determines a critical lift? Sometimes it is, sometimes it isn't. It is shape or size or mass? Sometimes it is, sometimes it isn't.
So, I think when the Committee, in great deliberations, as Noah indicated to you, finally came to the conclusion there was no way to determine this. And I think that's why it's such a difficult thing to wrestle with, because there's no simple definition like there could be in other things. Emmet?
MR. RUSSELL: Well, for instance, a critical lift can be the operator, an operator who has operated the same crane, doing some of the same functions for the last two years, what might be critical to you, might be a normal function for him. Yet still, a new operator, first time on this crane having to do this item, this day, it's critical for him.
So, I guess, disregard how you slice it and dice it. It still doesn't come up as clear and clean.
MR. BRODERICK: The Chair. I think one of the things that we're struggling with here, and I too was dismayed, when I initially read through this and did not see critical lift carved out as a piece of it, because when I was a real safety practitioner, out working in the field, I worked in power plants, I worked in paper mills, doing heavy lifts in paper mills, very much like doing a heavy lift in a process plant. And we would have a critical lift that would reflect the fact that we were lifting around vats of very hazardous chemicals and tanks that had gases in them that, should we rupture them, would be potentially catastrophic. Working in power plants, there were fewer of those instances.
But still, critical lift was something that as the safety guy for the project, I would make sure that we had one that was specific to that particular project.
So, as I was thinking this through, I guess what I was struggling with was this standard is not instructive, in that it wouldn't take a person brand new in construction safety and allow him or her to read through the standard and find something in there that would alert that person to, this is something I should be thinking about.
I guess the question, for me, then becomes, is that the role that a Federal safety standard should play? And I guess I still B- I've sort of telegraphed my thought on that when I talked to Noah before about a non-mandatory appendix that may use the term critical lift, could then potentially describe what that is with the deliberate vagueness that it seems like it would have to have to allow for these different options, and then go on to say, "But if you're going to do it, here are some of the elements that you might want to put into a critical lift plan."
So, then the standard would not only be something that regulators could use to evaluate crane operations, and it would also be a standard that would allow the industry to know what's legal and what's not legal. But then it would fulfill that additional role to provide a learning tool.
I think what I'm hearing, if I can filter through it, is that a Federal safety standard is not necessarily the place for that learning tool. And I'm having trouble in my own mind reconciling that. So, am I bringing something?
MR. GILLEN: Matt Gillen. I think you did a good job of describing it. I kind of feel the same way. It's apparent to me that the Committee really worked hard to take the concepts and incorporate them where appropriate in the standard.
By the same token, we all know sometimes the way training is done. People teach the standard, you know, and if the concept isn't in there, there's no way to even talk about it.
And so, I like your idea of there being a non-mandatory appendix. It could point out, here's the kind of provisions that are involved, and many of them are in the standard and it is non-mandatory. But then it gives people just the term to discuss the concept, if it's the operator, you know, feeling that they need to refuse something, to call in a qualified person, it just gives them the term and everybody is trained on that to discuss it, without changing the regulatory text at all.
So, those are my thoughts on it, as we discuss it. What do you think, Stew?
MR. BURKHAMMER: And that could be part of your motion, if you wish to add that, as a Committee, as a recommendation, as part of your work.
MR. BEAUREGARD: Tom, I kind of go along with what Stew was saying, and I'm not sure how you're going to formulate all of this. But what I would recommend is that if there's recommendations that the individual ACCSH members want to make, whether it be a change or modification or addition of a non-mandatory appendix, that we discuss that as a group, and as a group we decide whether or not we want to make that recommendation onto OSHA. In addition to that, put it in the form of a motion that B- make a motion that we're going to approve the crane standard, and in addition, we have the following recommendations and kind of put it all together. I don't know if that made sense or not, but instead of me making a certain B-
MR. BRODERICK: It certainly does, yes.
MR. STRUDWICK: Well, after review of the posted material we have here on the wall, that identified some of the concerns that all of us had, that Mr. Buchet was so nice to write down, my main concern, the road map towards accreditation, was satisfied by the testimony that we've heard in the last day and a half.
So, unless somebody else has a lot of heartburn, from the standpoint of that situation, I'm in favor of just moving forward and qualifying whatever suggestions that we might have that might make things a little more clear.
When I made a suggestion about critical lifts yesterday, it was just from a capacity standpoint. And I've heard an awful lot of clarification based on different tasks that are performed that satisfy my curiosity as to why there was no definition.
So, I'm with Kevin. I think that, should there something that we'd like to suggest that they take another look at, pass it right along. But I think that it's been just a fabulous day and a half of information processing and I feel very comfortable with the program as it stands.
MR. BRODERICK: Good. Are we then B-
MR. HAYSLIP: I still think that drug testing, and to a lesser degree, physicals, are conspicuous by their absence. I just wanted to introduce the topic to see if there's any wings that might B- I want to introduce if anybody wants to comment and talk about it.
MR. BRODERICK: And this surely is the time to do it.
MR. THIBODEAUX: I talked with Michael about the drug testing, and I have a concern with that also, and I heard Noah's comments about B- I don't remember if it was due process or whether it was constitutional issues, and that B- and I think Greg brought up something about vision testing. If not physicals, but vision testing and drug testing seem, to me, to be an issue, as far as crane operation. I know I couldn't do it without these.
I'm just echoing what Michael has said concerning drug testing.
MR. MURPHY: Dan Murphy. Just a question, I guess, back to you, is where do we see drug and alcohol testing elsewhere in the standards? I mean, if we have steel erection, do we have drug testing in that?
I think that's kind of the impression I got from Noah, is that it's something the company does or whatever, because of the constitutional issues B- and this is on crane operators. I'm just asking for clarification.
