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Note to the reader: These transcripts are from the November 1996 ACCSH meeting. The transcription firm placed the incorrect year on the title page. The correct year (1996) was placed on the certification page at the end of the transcript.


UNITED STATES DEPARTMENT OF LABOR

ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH
(ACCSH)


MEETING

Wednesday, November 13, 1996

The Advisory Committee met in the Frances Perkins Building
DOL Academy, Room N3438 A-D

Washington, D.C., at 9:00 a.m.

Knut Ringen, Chair, presiding.

PRESENT:

Employee Representatives:

JOHN B. MORAN
WILLIAM C. RHOTEN
KNUT RINGEN
WILLIAM J. SMITH

Employer Representatives:

BERNICE K. JENKINS
ROBERT MASTERSON
OWEN SMITH

State Representative

MARK O. BROWN

Public Representatives

ANA MARIA OSORIO
JUDY A. PAUL

Federal Representatives

DIANE D. PORTER

Contacts:

BRUCE SWANSON
HOLLY NELSON
TOM HALL
THERESA BERRY

AGENDA PAGE
Welcome 4
Knut Ringen, Chair
OSHA Regulatory Issues 4
Committee Discussion
Report of Assistant Secretary Joseph A. Dear
Adjournment

P R O C E E D I N G S

(9:10 a.m.)

MR. RINGEN: It's already ten minutes after 9:00. There are a couple of people still missing, but I think we'll go ahead. There are a number of changes to the agenda from what was published. For those of you who were not here yesterday, if there is anybody, we're going to start out this morning with items that were listed on the agenda yesterday as "OSHA Regulatory Issues." We did not cover them. We're going to start doing that.

Then we have a number of committee issues that we're going to be dealing with, and Joe Dear is going to be here now at 11:30 today instead of 11:00. So I still expect that we'll be able to make our adjournment time of 12:30. If we can get started, Tom Seymour.

OSHA Regulatory Issues

MR. SEYMOUR: We have some handouts and we put them out on the table yesterday as well, and I'm not sure if there's still some back there or not.

MR. RINGEN: We will start out with the two last items on the list, the first of which has to do with emergency exits and the second the PSM chemical list. Right Tom?

MR. SEYMOUR: Yes sir. Mr. Chairman, we're passing out a copy of the package that the agency has mailed out to the stakeholders, trying to get them interested in taking part in the plain English redrafting of our 6(a) standards, the means of egress of Part E, 1910.

MR. RINGEN: Tom, before you start, maybe you can introduce the people that are with you for the committee.

MR. SEYMOUR: Oh, I'm sorry. On my right is Chap Pierce, who is the Director for the Office of Fire Protection Engineering and Safety Systems, and then Glen Gardener is on my immediate right, and he's a senior safety specialist working for the Chap in the Office of Fire Protection Engineering. On my left is Joanne Slattery, senior safety specialist in the Fire Protection Engineering office. These are the people who are involved in the two topics that I will be presenting this morning.

The emergency exit standard again is the first effort on the part of the agency to begin putting things in plain English and in more formal fashion, meaning that the whole subpart has been tackled and put into the Register as a proposal. It was published on September 10th, and the comment period closed yesterday.

It does not impact the construction standards at this point in time and it's not part of the proposal. So I'm really prepared to answer any questions that people may have about this. I'm not sure how the subject matter got on the agenda because it did not come from my office, but we'll certainly be responsive to any questions that the panel may have.

MR. RINGEN: I don't know if anybody on the committee has had a chance to see this document before. I've seen it, and I've looked at it.

MR. BROWN: I'm sorry. Is there two documents laying around or just one?

MR. RINGEN: There should be one called "News Release."

MR. SEYMOUR: That's the second one.

MR. RINGEN: That may not have gotten to you yet. It was just passed around. Okay.

MR. SEYMOUR: In the package you have, multiple pieces you have, the news release that was issued; you have the memo that I used to transmit the document to the stakeholders; and then you have the actual proposal that was published in the Federal Register on September 10th. So those are the three documents all kind of stapled together in one package.

MR. RINGEN: I can give you my general observation, and that is that writing common sense standards is not easy.

MR. SEYMOUR: Exactly. We agree.

MR. RINGEN: It still sounds like a lawyer's document.

MR. SEYMOUR: Well, lawyers obviously have a role to play in the review process and so on.

MR. RINGEN: I think we pulled it off the Internet and it was still a 28 page-long standard in its typed version, of which an awful lot of it is still background preamble stuff.

MR. SEYMOUR: The Federal Register document, you're correct. There actually is two different formats that we have proposed. We're using the Q&A format that OMB and those who are really advocates for converting regulatory language and government regulations and standards into plain English prefer the Q&A format. We also have put together what we consider a more traditional kind of format, which mirrors more the Federal Register typical breakdown in the OSHA standards. We'll see what the public thinks about the different formats, and obviously we'll finalize just one of the formats. We won't be using both.

MR. RINGEN: I haven't seen the Q&A format. I just saw this.

MR. SEYMOUR: It's in the same document. Both formats are in the same document. So actually we're presenting the reg techs in two different formats. So if you look at the section headings, you'll see that we repeat them all over again, and that's because it's a different format.

MR. RINGEN: What occurred to me is that there are two things that I think could be done in terms of these standards. One has to do with -- and they're both formatting issues in some ways. One is to take all of the preamble stuff and stuff it some place else. I mean that's only of interest to you people who end up litigating it. It's not something that the users of standards care about at all.

But the substance of the standard ends up getting lost behind the preamble, and it still does in this one, I think.

MR. SEYMOUR: Mr. Chairman, when it's published in the Code of Federal Regulations, obviously the preamble will not be printed at that time. Then all you really have will then be the reg techs, whatever format it's going to be in.

MR. RINGEN: Right.

MR. SEYMOUR: But we are not going to be able to get away from explaining to the public our proposal, and in the final rule explain what the public comment indicated to us and how we evaluated that. But when it goes into the CFR and we finally get our package, then it's really just going to be the reg techs itself, or any appendix material we might put in.

MR. RINGEN: Just instead of being a preamble, it could perhaps be an appendix.

MR. SEYMOUR: The preamble, you mean?

MR. RINGEN: Yes.

MR. SEYMOUR: Okay. We have actually -- when we've done some of the other rules, we've taken a lot of the guidance and information examples that we put into the preamble explaining what we were doing. We also then put them into what I would call plain English, or attempt to do that in earlier years, into an appendix as compliance guidelines.

We also, of course, put out a field directive that would go along with the standard as well. In some case, the field directive will pick up some of those examples and use them again as well.

MR. RINGEN: The other thing that occurred to me was that you could use a lot more graphics and drawings, particularly in this standard where it had to do with exits it would work very well, at least for those who are industry, where you use a lot of blueprints and stuff like that. It would make very good sense to use drawings and specifications instead of a lot of written stuff.

MR. SEYMOUR: A lot of employers will use floor diagrams as to where the exits are and the routes that they want the people to travel in different parts of their facility. We haven't done that. As you remember, we really had some serious budget problems last fiscal year, and the effort to do this rulemaking, we really wanted to try to modernize it, but being as we didn't have sufficient funds or we didn't believe we were going to have sufficient funds during the year to do a good economic assessment.

We took the reg techs the way it was and we just converted that into plain English with essentially no new burdens, no new cost items for employers. You see that in front of you now is what we've done. I think other ones that we're going to be doing in plain English, and we'll probably try to modernize some of those, we're going to be doing spray finishing and dip tanks and flammable liquids and combustible liquids and others, as we get into this fiscal year as well. This is just a beginning.

MR. RINGEN: It's an important beginning. It's something obviously I think this committee has been after from its inception. I'm sure you've heard it before from everybody.

MR. SEYMOUR: Yes sir.

MR. RINGEN: But I was just thinking about since much of this standard has to do with the specification of widths and heights and so on, that it could very easily be described in one or two drawings.

MR. SEYMOUR: One of the problems that people are expressing to us, of course, is the enforceability of it, and that's going to certainly be a serious consideration when the final language is put together with the policy office and the solicitor's office and so on. So we're sensitive about making things more easily understood by employers and employees, but we also need to make sure that our field staff can understand it and make good use of it for enforceability purposes.

MR. RINGEN: And more importantly, that the workers out there can understand it.

MR. SEYMOUR: That's what I'm saying. Employees and employers need to understand it as well as the field staff being able to make use of it. So it's our first initiative and the comment period closed yesterday, so we really don't have yet a good sense about what kind of comment we've gotten. We have been told that we are going to have a hearing request on this, so we may get multiple requests and so we'll have to look at that.

So the process will continue. So there will be further opportunities to actually have public comment, I think, brought into the process for this particular rulemaking, as well as the fact that we'll be coming on line, hopefully being published in the next three months or so.

MR. RINGEN: I mentioned this to Joe Dear one day. He said "Well, why don't you write it up the way you think it should be. Then come back."

MR. SEYMOUR: I'm certain some commenters actually have -- probably will have done that, tell us how they think we should restructure it or write it.

MR. RINGEN: I haven't done that. Any comments on this? Questions? Okay. We can go on to the PSM chemical list.

MR. SEYMOUR: Right. You have a handout that's a couple of pages and essentially the second page of the handout is the list of the chemicals. In 1926, Section 64 is where we have recodified the process safety management standard into the construction standards. And so the text that we have in 1910.119 for general industry is duplicated in 1926.64.

So we're coming to this committee to let you know that and have some advice coming back. We plan on proposing some changes to our list of chemicals in Appendix A to that standard. The Environmental Protection Agency also had obligations under the Clean Air Act amendments as OSHA has had, and they just finished their rulemaking on their risk management plan in the last year or so.

So in our effort to try to harmonize the list of chemicals that EPA has and their criteria, as well as the OSHA standard, Joe Dear, in his effort to try to facilitate a more harmonized reg package between EPA and OSHA, there are six or eight chemicals that are on the EPA list that are not on the OSHA list. OSHA, of course, did its rulemaking in 1992 and EPA just finished theirs this past summer.

So we have, with Joe Dear's direction, proceeded to put together a proposal to better harmonize the two lists of chemicals between the two agencies. What this will do is to put OSHA into a position of having a leadership role for these chemicals in the workplace. If we didn't add these chemicals to our list, then EPA will of course, because of their concerns about environment and the public safety, would also then have more of a role to play on what goes on in the workplace.

So our intention is to propose the chemicals that you see at the top of the list there. We have some other chemicals that are lower in that sheet, where we cover the same chemicals but we need to make some adjustments either in the concentrations, and we're going to ask questions about some of those kinds of things. Again, trying to bring to two lists of chemicals that OSHA and EPA have into a more harmonized single list of chemicals.

