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

ADVISORY COMMITTEE ON
CONSTRUCTION SAFETY AND HEALTH (ACCSH)

1:02 to 2:59 p.m.
Monday, March 18, 2013

U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
Room N-3437 A/B/C
Washington, D.C. 20210

CONTENTS

PAGE

Opening Remarks/Agenda Overview

3

29 CFR 1926 Subpart G-Signs, Signals, and
Barricades

14

Minor Corrections to 29 CFR 1926
Subpart CC-Cranes and Derricks in
Construction

46

PROCEEDINGS

Opening Remarks/Agenda Overview

MR. STAFFORD: Good afternoon, everyone. Welcome to the special meeting. This is kind of a precedent-setting meeting for me in my time of being on the Committee and the Chair in terms of having a special meeting that's just lasting three hours in duration and talking about two specific issues.

MS. SHADRICK: Steve, this is Laurie Shadrick. I'm sorry. I can't hardly hear you.

MR. STAFFORD: Hold no, Laurie.

[Pause.]

MR. STAFFORD: Can you hear me now?

MS. SHADRICK: Oh, much better. Thank you very much.

MR. STAFFORD: All right.

MR. HERING: Steve, I can't hear you too well, though.

MR. STAFFORD: Put your hearing aid in, Bill, because I'm not going to be able to talk much louder, but I'll try. How is that?

MR. HERING: That's perfect.

MR. STAFFORD: Okay, thanks.

Again, welcome, everyone, to the meeting of the OSHA Construction Advisory Committee for Safety and Health. My name is Pete Stafford. I'm the Chair of the Committee, a Labor representative representing the Building and Construction Trades Department.

In order to ensure that we have a quorum and for our Committee, we need a quorum of eight members to be present in order to take action today.

This is a bit different, as I said before, as a special meeting dealing with just a couple of issues over a three-hour period. OSHA had made the decision that we were going to have a meeting, and in order to save resources, so that we can have our full Committee meeting in May and save some of our members the hassle of traveling in for just a three-hour meeting, the majority of our members are going to be participating by phone. So, to get started, it's important to be sure that we have a quorum today, since there's only five of us here around the table.

So, with that, I am going to just ask those of you that I believe on the phone to verify and then say your name and who you represent for the record.

I believe that we have Jeremy Bethancourt on the phone. Jeremy?

MR. BETHANCOURT: Yes. This is Bethancourt, ACTA Safety, our Public Representative.

MR. STAFFORD: Okay, thank you.

I believe, also, we have Steve Hawkins on the telephone. Steve, are you there?

[No audible response.]

MR. STAFFORD: All right. We'll come back to Steve.

I believe we have Tish Davis on the telephone. Tish?

[No audible response.]

MR. STAFFORD: Okay. I believe we have Tom Marrero on the telephone. Tom, are you there?

MR. MARRERO: Yes, I am. Tom Marrero, Trades International, Employer Representative.

MR. STAFFORD: Thanks, Tom.

I believe we also have Don Pratt on the telephone. Don, can you verify?

MR. PRATT: Yes, I'm here. Don Pratt, representing Employers.

MR. STAFFORD: Okay. Thank you, Don.

Roger Erickson, are you on the phone?

MR. ERICKSON: Yes, I am, Pete. Roger Erickson, representing Labor.

MR. STAFFORD: Thank you, Roger.

And the last one I have on my list of being on the phone is Laurie Shadrick. Laurie?

MS. SHADRICK: Yes. ACCSH Employee Rep.

MR. STAFFORD: Okay, thank you.

So I believe that's it on the phone, and we do have a quorum, Sarah. I think we have nine now, and I believe Steve will be joining us, I hope, and also Tish Davis.

So, with that, we are going to go ahead around the table and introduce the other members. I'd like for you in the audience to introduce yourselves as well.

I think, normally, at our ACCSH meetings, for those of you who are not familiar with our protocol, is we have public comment at the end of the meeting, but for today, I think that we will open up for public comment after each issue. So, in other words, once we finish the presentation on Subpart G on the signs, we will open it up to public comment, so that we can clear that issue. For those of you who are here specifically for that and want to make comment, it would be the time to do so, and that way, you don't have to wait through the crane and derrick discussion until the end of the meeting, so I think that would be an appropriate way to break up the meeting, so that we get all the comments by issue.

So, with that, we will do self-introductions, starting with my right.

MR. BARE: I am Ben Bare. I'm the DFO for OSHA.

MR. CANNON: Kevin Cannon, Employer Rep, AGC of America.

MR. STRIBLING: Chuck Stribling, Kentucky Labor Cabinet, State Program rep.

MR. JONES: Walter Jones, Laborers' Health and Safety Fund, Employee rep.

MR. GILLEN: Matt Gillen, NIOSH rep.

MS. SHORTALL: Sarah Shortall, ACCSH Counsel.

MR. STAFFORD: Did someone just call in on the phone?

MS. DAVIS: Pete, this is Tish Davis.

MR. STAFFORD: Hi, Tish.

MS. DAVIS: Public rep for Massachusetts.

MR. STAFFORD: All right. Thank you very much, Tish. That will make us up to 10, so —

MR. HAWKINS: Pete?

MR. STAFFORD: Yes.

MR. HAWKINS: This is Steve Hawkins, State Plan representative.

MR. STAFFORD: All right. Great, Steve. Thank you. So we have a quorum of 11 members now.

Okay. So we'll start back, introductions back on the left.

MR. ROLFSKEN: I'm Bruce Rolfsken with Bloomberg BNA, Occupational Safety and Health reporter.

MR. JUSS: I'm Bruce Juss, Directorate of Construction.

MR. BOLON: Paul Bolon, Directorate of Construction.

MR. PECKHAM: Geoffrey Peckham, Chair of the ANSI Z535 Committee.

MR. PALMER: Craig Palmer, Directorate of Construction.

MR. POCOCK: Chip Pocock, representing Steel Erecters Association of America.

MR. MATUGA: Rob Matuga, National Association of Home Builders.

MR. HARDISON: Dylan Hardison, National Association of Home Builders.

MR. GLABMAN: Scott Glabman, Solicitor's Office.

MR. STEVANUS: Ken Stevanus, with the Directorate of Standards and Guidance.

MR. BELL: Robert Bell with the Directorate of Standards and Guidance.

MR. PRESTON: Vernon Preston, Directorate of Construction.

MR. BRANCH: Garvin Branch, Directorate of Construction.

MR. SALTA: Allen Salta, the Manitowoc Crane Company.

MR. KURTZ: John Kurtz, International Staple, Nail & Tool Association, and Z535 member.

MS. OWEN: Sarah Owen, National Electrical Manufacturers Association.

MR. CAMPER: Erick Camper, Directorate of Construction.

MS. PETITTI: Christine Petitti, Directorate of Technical Support and Emergency Management.

MR. TOMASESKI: Jim Tomaseski, IBEW.

MR. PANNELL: Mike Pannell, Office of Health Enforcement.

MR. MASARICK: John Masarick, Independent Electrical Contractors.

MS. MYERS: Michele Myers Mihelic with American Wind Energy Association.

MR. RIVERA: Jerry Rivera, National Electrical Contractors Association.

MS. CORDARO: Tressi Cordaro with Ogletree Deakins, representing Edison Electric.

MR. KELLY: Chuck Kelly with the Edison Electric Institute.

MR. VINCENT: Jeff Vincent, Operating Engineers, National Training Fund.

MR. WILLIAMS: Chris Williams, Association of Builders and Contractors.

MR. PAYNE: Michael Payne, Directorate of Construction.

MR. COLE: Chris Cole with Inside OSHA.

MR. CHARDIER: George Chartier, OSHA Communications.

MR. MADDUX: Jim Maddux, Directorate of Construction.

MR. BONNEAU: Damon Bonneau, Directorate of Construction.

Mr. Chair, if I may, I just want to inform everybody that we went to make some additional copies of the handout, so we have some more copies of that also, and for public comments, there's a signup roster in the back of the room. If you haven't, you need to sign up for that.

MR. STAFFORD: Okay. Thank you, everyone. Good afternoon.

Ben, do you have any announcements before we get started?

MR. BARE: Oh, I just want to welcome everyone, and thanks for taking your time out of your busy schedule to work with us on this and come to the meeting and participate.

Today, we wanted to discuss a signage issue that is being put together — or responsibility of the Directorate of Standards and Guidance, and we have Ken Stevanus here that's going to talk about that, and I understand it is updating the consensus standard.

And then we also wanted to discuss the cranes and derrick standard a little bit, and what we are proposing is to clean up some typographical errors, some inadvertent omissions to the Final Rule that we passed in August of 2010, and then some ambiguous provisions and get some clarification on that, so that the standard will be more workable.