MR. THIBODEAUX: I understand, Dan. But you said this is what the employers do normally. They're not required to.
MR. MURPHY: That's right.
MR. THIBODEAUX: And if they said, "Well, heck, the new standard doesn't require us to do that," but it only requires them to do all this training B- in order to save money, let's cut out this drug testing to do the training.
I'm not saying that's going to happen, Dan, but that's a possibility with some employers, we know that.
MR. MURPHY: Or we could take it a step further and we could say that there should be a section in the 19.26 standards for drug and alcohol testing, for all phases of construction, anybody in construction, not just crane operators.
MR. KAVICKY: Mr. Chairman, I have to agree with Dan on that point. The employer has to assume responsibility too, just like the worker does showing up clean on the job. If the employer feels he's not clean, send him home, get rid of him.
I don't feel that we should incorporate that into the proposed standard.
MR. RUSSELL: One of the last things I'd like to say, if you talk about drug standard, please make sure that you talk about it beyond the crane operator, because again, you cannot just drug test the crane operator.
MR. BRODERICK: Chair, here. And I think B- and I know that I'm repeating myself, in terms of trying to decipher what Noah's comments were, and so, I apologize for repeating myself.
However, my take on that was the implementation or the B- rolling a drug testing requirement into this standard may interfere, ultimately, by making it a Federal requirement with drug testing programs that may already be in place by employers. Because now, you have the Federal Government telling you what a drug testing protocol looks like. I think that that is where the constitutional concern lies.
I think that probably sub-text is NLRB decisions about drug testing, being collectively bargained, issue and that environment, but I think that B- my take from what Noah said, just plain listening to it, is more the getting in the business of interfering with an industry that has gone from not having any drug testing at all, to one where it's really become much more ubiquitous, and could the Federal Government ultimately in seven or eight years, come up with a standard that is going to set the industry back? I think that that could.
MS. SHORTALL: Could I answer a question to Dan? You asked if there any other OSHA standards that dealt with any of these issues. In our shipyard crane standard, we have a provision that talks about operator qualifications, that addresses B- or basically, says persons with uncorrected vision B- and I think it may a little bit more qualified than just uncorrected vision, diabetes, heart condition and other seizure things that might cause sudden incapacitation, would not be allowed to operate a crane.
We have, however, also in the preamble that particular standard, tried to harmonize that exception or that provision, with that ADA. So, we've looked at the frame work of the principles of the ADA. One is an appropriate to prevent someone who is a qualified applicant with a disability from working their job because they may pose a direct or imminent threat of safety and health harm to themselves or others. So, we've looked along that case line.
I think, based on that particular provision, we've tried to figure out how can we take the OSH Act and the ADA and harmonize them, so they both can effectuate their purposes without the OSH Act inadvertently trumping the ADA? And the ADA is the one that deals with all the case law on drug testing. It has case law on people with records of drug use or alcohol use, with vision, with heart ailments, with seizures.
So, we're trying to almost let the ADA, in some ways, pick up that and the employer would always have the right to assert that defense of, "Listen, I can't let this person operate the crane because they are going to be a direct and imminent threat to the safety and health of that person, or anyone else in the area." And so, there is another frame work that they may be able work under.
But I think that's one of the reasons we haven't so drastically gone into the physical qualifications, because the ADA is also dynamic statute that is changing as new case law is brought forward under it.
MR. BRODERICK: Thank you. Okay, if there is no more discussion at this point, I would like to go ahead and open up the floor to receive the final two public comment speakers. And I would like to start with the one that relates to C-DAC, and then we will have Steven Kinn come up and talk about hexavalent chromium.
So, is Gary Nally here? Gary would be the fellow that winced when I said B- or someone said there would be no more questions.
MS. SHORTALL: I do apologize, Gary.
MR. NALLY: Good afternoon. My name is Gary Nally. I'm with the Manitowoc Crane Group. Members of the Committee, thank you for allowing me this opportunity to speak on behalf of the Manitowoc Crane Group.
The Manitowoc Crane Group has been manufacturing cranes for over 80 years and has been manufacturing cranes in Pennsylvania since 1947 under the brand name of Grove.
We have manufacturing facilities in Manitowoc, Wisconsin; Shady Grove, Pennsylvania and several other countries, including Germany, France, Italy and China.
We manufacture many types of lifting equipment, including lattice boom crawler cranes, tower cranes, boom trucks and mobile hydraulic cranes, which include rough terrain cranes, truck mounted cranes and all terrain cranes. The majority of these products will be covered by this Act.
The Manitowoc Crane Group firmly believes that crane operators should be qualified to operate our products. Such qualifications are achieved through knowledge, training and experience in the safe operation of cranes.
Further, Manitowoc has supported efforts by the Federal Government to publish and update regulations governing cranes. Mike Brunet, Manager of Product Safety for the Manitowoc Crane Group, participated on the U.S. Department of Labor, Occupational Safety and Health Administration, C-DAC Consensus Rule Making Committee, representing the Association of Equipment Manufacturers.
This Consensus Committee agreed on representing B- excuse me, agreed on language addressing operator qualifications, which required that a crane operator be certified by an accredited testing organization or other agency, such as a State Governing Board.
Manitowoc also supports the publications of industry standards, governing safe operation of cranes, their participation on numerous domestic and international industry committees, including the ASMEB-30 Committee, the ISOTC-96 group on cranes, and the European standard bodies applicable to crane products. Each of these bodies publishes standards addressing qualification requirements for crane operators.