Now OSHA has more chemicals covered than EPA has covered. But our intention here, as Joe Dear wants to see done, is that where EPA has covered a chemical and we have not covered that chemical, that we need to add that chemical to our list. So that's what we're proposed to do here. I'll take any questions.

MR. RINGEN: Mark.

MR. BROWN: Good morning, Mark Brown, a new member of the committee. I wanted to ask.

MR. RINGEN: Mark, you need a microphone.

MR. BROWN: I have to look at this rather than you. I apologize. It's kind of hard. But in any event, in consideration of this proposed regulation, is it going to exclusively deal with harmonizing between the EPA and OSHA, in terms of chemicals or are you looking at other issues?

The reason I ask that question is in the state of Washington, and I also believe it was in Louisiana, there was a related issue regarding process safety management that had to do with the responsibility or the applicability of that standard to subcontractors who have a semipermanent presence on site. We had dialogue with the solicitor's office at the regional level and also here in this building on that issue, because I know in one of the regions in the South, they had the same issue we had.

I don't know if that means anything to you or not, but I guess my question is are you going to just deal with chemicals and not any other collateral issues associated with PSM?

MR. SEYMOUR: Well, in paragraph H of the process safety standard, it addresses contractors that are being used by the host employer. If the host employer has hired a contractor and that contractor has hired subcontractors to work on the plant property, then all of those contractors are impacted by the process safety standard through paragraph H.

So there isn't any contractor who's going to work on a plant that has a covered process that's not going to be -- involved in the covered process who's not going to be impacted by the process safety management rule.

MR. BROWN: See, and we agree on that. You and I agree on that, but there was a decision made in one of the OSHA regions in the South that's contrary to that, which our employer, ARCO and their general contractor used to appeal our citation. So I'm just thinking that if there is some uncertainty associated with what those words mean, this might be an opportunity. So maybe it's something we can pursue. I can get you a little bit more specific information on those two cases.

MR. SEYMOUR: I would like to know about those cases, because we can certainly write some clarifying interpretive letters if we need to do that. But there should be no confusion that when we talk about contractors, we didn't single out general contractors. We said "all contractors," and so we meant all contractors. What are the obligations? The general superintendent, if he happens to hire subcontractors, he has also a role to play in monitoring the subcontractor, as does the host employer.

So there may be some confusion about who monitors who. We're looking for some extra eyes as opposed to having less eyes. So of course each employer is responsible for his own employees on that site. But the central log and so on, that all impacts all those people. They have to submit any of their injuries that occurs on that worksite so the employer can have a central log.

I'm not aware of those confusions and I'd certainly like to have more information about it and we'll certainly get it clarified with our field staff so that we have a similar understanding. Thank you for that too.

MR. RINGEN: Any other questions or comments? Is there anything you want us to do on this?

MR. SEYMOUR: Well, if you have some suggestions, we are going to have some other issues. The nap technology incident that happened in New Jersey. There's been a suggestion that we add additional chemicals besides the ones that we're harmonizing, so we are going to ask questions about are there other air reactives or water reactive chemicals that might be needed to be added to the list.

The nap technologies incident, those chemicals will be singly talked about as one of the issues dealing with changing or adding more reactive chemicals, and we'll see what the public says about that. But we are going to do the cost and benefit analysis or the cost effectiveness analysis for these chemicals here, so that when we go to the proposal, we'll have our understanding about what the cost impacts are going to be so that we can have a better dialogue about that in trying to add those to our list.

The other issues, we'll see what the public has to say about them and then depending on what comes out, if somebody comes out and suggests that we ought to add potassium to our list, then if we have a hearing as to the example we'll make that a part of the hearing issues and have a better dialogue about that so we can give proper notice.

But right now we're also going to be doing some fishing to see what the public has to say about these things.

MR. RINGEN: I'm not familiar with the specifics of this. If you can just explain to me, for example, aqueous ammonia. What does the 44 percent in 15,000 mean?

MR. SEYMOUR: Okay. The aqueous ammonia is an ammonia solution, not anhydrous ammonia, which has no water. So what we end up doing in our cut, we said that any ammonia solution that had 44 percent ammonia, say ammonium water, that that's going to be covered. Then we had a threshold that you can see right there.

EPA in their final rulemaking that they had done on their list, they lowered that concentration down to 20 percent, and they also upped the threshold. So we're going to ask the public, you know, should we do something along the same lines? We obviously have typically a lower --

MR. RINGEN: What does the threshold quantity refer to? The amount of the stuff?

MR. SEYMOUR: That's right. In this case, it's going to be --

MR. RINGEN: Of the total water?

MR. SEYMOUR: Pardon me?

MR. RINGEN: Of the total water, of the total ammonia in the water?

MR. SEYMOUR: For us, it's the total solution, the total mass of material, not just the ammonia in the water. So you'd actually if you had a 45 percent solution of ammonium water, then we're talking about 15,000 pounds of that solution, not of just the ammonia. We do regulate anhydrous ammonia, where the material is in a somewhat pure state that might say be used for fertilizer and so on, as they do in agriculture. We have a lower threshold for that.

MR. RINGEN: So essentially EPA allows larger quantities but with lower concentrations?

MR. SEYMOUR: Yes. They also are looking at principally protecting beyond the plant fence. We're worried about people inside the plant fence. We also advocate that the employer cooperate and coordinate with the local emergency planning committees and the local emergency response community. EPA has, because of its authority, has come out in a more overt fashion and is going to require the exchange of documents and things like that between the employer and the local community.

MR. RINGEN: For nitric acid, for instance, there's an enormous difference in the threshold quantity defined by OSHA and EPA.

MR. SEYMOUR: Yes.

MR. RINGEN: Without going into it in any detail, what basis do you or EPA use to determine what those threshold quantities should be?

MR. SEYMOUR: We ended up using a criteria that dealt with looking at reactives from the NFPA 49 standard, and we also then looked at the toxicity of the material. Nitric acid happens to be a very strong oxidizer at that concentration and so we were having a very low threshold.

We did not have anybody challenging us on our thresholds. EPA ended up doing their rulemaking in '94. They are still going through some litigation on their chemical list. I was hoping it would be settled by this time but it's not yet settled. They're still trying to arrange for some settlements on some of the contested chemicals that they have.

MR. RINGEN: For instance, on that particular list, the difference in the concentration, that leads to the difference in the threshold quantity?

MR. SEYMOUR: I think they were looking at the 80 percent solution as a very strong acid, and looking at the 94.5 percent and higher, when OSHA ended up looking at the various list of chemicals that were being used to regulate these kinds of catastrophe prevention efforts, like the Health and Safety Directorate in the U.K., what the Europeans are using, this kind of concentration is one that they also made use of.

So we have followed their lead. Now EPA has, because of their environmental concerns and so on, have lowered the concentration and increased the thresholds.

MR. RINGEN: So how do you expect to harmonize that? Are you going to agree more with their concentrations?

MR. SEYMOUR: Well, one of the things we want to do is cover those chemicals that we don't presently cover, and then we'll see what the public has to say about that. But we're not looking to weaken our standard by having more diluted solutions. So we may end up having -- say the nitric acid could be, in the final rule, if it's a 94.5 percent concentration on higher, we'd have a 500 pound threshold. If it's below that but above 80, then we could use the EPA threshold. That would be one solution that could work if that was the public's desire.

MR. RINGEN: Is this an issue that could be sufficient for us if I contacted each of the members of the committee after this, asked them to give us feedback?

MR. SEYMOUR: We'd like to have that, and maybe if you could then pass that to Mr. Swanson, he can get it over to me then.

MR. RINGEN: Yes. I think that we can handle it in that way, rather than set up a work group to go through all of this.

MR. SEYMOUR: We would like to do it the way you're suggesting, Mr. Chairman.

MR. RINGEN: Okay.

MR. SEYMOUR: Thank you.

MR. RINGEN: We'll take care of it. Thanks. Anything else?

MS. OSORIO: I just have one question.

MR. RINGEN: Yes, Ana Maria.

MS. OSORIO: I didn't get one of these. I just wanted to know if there's any more.

MR. SEYMOUR: Thank you, Mr. Chairman.

MR. RINGEN: Thank you.

MR. SEYMOUR: Y'all have a good day.

MR. RINGEN: Good morning. Gerry, are you here in your current or former capacity?

MR. REIDY: Both.

MR. RINGEN: This is Gerry Reidy, for those who don't know him. Do you want to start out with Subpart L?

MR. REIDY: Yes. Subpart L, scaffolds and construction. Just for the record, the final rule was published on August 30th. It will take effect on the day after Thanksgiving, November 29th, with three exceptions. The information-gathering requirement in the standard will not be effective until OMB approves that procedure. The requirement for safe access for rectors and dismantlers of scaffolds will not take effect until December 2, 1977, and I believe Ruth, you will talk about that at some point. The third exception I'll discuss in a few minutes.

The training material from OTI, I just verified with Ziggy and Manny, was mailed out last Thursday to the regional, area and state plan offices. The correction notice on the final rule is being run through the internal process right now and that plus the compliance directive it is anticipated will be out before the effective date.

The third exception to the staying of the effective date. A petition was filed in the Sixth Circuit Court of Appeals regarding the requirement that roof bracket scaffolds will be at least 12 inches wide. The correction notice will state as a part of the notice that that aspect will be stayed for a period of one year or until the final decision was made on that point.

That takes care of Subpart L. Are there any questions.

MS. JENKINS: What was the first exception? I missed that.

MR. REIDY: I'm sorry?

MS. JENKINS: What was the first exception?

MR. REIDY: The information-gathering requirements of Subpart L, for employers to gather some information. OMB will not -- we can't get that requirement in effect until OMB approves that process. The next item is Subpart M, fall protection.

MR. SWANSON: Excuse me just a second, Gerry. Gerry suggested that we discuss if you'd like at this time the Appendix B. We raised that yesterday.

MR. RINGEN: We would like to cover it afterwards.

MR. SWANSON: Okay, good.

MR. RINGEN: Unless there's something that we need to cover?

MR. SWANSON: No, no.

MR. RINGEN: Okay.

MR. REIDY: Subpart M, fall protection. The project officer is developing a notice of proposed rulemaking to revise the existing rule on fall protection which was issued in August of 1994. The proposal includes an amendment to the scope section to bring in towers and tanks, a revision to three paperwork requirements and some editorial revisions.

Several issues will also be raised in the notice that were directed at possible further revisions of the rules that relate to roofing work, work on foundation walls, and working on roofs while engaged in residential construction, climbing reinforcement steels, delivering roofing materials by vendors, definition of residential construction, appropriate fall protection measures for post frame construction and tower erection, and restraint systems.

In addition, concerns have been raised by the Precast Concrete Institute regarding revising them to have it match the R fall protection requirements so "a level playing field" will exist. It is anticipated that the proposal will be ready for presentation to ACCSH at the first meeting in 1997.