So, with that, thanks, everybody, for your participation in advance, and I'll turn it back over to Pete.

MR. STAFFORD: All right. Thank you, Ben.

All right. So we are going to deal with two issues. OSHA has sent out to all ACCSH members, a briefing document in preparation for this meeting with respect to the Subpart G, the signage issue. We had a document that essentially laid out the current language, what OSHA is proposing in terms of revising this standard, and with an explanation of recommendations for why they are suggesting those changes, and as Ben said, it is essentially, primarily, as far as I can tell, really updating the standard to include the new ANSI A10 reference, the new ANSI A10 standards on signage. So that's the issue we're taking up first, if Jim is not going to have anything to say.

So I guess, Ken Stevanus, you're on the agenda to kind of give the Committee a briefing on where we stand in the background. Yes, sir, please. Thank you.

Again, let me remind you. If you would like to make a public comment on this particular issue, please sign up. We will get through public comment on this issue before we move to crane and derrick.

So, unless there's any question from the Committee, Ken, please, the floor is yours.

29 CFR 1926 Subpart G—Signs,

Signals, and Barricades

MR. STEVANUS: I feel like I'm defending my thesis here.

I want to say good afternoon. Again, my name is Ken Stevanus from the Directorate of Standards and Guidance in the Office of Engineering safety. I wanted to thank you guys, too, for coming together so quickly to help us with this.

There are other people here who have been working on this project, too. Scott Glabman is here from the Office of the Solicitor, and, of course, Vernon Preston and Paul Bolon back here as well.

As I'm sure most of you are aware, OSHA has been taking on a series of consensus standard updating projects, the latest of which is updating the ANSI signage standards on signs and tags, for both OSHA's general industry and construction standards. Like you mentioned, you guys had received some materials on that.

As in the past with other consensus standard updating, OSHA will be publishing a Direct Final Rule. This Direct Final Rule process determines that a rule was — we do the Direct Final Rule process when we determine that this rulemaking is noncontroversial and will have no economic or compliance burdens to employees.

When we publish the DFR, the Direct Final Rule, we will also publish at the same time the companion Notice of Public Rulemaking. If OSHA does not receive any significant adverse comments to the Direct Final Rule, then the rule becomes effective. I think it's within 30 — or 60 days, I guess, right? Thirty days for comment period.

However, if OSHA does receive any significant adverse comments to the CFR, then the rule — no, I'm sorry — then we will withdraw the DFR and publish the proposal for rulemaking.

[Mr. Stevanus speaks with attendee off mic.]

MR. STEVANUS: Well, he was just informing that the rule will become effective in 90 days if we don't receive any adverse comments.

This all started when NEMA suggested to OSHA that we update its standards or ANSI standards as part of our consensus standard project updating.

MR. STAFFORD: Ken, can just for clarification? What is the acronym for NEMA for those folks that don't know that?

MR. STEVANUS: Oh, I'm sorry. It's the National Electrical and Manufacturers Association.

So, in this consensus standard updating, we are going to be updating the ANSI Z35.1 1968, Specifications for Accident Prevention Signs, to the new ANSI Z535.2, Environmental and Facility Safety Signs. We will be updating the ANSI Z35.2 1968, Specifications for Accident Prevention Tags, to the ANSI Z535.5, Safety Tags and Barricade Tapes for Temporary Hazards; and the ANSI Z53.1 1967, Safety Color Code for Marking Physical Hazards, to the ANSI Z535.1, Safety Colors.

In this rulemaking, OSHA will be allowing employers to follow either the current ANSI consensus standard, currently cited in OSHA's rule, or they will be able to follow the latest ANSI Z535 standards. OSHA has determined that the ANSI — the newest ANSI Z535 series of standards are at least as effective as the ANSI standards now cited in OSHA standards. This will allow employees, if they choose, the ability to purchase and/or use signs and tags needed in newest ANSI standards and not be in violation with OSHA's current standards.

Currently, anyone using signs and tags based on the ANSI standards in our standards, if they're not using — if they're using signs or tags based on the newer ANSI standards, they are in potentially a de minimis violation with OSHA.

In addition, by giving employers the option of which consensus standards to follow, the rule will impose no new compliance burdens or economic cost, so they have the choice.

Now, as you're aware, the one standard in construction that we are updating, besides the ones in general industry, is the 1926.200, Accident Prevention Signs and Tags.

Basically, any provision in this current standard which cites or refers to the older ANSI standards will now cite or refer to the older or new ANSI standard, giving the reader their choice. That's basically in a nutshell all we're doing.

But you will also notice that some of the provisions in the current OSHA standard for construction refer to figures and tables. We will be removing these figures and tables, which were pulled directly from the old ANSI standard, and we will refer the readers to the same figures and tables that are either in the old standard or the new ANSI standard. We didn't want to leave those couple figures in our standard when they only apply to the old version, and then we didn't want to cloud up the whole big rule by putting all the figures and tables from two standards in there. So all we're going to do is just refer you to those.

So, basically, that's all we're doing in a nutshell. We're proposing to update the construction standard by allowing the use of either the current ANSI standard or the newest ANSI standard. We determined that the newest standards are at least as effective as the old standards, that we allow employers to use newer standards without being in a de minimis population, and there will be no additional compliance or economic burdens.

And that's all I have, really, other than answering questions.

MR. STAFFORD: Mr. Preston, have anything to add?

MR. PRESTON: No, I do not.

MR. STAFFORD: Okay.

MR. STEVANUS: I know that was kind of fast and juggled, but —

MR. STAFFORD: So I guess in a nutshell, then you are just updating the standard with the new references. The employer is allowed to use the old or the new with no de minimis findings whether they use the new.

MR. STEVANUS: Right.

MR. STAFFORD: I think in our view, in my view, that's a good thing.

I'm not so — you said — one thing that I think is valuable to employers is to have those signs and tables that would help them understand what these signs look like, that I'm a little but suspect about removing those on the new standards. I don't know if the other Committee has any comments or questions on that, but I guess if they are appropriately referenced enough, it wouldn't be a problem. In other words, I think having that direction there, if someone had to quickly make up a sign that was in compliance on what the design of the sign would look like, seems to me it would be helpful to the industry employers. And I recognize that's probably a paperwork burden, but it's just — and reading the document, that would be the one thing that kind of caught my eye that might be potentially problematic with it, but other than that —

MR. STEVANUS: Well, just in general, I agree that may be a good point, but if you read it, a lot of times we say your sign must me in compliance with the ANSI standard. We don't in that paragraph necessarily say it should be this big, this color, and we are already referring them to the standard itself, anyway.

So, in either case, they'd almost have to go back to the ANSI standard, anyway.

MR. STAFFORD: For that design.

MR. STEVANUS: Or for almost anything to do with it, right.

MR. STAFFORD: Okay, all right.

MR. BETHANCOURT: Mr. Chairman?

MR. STAFFORD: Yes, Steve, go ahead.

MR. BETHANCOURT: This is Jeremy Bethancourt, Mr. Chairman.

MR. STAFFORD: Oh, I'm sorry, Jeremy.

MR. BETHANCOURT: I have to — I would agree with your concern or point that if we're going to remove something, we should put it back in there, so that it aids employers as a reference. Even though we're sending them to go look at the ANSI standard, I would be concerned that that would be construed as a particular burden since, as far as I'm aware, you'd have to purchase that standard, whereas, right now, they can actually just go and see that by reference in the standard, the way I understood it.

MR. STAFFORD: Okay. Thanks, Jeremy.

Any ACCSH members here, any questions or comments for those around the table?

MS. SHORTALL: I have a question for Mr. Stevanus.

After the changes are made to this, will you be putting out any guidance material about the changes in the Final Rule?

MR. STEVANUS: We hadn't discussed that, but if it's something that would be needed, I'm sure that could be easily done.

MS. SHORTALL: Okay.

By any chance, would those guidance materials include the pictures that originally were in the standard?

MR. STEVANUS: I would — not knowing legally, I would imagine the ones that are in there for the old standards, we could do; however, I don't know what the — if we're allowed to just pull stuff out of the current ANSI standards.

MR. STAFFORD: Right.

MR. STEVANUS: So that's the — you know, if you're going to follow the newer version, for us to put those figures or tables in, we would have to have —

MS. SHORTALL: But you could include the old ones. All right.

MR. STEVANUS: I would assume we could keep the old ones since they're already in our standard.

MR. STAFFORD: Okay. Yes, Chuck, please.

MR. STRIBLING: Good afternoon. Chuck Stribling.