Manitowoc has supported industry efforts to provide training to crane operators. For example, Manitowoc has been a strong supporter of the National Commission for the Certification of Crane Operators, the NCCCO, since its inception in 1995. We have supported NCCCO's efforts, both monetarily and by providing personnel and resources to NCCCO to further their programs. As a matter of fact, John Kennedy, our Director of Sales, Major Crane Rental Accounts for Manitowoc Cranes, is the current President of the NCCCO Board of Directors.
Cranes have evolved significantly through the years, becoming considerably larger and with greater capacities. Cranes today have far more complexity, including integrated, electronic systems. These systems are designed to increase efficiency and make cranes easier to operate.
However, the need for training has also become more important, as the operators need to understand how these systems function, and to provide them with the knowledge to safely use the cranes. The Manitowoc Crane Group supports activities that will further efforts to ensure that cranes are being operated safely and efficiently.
We provide training programs through our crane care group, covering safe operation of cranes, and we also provide training programs to prepare candidates for the written and practical examinations offered by the NCCCO. Additionally, we provide our facilities as a site to conduct these examinations.
We are encouraged to see that the work of this Committee may stimulate training efforts as crane operators prepare for the certification exams. Everyone will benefit as more people gain a better understanding of what is involved to ensure safe crane operation.
In closing, the Manitowoc Crane Group supports the activities of this Committee and pledge our support in assisting Federal OSHA to move forward on this and any other activity that aids in the efforts to provide a safe workplace for people working on and around our cranes.
I appreciate the Committee providing me this opportunity today to present my views and those of the Manitowoc Crane Group. Thank you.
MR. BRODERICK: Thank you, Gary. Very well said. Questions?
MR. HAYSLIP: Mike with NESTI. If you care to comment, any recommendations, based upon what you might have read, with respect to this standard for this body, as we deliberate and ultimately come to a vote, that you'd like us to know?
MR. NALLY: An overview?
MR. HAYSLIP: On the bottom line, thumbs up, thumbs down, with respect to the new B- from your view of the B- your side of the fence.
MR. NALLY: Overall, it's been a commendable effort by a number parties and entities, to develop a consensus standard. Unfortunately, there are a number of issues, I think, which have been communicated to the membership where we have a concern and do not agree.
MR. HAYSLIP: Okay. Are there any significant, unintended consequences we should be aware of?
MR. NALLY: I would rather that B- I think it's already been communicated to the Committee B-
MR. HAYSLIP: Nothing new?
MR. NALLY: Nothing new.
MR. HAYSLIP: Fair enough.
MR. BRODERICK: Are you satisfied?
MR. HAYSLIP: Yes, sir.
MR. BRODERICK: Thank you. We are going switch gears for a moment here, and our friend hexavalent chromium is coming back to visit us, in a good way. Steven Kinn, welcome.
MR. KINN: Thank you, Mr. Chairman. I'm Steven Kinn with Construction Porter Association out of Cleveland, Ohio, also representing the Agency of Ohio and the Agency of America.
I'll be honest, I came with a list of things to bring the Committee and was hoping I'd hear more when it was presented yesterday on hex chrome and kind of was unsatisfied with a lot of what was say, and then today when you were talking about the work group committees, specifically hex chrome being done and maybe being looked B- being gotten rid of, it kind of raised some hairs.
Some of the issues that we're having with this new standard is, when does it actually apply? The majority of people that look at a standard, as all saying, "Yes, it's a specialty welding issue. It's only for stainless steel and high chrome contents and things like that," but the reality is, the standard applies to any hex chrome exposures and then if I can do air sampling or chemical analysis to show that the levels will be less than .5, then I can exclude those operations.
Traditionally, people have said, "Well, that's carbon steel welding. It won't apply to carbon steel welding." But even in the preambles of the standard, 64 percent of the samples that OSHA analyzed were above that .5 level, which means that 64 percent of the time, carbon steel welding is covered by this standard.
Fortunately, only of six percent of those were above the permissible exposure limit, which would trigger the need for engineering controls and respirators. The problem is, what do you have to do once the standard does apply?
With the B- I guess, the biggest impact being, where there's a hazard present or likely to be present to skin and eye contract, you have PPE. That definition of when a hazard is present is what is the big issue.
If it is as simple as, I go back and look at my last few years of 300 logs, the past history of the company and show that there have been no injuries or illnesses from chrome exposures, then I don't have to provide anything. That could work for a lot of contractors, but I've got one welding contractor that has been welding stainless steel for 20 years and has employed between 15 and 35 full-time stainless steel welders and in 20 years, they have not experienced one injury or illness related to hex chrome, and that's doing strictly stainless steel welding.
Then we have others that are reporting they have had chrome holes from people that have done both mix, mild steel and stainless steel. So, I don't know if that's going to be a true measure, because you're going to have people that are ultimately more sensitive to it than others.
I think that's where it kicks in to, if we do have to come up with a point where we say a hazard exists, I think the industry needs to have some input on how to evaluate that, other than just going back and looking at the 300 logs, the accident records for the companies, and try to come up with a definitive answer of, this is when it does exist, this is where it doesn't exist. I know we don't have a whole lot of data supporting that right now.
But if we leave it open, I'll be honest, local area offices in the Ohio area have adopted the, "Well, if the standard applies at .5, that's where the hazard exists," which, now I've got to go back and tell the carbon steel welding industry, once this standard applies to carbon steel, you now have to provide PPE specific to hex chrome exposure and then you need to lauder that material. You need to provide washing facilities, change rooms and then training, and not just training, but now we have to go back to the training to where the individual can demonstrate knowledge of the standard and the medical surveillance programs. And I will almost guarantee you, most carbon steel welding organizations are nowhere near ready to make that kind of a jump. They believe what they were told all along, this is a stainless steel issue and have shied away from it, and from my experience, they're nowhere ready to get involved in that.