One of the potential problems that is being raised here is that the communication towers that are raising concerns here, the construction of those towers is forecast to increase every year until I guess it's 1998. They'll be doing 250,000 towers a year. So it's a major area of concern.

MR. RINGEN: After that, they'll be doing very few.

MR. REIDY: I don't know about that.

MR. BROWN: Probably tearing them down and replacing them.

MR. REIDY: SENRAC. If you want to know what SENRAC stands for --

MR. RINGEN: Just on Subpart M, just to finish it up. We had a presentation on what you had proposed to do in terms of information-gathering that you had in mind at the last meeting, and some of us got together -- Bob, myself, people from NIOSH with you all here after that meeting. Is the proposed rulemaking that you're going to come out with still going to deal with the information-gathering that you had in there? Or are you just going to propose a rule and ask for comments on it.

MR. REIDY: No, no. We're going to raise issues. If anything, that will be information-gathering right there. Ask for information on the issues.

MR. RINGEN: Okay.

MR. REIDY: Subpart R, steel erection, also known as SENRAC, with Steel Erection Negotiated Rulemaking Advisory Committee. The preamble is being worked on as we speak. As a matter of fact, the project officer is on a field trip right now looking at some steel erection this week. There is a concern voiced by the steelworkers with respect to some items in the consented agreement of SENRAC, and these concerns are being discussed within the membership of SENRAC. The feeling is, I am told now, that the concerns will be resolved in the near future.

That's all I have on steel erection, unless you want to -- you're smiling. You want to add something to it Bruce?

MR. RINGEN: I thought the Advisory Committee, the SENRAC Advisory Committee completed its work, but I guess it still exists and functions?

MR. REIDY: Oh, it exists.

MR. RINGEN: Yes.

MR. REIDY: The charter is being redone right now, just to comply with the legal requirements. But since there is no official meetings being conducted right now, there's no problem. The charter is going to be revitalized.

Confined space. I do not know if the members of the committee know that the project officer for confined space was missing for three months. He had a triple bypass operation in July. He's sitting in the back of the room right now doing quite well. I think he's still back there. Did he raise his hand?

MR. BROWN: Yes, he did.

MR. REIDY: The preamble for the confined space -- as you know, the subcommittee, the task force for ACCSH met and came up with a product for OSHA to look at, and the process was being handled in Gil's absence by Steve Scott, on detail from the Construction Engineering Group. What he was doing was comparing the proposed 1926 version with the 1910 version of confined spaces. A number of questions he had he could not resolve until Gil came back, because Steve was not at the meetings and Gil was.

They're resolving it right now and the preamble is being written right now. Once all the differences are resolved in terms of why there are differences in some of the meanings, nomenclature, terms, which I think are very nonsubstantial. But once that's done, there will be an internal meeting within OSHA to resolve what's going to be in the final proposed text for confined space.

MR. RINGEN: There's one issue there that we didn't fix at the last meeting, or we added at the last meeting a very minor thing that where there is no first, no emergency services on site, there should be a person, the backup person or whoever it is on the team should be qualified in CPR. I think the term of art should be first response -- shoot. I just had it in front of me. First aid, I believe, is the term of art. That's correct.

MR. REIDY: The safety and health program standard. Am I getting stronger?

MR. RINGEN: Yes.

MR. REIDY: As you probably know, there are three sets of input for the construction, health and safety program standards. One input, of course, is the ACCSH work group. The second input was, I think, SMACNA (ph) and the seven companies alliance proposal, and the third one -- and they're being looked at right now, compared and resolved.

That, I understand, has now been assigned to Roy Gurnham as a project. Is that correct Bruce?

MR. SWANSON: Mr. Gurnham will be the project officer on safety and health programs, yes.

MR. REIDY: Apparently, writing a preamble for this standard has begun. So that's in the process right now. That's all I have on that.

MR. RINGEN: Do you know on the program standard, first of all, when you expect to issue a proposed rule?

MR. REIDY: I don't know and I don't think -- I think it's too soon.

MR. SWANSON: No, we do not know. One of the problems, if I can use that term -- it might not be accurate -- but one of the issues that we have is coordination of the maritime, general industry and construction standard. I feel that we with the safety and health program standard for construction are further along than they are in general industry and maritime. We cannot go to the final chapter until general industry is ready to do so, or at least that's the feeling of our leadership. So we can't give you an answer as to when we're going to be there. It depends upon some things that are outside of our control.

MR. RINGEN: When you first asked this committee to put together some ideas on the program standard, I think it was the idea that if the committee could put together a reasonable proposal, then the agency would go ahead with a separate standard for construction, and not be held up by the considerations that or problems that the other sectors might have. Was that correct or did I misunderstand our assignment?

MR. SWANSON: No. I think there are -- there's perhaps a semantical difficulty here though. Mr. Dear agreed that we could go ahead on a separate track with a construction standard for safety and health programs, and we could do so so long as it was not inconsistent with what was being done in the other industries. If you don't have something in final form for general industry, it's rather difficult to tell whether or not the product that we have created in the construction industry is consistent or inconsistent.

So I don't think that Joe is at all reneging on the concept of construction being separated and construction going ahead, but he has had that caveat from the very beginning that it not be inconsistent with what others are doing in the general industry. But I invite you to pursue this with him at 11:30.

MR. RINGEN: Well, maybe it would be good to hear from other members of the committee, what their views are before Joe gets here, about whether we should make a recommendation to him that we think he should keep moving forward with the construction program, realizing that there are problems with that too because you have a series now of different, somewhat different proposals before the agency. Not one proposal that there is sort of unanimous consensus about.

MR. SWANSON: Well, we are going forward and Gerry has enumerated that there are three proposals, one from this group, two from other groups that chose to submit their own. We within OSHA are going to continue working on those three, on homogenizing them, on seeing how we can best reduce that to something that best fits the construction industry in our opinion because we come back to this committee with what we have created.

It's not that we are dead in the water. It's that we are not going to be going to the Federal Register with a construction safety and health program proposal until other areas of the department are ready to go forward with theirs as well.

MR. OWEN SMITH: Are there any proposals that have been submitted that are not being considered?

MR. RINGEN: That are not being considered?

MR. OWEN SMITH: Yes.

MR. SWANSON: No sir.

MR. RINGEN: Judy.

MS. PAUL: What is general industry doing currently? I mean we got danced around the maypole from the very get-go, so that we couldn't even move for a long time. So are they still dancing or are they working on it?

(Laughter)

MR. SWANSON: I'm sure they're still working on it. How's that, Judy?

MS. PAUL: Thanks Bruce.

MR. RINGEN: Who's dancing?

MR. BROWN: Which maypole.

MR. MASTERSON: Bruce, how soon do you think that the three that you currently have will be pulled together, so that we can start looking at that single document that your team has pulled together?

MR. SWANSON: I can't give you a very precise answer. Maybe Gerry can. I would anticipate that it would be after the first of the year, however. Do you have a better answer Gerry?

MR. REIDY: I've got to agree with that. Yes, very definitely.

MR. MASTERSON: Do you think it might be available at our next meeting possibly?

MR. REIDY: That's a possibility, but I would think more realistically probably is the second week. Or it could be given out in between.

MS. PAUL: I hope we get it before then.

MR. RINGEN: Just to state a parochial concern, that a lot of people on this group and a lot of people from various associations and so on really busted themselves to get something completed on a time schedule that we thought was very unreasonable that the agency gave us, and I think the work group and the participants in it did a really very good job.

It's possible that they could have done an even better job had there been more time to consider additional issues. It's possible that they would have trouble getting -- might have helped that they had a little time, I don't know. But had there been more time available, it's a possibility they could have done more. The question is whether it's worth considering, given that there is time now, whether it's worthwhile for us to take another look at the standard, including what the work group proposed or what the committee actually adopted, together with the two other proposals. I don't know. Judy, do you want to take another run?

MS. PAUL: Well frankly, it would take a lot of time to take the two other proposals. All along, because of the timeframe, we really stayed focused in what exactly we were doing. Now to back up and start going, you know, comparing paragraphs and everything, anything's doable. But I think we're talking about a lot of time. I don't know. Like I say, you know. My time is your time.

MR. RINGEN: So what should the recommendation of this committee be to Joe when he comes here about whether we think he should move forward with the separate construction standard or whether he should try to combine them all? I'd like to have a consensus of the people who are here before the questions start.

MR. SWANSON: Maybe just a comment I'd like to make. I think I've participated in this committee from the start or soon after it started, and the information that we got from OSHA was that they had been meeting and discussing this issue for a long, long time and one of the questions that we had from the committee was "Well, was there anybody in that room from construction." And the answer came back no, absolutely no. There was nobody there from construction.

We didn't have a clear idea of where they were heading with the standard. I think if you went back now and tried to gather more information, it seems like the committee couldn't come up with a consensus anyway, and I guess we aren't supposed to. I guess we're supposed to gather all the information and bring it back to the full committee legally.

So I don't think that we could come back and make a recommendation. I would have preferred that we could have fought it out and made a recommendation. I think we'd have more basis for somebody looking at it like it was a real document. But if we went back and met again, all we'd end up doing is getting the same information, come back and reporting that we can't agree because in fact we cannot agree with some of the proposals from different sides, and I think the employer side doesn't necessarily agree with what we would like to have in it or us with the employers on most of those issues.

So I don't think it would be particularly beneficial to go back and gather more information if in fact everybody's sending it in to OSHA anyway. You could run it back through the committee and we could argue about it again, but I don't think you'd -- can't get a consensus.

MS. OSORIO: What I'd like to get from Mr. Dear is some kind of timeline for the generic standard, because I think that -- because I do understand the dilemma, that you don't want two competing standards, but I also sense a little frustration about being rush-rush, and then okay, wait-wait, because the other half isn't doing their, for whatever reason, can't meet their deadlines.

So I would like to just pose the question of some kind of semi-fixed timeline so that we see a light at the end of the tunnel, because I think that light is pretty dim at this point, at least in my view.

MR. RHOTEN: If I could, I would think that this whole committee could agree that there has to be a separate standard. I mean I wouldn't think that even the employers, although we disagree on some issues that should be in it, I would think that this committee could totally agree that there should be a separate standard.

MR. RINGEN: Or at least that the standard for construction shouldn't be held up because they can't figure out what to do in general industry.

MR. RHOTEN: That too.

MS. PAUL: Right.

MR. RINGEN: Okay. I think we've got a clear idea about that. Any other comments for Gerry?

MR. OWEN SMITH: Yes. If he's finished, I have one on that fall protection.

MR. REIDY: Yes.

MR. OWEN SMITH: When we were in Spokane, there appears to have been some problems with that six foot rule. So is there any consideration of going back and taking a look at it?

MR. REIDY: Which rule?

MR. OWEN SMITH: The six foot fall.

MR. REIDY: That is not in the proposal. But the standard will not address the trigger height, to my knowledge.