A couple questions. The DFRs are going to be 1910 and 1926?

MR. STEVANUS: Yes. It contains both general and construction.

MR. STRIBLING: Okay. And do you happen to know where the 1910 side of the house is on this? Are they ready to roll with the DFR when you guys or are they —

MR. STEVANUS: I don't — is there — I don't know if there is a comparable committee, anyways, so —

MR. STRIBLING: There is.

MR. STEVANUS: I don't —

MS. SHORTALL: There is no requirement to take the general industry side to NACOSH. The only statutory requirement we have is to bring it before ACCSH.

MR. STRIBLING: Okay. And I had one other question. On 1926.200(h)(2), it says for accident prevention signs, employer shall follow specifications that are similar, and it goes into the figures. Why is that specific paragraph "are similar" used? For the others, it's shall, shall, shall, but on this paragraph, it's "are similar."

So it kind of makes me wonder how similar are similar. I don't know that that's — I see what you're saying. You have a choice here and here, but everything else, it talks about "shall." It's our experience when you get into the "are similars" and "shoulds," it's when you get on a slippery slope.

MR. STEVANUS: I don't know. Someone in construction might answer, because that's an initial construction standard that was written eons ago, so that's the language that's been in there. I don't know offhand, myself. I don't know if anybody in the Office of Construction can answer that or not, but that's — you're referring to language that's been in there since day one, I guess.

I mean, I'm sure if you go back and look when they first published it, why they did that, but I don't know offhand. I mean, that's some language we can look at too.

MR. STAFFORD: Kevin, do you have anything?

[No audible response.]

MR. STAFFORD: Walter? Matt?

[No audible response.]

MR. STAFFORD: If we have comments, so I can't see your hands raising. Just for those folks on the phone, anyone else on the phone have any particular comments or suggestions, questions?

MR. BETHANCOURT: I'm sorry, Mr. Chairman. This is Jeremy Bethancourt again. I wasn't able to hear very well. Was there a reply to Sarah's question, I believe, about there being a facts sheet in the future that would incorporate the old?

MR. STAFFORD: No. I think the reply was that OSHA hasn't given that consideration at this point.

MR. BETHANCOURT: Okay.

MR. STEVANUS: But it would be something I would imagine it wouldn't be too hard to do.

MR. STAFFORD: Mm-hmm, right.

MS. SHORTALL: I have a question regarding Mr. Stribling's question about (h)(2). By using the word "similar" in (h)(2), would that give the employer more flexibility in how to comply with that provision?

MR. STEVANUS: I would believe so, yes.

MS. SHORTALL: All right.

MR. STAFFORD: Anyone else on the telephone have any questions or comments?

MR. HAWKINS: This is Steve Hawkins. I don't believe that I do, Mr. Chairman.

MR. STAFFORD: Thanks, Steve.

MR. ERICKSON: Roger Erickson. I'm fine.

MR. STAFFORD: Tom?

MR. MARRERO: This is Tom Marrero. I don't have any questions.

MR. STAFFORD: Okay. Laurie?

MR. PRATT: This is Don Pratt. I'm all set.

MR. STAFFORD: Okay. Laurie or Bill?

[No audible response.]

MR. STAFFORD: Okay. So then I understand, procedurally, then if this Committee recommends — and I'm assuming, Sarah, that we'll have to make some kind of formal recommendation that OSHA proceed, and what we're suggesting is that OSHA proceed with going with the Final Rule and for opening for public comment on this issue. Is that the call for order?

MS. SHORTALL: You can do that right now, or you could to that motion after your public gives comments.

MR. STAFFORD: Okay. Well, why don't we wait for that.

Okay. So, on this issue, is there any comments for anyone signed up to make public comment?

You have to reintroduce yourself again for us, please, for the recorder.

MR. PECKHAM: Good afternoon. My name is Jeffrey Peckham. I am Chair of the ANSI Z535 Committee, which is the committee within ANSI that sets down the principles, principles for the design of safety signs, labels, tags, and colors, and it's these standards that OSHA is looking to reference now and replacing the citations they have for — at least nest to the citations they have for the 1967 and 1968 standards.

I would like to give you some brief understanding of why the ANSI Z535 standards represent the state-of-the-art for safety signage and how they are comparable to and better than the 1967 and 1968 standards.

The first reason why is because they have — within the ANSI Z535 format, you are allowed to have additional panels on the signs themselves, so that if you look at a typical construction area sign, you would have the ability to have graphical symbols, as well as text on the sign, and the ability to have additional information, even in the form of bilingual or multilingual panels. And the current signage formatting that OSHA currently has does not have this opportunity to convey this more substantial information.

The more substantial information is needed from a perspective of over the last 30 years, legal precedent has set down what constitutes an adequate warning and what the duty to warn is, and that combined with human factors research has been what's informed the ANSI Z535 Committee to come up with the definition for the proper content of a safety sign, which includes the description of what the hazard is, how to avoid the hazard, the consequence of interaction with the hazard, and that seriousness level of the hazard. And with the multi-panel approach, that's possible, and a lot of that information can be also conveyed in symbolic form, so that you have the ability to communicate across language barriers and to communicate in a way that people can notice the sign, as well, even if they don't understand or don't read English.

So that combined with the latest research that has to do with a risk assessment perspective on how to define risk as a two-factored approach, a probability and severity, whether the accident will happen, whether it could happen, whether it's serious injury, or whether it's minor injury, these are the factors that the ANSI Z535 Committee has built into the design principals with Z535 and the current OSHA regulations and the signage, they set the standards that they reference — do not. They just hinge on probability, whether it's immediate or whether it's potential.

So these are the design aspects to safety signage that create effective safety signage, and we look forward to working with OSHA, and even I would volunteer our committee's services to help you illustrate a pamphlet that would go a long way to describing the differences between the old and the new.

And NEMA, the Secretariat, and we have the resources to be able to provide you with illustrations, so, with that, maybe that can help fill a gap that you were just looking at.

MR. STAFFORD: Okay. I appreciate that, Mr. Peckham.

Any questions or comments from the Committee members?

Matt.

MR. GILLEN: Yeah. So are there commercial products available, signs that meet the new standard?

MR. PECKHAM: Yes. I think if you look in the sign catalogs of most safety sign manufacturers, there are ANSI Z535-formatted signs there, although the vast majority continue to be the old formats from the Z35 standards from a long time ago, because that's what the public wants. That's what the industry wants at this point.

MR. STAFFORD: Any other questions? Comments?

MR. JONES: I just have a question, and it's directed more to OSHA.

Have you guys given any thought to sunsetting the old ANSI requirements, so that we can move forward with the newer requirements, or is there a cost associated with it and research going into that? Any injury illness data that may support such a move?

MR. STEVANUS: You mea —

MR. JONES: Sunsetting the old ANSI standard in favor of moving forward with the new standard. Have you done any studies on costs associated with that type of change and whether there's any injury, illness, fatality savings as — or — yeah, I guess savings as a result of that change as well?

MR. STEVANUS: No. There's been no studied done to see if there's any improvement.

MR. JONES: Okay.

MR. STEVANUS: Either economic or life-saving, if that's the word you're using, or in proving injuries.

There only thing, we figured there could be a potential cost, because looking up different websites, we'd find signs based on the old standard were cheaper than signs based on the new standard.

MR. STAFFORD: Mr. Peckham, did you have a comment?

MR. PECKHAM: Yes, I have a comment on that.

The Z535 Committee would strongly encourage OSHA to look down the road at just adopting the Z535 approach, so that we do have a national uniform system for hazard recognition, instead of two systems side by side. And we recognize there could be a phased-in approach to achieve that.

From a sign cost perspective, there should be no additional cost to print a Z535 sign compared to an old OSHA sign, given today's technology. They should be side by side in comparison.

MR. STAFFORD: All right. Thank you.

Matt.

MR. GILLEN: Matt Gillen.

So would it be your opinion that the draft preamble, you know, would maybe benefit from having some extra language that might explain the new system, and that it has some differences or advantages, that if people were going to make a decision, that they might move towards that over time, even though from a compliance point of view, they will never be held accountable to that, but just to sort of encourage people and explain some of the advantages?

MR. PECKHAM: Again, we would certainly welcome the opportunity to have some input on that guidance that's given. Yes.

MR. STEVANUS: I just want to jump in.

I don't know exact — I don't remember the exact material we sent to you, but we do have a background section, which does sort of discuss some of that, where it mentions that the newer signs allow for more visual pictures, more —

MR. GILLEN: Could you — it would be good to look at the language that talks about that, that talks about that message.

This is it, right?

MR. STAFFORD: Yeah, that's the document that he's referring to.