What I would like to see is, if you do have that hex chrome work group, for them to address some of these issues and hopefully work with OSHA to develop that compliance guideline or document to address those issues and try to either come up with a set way of when a hazard exists or come up with a level that I can use to do a sample, wipe sample or air monitoring sample to say, "Okay, it does or it doesn't exist," because without that, you're going to have one contractor saying, "No, it doesn't exist," and they'll never do anything about it, and you'll have others that are going to be overactive with it and they're going to try to employ it in a completely different way. And then you'll have Enforcement trying to figure out which is the best way.
Locally in Ohio, I'll tell you, they're going to side with the, at .5 it's a hazard. So, you have to provide hex chrome specific PPE, which is going to be over-burdensome for most of our contractors.
Other issues that come with this standard that really open that area out, in construction, since there is no regulated area, we run into a problem with eating and drinking areas. It says I'm not allowed to bring, you know, food, drinks, cigarettes, into areas where there's exposure to hex chrome. That's easy if I've got a regulated area. I can control people's movements in those regulated areas.
Without a regulated area, we're going to have issues of, "Well, now I can tell my welder he can't bring his food and drink in, but now I have to tell him he can't bring his cigarettes in with him," whether it's carbon steel or stainless steel, and what about the laborer that walks by on the other side of the weld curtain, at what point is he far enough away that he's not exposed to a hazardous amount of hex chrome? And now I'm going to have to go back and control whether they can even bring those cigarettes anywhere near a welding operation. Is it 10 feet, 15 feet, 50 feet? Or do I have to control it and say you're not allowed to bring cigarettes on the job at all, which I'm not going to relish trying to make that type of argument to our welders.
When you get into the medical surveillance issues, there seems to be a little bit of a confusion here. I have to provide medical surveillance form those people above B- or that are exposed above the action level for more than 30 days, but I have to do it within the first 30 days.
So, I'm assuming that once I get to about the 20th day, if I think I'm going to employ them for 10 more days, then I do the medical surveillance then. I don't wait for `yes', I will be exposing them for more than 30 days above the action level. So, there's problems with the implementation of that.
The other big issue with the medical surveillance is how often it's made available. We can B- we understand the, provide it annually, provide it whenever there's signs or symptoms of exposure and that type of information. The problem we see is, the last paragraph, 19.26, 11.26(i)(6), provided at termination, unless the last one was within the past six months.
That's basically saying for most employers, specifically union employers, I'm going to have to do this every six months, because if I've gone out nine months and I'm at the point of laying off because the job is coming to an end, I can't lay off my welders until I perform a new medical surveillance. And if I've got five welders and I'm going to be looking at laying off three and I grab three and say, "Hey, I need you to go through medical surveillance," we know who is going to be laid off real quick and are they even going to stay for that medical surveillance? You're going to create problems with implementing that the way it's written.
So, it's either, do we do it annually or do we have to live with this last paragraph, and are we going to have to do it every six months for those people that are exposed above that action level? Which, above the action level, we are B- for most cases, for welding operation, you're talking about stainless steel. Very rarely will you have it with carbon steel, unless you are in a confined space operation.
Other issues come up when we're dealing with the painting, the factory brick operations. So, it's not strictly a welding issue, but it's across the board.
When we get into the carpentry work, whether it's demolition or we're constructing, if we're using pressure treated lumber, it is covered. The application of the pesticides isn't covered by OSHA. It's covered by EPA. When we work with those materials, they are covered.
So, we have additional exposures there, and trying to come up with levels of when is it a hazardous amount to be exposed to? It's still out there. I don't B- there's no set limit and we need to try to come up with some way to address that. Hopefully, we can do that here in the work group and come up with some advice or work with OSHA on that compliance document to, I guess, get a better handle on that for implementation.
MR. BRODERICK: Thank you. Now, just a matter of setting the record straight. The group that's sitting here did not get rid of the hex chrome work group?
MR. KINN: Yes.
MR. BRODERICK: Apparently, we did it at our last meeting, under Linwood, is that correct?
MS. SHORTALL: No, under Bob Krul.
MR. BRODERICK: Bob Krul. Michael?
MR. BUCHET: Michael Buchet. At the motion of then co-Chair, Mr. Rhoten, I believe the record will reflect.
MR. BRODERICK: Okay.
MR. BUCHET: With the opening that it would be re-instituted, should questions come up.
MR. BRODERICK: So, we are in a position right now, where I would not entertain a motion right now to, you, sir, Linwood Smith, who represents the AGC's ability to re-constitute the work group.
But I see that the AGC is well represented in this room and you are representing a significant population of contractors that are members of that organization. I think that if you, in fact, contact Linwood and if you were in agreement that this would be helpful to have a work group that looks at whether or not we can provide some assistance to OSHA, in terms of developing a compliance document at the next meeting, which I believe will be in the next four months or so, we would be able to re-constitute that work group and begin that process forthwith.
We also could have that on the agenda and have someone from the appropriate Directorate come and discuss whether or not our assistance would be utilized.
Some of the issues you brought up are issues that, quite frankly, I'm hoping that you got into to give public comment during the period while the record was still open for public comment. Because now, it's a little harder once the standard is where it is B-
MR. KINN: Yes.
MR. BRODERICK: B- to make any changes to it. In fact, right now it seems that the Courts will help us decide whether or not there will be any changes to that particular standard.
So, hopefully, that gives you some feeling that you've accomplished that which you set out to do in coming here. We appreciate hearing that there are some bumps in the road on a matter that, quite frankly, I think we had thought was behind us.