MR. OWEN SMITH: Well, from my perspective, if you have a rule that people are ignoring, then obviously there's a big problem. I'm reminded of the 55 mile speed limit in California. They had a 55 mile speed limit, but everybody drove at 72. So in effect it didn't exist. So if you've got a rule that industry doesn't recognize, then obviously something is wrong with it.

MR. REIDY: Well, it's my understanding and again counselor, please watch me carefully, that once the proposed rule is put into the Federal Register comments, comments of that nature could be put into the docket. Is that correct counselor?

MR. JONES: That's correct, Gerry.

MR. REIDY: Thank you. Regarding the trigger height.

MR. OWEN SMITH: Well, these guys said they're not enforcing it. As a matter of fact, I went back and spoke to the Director of Industrial Relations in California, and he didn't say that he wasn't enforcing it. But he said a lot of problems with it.

MR. REIDY: It can be raised in the docket. Thank you very much.

MR. RINGEN: Thank you. Bruce, what's next is the review of the applicability of generic standards for residential construction, whatever that means.

MR. SWANSON: Okay, we touched on this yesterday or I touched on it in my presentation yesterday. This is perhaps a rather awkward way of addressing the issue of $2 million that was in this year's appropriations, and the report language said that the $2 million was to be spent by the Department of Labor to study the issue of the applicability of construction standards to residential construction.

So that is how it will be spent, and I think, as I touched upon yesterday, the principles have already met. Mr. John Dunlop has been involved in this or involved himself in this, and the National Association of Homebuilders, the head of the Building Trades and Joe Dear have all had a preliminary meeting, mapped out a general set of principles as to how they would like to proceed, and each of those three entities is presently naming committee members, if that's the format that's going to be followed, for a three-way committee to discuss the issues.

There are also some other legal issues that are around the fringe as to whether or not that -- whether there are FACA concerns, I guess, is the bottom line on that, and whether we might have to come up with some other methodology for selecting the committee that will meet and confer. The concept is obviously to get the residential construction community, the labor side of the construction industry and the regulatory agency to sit down at a table and talk about what is this problem and what can we agree is the solution.

Right now, to steal a piece of history, maybe we're arm wrestling over the shape of the table. But that's where we're at.

MR. RINGEN: Mark.

MR. BROWN: A couple of things. One, I'm not sure when in the process it might make sense, but as soon as possible, I would encourage you to consider having a state plan representative, perhaps even a designee there. Obviously this is a very big issue in all of our jurisdictions, and I know we can probably work through OSHPA to get you a designated hitter that would be somebody that could be technically capable of making a contribution.

Secondly, I just wanted to ask, do I understand that under the Subpart M fall protection proposal, the fall protection plan is required only when an employer asserts that conventional fall protection won't get the job done, and then they have to have a written plan that identifies alternatives? I mention that because we're wrestling right now in our state, where this is somewhat of a moot point, as you know, because of our existing standard, we're wrestling with the question of whether we might exempt residential from the requirement of a site-specific plan.

But under Subpart M, your site-specific plans are only when the employer makes an assertion that conventional fall protection means are not adequate to ensure the safety of workers?

MR. SWANSON: Rather than me fumble through it, do you want to try that one Roy?

MR. GURNHAM: Not really.

MR. RINGEN: You have to come up here Roy. There are no volunteers here at this point. This is just an agency action.

MR. GURNHAM: The rule was basically intended to pout forth that premise, that if you can't follow the rules that are dictating the equipment to be used, that you then put into a plan why it is that you can't follow those rules. We went out with a directive to modify that for residential construction, STD 3.1, which extends the -- or not extends, but it says that the fall protection plan will not be used or necessary to additional situations.

If you basically follow the rule, you don't need a plan. If you follow the appendix to the rule, there was some question. So we put out the STD to clarify that. If you're following the appendix to the fall protection requirements, as well as some additional situations that were put out in STD 3.1, that a formal plan would not be required. Now how much have I messed that up?

MR. JONES: Can I just add one thing to sort of clarify this? The appendix to which Roy is referring specifies that there are particular residential construction activities, the erection of roof trusses, roof sheathing, exterior wall panels, and those areas under the existing standard would be -- and the directive, would be suitable for alternative fall protection without establishing a plan at this point.

The directive added annex and foundation walls as additional areas where alternative fall protection could be used without a plan. And therefore, other areas of residential construction are not at this point identified as suitable for the use of alternative fall protection. The requirement in 1926.501 for residential construction would put you back in conventional fall protection for those activities, until the rulemaking establishes otherwise.

MR. SWANSON: Perfect.

MR. JONES: Thank you.

MR. MASTERSON: I thought roofing was included on the directives.

MR. JONES: Roofing is included in the directive, and roofing will be the subject of the new rulemaking effort which is underway as was discussed earlier.

MR. MASTERSON: The other part, if I remember correctly, is that in the directive, it established that they would not have to have a site-specific fall protection plan, just a fall protection plan that would address the type of structure you were working on, i.e., a two story structure, a rancher, multi-family dwelling, an apartment building.

MR. JONES: And that's where defining the terms in construction is going to be important, and that again is part of the rulemaking, which we will be initiating.

MR. RINGEN: But this study will also deal with the issue of defining what "homebuilding" or "residential construction" is, right? And when you get into the things about multi-family buildings and stuff like that, it gets somewhat, at least to me as an outsider, a bit confusing. I don't think anybody really knows what homebuilding is limited to.

MR. BROWN: You've got to come take a look at Bill Gates' new house. I don't you want to exempt that from anything.

MR. RINGEN: So what study is going to do is -- well, what is it going to do exactly, or is it too early to say? Why don't we get a report on that at our next meeting?

MR. SWANSON: Fine, and from now on, I think that's far more appropriate. I told you in rough language the direction of the report language, and working within the parameters of that report language, the committee, whatever its makeup is when it gets made up, is going to have to make a list of those objectives that it intends to attain, and I think it's kind of premature now --

MR. RINGEN: The report language can cover a lot of ground.

MR. SWANSON: That's right. It's rather broad.

MR. RINGEN: And you also said yesterday that this is funded for one year only, at least to begin with. You said it's a one year study, so you have to obligate the money this year anyway.

MR. SWANSON: The money has to be obligated in this fiscal year. That's correct.

MR. RINGEN: Which doesn't mean that the study has to be completed this year.

MR. SWANSON: That's an interpretation.

MR. MASTERSON: Spend the money.

MR. RINGEN: All right. Any other questions about these regulatory issues?

MS. JENKINS: Where do we stand with the recordkeeping and the ERGO (ph) standard?

MR. RINGEN: Recordkeeping. Where do we stand with recordkeeping?

MR. SWANSON: Yes. We probably should have pursued that through John Franklin yesterday when we had him, and I'd be happy to bring him back. Recordkeeping is not something that's being put out through the Directorate of Construction.

MR. RINGEN: Well, if we take a break, can we maybe get an answer to that?

MR. SWANSON: Fine. We can.

MR. RINGEN: And the ERGO standard? Probably a good question for Joe.

MR. SWANSON: Right.

MR. RINGEN: Any more questions?

MS. JENKINS: And one more question. Finally, the rule on urididine? The section is for construction, but yet the OSHA policy is to make it applicable. Why is that?

MR. SWANSON: I can't answer that either. On other standard, not through the Directorate of Construction, but I'll bring someone in here from the Health Standards Unit and we'll get you an answer.

MR. RINGEN: Any other questions? Why don't we take --

MS. PAUL: It says on here "Voluntary Protection Program." Are we going to not go into that? Or speak to that?

MR. RINGEN: I don't think we're going to go over it at this time. We're going to postpone it until the next meeting, because the agency has not gotten as far along in their thinking as they had hoped to when the agenda was put together. We're postponing that until the next meeting.

MS. PAUL: Okay, so that will be on next meeting's agenda?

MR. RINGEN: We expect it will be on the agenda for the next meeting. Yes.

MR. RHOTEN: On another issue, could I just take a few seconds.

MR. RINGEN: Certainly.

MR. RHOTEN: I think we all know Secretary Reich is leaving us, and his accomplishments have been many. But one of the largest ones I think for us has been that he has given us this Directorate of Construction, and I think that it will be appropriate now to hope that we could, from this committee anyway, put together a plaque thanking him for that specific issue.

It's something that we've tried to get for 20 years. I think both sides of the table agree that it has worked well the short term that it's been in effect, and I think it will work well in the future. At least for our side of the table, it's been a big issue, something that we're very happy that happened, and we're looking forward to it working well in the future. I would recommend if we could to have the committee to put together the appropriate language to thank him for taking that step that we have -- were unable to get in the previous 20 years.

MR. RINGEN: I think that's an excellent suggestion. I assume that you're raising it as a motion.

MR. MASTERSON: I'd just like to add one thing to that. Secretary Reich has been very supportive of putting together the Directorate of Construction, I don't think you want to forget that Joe Dear was the person that actually has made it happen at this level, and without it, I don't think we could be accomplishing a lot of the things that we're doing.

So I think the plaque is a great idea and I think you're right. It's one of the few times you and agree on something. But I think both players need to be recognized, Secretary Reich and Joe Dear.

MS. PAUL: Probably separately.

MR. MASTERSON: Two separate plaques.

MR. RHOTEN: I'll volunteer to sit on that committee. Maybe we could come up with a little consensus this time.

MS. OSORIO: Yes. I'll be happy to have that happen.

MR. RINGEN: This is formed as a motion, right?

MR. RHOTEN: Yes. I'd like to make a motion.

MR. RINGEN: Do we have any more discussion on it? You will second it then William?

MR. MASTERSON: Yes.

MR. RINGEN: Fine. Do we have any more discussion of that? Okay. All those in favor, say aye.

(Chorus of ayes.)

MR. RINGEN: Any opposed?

(No response.)

MR. RINGEN: Motion carries. Good suggestion.

MR. RHOTEN: Thank you.

MR. RINGEN: And you, Bill, and Bob will work on the language.

MR. RHOTEN: We will fight it out.

MR. RINGEN: And we will have a delegation go to the Secretary and present it before he leaves.

MR. RHOTEN: I hope the language won't be a complete compromise like the other suggestions that we threw together.

MR. RINGEN: I suggest that we take a 15 minute break at this time, come back at 10:30.

(Whereupon, a short recess was taken.)

MR. RINGEN: We have two things that we need to do. We have Bob Whitmore at the table here, who's ready to answer the question about recordkeeping that you raised. Bob?

MR. WHITMORE: Good morning. I guess the question that was asked was where's the proposal on 1904, the reporting and recording regulation sit right now, and what I've bought along and Tom Hall's going to produce these for everybody, is basically two BNA Daily Labor Report articles, one that was done with Joe Dear down at the Safety Congress this past October, in which Joe announced that we were breaking out one piece of the regulation, the part that deals with the collection of and establishment of specific information, often referred to as the OSHA data initiative that we just did this past year.