MS. DAVIS: Pete, this is a question from Tish.

Have the new ANSI signs been evaluated in the field?

MR. STAFFORD: I guess I will yield to OSHA On that question. Tish is asking if these new signs have in some way been evaluated by the industry in terms of their effectiveness or efficacy.

MR. STEVANUS: Well, OSHA hasn't done any of that. I don't know if anybody — most likely, if anybody has done it, it would have been NEMA.

MR. PECKHAM: This is Jeffrey Peckham.

I can speak to the use of the ANSI Z535 standards, and the formatting here for product safety labeling, the safety labels that go on consumer products, as well as industrial products, and even the equipment that's used on a construction site, and there, we've seen a much more effective reduction in accidents as well as the effective communication of critical safety information and the reduction in lawsuits based on having provided adequate warnings instead of inadequate warnings, as was the case prior to the ANSI Z535.4 standard.

You are looking at the .2 for environments and facilities, but the .4 had to do with product safety labeling, and over the last 20 years, it's had a tremendously positive effect on helping manufacturers of products to adequately warn about residual risks, and we are looking to be able to do the same thing here when it comes to facilities and environments.

MR. STAFFORD: Just before we go back, do you see it on page 3 there?

MR. GILLEN: I see it on page 3. It's pretty neutral, though. I mean, it says things like — you know, for example, on page 4, believes the new signs are at least as protective as the old ones tends to be, the main message as opposed to — it does say that ANSI and NEMA claim that the new signs provide additional information, including specific identity of hazard, description of how serious the hazard is, how to avoid the hazard, probably consequences. I see that.

MR. STEVANUS: Well, this is the background, and this is the stuff we're going to be putting in the docket that we're working from, and that's — you know, that's what we can do.

MR. GILLEN: Okay.

MR. STAFFORD: All right. Thank you.

Tish, was your question adequately answered? Tish?

MS. DAVIS: It was answered. I think, you know, if we have evidence they in fact are better signs, the issue of sunsetting the old signs at some point is something that should be considered.

MR. STEVANUS: I don't think OSHA would never not consider that.

MR. STAFFORD: Right.

MR. STEVANUS: It's just at this point, this is the most effective way of getting this out as soon as possible.

MR. STAFFORD: Well, I'm assuming this is a cost issue —

MR. STEVANUS: Right.

MR. STAFFORD: — also using the old signs, that there's not a burden on employers to have to adopt the new signs, right?

MR. STEVANUS: Yes. Otherwise, it becomes a full rulemaking and will take —

MR. STAFFORD: We understand.

[Laughter.]

MR. STAFFORD: We understand that process.

MR. PECKHAM: This is a very positive first step.

MR. STAFFORD: So any other questions or comments, particularly from the public, because we are getting ready to wrap up on this issue? No other?

[No audible response.]

MR. STAFFORD: Mr. Peckham, thank you very much for your comments.

MR. PECKHAM: Thank you.

MR. STAFFORD: Anybody on the phone have any other questions or comments?

ATTENDEE: I don't.

ATTENDEE: None here.

MR. STAFFORD: Okay.

ATTENDEE: None.

ATTENDEE: Nope.

MR. STAFFORD: All right.

ATTENDEE: I'm good.

MR. STAFFORD: All right. So I think then we are to the point then in terms of making a recommendation, Miss Sarah, and we're going to need a motion from the Committee, and I'm assuming the motion needs to be framed that ACCSH is recommending to OSHA that they proceed with a direct final rule and at the same time come out with an announcement about a public comment period.

I don't know what you're thinking about in terms of if we get this action today and the Committee makes that recommendation, what the timing is in terms of coming out with a Direct Final Rule. Would you have any idea about that?

MR. STEVANUS: I think we have it on our agenda, by the end of next month.

MR. STAFFORD: By the end of the next month, the Direct Final Rule will be out.

MR. STEVANUS: That's the steps, yes.

MR. STAFFORD: Okay. So could I ask either a member on the phone or here at the table if that's the correct motion?

MS. SHORTALL: Can I make sure I've got you down correctly? I have then that ACCSH recommends that OSHA proceed with the Direct Final Rule/Proposed Rule to update Section 1926 Subpart G, Signs, Signals, and Barricades, and request public comment.

MR. STAFFORD: Yes.

ATTENDEE: So moved.

MS. SHORTALL: Oh, okay.

MR. PRATT: Don Pratt, second.

MS. SHORTALL: Okay.

MR. STAFFORD: So we have the motion and a second from who?

MR. PRATT: Don Pratt.

MR. STAFFORD: From Don Pratt.

All those in favor, signify by saying — oh, sorry. Wait. I'm sorry.

MS. SHORTALL: Any other discussion or questions?

MR. STAFFORD: All right. So any other discussion or questions then before we take a vote?

MS. SHORTALL: I would like to ask Mr. Stevanus a question, and that is, are you going to be having an issue section at all in this Direct Final Rule, Proposed Rule, asking specific questions?

MR. STEVANUS: No. We don't have any specific questions. We just say we offer to comment.

MS. SHORTALL: Okay.

MR. STEVANUS: But we don't have specific questions.

MR. STAFFORD: Any other questions or comments?

[No audible response.]

MR. STAFFORD: Okay. A motion has been made and seconded. All those in favor, signify by saying aye.

[Chorus of ayes.]

MS. SHORTALL: Wait. We need to have —

No, no, no, no, no. We need to —

MR. STAFFORD: Take all those back. Hold on one second.

MS. SHORTALL: We have to have a roll call, since we have people on the phone.

MR. STAFFORD: A roll call, all right. So —

MS. SHORTALL: Okay.

MR. STAFFORD: So we just go through and ask how they are voting individually?

MS. SHORTALL: Yes, yes.

MR. STAFFORD: Okay.

So our Solicitor is telling me we need a roll call, because many of you are on the phone. So I'm just going to go through the names, and you're just going to vote individually.

So starting with Jeremy?

MR. BETHANCOURT: Aye.

MR. STAFFORD: Steve?

MR. HAWKINS: Aye.

MR. STAFFORD: Tish?

MS. DAVIS: Aye.

MR. STAFFORD: Tom?

MR. MARRERO: Aye.

MR. STAFFORD: Don?

MR. PRATT: Aye.

MR. STAFFORD: Roger?

MR. ERICKSON: Aye.

MR. STAFFORD: Laurie? Laurie Shadrick, are you with us?

MS. SHADRICK: Yes. I'm sorry. I had it on mute, so it wouldn't have any noise.

MR. STAFFORD: All right.

MS. SHADRICK: Background noise.

MR. STAFFORD: Okay. And around the table, as well?

MS. SHORTALL: Mm-hmm.

Kevin, aye.

Chuck?

MR. STRIBLING: Aye.

MR. JONES: Aye. Walter.

MR. GILLEN: Aye.

MR. STAFFORD: Aye.

MS. SHORTALL: Okay, thank you.

MR. STAFFORD: All right. Thank you. Thank you very much, Mr. Stevanus, for your comments.

MR. STEVANUS: Thank you, guys.

Minor Corrections to 29 CFR 1926
Subpart CC—Cranes and Derricks in Construction

MR. STAFFORD: Our second issue for today is probably a little bit more complicated of an issue, and that is dealing with some minor revisions to the crane and derrick standard.

Again, the OSHA had sent out to the ACCSH prior to the meeting, some briefing material suggesting small revisions to OSHA that they would want us to consider, due to either redundancies or ambiguity in the language. So we'll be having a presentation from Paul Bolon.

Again, I'm going to ask those folks that are interested in commenting to be sure to sign up, and we will be sure that we have plenty of time for all public comments on this issue.

MS. SHORTALL: Mr. Chair, while they are setting up to give their presentation, I would like to mark into the record for this meeting as Exhibit 1, Agenda for today's meeting; as Exhibit 2, the preamble language, Direct Final Rule, updating OSHA standards based national consensus standards, signage; and as Exhibit 3, the proposed change to Subpart G, signs and signals and barricades, and that's Subpart G of 1926.

MR. STAFFORD: Thank you, Sarah.

MR. Bolon, welcome again. Good to see you.

MR. BOLON: Thank you. It's good to be here.

I'm here with Garvin Branch on my left, who is on the staff in DOC and was one of the main staff people that worked on the crane standard, and on my right is Bruce Juss. Bruce also worked — he's also a contractor now but also did a great deal of work on the final crane standard.

When we knew that we were going to have this meeting to go over the signage, we had been working on a proposal to do some of the usual corrections that comes with the final standard. It's very typical when OSHA publishes a final standard that six months to two years later, it publishes a notice that usually is just a technical corrections, correcting grammar, bad references, and things like that, misspellings and things like that.