Does anyone have any comments?
MR. GILLEN: I have a comment and a question. Matt Gillen with NIOSH. I think NIOSH would be interested in working on some of these issues.
We put together our draft NIOSH goals, some of them related to inhalation exposures and I think the idea of recognizing that an exposure is occurring is tough for a lot of contractors, and how can you take the way they view an issue, like what's the chromium content of the welding rods and the base metal? The sort of decision process they would follow. I mean, what are the exposures you might get in those conditions and things of that nature. So, putting together tools that might help people in these situations would do a lot. We'd be interested in that.
I did want to ask you, you mentioned the carbon steel and hex chrome exposures. I looked pretty hard for studies, when we put together our NIOSH testimony for the hex chrome hearings, to see, you know, are other studies where it's just mild steel or carbon steel and there was an over-exposure to what would be the action level for hex chrome, and I couldn't find any. Do you have studies?
MR. KINN: As far as I know, with the research that I've looked at, I haven't found very many studies that looked at strictly carbon steel. Some that will bring it into the fold, but not really explore that exposure.
We are currently conducting some research, with the help of the Ohio BWC, or Bureau Worker's Compensation, to do sampling for strictly carbon steel welding with specific rods, and then we're also adding a little bit of stainless steel, the most common rods that are used and wires that are used for stainless steel in the Northern Ohio area, to at least get some background and create some objective data that we can use for that standard to justify what levels can be expected.
We did just our first 10 results back and of the 10, two of the carbon steel welders were above the .5 threshold. What was most alarming about those is, those were the two that were outside on a five mile an hour wind day. The ones that were inside the shop with no ventilation, because of the configuration, the door was open and a window was open, enough blew away that they were below the .5. Our two guys that were outside that we expected with the wind flow to not be an issue, were are two biggest issues.
MR. GILLEN: Can you clarify something else you just mentioned? It was mild steel and some stainless steel?
MR. KINN: Of those 10, those were just strictly mild steel.
MR. GILLEN: Interesting. Okay. I'll have to talk to you about that.
MR. BRODERICK: Anything else? Thank you very much.
MR. KINN: Thank you.
MS. SHORTALL: Mr. Chair, now that the public comment period is really over B-
MR. BRODERICK: No, no, Sarah, it's not quite really over.
MS. SHORTALL: There's someone else?
MR. BRODERICK: Well, I'm going to do something unorthodox, which may not ever get me invited back to sit in this chair again. But it's come to my attention that there is some additional information, which I think will be instructive. It goes to an issue which we've had quite a bit of discussion around, the C-DAC standard, with regard to drug testing, and I would like to invite Graham Brent to come back up because he has some information about his particular certification methodology, as it relates to that. Welcome back.
MR. BRENT: Thank you, Mr. Chairman, Members of the Committee. NCCCO does, in fact, have two additional requirements for certification, that I haven't talked about here today.
One is to meet CCO's physical requirements and the second is compliance with CCO's Substance Abuse Policy.
Back when the program was formulated in the mid and early 90's, I mentioned that the B-30.5, the ASME ANSI standard was one of the Keystone's guidance documents for the content of the program. B-30.5, then and now, has a series of physical requirements. They are, incidentally, excluded from OSHA's adoption of B-30.5 as a regulation incorporated by reference, but because they were extensive and because of some of the concerns that I've heard here today by members of our organization, that operators be physically quantified, they were included in our program.
The CCO physical requirements are modeled on the B-30.5 requirements, that you can find in B-30.5 2004, with some additional items garnered from the DOT physical requirements.
In many ways, the DOT and the FAA and any other Government agencies that we could find, were used as models for elements of the program on the principle that what applied B- what could apply or be seen to be applied B- applicable to crane operators should be used, rather than to reinvent the wheel.
So, satisfactory completion by a medical doctor of the CCO physical requirements form is a necessary requirement for the application and therefore, the certification.
We will accept, in lieu of our own form, the DOT medical examiner's certificate that's issued to CDL drivers, and we do have a short list of other employer programs that meet those requirements, some employers that have very extensive requirements and are in line with either B-30.5, our physical requirements or the DOT. We'll accept those as an administrative matter to facilitate the processing of the application.
The drug testing component is addressed in our program through a candidate attestation at the time of application, that the candidate does currently, at the time of application, and will continue to meet during the course of his or her certification, this Substance Abuse Policy of CCO, which in a sentence is, that no misuse of drugs, illegal or otherwise, is tolerated during the course of the certification period, and that, to come back to a previous question, abuse of that policy is cause for suspension or revocation of the certification.
In practice, of course, that's difficult to police, and we run into all kinds of legal issues when evidence may be supplied to us of a certificate's alleged lack of compliance with the Substance Abuse Policy. But it is there, because of the concern that crane operators meet some physical requirements and are drug-free.
I would add that typically in the certification community, among those other organizations that rub shoulders with would be the masseurs or thoracic surgeons or CPA's, who incidentally, all of which may share none of our content, but all of our accreditation requirements, they typically do not have physical requirements in their professions. They leave that up to the employer to determine compliance. But it is part of our program and we do enforce it.
MR. BRODERICK: Thank you, Graham. Are there any follow-up questions?
MR. BEAUREGARD: Kevin Beauregard, Department of Labor. I just have one follow-up question on your physical requirements. Is vision part of that physical requirement?
MR. BRENT: Yes, it is.
MR. BEAUREGARD: What are those requirements?
MR. BRENT: Well, reading directly from the B-30.5 standard, our vision requirements are the same, which are vision of at least 20/30 in one eye and 20/50 in the other, with or without corrective lenses, ability to distinguish colors, regardless of position of color, differentiation is required, and normal depth perception, field of vision, and no tendencies to dizziness.