We're going to move forward rapidly with that, and I would expect that we would have something over to OMB by probably no later than mid-December. OMB gets up to 90 days, as you know or may not know, to review regulatory changes. So we want that whole issue dealt with and settled very quickly.

The remainder of 1904, the timeframe that Steve had talked about in the interview he had was early next year there would be a final rule coming out. The easiest way to explain what I hope to be the process is to work it backwards. Our goal is to have implementation of a new recording system in place and effective January 1, 1998. In order to do that, you'd have to have something go out to the states by July 1 of 1997, because they have to have six months to adopt, okay?

Prior to that, you have to give OMB their 90 day review. So that moves us back to April 1 delivered to OMB. That's at the very latest. We have to have a final rule completed and delivered to OMB by no later than April 1 of next year.

Having said that, we're in the midst right now of going through the 450 some-odd comments and several thousand pages of testimony or dialogue four public meetings that we had, six days' worth, and we're trying to tussle with a lot of the tough issues, and come up with a final rule that we hope to get over to OMB by no later than April 1 of next year.

MS. JENKINS: Well, what do you see as your biggest hurdle to overcome with the comments?

MR. WHITMORE: I don't know. Obviously, the area with the construction site logs is an area of concern. But I wouldn't characterize that necessarily as any larger concern as maybe the concern that many of the labor people have with doing away with the distinction of injuries and illnesses. That's a very fundamental change.

We made a fundamental change, I believe, in how we define restricted work activity. That's going to be a tough one to figure out, how we're going to end up doing that. Right now in the proposal, we're just saying it involves restricted activity, and the person can't go back to doing what they were doing the day they were hurt. A lot of people don't want that. They want more than that. They want to see some kind of day counts involved.

I don't know that I could say anything is that -- I guess the main thing is is there the commitment to see this process through and get something to OMB by April 1. In reality, as many of you know, Steve and I have been trying to get this system revised probably since 1990, and the only reason I would argue that we got this far was because many people in the industry came forward, and said "Let's get this thing out for discussion."

Now the question then becomes "Okay, we've done that. Can we go and take that final step without the same kind of an effort by industry and labor people, saying let's get this thing out, and let's get a new system in place and see what happens?" I think we missed a really good opportunity back in 1990, where we could have made dramatic changes in the system and then here we'd be sitting in 1996 and we'd be able to say something about the impact of those changes.

The system really hasn't been changed in 25 years, and I think we have an opportunity to get it done, but I'm just not sure if the commitment to get it done and get it done now is there. I hope it is, and we're certainly moving ahead as if it was there.

MR. RINGEN: Thanks Bob.

MR. WHITMORE: You're welcome.

MR. SWANSON: Tom will have those materials.

MR. HALL: We're making copies, so we'll have them hopefully before lunch, if not sooner.

MR. RINGEN: Are there any other questions? Okay.

MR. SWANSON: What I spent the last few minutes doing is looking for somebody who could come in and testify for us as to the applicability of urididine in the construction industry, why it seems to say that it amends 1926 as well as 1910, and where we would find exposures in the construction industry. I was unable to find anyone who would testify here for us this morning. There's something else going on in the building with the Secretary and that will last until noon, so I don't think we're going to make it. But I'll simply have to opt to respond in writing, if that's satisfactory.

MR. RINGEN: We were supposed to have a report from Stu today about the DOE-OSHA Working Group, but since Stu isn't here, we're not going to have that report.

We did agree yesterday to establish two working groups. One was a scaffolding working group to develop an appendix or review an appendix and develop an appendix for the scaffolding standard.

MR. SWANSON: If I can, and part of this might be redundant, if I could just address it again. What OSHA would like, OSHA has a task in front of it, wherein we must write the appendices for Subpart L prior to next September, well prior to next September so that we have time to go through all the review processes that are necessary.

What we would like to do, Joe Dear's way of doing things, is to get as much input from the stakeholders as possible in writing these appendices. There are several options as to -- at least several as to how we could do this. We could formulate a work group ourselves and name those players that we know from the scaffold industry and other associated industries that use scaffolds in their commerce.

The labor groups that work with scaffolds and have an interest in scaffolds. We could constitute such a committee and under our guidance try and write this appendices. We again would probably run into a PACA problem and half a dozen others. One way to avoid the whole thing and not have to go through a Federal Register type of search for who we're going to put on this committee, on this subject and not burn up a lot of months in getting from A to Z, is to ask ACCSH an already authorized standing body from the construction industry, to form a work group under your auspices, name somebody from your committee who has an interest and a knowledge in the use of scaffolds in construction, and then get the word out that we will have work group meetings, much like you did under the safety and health program issue, wherein the whole world -- we're not going to exclude anybody.

Anyone who has enough of an interest in this subject matter can come to the meeting that has been set up and help you to help us write this appendix.

MR. RINGEN: Probably less controversial than the program.

MR. SWANSON: Quite possibly, yes.

MR. HALL: And there's no transcript, so you don't have to worry about being on a transcript. And, as he said, anybody who has enough interest and gumption to come in can participate.

MR. RINGEN: And Owen, you've agreed to chair that work group. I appreciate that. Do you have other volunteers? A NIOSH person on it.

MS. JENKINS: I'd like to be on that.

MR. RINGEN: Bernice. Bill.

MR. RHOTEN: Probably have to assist, yes.

MR. RINGEN: Good.

MR. OWEN SMITH: Oh yes. You've got to have a plumber.

MR. RHOTEN: Got to have a plumber.

(Laughter)

MR. RINGEN: That's a true statement. So we start out with a work group consisting of Owen, Bernice, Bob, Bill, somebody from NIOSH.

MS. JENKINS: And you'll accept someone from outside?

MR. RHOTEN: Stu's not here. He should be part of that too.

MR. RINGEN: They're so big, they don't use scaffolds.

(Laughter)

MR. RINGEN: To get started on that, you will assign somebody from your staff to work with the work group.

MR. SWANSON: Correct.

MR. RINGEN: And maybe even that person could start out by drafting some of the basic language of it before that work group would meet. I'd suggest that the work group try to meet once between now and our next meeting probably.

MR. HALL: Is it premature to talk about that next meeting date?

MR. RINGEN: We're going to do that as soon as we've taken care of the next work group. The next thing that we agreed to do, to work with John Franklin, was to establish or reestablish a statistics or data work group. We actually had one somewhat functioning, and Ana Maria, I was going to ask you if you would chair that.

MS. OSORIO: Well, let me just make a recommendation, and that is, I know Stu's gone but he has institutional memory.

MR. RINGEN: Well, he'll serve on it.

MS. OSORIO: You don't think he can make a good chairman.

MS. OSORIO: No. You're our resident epidemiologist. You're going to have to chair this thing. You're not going to weasel out of it. So you'll volunteer for that, right?

MS. OSORIO: I guess so.

(Laughter)

MR. RINGEN: I told you you would. Okay. Bill, Steve and Stu are the holdovers from that who will probably continue. We would very much like to have somebody from one of the state plans participating in that.

MR. BROWN: Harry is an abstention and if he's not willing to, I would.

MR. RINGEN: Even a statistician from your place to -- because you all probably have more statistics than anybody else to help. That would be good.

MS. OSORIO: So Mark, you're part of this?

MR. RINGEN: Yes. So Mark would be a part of it. And NIOSH obviously will serve on it. You'll find a person and we'll get Pollock from our place to work on this.

MS. OSORIO: And that's seven.

MR. RINGEN: That's probably a pretty good start. Ana Maria is chairperson; Mark Brown, Bill Rhoten, Stu Burkhammer, Steve Cloutier, Diane Porter, Knut Ringen or our designees.

MS. OSORIO: It's not Diane; it's Marie. And the other thing is we'll probably need at least a visitor, somebody from BLS to -- we can work on that.

MR. RINGEN: Yes. BLS and the Bureau of the Census. We have good ties with those people, but I can talk to you about that later on.

MS. OSORIO: Right.

MR. SWANSON: We should define the product that --

MR. RINGEN: Well, I think you tried to define it yesterday, didn't you?

MR. SWANSON: Now it's your turn.

(Laughter)

MR. RINGEN: The main product is to come up with meaningful, more meaningful I should say -- more meaningful performance statistics that can help us evaluate better the effectiveness of the construction program at OSHA.

MR. SWANSON: Thank you.

MR. RINGEN: Maybe somebody might have a better description of the charge.

MR. HALL: Well, any of these work groups that want to meet immediately prior to or immediately after one our meetings as opposed to meeting separately, can do so. If we can get these four bays, you all can meet in that bay while I'm setting up this bay.

MR. RINGEN: Right.

MR. HALL: And that could have happened this last time with Lauren Sugerman's group, but she was ill. So we can set that up or we can find you a separate bay somewhere. But that can always be done, or a conference call.

MR. RINGEN: Well, we will also try to get back to the format where unless we -- if we have a lot of work groups that are working, we will try to set aside the afternoon of the first day of the meetings for work groups. So we will expect the work groups to meet in conjunction with our committee meetings, and if they need to meet in between, they can figure out how to do that.

MR. HALL: Sure, and we can usually come up with a room here if you need to, even if it's a five person group, we can meet in one of the conference rooms in safety or health standards or we can usually find some place to work.

MR. RINGEN: So Ana Maria, did you have some question about the charge?

MS. OSORIO: I just wanted to make sure that the mandate for this subgroup, whatever, is clear. So we're looking for performance indicators for the evaluation of a more focused kind of inspections, or are we looking for overall parameters for a bigger evaluation? I just want to make sure.

MR. RINGEN: We're really looking for statistics that will evaluate how well OSHA's construction program is functioning.

MS. OSORIO: That's what I'm saying. The whole thing, not just the focused inspection. Okay, so this is --

MR. RINGEN: And that may extend also to the state plans.

MR. RHOTEN: If I could, Mr. Chairman, what I hope also could happen on top of that or parallel is that we can gather all kinds of statistics that are out there, so that we might examine them to find out that resources are being headed in the right direction by OSHA. I'm back to my particular issue, which is I think the numbers would indicate that the smaller contractors are causing major problems, and if those statistics can be borne out, then I think somebody should examine why we aren't paying more attention to those areas. Even on the injury statistics, there's got to be some out there. I think if we gather all we can and sit down and try to come to some conclusion of where we can use the resources better, I would hope that could be done.

MR. RINGEN: Well that, I would say, is part of the focus.

MS. OSORIO: I would say that after we -- oh, I'm sorry. I was just saying that I think we need to gather all these folks together and then I'll just submit to Knut just a tentative more detailed scope of what we plan to do and then we can get feedback on that, because there's different parts of this. So I think all these thoughts will be --

MR. RHOTEN: And it should be a nice committee because there shouldn't be any debates. We're just accumulating facts; there's nothing to argue about, right?