This time, we had a few larger things to correct, so I think we're calling this "amendment to the final standard," rather than just being a technical correction.

Some of the changes are not just word changes, but are like the new definitions, the forklift issue, and the other voltage. I will walk through all of those, but I just want to let you know this is just kind of a little larger corrections notice than is typical for OSHA, and that's — but we're not — probably not going to do a Direct Final Rule, but just do a normal proposal, have a comment period, and have a Final Rule.

Does everybody have a copy of the red-text table which have the existing text and then the changes?

MR. STAFFORD: Right, I believe so. Yes, that was sent out beforehand to all Committee members.

MS. DAVIS: Yes.

MR. BOLON: Okay.

MR. STAFFORD: Paul, so I understand, the next step would be once we go through this Committee and we take action, then the next step for OSHA would be to what, so that I understand clearly?

MR. BOLON: Public a proposal with these amendments.

MR. STAFFORD: Okay.

MR. BOLON: Fairly normal rulemaking. I mean, we think that these are not really controversial, so we think even though some of them are kind of larger, obviously, than just grammatical fixes, but we were just going to propose and go final.

MR. STAFFORD: Thank you.

MR. BOLON: Looking at the first page, the 1926.600 equipment, we tried to use the word "equipment" for crane throughout the red text, because the standard covers a lot of equipment besides cranes. It obviously covers derricks, but there's also a list of equipment in the scope that's covered, not all of which is called a "crane."

So, on this first page, we're just substituting the word "equipment" for "crane," really. We have actually done that throughout all the rest of the standard, but we missed a few here right at the start.

MR. STAFFORD: So right out of the gate, let me ask you a question. For the first change, you recommended proposed regulatory text. Should it be equipment and load or just equipment?

MR. BOLON: Well, I think when we defined equipment, it included all of the crane — the crane, the boom, the wire, the load, and anything. So, when we use the word "equipment," we mean the whole thing, so it includes load.

MR. STAFFORD: Okay.

MR. BOLON: Then on the second page, again, there's just more substitutions of the word "equipment" for "crane."

And then in the scope section, we had a list of equipment that was excluded from coverage, and in the proposal, we had an unqualified exclusion for forklifts for powered industrial trucks, but then in the final, the agency made a decision — was that since the forklift — we had heard, I guess, from a couple of commenters that cranes — that forklifts could have equipment added onto them, so that they would be configured like a crane, and the agency made a determination to include those modified or changed forklifts under the crane standard.

And so what we wrote is on the left there, and it says the exclusion is the powered industrial trucks, forklifts, except when configured to hoist and lower by means of a winch or hook and horizontally move a suspended load.

So the issue here was a suspended load. It's not a load on the forks. We had said in the preamble pretty clearly that any load on the forks, it's being used in its normal manner as a forklift, and it's not covered in the crane standard.

But if the forklift had a suspended load because it had an attachment like a boom, then it would be covered.

But although our preamble is quite clear that when we said that when a forklift is configured by a crane, we said it used components such as winches, booms, jibs, gantries, and trolleys, but when we wrote it in the red text, we said winch or hook.

When you look just at the plain reading of the words, it means that if you had a forklift and, as is often done, if you had chains or slings wrapped around the forks and a load suspended with a hook, that potentially that would fall under the crane standard, and that wasn't our intent. And we've also had a number of letters on this and inquiries asking us are forklifts carrying around things under the forks attached with hook, do they have to follow the crane standard, and a plain reading of this, you could say yes, that's true.

But that wasn't our intent from what we had written in the preamble, so we're proposing to change it to — the exclusion be powered industrial trucks, forklifts, unless equipped with a boom and hoist. And we think that's much truer to what we wrote in the preamble that a forklift would really be quite modified to have qualities like a crane and should be covered under the standard.

MR. PRATT: Mr. Chairman, should we ask questions now, or do you want to wait?

MR. STAFFORD: No, I think that we should go. Please ask questions. I think that would be helpful.

MR. BOLON: This is the time.

MR. PRATT: Okay. This is Don Pratt.

I really — and I've looked at this in great depth. I really don't see why a forklift is not a forklift is a forklift. I don't understand why when you put an attachment on a forklift, it may have a winch on it, that all of a sudden, the operator is going to be under the crane standard which, as we all know, takes a lot more in-depth knowledge and schooling and certification and so on and so forth.

In residential construction, we use these types of booms quite frequently to set trusses. There is really no need to have an operator have a crane certification when in fact, he's only lifting trusses that he's been doing forever this way and having to have all of the standards for cranes.

So my question is why don't we just exclude forklifts completely from this standard.

MR. BOLON: Well, that's what was proposed, and that was the draft text that came from the Advisory Committee. But we had comments in rulemaking that said — that persuaded us that if forklifts were modified with booms and winches and wire ropes that they begin to take on the characteristics of cranes, and we said we also liken this especially to multipurpose equipment.

And in the rulemaking, we made a determination if they were changed that much, if they had a boom, a hoist or a winch, wire rope, and hook and so forth, that they needed the protections to fall under the crane standard.

MR. PRATT: Well, again, this is Don Pratt. I would object to that. I think that's overkill.

I think the rule under 1926.602(c) covers it very adequately for forklifts. I don't see why we have to have this additional burden.

MR. STAFFORD: Okay. Thank you, Don.

Any other questions or comments from anyone on the phone on this issue?

MR. BOLON: Can I — let me just for —

MR. STAFFORD: Yeah, please, Paul. Go ahead.

MR. BOLON: Make it clear what's going on.

What we're proposing to do is, according to what — the determination the agency made in rulemaking is that we said basically when a forklift is configured like a crane that it will fall under the standards. That was the determination, and then what we actually wrote was something that was much, much broader, because it could just be a hook. We said a winch or a hook. So what we're trying to do now is we're trying — that is what we are trying to correct.

The issue about whether the forklifts, when they are configured like cranes should be covered at all, we're not trying to fix that right here, right now, because that was a determination made in rulemaking, and that's certainly a legitimate comment to make here or to make to the proposal, and we can consider it. But it's not something that's so easily fixed, because it was — again, it was something that we did notice and comment on, we made a determination on, and that's the way it came out.

MR. STAFFORD: Right. Okay. I appreciate that.

So that this language was adopted based on comments you received during the rulemaking process, and you're not changing the intent. You're just trying to clarify what it means with respect to forklifts.

MR. BOLON: Yeah. We're trying to not — we're trying to eliminate any confusion that if you are using a hook under the forks, if you have a sling or chain — and this is fairly common that loads are carried around like that — that you're not under the standard. Only if you add a boom and a hoist, which is a winch, a wire rope, and means of attachment, which is usually a hook.

MR. STAFFORD: Thank you.

Chuck, please.

MR. STRIBLING: Thanks.

One question. Unless equipped with a boom and hoist, so it takes two specific additions to that forklift to be considered under the crane standard?

MR. BOLON: That's right. The "and" is very important, just like the winch or hook caught us because it could just be a hook and suddenly you're a crane, and that wasn't our intent.

MR. BETHANCOURT: Mr. Chairman, this is Jeremy Bethancourt.

MR. STAFFORD: Yeah. Go ahead, Jeremy, and then we'll go back to Chuck.

MR. BETHANCOURT: I think I understand how — with the significance of the "and," like Chuck was saying, that particular part right there, the way I see it and the way that I see cranes utilized quite often with booms, that's not going to be as much of a burden as I can see in my area. I'm not in all areas, but by having the boom and hoist as the requirement, I think that's very restricting where it's actually going to apply, if I'm understanding that correctly, and that's what this is to clarify. Is that right? It has to be very specifically this criteria to be covered under the crane standard and not as ambiguous as the original language.

MR. BOLON: Right.

MR. JUSS: And I'd also like to point out that both "boom" and "hoist" are defined terms in the standard, so it makes it very clear what you have to have to have the exclusion.

Just to remind you, hoist means a mechanical device for lifting and lowering loads by winding a line onto or off a drum. That's the way hoist is defined in the standard.

MR. STAFFORD: Thank you.

Chuck?

MR. BETHANCOURT: That's pretty significant.

MR. STAFFORD: Thank you, Jeremy.

Chuck, did you have something else on this?

MR. STRIBLING: Yeah, I did. I'm sorry. I should have asked earlier if we are taking questions all along, but back on the first proposed regulatory text with regard to equipment, I'm sorry, I just don't remember off the top of my head. Is equipment defined in the subpart?

MR. JUSS: 1926.600 applies to — it's in Subpart O, Motor Vehicles. That's the kind of equipment we're talking about here, not equipment under the crane standard.