MR. BEAUREGARD: Thank you.
MR. BRODERICK: Yes.
MR. STRUDWICK: Were there any other physical requirements?
MR. BRENT: Yes, actually, there are eight listed in B-30.5, and then we have an additional four, based on the DOT CDL medical requirements.
MR. STRUDWICK: Do you have those?
MR. BRENT: I don't have them with me. They're available on the website.
MR. STRUDWICK: Thank you.
MR. BRODERICK: Mike?
MR. HAYSLIP: Mike Hayslip, NESTI. In your opinion, should an active crane operator be permitted to abuse substances or be physically unable to perform their work duties?
MR. BRENT: I'm sorry, could you read that question again?
MR. HAYSLIP: In your opinion, should an active crane operator be permitted to abuse substances or be physically unable to perform their work duties?
MR. BRENT: It's the position of NCCCO that an operator should be drug-free and that he should have no physical impairment that would create a safety risk.
MR. HAYSLIP: Would those same questions pertain to the certification, or gaining certification, of said employee?
MR. BRENT: Are you asking me if that would indicate he would not be certified by CCO?
MR. HAYSLIP: Yes.
MR. BRENT: That's correct.
MR. HAYSLIP: Okay.
MR. BRODERICK: Any other questions? Thank you, Graham.
MR. BRENT: You're welcome.
MR. BRODERICK: Did you guys find that helpful?
MR. STRUDWICK: Yes, thanks.
MR. BRODERICK: Well, it comes down to Sarah with a document in her hot little hand here, that she would like to get entered.
MS. SHORTALL: Now that the comment period is over. I would like to enter into the record as Exhibit-17, the written comments of Gary Nally with the Manitowoc Crane Group.
(Whereupon, DOL's Exhibit-17 was marked for identification purposes and entered into the record.)
MR. BRODERICK: Thank you. It's up to us, guys. We have the B- okay, well, that's when we should hurry though this. We have B- probably the weightiest thing that I have addressed since I've been on this Committee, before us.
So, my question is, do we want to make a recommendation that the Agency take this standard and continue to run with it as is, or do we want to append our recommendation to include some language around B- I think what I'm sensing is, it's pretty much come down to, if we are going to equivocate it all, it would be on the issue of the critical lift.
MR. GILLEN: It sounds like, in a way, the answer is `yes' and `yes', in that the standard is okay, but there perhaps could be a suggestion about it.
MR. BRODERICK: A non-mandatory appendix?
MR. GILLEN: Yes.
MR. BRODERICK: I'm seeing heads nodding up and down.
MR. HAYSLIP: It would be nice to define the term first, before we put an appendix to it.
MR. GILLEN: I think part of the appendix would be to sort of say it's been difficult to define and give examples. Even the NIOSH thinks it's hard to define. I don't anybody could define it. That was one of the reasons why it's winding up in an appendix.
But here's examples, and here's examples of an approach that could be used in such a case.
MR. HAYSLIP: To the degree that it promotes awareness, sounds like a good idea.
MR. BRODERICK: And I think that that's probably what we're looking for. What we're struggling with is, by not including it somewhere in the standard, are we sending a message that we just are ignoring the whole issue of critical lifts?
So, I would then entertain a motion to B- we're going to have to modify this slightly, to hear a unanimous vote from the Committee on the resolution I am about to read.
We need to add the recommendation B-
(Chair confers with Solicitor)
MR. BRODERICK: Why don't we do this? We'll take a break then we'll come back and vote on it.
(Whereupon, the foregoing matter recessed briefly at 2:08 p.m. and resumed at 2:26 p.m.)
MR. BRODERICK: All right. I think I think I see the end of the tunnel. Sarah, you must have some more stuff for us before we get going.
MS. SHORTALL: I have some more stuff. Let's see, I would like to mark as Exhibit-18, the physician instructions for medical examination that is part of the CCO certification process, and enter it into the record.
(Whereupon, DOL's Exhibit-18 was marked for identification purposes and entered into the record.)
MR. BRODERICK: All right. We had a lot of discussion over the last 20 minutes, and here is how I would like to approach this.
We have the standard that we've reviewed, and I think that there are still some lingering concerns, but I think we all realize how long it's taken us to get to where we are and that the bulk of this standard is a very well written, comprehensive standard, more comprehensive than we've seen before.
So, what I would like to do is have a resolution to suggest to the Agency that ACCSH would like to have this standard go forward. And then we will have some discussion around whether or not the issue of a non-mandatory appendix, that would address critical lifts, would be something that we would suggest or not suggest.
I was a component of suggestion, quite frankly. Initially, and after some of this discussion, I am tending to lean the other way. But I think it deserves discussion before we vote on sending that along to, in effect, append the standard.
So, what I would do, I'm going to read this document and then I will ask for a motion and a vote.
"After discussion and due deliberation, ACCSH supports the OSHA draft proposed cranes and derrick standard as currently written, and recommends to OSHA that the Agency move forward with all deliberate speed to issue the proposed standard." Do I hear a motion?
MR. RUSSELL: So moved.
MR. MURPHY: Second.
MR. BRODERICK: Moved and seconded. Any final discussion? All in favor, please raise your hand. Let the record show that we do have a unanimous consent to move this along.
With regard to the second part of this, I do have a resolution that reads, "ACCSH recommends that OSHA develop and include in the proposed rule, a non-mandatory appendix on critical lifts." Michael, I understand your concern is that we should title this slightly differently, by adding, "The ACCSH recommends that OSHA draft proposed cranes and derrick standard."