MS. OSORIO: You'll be surprised.

(Laughter)

MR. RHOTEN: Until after we get the information, and then we could argue about how to use it.

MR. BROWN: One suggestion, and maybe you could think about this and Mr. Swanson as well, whether this would make sense. Paula too. It might be good to have someone come in and go through with the subcommittee all of the performance indicators that are utilized in the biannual audits, and the one aspect of this enterprise, that's OSHA and state plan, state relationships, is those biannual audits.

Now when I started four plus years ago, there were over -- I want to say 70 different measurements that were taken, that could lead one to draw a lot of different conclusions. That has been focused substantially on Joe's watch, but I do think that sort of briefing and then being able to take a look at those points of measurement to see whether there is construction-related activities within them that could be broken out, and we could highlight. That might be a value added for the working group.

MR. RINGEN: I think that's a very good point. In fact, I've been on this committee for two and a half years now. This meeting is the first time we ever heard of those audits.

MR. BROWN: Wow. They used to be annual. Now they're biannual. That's another change during this administration.

MR. RINGEN: This was also the first time we had a report from OSHA about what the state plans are doing. So it's been very useful in that regard. Ana Maria, do you have anything else?

MS. OSORIO: I was going to say that I think one obvious byproduct so our work can be built upon is to do an inventory of all different kinds of existing and potential ways of interpreting the data that already exists. That will be part of an inventory that we'll have, and again, there's different angles you can use that for. But I think that will be one goal.

MR. RINGEN: Any other discussion? Do we need motions to establish these working groups?

MR. HALL: I don't think so. The next meeting date?

MR. RINGEN: That's what we're getting to now, yes. Next meeting date, and I was going to get some advice from OSHA about if you have a sense of what's coming up that's going to be particularly urgent. I don't think that there's anything that's that urgent at this point in time. So my suggestion would be to look towards -- there may be an issue with fall protection, and we may be able to handle that with a conference call, since that's a single issue. We could have a special meeting via conference call if it's just one issue, rather than have everybody come in for a meeting.

I think if we look at probably March. This is as far as I have dates. How does the first week of March look, March 3. Is that too soon? That will be three months from now. Actually it would be four months, just about. Four months, and in March, I can do it either the week of the 3rd or I can do it the 13th and 14th. But that's the only times I can do it.

MR. OWEN SMITH: The 13th and 14th would be better for me. I'll be in Miami that whole week of the 3rd.

MR. RINGEN: Okay. Maybe we can meet there.

MS. PAUL: That's fine.

(Laughter)

MR. RHOTEN: Spokane and Miami in the same two years? My goodness.

MR. RINGEN: The 13th and the 14th. The 14th is a little -- we would have to make sure, then, that we got out of here at least no later than 11:30 on the 14th, so that people who are going back to the West Coast can catch their 1:00 planes and get home for dinner.

MR. OWEN SMITH: I agree with that.

MR. RINGEN: Are the 13th and 14th good for everybody? Okay. We'll set those.

MR. HALL: Here in DC.

MR. RINGEN: Here in DC.

MR. OWEN SMITH: Los Angeles would be better.

MS. OSORIO: I think in San Francisco.

MR. RHOTEN: For two California people.

MR. RINGEN: Oh, we have three -- let's see. How many people do we have. We have three or four people from the West Coast on this committee at this point in time, and I'm going to push for another meeting on the West Coast again in the coming year somewhere, so that we don't put such an onerous burden on those people who come from the West Coast have to come here all the time.

MR. BROWN: Chicago's midway.

MR. RHOTEN: Well, it's too cold in Chicago.

MR. SWANSON: I don't think we'd get a quorum in Chicago.

MR. RINGEN: We have covered pretty much -- there were two things that I had in mind to talk about in terms of the committee, and that is what we learned from both the meetings with the state plans out in Spokane and also yesterday from the folks from these agencies who are involved in procurement, construction procurement. Any comments on either one of those issues?

The one thing that I think is very -- that comes out so very clearly when you talk to the state plan people is the ability to use the workers comp resources in conjunction with safety and health programs. That's one thing that federal OSHA will never be able to do well, I don't think, unless there are some ways of partnering with those states who choose not to be state plan states.

I think that is probably -- that and the ability to respond to the needs of the folks locally are the two major things that we learned from the Spokane meeting.

MR. OWEN SMITH: Has OSHA has ever tried to get information from compensation people?

MR. RINGEN: Yes.

MR. OWEN SMITH: They won't give it up?

MR. RINGEN: It's interesting. There has never been a single issue, a proposed standard for instance I believe, that OSHA has ever issued that has ever been endorsed or supported by the worker's comp carrier. I don't know of a single one.

MR. MASTERSON: Private.

MR. RINGEN: Exactly. Private carriers, yes.

MS. OSORIO: I think it's a problematic issue, because Washington state has a unified one-shot kind of place you go to, but in California, we don't have a unified system. So you know I think what you can do in Washington, because all the worker's comp goes into one place, I don't know of any other state that has that capability.

MR. BROWN: Well, if I could, there's a couple of things that we could talk about over the next few months. Actually, there are 21 states and 2 territories that operate state funds. There are six or seven of those that are monopolistic like the state of Washington. Nevada is an example of that. North Dakota doesn't even allow self insurance, so large employers and small employers all are in the state fund.

But there are six or seven monopolistic state funds, including the state of Washington. There are a couple of the 21 states that I mentioned in total that have agencies like labor and industry, that also have some worker compensation responsibilities. But mostly that's regulatory.

We're really, I think, the only one that has the occupational, safety and health as a mandate, as well as the risk-bearing. I mean we're the insurer; I run an insurance company, and that is fairly unique. But the 21 states that have state funds do have a very active national organization, and they talk about worker safety at our conferences all the time.

But there really hasn't been an effort made at any kind of integration, and I'm now an officer of that national organization, and I just mention that because if you can think of ways in which we could work with them in terms of data, maybe as a result of this subcommittee, I'd be happy to try to facilitate that. But there's 21 state funds that are state agencies.

MS. OSORIO: Right, but the problem is that California has a state fund, but it's a state fund of last resort. When a private carrier won't carry you, then you go state fund. So if you do try to extrapolate rates on the population, you're going to have very worse case scenarios, and certain industries aren't even represented. So it is problematic. Like you said, Washington's the only one where that combination duty is there.

MR. BROWN: Actually, I just would disagree a little bit. Almost all of the 21 state funds, including California, they may have the assigned risk pool, but that's a very small and usually a segregated pool. Almost all of them are in competitive markets other than the six exclusive state funds, and so if their rates are competitive, if they've got the services -- Idaho is a good example. That's a three-way state. You have the state fund write 64 percent of all the premiums. I just came from Maine. The Maine employer fund there now I think is writing something like 45 percent of all the premiums.

So these insurance companies are private. They ought to have an overriding public interest beyond just to book a business as an insurance company, and I think that ASSCIF, which is the name of that group, the American Association of State Compensation Insurance Funds, is a very progressive group, very progressive group, and we ought to be able to have some ability to work with them in terms of datasharing.

MR. RINGEN: Is that also the main body for assigned risk pools?

MR. BROWN: Most assigned risk pools are inside of a state fund. But there are virtually no state funds that I'm aware of that are exclusively the assigned risk pool. Almost all of them are marketing their products.

MS. OSORIO: I mean people within the group have told me -- I only know Californians really well, and they are getting a skewed view of the market out there. They don't have the aegis to go out and do the free kind of prevention kind of evaluation and all that. I mean they just can't compete with some of the other companies. So I'm not saying we shouldn't talk to them. I'm must saying it's not the whole picture.

MR. BROWN: And again, I don't want to get into a debate here, but I'm very familiar with those 21 state funds, and in the state of California, they're still writing over a billion dollars' worth of premiums. It's true, they're not exclusive. But you can take and segregate that assigned risk pool data and I think have some very valuable data from almost all those 21 states. That ought to help us.

I mean in our state, you know what Joe Dear -- I think one of the main legacies is he began our targeted inspection program and about 40 percent of our inspections are targeted specifically, exclusively off of our worker comp data. We're trying to target the outliers, and even the integration now of some insurance data. We regulate them so we have the data. So that's a pretty good model, I think.

MR. RINGEN: The California state fund insures over half of the construction industry, and it does it competitively under open rating.

MR. OWEN SMITH: There's a reporting bureau that you'll be able to get those statistics from.

MR. RINGEN: Sure. The California Worker's Comp Research Institute. It's very good.

MS. OSORIO: Again, we'll debate internally, because I know all the people that do the stats for that, and they have the same qualms that I have, but we can talk in our group about it.

MR. BROWN: The problem you have is that in many of those states, even with the state funds, your rating bureau work, whether that's done in house like in our state, in some cases that's protected. That's essentially confidential, and they're not going to be able to tell you that Ace Construction has a MOD factor of 1.2. But they might be able to tell you that anonymous construction firm and then bring them all together. I mean you might be able to find profiles of different sizes of construction employers and you might be able to pull the data together but not have employers specifically identified.

MS. OSORIO: It's going to be surrogate. You're not going to get the absolutely broad data is what I'm saying. But again, we can talk about it --

MR. RINGEN: We'll all agree that we're not doing a very good job of linking worker's comp with safety and health.

MS. OSORIO: We're going to explore it. I'll leave it at that.

MR. OWEN SMITH: Whatever you get will be better than what you have.

MS. OSORIO: Yes, yes. You just have to put the caveats on it.

MR. RINGEN: And you worked at targeted, it would seem to me that you could get a handle on who's in assigned risk group pools, that's a good place to start.

MR. BROWN: And in fact, if you would like, the state fund CEOs are meeting in Las Vegas the first or second week in December. If you could put together a little outline of how you see this work group moving forward and the kind of data we might be interested in, and the worker comp piece of that, I'd be happy to distribute that and put that on the agenda for that meeting. Actually, I might even have those dates with me just to give you a target.

MS. OSORIO: And this is in Las Vegas?

MR. RINGEN: It's a field study in risk management.

MR. BROWN: The 16th and 17th of December.

MR. HALL: Well Knut, just to add something, if you want, I can talk to Steve Gould about this. I'm sure somebody from BLS could explain some of the problems they've had working with workman's comp data in their statistics, because they are constantly battling trying to use workman's comp data in their statistics, and there's problems with confidentiality, problems with getting those statistics are magnified in BLS way beyond what OSHA experiences, and I don't know to what extent Steve Gould and his people at BLS could work together and come up with an explanation of this.

MR. RINGEN: I don't know if you've looked at it, Mark. In Washington state, if you're compared OSHA 200 log reports with worker's comp claims records for employers, there are sometimes big discrepancies.