The problem was that when the power line section from the crane standard was included in 600, we carried over the terms "crane" and "load," rather than change it at that point to "equipment." But 600 does not apply to cranes. So leaving it at "crane" and "load" would simply be a technical error.

MR. STRIBLING: So, by use of the word "equipment" only in proposed regulatory text, that does or does not include load?

MR. JUSS: Well, I don't know that it makes much sense to talk about load when you're talking about motor vehicles. I guess you could have a load suspended from a backhoe.

MR. BETHANCOURT: Jeremy Bethancourt.

Where it was specifically —

MR. STAFFORD: Hold on a second.

Jeremy? Jeremy? Jeremy, do you hear me? Jeremy?

MR. BETHANCOURT: Yes, sir.

MR. STAFFORD: Start all over, because we had someone talking here at the table.

MR. BETHANCOURT: Oh, I apologize. I did not hear. I apologize.

MR. STAFFORD: Do you want to make a comment?

MR. BETHANCOURT: Yes. I think it's prudent to differentiate "load" and "equipment," because I recall, Mr. Chairman, you had asked that question, as well, and I think it is going to matter where there may be some ambiguity about whether something is equipment or a load if it's not specifically understood by folks when they read the text.

MR. BOLON: Yeah. I'm sorry. I confused people.

This section is —

MS. DAVIS: Pete, this is Tish. I second that, especially in juxtaposition to the change. It seems like they are now eliminating the load, rather than incorporating it.

MR. STAFFORD: Right. Okay, thank you, Tish.

Paul?

MR. BOLON: Actually, Bruce is correcting me. I forgot when we sorted out. This section where these words are being corrected are not actually in the crane subpart. They are actually in the motor vehicle subpart, and you don't normally think of those vehicles having loads like cranes do. So I don't think there's a loss since it doesn't really apply to them of having load there.

MR. STAFFORD: Chuck.

MR. STRIBLING: Mr. Chairman, that's why I made the point, based upon what Mr. Bolon said in his response. I was confused.

Now after this secondary response, I get it now. So I see why the change is made.

MR. STAFFORD: Okay.

MR. BOLON: Do you want to go back? Does anybody have any more comment on the correction to the forklift?

MR. STAFFORD: So what you are suggesting is powered industrial trucks, forklifts, unless equipped with a boom and a hoist.

MR. BOLON: Right.

MR. STAFFORD: That's the clarifying language.

MR. BOLON: Right.

Kevin?

MR. CANNON: And it is on page 4 where it says manipulates the suspended load by using components such as boom or jib. The jib is included in that, as well, or — because as I understand it, there could be times where there may be a jib attached, but with a static line, nothing that runs on a drum or —

MR. BOLON: Yeah. We actually have a letter that's right on this, and apparently, there are forklifts.

I mean, somebody sent a letter in, it's an extended forklift. It actually — I believe it kept the forks on. There is a boom attached, but there's no hoist, and they use it to set trusses. To me, that would go right up to the line, but since it doesn't have a hoist, it wouldn't be — it wouldn't fall under the equipment covered by the crane standard.

MR. STAFFORD: I think that gets at the issue Don raised, as well.

Okay. Any more on that?

[No audible response.]

MR. STAFFORD: All right, Paul.

MR. BOLON: The next page, we're on exclusions still, (c)(17), and our changes here are just to clarify what the exclusions apply to and what they don't. It's really an editorial. Like you have (iii). It's making clear the exclusion in (c)(17)(ii) does not apply. So it's trying to get rid of the confusion.

And then down at the bottom on (d), it's again to point out that the activity is not specifically excluded under c)(17)(ii). So these are really editorial, only editorial in nature, to emphasize what is excluded and what's not.

The next page is 1401, Definitions. When we wrote the final standard, we said we were going to include several, a number of definitions, and the four definitions on this page were omitted inadvertently. So we are proposing to add them now, and they are definitions for digger derrick, duty cycle, positioning device system, and repetitive lifts.

Do you think I need to read the definition, Pete, and go through it?

MR. STAFFORD: No, I don't think so. I think the Committee has had a chance to look at it. It looks pretty straightforward, I believe.

MR. BOLON: Okay.

MR. STAFFORD: Unless anybody — no, I don't think so, Paul.

MR. BOLON: Okay.

The next thing we're correcting is we use two different phrases interchangeably in the standard. One is — and this relates to power line processes. We used either "minimum approach distance" or "minimum clearance distance," but we kind of changed back and forth through the standard, and we got some letters and calls on it that was causing some confusion.

So what we're doing here in 1401, Definitions, and then the next page, 1407, is to only use the "minimum clearance distance" and get rid of the "minimum approach distance" phrase, because they mean the same thing, and they were causing confusion.

The next provision we are proposing to change is under 1408, Power Line Safety, and this has to do with when you define a work zone. There are two ways to define a work zone. You can either identify the maximum operating radius of the crane, or you can demarcate the work zone. You can demarcate the boundaries to ensure that the crane operation doesn't exceed the boundaries.

And the change we are proposing here is just to insert that second way of determining the work zone, because we had only mentioned — if you look at top of page 4, it's the 1408 provision. You could read it and forget that the second way of defining the work zone was also possible.

So we inserted the parenthetical "or if a demarcated boundary is used, the determination must be made with the assumption that the crane would be operated up to that boundary." So just by inserting this at the top in two places, we are just making it clear what you can do to fulfill the provision and not leaving the suggestion that you're only working at the maximum radius of the crane. So we think those are really just editorial.

And then on the same page, we also had a couple of corrections again to the "minimum approach distance," replacing it with the "minimum clearance distance."

And on the next page, still substituting "minimum clearance distance" for the "minimum approach distance."

And on to — again, it's still in 1408, Power Line Safety. We had had a couple of letters asking about whether the voltages, the high voltages that are in two of our tables applied both to alternating current and direct current, and I don't believe this was really a topic that came up in rulemaking, but it was our intent for them to apply it to either kind of voltage.

So in order to make this apply to both alternating current and direct current, if you see under 1408, Table A, we are just dropping the alternating current, so that it will apply the voltage to whatever type of current you have in the lines.

Then the next highlighted things, again, are replacing "minimum approach distance" with "minimum clearance distance," and then in 1411, the Table T is the same change on the type of current. We are just dropping the words "alternating current" in the title of the table, so that the voltage will apply both to direct current and alternating current.

And then the top of the next page, we're in 1412, Inspections, and then where it says on the existing text, it says "must apply," and on the right, we're proposing to drop the "must."

I think when the final reg text was done, there was a substitution of "must" for "shall," and occasionally, it led to some inadvertent insertions of "must." So the next several pages have a number of these where we are taking about "must" and replacing it with "may," and that's what that change is up there. Instead of saying "must apply," we just say "applies," because it reads more clearly.

The next revision again is under 1412, Inspections. We're just adding a couple of titles to the provisions. Under 1412(j), we are just inserting the title "manufacturer's recommended inspections," because that's the subject of this subparagraph, and then the same on paragraph (k), we're just putting a title in, "availability of inspection documents," so it will be easier to understand what is in the provision.

Then on to the next page at the top, we have a "must not apply" in the current text, and it reads much better to say that it "does not apply," and the next box down, the wire rope, we say the ropes "must be used only" instead of we — our intent was to say the rope "may be used only." So it's again to really — to us, it's editorial.

Also in the box below that, under 1416, Operational Aids, we just left out the word "and," so we're proposing to insert that there.

The next page, under 1417, again, we are revising the word "must" to "may," to make our intent clearer and make it more readable.

The next one, we're correcting an error under "fall protection. Where we said in the final "either body belts or body harnesses must be used in a personal fall arrest system and fall restraint system," it's been a longtime OSHA policy that only harnesses can be used in personal fall arrest system and not body belts. So we're correcting that to say either body belts or body harnesses must be used in personal fall restraint systems, and body harnesses must be used in personal fall arrest systems.

The next change under 1423 again is fixing a "must be anchored" to "may be anchored," same change lower in that paragraph, systems "must be anchored" or "may be anchored," and the next several are also editorially fixing, replacing the word "must" with "may."

MR. STAFFORD: So, Paul, if I may, on this 1926, 1423(g)(2)(i)-(ii), what is "must" being replaced by "may accomplish" on that? I'm a little bit confused by that.

MR. BOLON: On which one? 1423?

MR. STAFFORD: (g)(2)(i). So that your explanation for the amendment is could be misinterpreted to mean that the systems and the standard are not required to be anchored to the equipment if a competent person concludes that the criteria is not met. I'm not sure what you're accomplishing there with that change.