(Chairman confers with Solicitor)
MR. BRODERICK: Well, let's have some discussion around it, because it may become a moot point if we don't.
MR. MURPHY: Dan Murphy. Tom, would you just be kind enough to read that one more time, with whatever changes you made in it?
MR. BUCHET: The confusion is the proper title of the document you are recommending forward is a draft proposed standard, would jump way up the rule making process if we called it the rule.
MR. BRODERICK: Thank you. Sarah?
MS. SHORTALL: I want to reflect that that is Mike Buchet's opinion about the language and I'm not sure I necessarily agree with that.
MR. BUCHET: It's the title of the document that the Committee has been given.
MS. SHORTALL: But I've titled it.
MR. BRODERICK: Chair here. I will read, again, a possible second recommendation that we would make to the Agency.
"ACCSH recommends that OSHA develop and include in OSHA's draft proposed cranes and derrick standard, a non-mandatory appendix on critical lifts."
Now, let's discuss that one more time. I think there is some things that I heard over the break that we should put on the table.
MR. GILLEN: You know, the materials that we've been able to review, don't include the draft preamble to the standard.
MR. BURKHAMMER: It's not ready.
MR. GILLEN: It's not ready. That's okay. Some place like the draft preamble is where things could be described.
I mean, in some respects, the issue is that it's just totally silent, but perhaps, the draft preamble could discuss how this issue came up, how it's difficult to define it and how actually, the most common situations that people give as examples for critical lift issues, are addressed by specific portions of the standard as an alternative approach.
So, for example, two or more cranes simultaneously lifting the same load is given as an example of a critical lift in the NIOSH alert, and that's addressed by Section 14.32. When personnel are being hoisted, that's given as an example. That's addressed by Section 14.31. Non-standard especially modified crane configurations. That's addressed by Section 14.34. The crane is mounted on floating barges. That's addressed by Section 14.37. Loads are lifted close to power lines. That's addressed by Section 14.08.
The high winds is addressed, partially, by the personnel being hoisted section. I understand from Emmet that that's part of the operator's training.
So, perhaps with the explanation that the approach B- I'm sort of like, back calculating that this is what happened is that, instead of having a critical lift section, the language was put right into the standard as a superior approach. And the preamble is a place to perhaps, describe this as an example.
MR. BRODERICK: So, a possible B- following that line of thinking, a possible modification to that, which I read, would be that we suggest to OSHA that they address the issue of critical lift, in some fashion, either in the preamble or a non-mandatory appendix. What ramifications would that have?
MS. SHORTALL: The non-mandatory appendix would appear in not only the Federal Register Notice, but also in the CFR, even though it's non-mandatory.
Preamble language will always appear in the Federal Register, but will not be carried over into the Code of Federal Regulations. However, it would be available on OSHA's web page, under its Federal Register listings.
MR. BRODERICK: So, as I understand it, having it as a non-mandatory appendix, published in the CFR, would, in a citation situation, be available to be cited in a general duty clause or 5-A-1 violation. But that same situation would reside with the B- or would be an issue of the Compliance Officer chose to go 5-A-1 by pulling it out of the preamble.
MS. SHORTALL: For a 5-A-1 citation, the material would not need to appear in either the preamble or in a non-mandatory appendix.
The basic requirements for a general duty clause case that OSHA brings would be first, that they have to show that there was knowledge in the industry of the hazard and that the hazard was likely to cause serious physical harm or death, and second of all, that there are ways to implement that are feasible that would reduce that hazard.
MR. BRODERICK: Well, quite frankly, I think that probably the last two would be apparent in the situation where this would be potentially cited in a post-accident situation. Now, you have a serious injury or a death and you have something that is, whether it's in the preamble or whether it's in a non-mandatory appendix, it is accessible, so someone knew or should have known.
So, I guess it becomes somewhat of a moot point. Steve?
MR. HAWKINS: Mr. Chairman, I think we started this discussion when Matt expressed concern that many of the areas identified in the NIOSH study as critical, under the very, very broad term of critical lift, hadn't been identified.
As we have gone through our deliberations, discussions and had these standards expertly explained to us by Noah this afternoon, one starts to realize that many of the areas that the NIOSH study identified as a critical lift had, in deed, been addressed by the standard, including lifting personnel, operating close to power lines and using multiple cranes on a single lift, which we had a fatality in Tennessee recently from that very practice, and do agree that that's critical.
The standard has identified all of those B- I guess I'm at the point now of wondering what's really left to discuss in a global-type sense of the word of critical lifts, when the specifics have been identified? And as we've all discussed, there's lot of things that are critical, but they are so situationally dependent, that it would be very hard to have a standard that addressed them in a very meaningful way. And it seems like we're talking about asking for a non-mandatory appendix here, but we don't really know what that is and we don't really know what we're asking for.
I personally wouldn't be comfortable voting for something that I didn't know what we're trying to accomplish there. And so, before we call for a vote, I think we should have some discussion about what specific things do we think are missing.
MR. BRODERICK: Well, I am here to serve the Committee and I'm now sensing that this second piece of language is superfluous. And so, Greg?
MR. STRUDWICK: I concur with your thoughts. Now, if we can put that into language that means that Noah's explanation was adequate, then I think it's a moot point. And I would be inclined to agree with the constituents on my side of the room, that Noah's explanation was acceptable, and represented the Committee.
MR. BRODERICK: Well, then after I say what I'm going to say, by a conspicuous silence, this whole thing will go away.
Would anyone like to make a motion that we have a non-mandatory appendix or a notation B- recommend a notation to the Agency to incorporate something in the preamble about critical lifts?
(No verbal response)
MR. BRODERICK: Well, there we go then. Moving along to the next piece of business.