MR. BROWN: Right, and not every OSHA 200 log entry results in a worker comp claim being filed. But we have seen nearly identical reductions in claim frequency, which is our key indicator in terms of worker comp, and the OSHA 200 injury and illness rate numbers. So they track very closely in our state.

MR. HALL: Well, as long as workman's comp costs an employer money when he doesn't fill it out and at OSHA it doesn't cost him so much money when he doesn't fill it out, you're going to have accurate workman's comp data and you're going to have inaccurate OSHA data. That's been a problem ever since OSHA was created and it still will be.

MR. RINGEN: Well, in the federal procurement, I think the only thing that we can say is that you were working on an executive order at one time. It may be worth revisiting or it may be a waste of time.

MR. BROWN: Can I ask or make a comment on that? I've followed this group. I'm obviously -- as you know after two days I'm not a potted plant, and so I apologize for talking so much. But a couple of us were talking after yesterday's meeting, and this context in terms of federal procurement, again, I was struck by the fact that Corps of Engineers had a figure in mind, no one else did. You had asked at the end of the meeting what kind of recommendations they were looking for us to make that might assist them.

I would suggest that perhaps as the chair, you might want to send a letter to Federal Highway Administration, Federal DOT, General Services Administration, and I don't know whether there's others that weren't here. I mean I simply don't know, but actually --

MR. RINGEN: The Department of Energy, for instance.

MR. BROWN: --bringing the Corps approach to their attention, and simply encouraging that they establish a benchmark in terms of accident rates, and then measure their performance over time. I think then we'll have that data to help us over the years.

MR. RINGEN: If that's agreeable with OSHA and with the rest of the committee, we'll certainly do that. I'll draft a letter than then we'll circulate it to the members and see what they think of it.

Finally, the last issue that came up was the 502 upgrade course that the OSHA Training Institute proposes to put in place. They asked for some input into, I think, both the content of that course and the schedule that it be provided. How often do people have to go and get this upgrade and so on.

I think if I can make a suggestion about that, if there are people here who are interested in training, like Bill, that might be good to follow up with Manny Ypsilantes about that, and see what he had in mind specifically. There might be others who are interested in it as well. And then by the time we get to our next meeting, maybe we'll have something more specific to deal with. I don't think -- there's nothing else that we need to do on that.

MR. RHOTEN: Would you like me to just meet with them and do a report?

MR. RINGEN: Yes, yes. That would be good. I don't think we have any other issues before us, so all we have to do, unless there are some things that any member of the committee wants to bring up, are there other issues that we should consider at this time?

MR. HALL: The new people might want to see me about travel and vouchers.

MR. RINGEN: The new people.

MR. HALL: Rather than take up the whole committee's time, see me afterwards and Theresa Berry will be here, and we will break you in on vouchers and travel, getting compensated for your expenses.

MR. RINGEN: Any other issues? Then why don't we just take a break until Joe arrives. That's about five minutes from now, so we'd better not to very far. We'd like to get Joe done by no later than 12:30. Five minutes.

(Whereupon, a short recess was taken.)

MR. RINGEN: Okay Joe. We're ready any time you are.

MR. DEAR: All right. Thank you, Mr. Chairman and this committee. I appreciate the opportunity to visit with you today and I appreciate your flexibility in arranging the schedule. I just finished attending a town hall at which Secretary Reich made official and everybody knows that he is going to leave the post of Secretary probably around the time of the Inauguration, in January. That's kind of a happy-sad occasion to think about the Department of Labor without the Secretary.

Those of us in Washington who are political appointees had the biggest job safety question resolved last Tuesday in one sense; that is, whether we had a future here or not. But now it's somewhat uncertain again and we'll have to see how the future unfolds.

But the Secretary has encouraged us individually, as a management team and from the entire department, to keep the momentum up, to keep moving forward, to keep pressing ahead with the programs that we have developed, and that includes the initiatives that comprise the new OSHA. It's certainly my intention to do that and this committee is well poised to help us do that, since you have provided us with some very important work and we're expecting some more in the area of compliance space standard, for instance. So I would encourage you to keep that idea. The idea is to not miss a step as we go forward.

Let me bring you up to date quickly on a couple of items, and then see what questions you have. In the area of personnel, I've made two selections that will become final pending approval by the Office of Personnel Management. The first of these is to appoint Steve Witt as the Director of the Division of Technical Support. Steve has been in the Assistant Secretary's Office for many years, for many assistant secretaries, and he'll be moving into that office probably next month.

I've also selected John Martonic to be the Director of Safety Standards. John is currently the Deputy Director of Health Standards, and again, that's pending all of the requisite approvals. This doesn't directly pertain to construction as much as it might have because of the existence and the movement of the standards activities there, but nonetheless, all of the standards teams have to work together to a certain degree, and I wanted to bring you up to date on a change in that area. I'm very pleased both of these guys are accepting a position.

Probably as a consequence, the deputy director of Safety Standards, Tom Seymour, will be retiring soon. That's a huge loss. Tom has done just an absolutely fantastic job through his career and especially for me during his tenure as acting head of Safety Standards. I know many of you have worked with Tom and understand the appreciation I have for the phenomenal job that he's done. We'll have some sort of ceremony, I'm sure, to recognize his career at the appropriate moment. But I wanted to bring the committee up to date on that activity and Tom's plans.

In the area of budget, well we had our ups and downs in 1996 and we ended it in an up note. The appropriation for fiscal 1997 is $326 million. That's a seven percent increase over fiscal 1996 appropriation. It's really quite good under the circumstances. It was actually approved before the fiscal year began. That means it's only the third time in 20 years that we had an appropriation approved at the start of the fiscal year, which may not seem that astounding to those of you in the private sector, but for us government types, it really does help to know what the number is.

Now I attribute this favorable outcome to a number of factors. First, there was some stalwart defense of OSHA by its friends. Second, we tried to represent what we were doing on the Hill and to communicate the importance of these activities. Third, I think the shutdown changed the climate around the regulatory programs in particular, and general government programs, with regard to whether the public was wiling to accept extreme proposals or was looking for some more common sense, common ground types of approaches. I think the climate changed about the time of the shutdown.

Finally, I think OSHA' reinvention was able to present an alternative to the status quo, as well as an alternative that was clearly superior to those proposals which would have gutted our standards and our enforcement programs and decimated our budgets.

The existence of that alternative and the recognition that we were serious about implementing it, that it was taking effect, that focused inspections in construction, for example, were not just something we've been talking about, but that a third of the construction inspections in the U.S. were focused inspections; that partnership initiatives were not something we were just talking about, but they were things we were doing, such as the roofing industry partnership in Region V. Our work to reach out to labor and employer organizations, to get them involved in decisions as early as possible, were helping us to shape and frame better decisions, and I think that also played a part.

That budget means that we'll be able to continue moving forward with the implementation of the new OSHA initiatives, the partnership and enforcement choice that we're offering employers; the development of more common sense developing and enforcing regulations; and in changing OSHA's cultured self to get the organization more focused on results.

One other thing that Congress did was to lift the rider that restricted OSHA from proposing under ergonomics or proposing any regulations in that area. We'll be looking to the committee for its advice about how to approach this issue. I can say at this point our intention is certainly to move forward with a balanced approach, and to confer with interested organizations on a variety of issues, including what the scope of a potential standard should be. Certainly one of the questions that you began to wrestle with is whether construction ergonomic standards should be part of a broader standard or should it be separately developed on a separate timetable, and the committee did some good work in that area. I think we want to return to that and make a decision in the near future about that.

But we're not going to rush out. I guess some opponents thought that the lifting of the rider would mean that this mythical 700 page regulation would immediately appear in the Federal Register the day after the rider went. Well, it didn't and it's not. We want to talk with people about how to approach this significant, expensive and painful problem.

One other budget development. We've now been authorized to accept fees for certification of accreditation of testing laboratories, and this is small in budgetary terms, but the nationally recognized testing laboratory program is important, and the ability to collect fees to support the program means we can run it without having to trade off other program activities in the Department.

Turning to the program area. Last week or the week before last, Secretary Reich announced a silicosis outreach program in which OSHA and NIOSH are playing a major role, as well as the Mine Safety and Health Administration. Our program kicked off midsummer with an announcement of the program, a national special emphasis program and an education and outreach phase which concluded and now which is augmented by enforcement activity and some enforcement inspections have been conducted and the results are coming back.

The goal is elimination of silicosis from the workplace, and this will take a multi-year effort, but we believe this is attainable, and I was very pleased to participate with NIOSH and MSHA on a coordinated basis in moving this program forward.

In the area of standards, I'm eagerly anticipating the final report from the negotiated rulemaking advisory committee on Steel Erection. We have some hoops to clear with respect to rechartering the committee to get the report, but I think we're making progress there and we hope to have that standard published by the end of the year -- the standard proposed by the end of the year.

I'm also very excited by the imminent publication of a book on residential construction that we have been developing with the assistance of the National Association of Homebuilders, to provide practical guidance to residential contractors in the major hazards and the major OSHA regulations affecting their work. I think that will be a good model of how we can work with specific employer associations to develop materials that will help compliance and help prevent injury and illnesses.

Sort of moving back to the budget momentarily, Congress also appropriated $2 million for research into the question of standards in residential homebuilding industry, and we've had initial discussions with the Homebuilders, with the Building Trades and the Department to get a working group together that will look at how best to do the research and develop materials that the Congress is anticipating with that appropriation.

Let's see. We're looking to you for the confined space regulatory text shortly.

MR. RINGEN: You have it.

MR. DEAR: We have it? I'm sorry. I'm looking for my staff to see the confined space regulatory text. I appreciate that work and we'll take the next step then to get it published.

The last thing I want to touch on is safety and health programs. I understand there has been some discussion about that already today. Safety and health programs are hugely important. When we talk about a partnership approach to health and safety as contrasted with an enforcement approach, the safety and health program, the quality of an employer's safety and health program is a distinguishing characteristic for the partnership relationship.

That's what we're looking for and the changes we're making to encourage the development of these programs, be it focused inspections, changes in penalty policy that recognize employer good faith with good health and safety programs are all centered around this idea that if management has a system for managing health and safety and implements that system, is committed to it and carries out the basic pieces of it, has a recognition of the training and evaluation of the program, that that will do more to prevent injury and illness than any single OSHA standard or any single OSHA program activity.

I think therefore it's very important to develop a standard which establishes what the minimum criteria are effective health and safety programs. This committee has provided us with a very valuable proposal for construction in safety and health programs, and a group of seven independent employer organizations, who have also made a very valuable contribution in suggesting how we can approach that issue. Bruce Swanson and his staff are looking at those two documents, and we'll be putting them together and we'll be getting back with you and using that as the basis for a proposal that we want to make.