MR. JUSS: The way it's written now with "must," that would be the only place you could anchor a personal fall arrest system to. By putting in "may," you are giving the employer somewhat more flexibility. If there is a part of the building, for instance, where they could anchor it to, then saying "may" rather than "must" would give them that flexibility.

MR. STAFFORD: So, in this language, it may be just because I'm not understanding. You're saying — does the competent person have to verify that that's a viable anchorage point? Because I am not seeing what a competent person — what the connection here with a competent person is.

MR. JUSS: Well, under the current version, using the word "must," the competent person doesn't come in until you have already anchored the system. In other words, you must anchor it to the equipment, and then if the competent person determines that that wouldn't be adequate, then you don't have any option.

By saying "may," if the competent person determines that anchoring it to the equipment is not adequate, then you still have the option of devising some other form of anchor.

MR. STAFFORD: Okay.

MR. BOLON: It's just that "must" just doesn't work there.

MS. DAVIS: But I certainly see that "may" doesn't work there, either. The sentence is awkward.

MR. JONES: That is probably not the only other place —

MR. STAFFORD: Go ahead, Walter.

MR. JONES: Walter Jones.

That doesn't seem like that's the only place where "must" and "may" aren't as easily interchangeable as we may like. Like the next box on 1425 jumps out to me, as well.

Has OSHA done this in the past, went from "must" to "may," and is that common or uncommon?

MR. JUSS: Traditionally, what OSHA used is a "shall."

MR. JONES: Yeah, I know. That's why I'm —

MR. JUSS: The proposal used "shall" everyplace now where "must" appears.

In a lot of place, it said the employer "must" — or the employer "shall" do this, and the decision was made to say that it's clear to say the employer "must" do this rather than the employer "shall."

MR. JONES: Yeah, I agree with that.

MR. JUSS: But unfortunately, in doing that, every place where "shall" appeared, even when it didn't say the employer "shall," "must" was put in place of "shall," and that gave rise to a lot of places where "must" just didn't work. Grammatically, it was not the right word to use, and that's what we're trying to correct.

MR. BOLON: We don't think we're relaxing the requirements, unless you are reading it that way that in fact we are.

MR. JONES: Well, that's my reading of it. I'm just saying it may not be our fault, but I don't know.

Like no employee may be directly under a load versus no employee must be. Yeah, I don't know.

MR. BOLON: Yeah. "Must" isn't very good, but maybe we can do something better.

MR. BETHANCOURT: The word "should" probably would work better.

MR. JONES: "Should" would be excellent, yeah.

MR. STAFFORD: Who was that, Jeremy?

MR. BETHANCOURT: Yeah, this is Jeremy.

MR. STAFFORD: All right. Remember, if you're on the phone, if you want to make a comment, please announce yourself for the recorders.

MR. JUSS: "Should" traditionally is understood to be advisory rather than mandatory, so it's just a word that we don't like to use.

MR. GILLEN: That's the question, I think. Are you saying that it's a requirement or an advisory thing? Because it used to be people used either "shall" or "should," and it seems like there's the same relationship with "must" and "may." SO it sounds like you're saying these things are advisory. So you're saying that it's advisory that no employee should be under the load versus a requirement that no employee be under their load. It needs to be — so are you saying there is a requirement or an advisory for that?

MR. JUSS: No, it's a requirement.

MR. GILLEN: Okay. So then if it's a requirement, is "may" the best term to make that clear, or is there another term?

MR. BOLON: It sounds like in a few of these that "shall" would be more direct.

MR. STAFFORD: It seems like it. I think it is a definitional thing. If you look at it, as Kevin just said, when you say you must, you must, and you may, that's kind of a voluntary kind of thing.

MR. GILLEN: Right. It breaks down.

MR. BOLON: We hear you.

MS. DAVIS: This is Tish, Pete.

MR. STAFFORD: Yes, Tish.

MS. DAVIS: I think the issue is that in some places, it works and does clarify things, but in other places, it doesn't work. They each need to be considered.

MR. STAFFORD: Separately, right. Okay, Tish. Thank you. We're getting a nod of heads, so I think there's agreement on that. Thank you, Tish.

MR. BOLON: That is something we will relook at. I don't think you want to go sentence by sentence here.

MR. STAFFORD: Right.

MR. BOLON: So getting past the "must" and "may," we get to 1433, Design. We just had a typo there. We had a reference to 1414(c)(4), and it should have been (e)(4).

The next one is another "must" and "may," and then on to 1437, Floating Cranes, again, their editorial, "must not exceed" versus "does not exceed," "does not exceed" versus "must not exceed." We will look at those again in light of what we just said here.

The last one is a correction to the hand signals. Simply where we had said that — we had said the direction of rotation was away from the body, and it should have been the opposite. It should have been towards the body, so that's just fixing a mistake we made, and that's the last one.

MR. STAFFORD: Okay. Thank you, Paul.

Any questions or comments from Committee?

Kevin.

MR. CANNON: Just what is the time frame? I know the last group said end of next month. What are you guys looking at?

MR. BOLON: Well, if we get a recommendation from you guys, we have a draft proposal, and, boy, I mean, we're not — I mean, we'll put it into clearance probably within a month. After that, it's hard for us to give a time table on how long the clearance process — I can tell you, we're pretty much finished writing the Federal Register Notice, so we're pretty close. We're ready to go.

MR. CANNON: Then the comment period would be?

MR. BOLON: It is usually 30 days, I would think. I don't — for things that are not largely, usually controversial.

MR. CANNON: Right.

MR. BOLON: But do you have anything to say, Sarah?

MS. SHORTALL: I think most of the time, we've allowed 60 days on it.

MR. BOLON: Okay. Yep.

MR. CANNON: So is that 60?

MR. STAFFORD: Yeah.

MR. BOLON: Are you saying we should do 60 days? Okay.

MR. STAFFORD: Yes, Chuck. Please.

MR. STRIBLING: I'm sorry. I had a question I feel asleep on earlier back under definitions. For digger derrick, the one thing I noticed in that definition is it does not say "vehicle mounted." I know that ANSI doesn't specifically define digger derrick, but in the scope of the ANSI, it refers to multipurpose vehicle-mounted equipment. Was that intentional on the agency's part not to mention vehicle mounted?

MR. BRANCH: I don't even think we considered it. We're just taking the definition verbatim.

MR. STAFFORD: Marvin, can you speak into the microphone, please?

MR. BRANCH: I said I don't think that this was even considered as far as whether it would be limited to vehicle mounted. It's something maybe we should take a look at.

MR. STRIBLING: Yeah. I think that's a pretty huge distinction between the ANSI and the agency standard when the national consensus standards specifically in their scope refers to vehicle mounted and the agency standard doesn't. I'm not saying it should or shouldn't. I'm just saying maybe it needs consideration.

MR. BOLON: Okay. I mean, we did think that what a digger derrick is, is pretty well known, so we're not trying to do a lot with the definition.

MR. STAFFORD: So just for timing, I know one of the issues that OSHA is dealing with now, and this has a series of stakeholders meetings coming up with the issue of training by type and capacity in the certification, as you open this rule up, is that going to be — how does that relate to that issue right now in terms of revising the rule to address that issue?

MR. BOLON: Well, we think that these changes are largely not controversial, and, I mean, I'm not anticipating having any hearings, for example. We'll have a comment period. We don't think that these are so involved or so difficult that we can't just go to final.

The type and capacity issues for crane operator certification, that's a big issue, and like you just mentioned, we're having stakeholder meetings on the 2nd and 3rd here, and we're not sure we're going to collect information about where things are at and what we might do.

We don't have any plan right now. It depends on what we learn from the stakeholder meetings. It's not clear exactly which way we're going forward on that, but it's separate from this.

Type and capacity, if we had to do something, that would be a big deal.

MR. STAFFORD: Right. No, I understand that.

Chuck, please.

MR. STRIBLING: Along the same line, as well, the Direct Final Rule on the digger derrick exemption was withdrawn, if I understand correctly, due to adverse comment?

MR. BOLON: We got an adverse comment on the Direct Final Rule, and we're proceeding with the Final Rule.

MR. STRIBLING: So this would be separate than that?

MR. BOLON: Yes. That's already in clearance, so...

MR. STAFFORD: Okay. Any public comments? Anyone sign up to comment on the issue?

Yeah, please. Come on up.

MR. POCOCK: Thank you, Mr. Chairman.

MR. STAFFORD: You're welcome.

MR. POCOCK: Chip Pocock with the Steel Erectors Association of America.

MS. SHORTALL: Could you spell your name please?

MR. POCOCK: P-o-c-o-c-k, first name, Chip.