MR. GILLEN: It's a matter of due diligence, apparently.
MR. BRODERICK: I think, pretty much, I have to now look to a senior member of the Directorate of Construction.
MS. SHORTALL: Can I do one more housekeeping item?
MR. BRODERICK: We have one more.
MS. SHORTALL: I have, actually, two items. One is housekeeping. One is definitely not.
I would like to reserve as Exhibit-19, a hard copy of the Power Point presentation presented yesterday by Ruth McCully on the National Response Plan, which she is going to provide to me after the meeting.
And on, definitely not, a simple housekeeping matter, I would like to thank Mr. Broderick for Chairing this meeting today. It's amazing that an Acting Chair was able to deal with what I think was the most difficult thing in my 10 years as ACCSH Council, working with B- taking the Chairmanship like a fish takes to water, and you certainly have made my job very easy and thank you very much.
(Whereupon, DOL's Exhibit-19 was marked for identification purposes and entered into the record.)
MR. BRODERICK: Well, thank you. I'm very humbled by that.
The final thing we have to do is to discuss next meeting. Is the Directorate prepared to try to come up with some dates?
MR. BURKHAMMER: We're prepared to listen to anything you all have to offer.
MR. BRODERICK: Yes, Dan?
MR. MURPHY: One thing that was discussed at length was the work groups. And so, will that be taken into consideration when we plan the dates? Will there be time set aside for work groups? I guess I just want to remind you that we haven't done a lot on those groups for a while and if we're going to meet three times a year, we can knock a lot of this stuff out if we have the time to get together.
MR. BRODERICK: My recommendation on that would be, we all know who is on the work groups and who was the last Chair of Record, and think that either the Chair or the co-Chairs, there is someone that's sitting on this Committee.
So, I would task each of the Chairs or co-Chairs to get in touch with other ACCSH members and either communicate by telephone or by e-mail and kind of get a game plan together.
Then we can communicate that to Linwood and I'm sure that he would be happy if we were prepared to come in on our normal schedule of having our work group meetings a day or two days in advance, and then reporting out at the next ACCSH meeting, and then he can determine, based on whether or not we've met, what our work product is to that point in time, whether the Committee is still worthwhile, and whether the Administration of the Committee needs to be adjusted and those sorts of issues.
MR. BURKHAMMER: I might add, as far as the work groups go, certainly, the work groups are still in place, until so changed by the Chair at the next meeting.
However, work group requests have to go through the ACCSH Program Manager, which is Michael Buchet. He will then discuss them and we will go down to the second floor and get approval from the Assistant Secretary for the work groups to meet. We just can't arbitrarily say go ahead and meet. We have to have the Assist Secretary's approval for work groups to meet.
So, if you all want to meet prior to the next meeting, whenever you decide that is going to be, and we also get approval from the Assistant Secretary to have the next meeting when you want to have the next meeting, we can move forward on the work groups at that time.
MR. BRODERICK: Very good. So, four months out would be in the February time slot? That sounds like a great time to have a meeting.
MR. STRUDWICK: The NUCA convention is February 12th through the 16th. So, that's a block of time not to.
MR. BRODERICK: I know of another conference that's going on then too. So, later in February?
I know that we have some people in the gallery who represent organizations and we don't B- we do not collectively want to clash with any major construction trade association, thereby limiting people who might want to come and participate in ACCSH.
Do any of the people in the gallery have conflicts if we were to schedule the meeting mid to late February?
MR. MATUGA: We have a date soon to be known to the Assistant Secretary B- February.
MR. BURKHAMMER: Have to come to a microphone, Rob.
MR. MATUGA: Rob Matuga with the National Association of Home Builders. We do have an invitation pending to the Assistant Secretary to come and speak to our members at our international builders show in February, and I believe that is February 5th through the 8th or 9th.
MR. BRODERICK: We have other conferences earlier in February. But we're talking now, mid to late February.
MR. MATUGA: I don't see a conflict there.
MR. BRODERICK: Okay. Beth, we're okay? Justin, okay? The 26th, 27th and 28th, is that okay?
Are there any other matters to be B- I don't think that would preclude us from doing some work, on those that want to, on that work group, between now and then.
The question is, would we like to go with the travel day, Monday, full day work group meetings on Tuesday and Wednesday, and then the full ACCSH on Thursday and half of Friday, we would travel Friday afternoon? Does that work?
Are there any other matters, fellow members of ACCSH, that you would like to discuss?
MR. THIBODEAUX: We've already talked to a couple of ACCSH members about the residential fall protection work group, and Kevin and Mike Hayslip are going to be on the Committee and work with Tom and I.
MR. BRODERICK: Very good. Well, before I gavel us out of here and ask for a motion to adjourn, Stew has to say something.
MR. BURKHAMMER: On behalf of the Agency, I want to thank the Committee for all their due deliberations and all the work effort that you put into this meeting. It was truly a unique meeting. I want to thank our Acting Chair, Mr. Tom Broderick, for taking on this role at a difficult meeting. He's done an outstanding job and I'm very thankful you agreed to take on this assignment.
I want to thank all the people in the public that came up and made wonderful suggestions, recommendations and comments. Thank you. And thank all of you for attending the meeting.
MR. BRODERICK: And my parting shot is, I am very much humbled to be surrounded at this table and in this room by people who live and breathe a similar mission, and that's a shared mission with OSHA that every working man and woman get to go home at the end of the day safe and healthy.
So, with that, I would entertain a motion to adjourn.
MR. MURPHY: So moved.
MR. BRODERICK: Very good. See you next time.
(Whereupon, the foregoing matter concluded at 2:50 p.m.)