I'd be happy to answer questions about how we're proceeding on that. I just want to emphasize that this is a very high priority on our regulatory program. It's a large undertaking and we want to do it right, and we certainly appreciate the work that this committee and others have done to help us move us forward on that. So Mr. Chairman, at that point I'll stop and invite your questions.

MR. RINGEN: I can just comment first on our discussion about the program standard earlier. Our concern was that this might -- that first of all, the committee has done as much as it can on it. We couldn't reach absolutely consensus on anything, but we are in agreement on something that everybody said was a good first step to send to OSHA. We just didn't want to see it linger. It's something that I think everybody on this committee agrees is incredibly important.

We didn't think that the standard for construction should linger just because you might have more difficult arriving at similar kinds of standards for the other industries, for maritime and general industry. I think that it was the sense of this committee that probably a separate standard for construction is a good idea, although I'm not sure that that's a necessary idea.

I wouldn't say that at all, but certainly in sort of the spirit of pushing forward, as you raised with us, we would push back at you and say that we would very much like to see that continue. We have another meeting scheduled in early March, March 13 and 14, where we would very much welcome getting a document back if possible to review. That I think would be good.

A couple of other things that we discussed at this meeting, one was a nice gesture proposed by Bill Rhoten and adopted by the committee, for the committee to give the Secretary, the outgoing Secretary a plaque in recognition of the establishment of the Construction Directorate and all of the other activities that we think are incredibly important and obviously have been for us in the construction industry and have been the landmark of your tenure here.

I think that's something that we all -- everybody, the employers and the employee representatives and everybody else, really feels strongly about and recognizes as a very, very favorable development. I certainly know that my boss feels that way. I had to make sure that I said that.

Another very useful suggestion I think that came up from Mark Brown with regard to the Homebuilder study is to get somebody from one of the state plans on the committee for that. In fact, we had a meeting in Spokane earlier and between that meeting and this meeting, we have had some very good discussions about the state plans. For the first time, and today for the first time, I learned that actually OSHA does audit the state plans. I didn't know that.

I think that looking at the relationship between the Federal government and the states is something that will be very interesting, and getting more into including some of the workers comp insurers that are on the state level. So those are some of the things that we've been talking about.

We're going to establish two new work groups. One has to do specifically with the scaffolding standard, and the other has to do with a data committee to help OSHA develop better performance measures for their construction activities.

MR. DEAR: All those are very much appreciated by me. Thank you.

MR. RINGEN: Finally, we did have a discussion about something that this committee is supposed to do, which is to review federal procurement policies for construction every now and then. We had some agencies in here. The one recommendation that came out of the committee that we'll follow up on was that we really think the state and the federal agencies that do construction procurements should be including clear safety and health benchmarks or goals in their solicitations. Really, more specific performance measures about what they expect from contractors, and gradually maybe that will sort of trickle down throughout the industry.

Those are some of the things that I picked up here and I'm sure other members of the committee have questions and comments for you. Mark?

MR. BROWN: Joe, I don't have these numbers precisely because we don't -- we didn't actually get the handout, but yesterday morning there were some numbers that were shared, both state plan numbers and then OSHA numbers relative to focused inspections as a subset, and then total construction sites specific inspection activity.

I think it's fair to say that several of us, maybe even all of us, were troubled by those numbers, in that -- and again, these are what I recall -- approximately 6,500 site inspection activities in '94. That had fallen in federal year '95 to about 4,500 to 4,900, something in that range, and then for the last fiscal year, had fallen to 4,500.

So there appears to be on the surface about 2,500 fewer sites visited, a very substantial decrease. Yet at the same time, you've ramped up the focused inspections and in theory that was to focus action around focuses of concern and then be able to spend less time at a site on average and move on to get bang for the buck in terms of the limited resources that we know you have.

I hadn't seen those numbers before yesterday. That was my read of those numbers. We weren't able to get any information because it's just not available in terms of perhaps what might have driven that rate of decline. Then there were some other observations that it may be somewhat of a function of the complexity of the sites that were visited, and some other egregious problems that were found and required a consumption of resources.

But I think it's fair to say there was no clear explanation that would account for such a huge drop in on site activity, construction specific, and I'm wondering have you seen those numbers? We just saw them yesterday, and if you have any observations or comments.

MR. DEAR: If you approach this, as you indicate, through a work group about what we should be watching, I think it's the most important way to do it. I think it's a mistake to get hung up over total numbers of inspections. It's an interesting activity measure; it's something that's worth looking at from time to time, but I don't think it's something we're going to run the program on.

'96 I hope will stand as a year of great abnormality in terms of what happened. I mean a months' worth of work was lost in shutdowns. Ten percent of OSHA staff was lost to attribution due to hiring freezes imposed because of Congressional budget cuts that were threatened or taken early in fiscal '95 until the Spring of 1996. I think the assaults on the OSHA program took their toll in terms of employee morale, and I think that also affected productivity. So there's a whole constellation of factors associated with the difficult period that OSHA went through.

On a programmatic basis, we've increased the amount of training time in a number of offices to support redesign of the field offices, and to develop partnership initiatives in the non-construction related areas. We've stepped up the number of evaluations and voluntary protection program participant sites, and that also has had an effect on inspection.

The third thing I'd say is there appears to be a portion of the result which can't be explained through a programmatic or a budgetary uncertainty, and that is of intense interest by me and Mike Connors, by the regional administrators, Bruce and others, and I think we have some programmatic actions we're taking in the current fiscal year that are designed to either discover what's going on on that or to make necessary corrections.

MR. RINGEN: I don't think anybody here was suggesting that just the fallout or the decline in inspections was necessarily the important thing. The important thing was that we couldn't explain what it meant, and that's where that question comes from. Any other questions, comments?

Ergonomics, musculoskeletal. You mentioned that. Stu was supposed to be here today, because he couldn't. He was supposed to be spearheading that. Is it your intent that we should try to get back to that issue? Of course in comparison to general industry, our concern is much more with material, manual material handling than it is with repetitive motions. So there's a big, big difference from the start in the way that we would approach musculoskeletal disorders.

MR. DEAR: I think before we ask the committee to get reinvolved, OSHA has to make a threshold policy decision about whether there's going to be a separate development on a different time track than for general industry. Since we haven't set the general industry timeframe, I don't know to establish the context for that today. I think -- I hope what is clearly understood is that this is a real problem, and we intend to move forward on it. But we want to take lessons learned. We want to have the opportunity to discuss with those who are interested in this issue before we make policy choices about scope and about timeframes and about approaches.

We also would want to come to the committee and talk about what kind of educational and compliance assistance kinds of actions could be taken, because even if a standard were to be undertaken, that's years away in terms of reaching final conclusion. There are probably practical things that can be done. I think the committee recognized in its work that the model that was being developed for the ergonomics proposals seemed to be suited for fixed site establishments and its applicability to mobile construction work sites in a rapidly-changing environment was at least open to a large question. I think that's something we'll have to come back to. When we do, we'll come back to you.

MR. RINGEN: Well, I'm not sure that we could accomplish any more than we did before at this point in time under any circumstances. That's part of the point.

MR. DEAR: Well, I just think it's important that everybody understand that there's not a standard that's imminent, and it's going to be dropped into the Federal Register. There's going to be lots of conversation before we move forward again in the standards area.

MR. RINGEN: I think so, but intellectually there's so much of what we still do in the construction industry is driven simply by our awareness of traumatic injury statistics. That's where we get the falls, the electrocutions and so on. But if you go back beyond the traumatic, of course, if you start looking at the worker's comp statistics, you're going to find that 40 to 50 percent of the injuries out there are musculoskeletal. They're not traumatic, and that's where the big burden is and we have a huge educational effort to do with a lot of people, including many employers, to get them to agree that there is some real win-win in this issue out there, that workers can be better off in terms of safety and health and employers can be much better off economically from it. But that's doing a reach effort, including this committee.

MR. MASTERSON: But along the same lines as Knut's question, you say there's some questions that have to be answered before you can start establishing timelines. Have you got any game plan for that or any time lines or when you'll start defining that scope and making the decisions on whether or not there will be separate standards for construction or what?

MR. DEAR: I think these are in the relatively near term, 0 to 6 months. I think we're going to have stakeholder meetings, which we may be scheduling for December, that would be the initiation of that. Now whether they're very, very informal kinds of conversations or more structured, facilitated meetings, we haven't decided. We're still looking at that kind of question.

But before we do anything in the standards area, there will be conversations with interested organizations. We want to make sure we have a clear sense of what the thinking is currently.

MR. MASTERSON: Do you think there's a chance you might have some kind of timeline established by our next meeting?

MR. DEAR: By March?

MR. MASTERSON: Yes.

MR. DEAR: I think we'll have a much clearer idea of how we're going to proceed. I have to get all of our standards, in terms of -- our entire standards schedule put together, because we don't do things in isolation and we have, I don't know, about 40 people in Health Standards and Safety Standards is probably about 30, with 10 to 9 -- or how many in each group, Bruce?

MR. SWANSON: About eight.

MR. DEAR: About eight. They work like 10. So you know we're not large in that sense for all of the work we're trying to do, so we have to see how the staffing shapes up in terms of how rapidly things can be developed. So as I say, the thing to remember today is we're looking at a balanced approach. We're going to talk to people before we move forward. It's going to contain all of the basic elements of the OSHA program and as the picture clarifies, we'll get more specific about timeframes and expected products.

MR. RINGEN: Any other questions, comments. Bernice.

MS. JENKINS: We had a speaker that related to a commitment of April 1st for the recordkeeping to be delivered to OMB, with a standard in place by January of '98. Do you see that happening?

MR. DEAR: I think it's very important to get the recordkeeping done, so that it can affect the recordkeeping programs in 1998. That's probably a reasonably realistic timeframe. We have a small piece of the recordkeeping proposal going forward shortly. Just one legal question has been raised about the collection of the OSHA 200 logs themselves. It's a small piece. I'm very anxious to complete the work on the final recordkeeping proposal and so I keep inquiring and I'm glad to hear they're comfortable enough coming up and telling you that they can get it done by April 1st.

MS. JENKINS: Thank you.

MR. RINGEN: Well, thank you for coming here today. I think that this -- as I said, this committee is very excited about what you've done in the first term that you've been here, so we look forward to second term.

MR. DEAR: Hope to see you soon again.

MR. RINGEN: But yes. We hope to have a report to hear from you at our March meeting, since you'll probably have a better sense of the political landscape, what we can get done. Thank you.

MR. DEAR: All right. Thank you very much. If there are no other issues that any committee member has, I suggest that we adjourn.

(Whereupon, at 11:58 p.m., the meeting was adjourned.)


REPORTER'S CERTIFICATE

TITLE: ACCSH

DATE: November 13, 1996

LOCATION: Washington, D.C.

This is to certify that the attached proceedings before the United States Department of Labor, were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at this hearing.

BAYLEY REPORTING, INC. November 13, 1996