I just had a couple brief comments on a couple things. Definitions. Definitions, one, the difference between duty cycle and repetitive lifting. I'm curious as to why we need both in the standard and as far as definitions go.

MR. STAFFORD: Where is that? I'm sorry. What section?

MR. POCOCK: It's on page 7, Pete. The definition of duty cycle is there, and then further on, on page 9, the definition of repetitive lifting.

MR. STAFFORD: So you were saying one or the other?

MR. POCOCK: I think the crane industry understands duty cycle work. It's spelled out in a lot of the load charts, and people understand what it means.

By defining it in the way we have here, there's an assumption made because of — that there's a rapid transfer of a load of bulk material from one point to another, there's really no difference in that and a repetitive lift, although — well, both may be picking various weights and loads and doing it rapidly, but the industry understands duty cycle. We just don't — repetitive lifts isn't something that the crane industry really understands. Just an overall comment.

MR. STAFFORD: Okay.

MR. POCOCK: I would agree, I think, with Dan. One of the issues that I think our association has with the telehandler, with the forklift exclusion — I commend the agency for going 90 percent of the way to correct an error. The original C-DAC Committee did not have, did not — never intended for telehandlers or forklifts to be covered by the standard.

There is reference in this doc to multipurpose machines. The intent was — there's at least two manufacturers. I know Manitou and Terex at the time — I'm not even sure whether Terex still manufacturers one, but it is a telehandler that physically rotates. It is equipped from the factory with forklifts, but yet it has a number of different attachments. It has out-riggers, and it has an extendable boom.

What makes it different from your standard telehandler is that the upper section actually rotates on the chassis or the car body.

Those machines, the intent of the Committee, I think, was for those rotating telehandlers, because they are — they have all the characteristics of a crane that they should have been covered by the standard. However, your standard telehandler, 6,000-, 8,000-, 10,000 pound, Lulls, JLGs, with a hook, with a boom, whatever, are not covered, because they're covered by another standard.

So I think you — you're going 90 percent of the way. I think what's going to confuse the industry is to continue to include the word "boom," even though it's "boom" and "winch."

MR. BOLON: And "hoist."

MR. POCOCK: Or "hoist," yeah.

MR. BOLON: So you're saying it would be clearer if it's not excluded if it has a hoist"?

MR. POCOCK: Yes. I mean, I think I'd have to look at the text, but I think what has confused people now, many of the manufacturers — and then there's this aftermarket where you can take a standard telehandler and put a boom on it, and I'd say all, 99 percent of them, come from the factory with a hook.

What we recommended to our membership is, based under the current guidance that OSHA has provided, to simply take the hook off and replace it with a shackle.

MR. BOLON: Yeah. It never made sense just to have the hook there just for the means of attachment.

MR. POCOCK: It's semantics, and I guess I was part of the problem, because I sat on the C-DAT Committee, but here we are almost 10 years later, and we're still trying to clean this thing up. I just think that the industry needs to understand. We need to get rid of covering forklifts, unless they are rotating telehandlers, and then I think it was the intent of the committee that they be covered. So however we can do that in the language to make it clear to everybody out there, the controlling contractors, is where you get into trouble with our membership and I'm sure Kevin's membership and everybody else's. There's some confusion out there, and we certainly don't want to get all these people having to go through the CCO process.

Those are the crux of my — I think this goes a long ways to clean some of the things up in the standard.

MR. STAFFORD: Appreciate that, Chip.

Any questions or comments for Chip?

MR. POCOCK: Oh, I did have one other thing, Pete. I'm sorry.

Walter, to your point, some of the "must" and "mays," this standard, because it was negotiated, especially the one on fall protection, I think it's 1423(g)(2)(ii), the intent there is if you have a guy using fall protection on a crane, there's rotational hazards. The drums are turning on other rotational equipment.

So if a competent person deems that you can't tie off here, you can tie off somewhere else, so that the employee isn't exposed to tying off on rotational equipment to get sucked into a drum or something, so that's kind of the give-and-take.

MR. STAFFORD: Okay, thanks. Thanks for your comments, Chip. I appreciate it.

Another? Yes, please.

MS. CORDARO: I'm Tressi Cordaro. I'm with Ogletree Deacon, representing the Edison Electric Institute.

I just wanted to make a couple comments regarding the definition of digger derrick. I think as an opening comment, I kind of want to point out that the documents weren't made public in the ACCSH dockets, despite a request, a timely request from a public commenter that the documents be made public, so that we could figure out what definitions were being proposed. So, therefore, we just got these proposed definitions late Friday evening, have not had a chance to fully assess the impact of some of these definitions, specifically related to digger derricks, the definition of digger derricks, which is our biggest concern.

So we haven't had a chance to assess our membership to find out the impacts of the definition on EEI's members. So that's the first point.

The second point is, as we read it, the definition —

MR. STAFFORD: A little bit of dig, huh?

[Laughter.]

MR. CORADRO: Well, with all due respect, it was requested to be made public, so we just can't give you guys any information on the impact. We can speculate, but we can't give you enough information.

The second point I want to make is that the definition that is being proposed is unclear. Initially, I thought it was unclear as to what the word "equipped" was, because it can be read in different manners, but based off the earlier discussion when we talked about — Chuck mentioned equipped, the definition for forklift, boom and hoist. The intent from the agency is that equipped means that the auger is actually on the digger derrick, correct?

MR. BOLON: Uh-huh.

MS. CORDARO: Okay.

So there are instances where a digger derrick may not have — it may have the rotating motor, the auger shaft on, but it may not have the auger drill on, and it may have a Kelly bar on. And it may be used to set up pad mount transformer for Subpart B work.

So I guess my point is if the agency's intention is that it's equipped with just an auger, you are substantively changing the exclusion that's in the current standard now and what would possibly be the exclusion based on the Final Rule that would come out, based on the settlement agreement with Edison Electric. And that issue is a separate issue that we would raise with the agency.

The ANSI definition, this is a point you had raised — the ANSI definition refers to "designed to accommodate components." I think we would —

MR. BOLON: Could you repeat that?

MS. CORDARO: The ANSI definition refers to "designed to accommodate components." In the ANSI, it's ANSI A10.31, I believe. That would be more an appropriate definition in our opinion; however, again, we have not had a chance to fully assess our membership and the impact and poll. Jim Tomaseski may get into a little more specifics.

MR. STAFFORD: So I can — I'm sorry. So I understand, you're saying if we move forward and adopt these revised definitions, that it will change the exclusion for digger derricks. Is that how I am understanding?

MS. CORDARO: Absolutely.

MR. STAFFORD: Okay.

MS. CORDARO: The scope of the standard itself is quite broad. The definition for digger derricks is only applicable to the exclusion. Do you see what I'm saying? So the definition itself applies really only to the exclusion. So it's narrowing the exclusion to a digger derrick with an auger attacked, and a digger derrick can be used —

MR. BOLON: But you don't have any specific language which would leave a better description?

MS. CORDARO: I think the ANSI A10 language would be — again, that would be — over the ANSI definition and over your proposed definition, ANSI absolutely. But I just — again, we haven't had a chance to assess this with our members to find out if there's a more appropriate — or whether the ANSI definition would have some impact, as well. But if a recommendation were to be made, our opinion would be the ANSI definition.

MR. BOLON: Well, in the Final, we promise to offer a definition. This is our draft language, so —

MS. CORDARO: Well, but that draft language wasn't in the Final Rule itself. So not only was there not a proposed definition in the Proposed Rule, there was not a definition even in the discussion. Although you said you were going to add a definition, there was no definition in 14(c)(2).

MR. BOLON: No, there wasn't. We promised one, and we're trying to provide one, so...

MS. CORDARO: No, my point is it's not like you inadvertently omitted a definition that you discussed in the discussion section. The definition wasn't even included in that.

MR. BOLON: Right.

MS. CORDARO: So our opinion is obviously it's going to limit the exclusion.

MR. BOLON: Gotcha.

MS. CORDARO: Right.

And I guess a few points as to why we believe it's non-substantive. I think you hit on — well, first of all, it wasn't proposed in the Notice of Proposed Rulemaking, the Final Rule. It wasn't discussed at all, and then, again, for us, based on what we believe to be the Final Rule that may potentially be issued, EEI members could go in and out of — which is the very thing we tried to avoid doing with the settlement agreement with OSHA to begin with.

If this definition were to move forward, we could go in and out. Our members could have digger derricks going in and out of coverage within the same day. If the auger is left off and taken off to add the Kelly bar and they move a pad mount transformer, well, then they're covered. You put the auger back on to move the same pad mount transformer, and they're excluded. Does that make sense?

MR. BOLON: Yes.

MS. CORDARO: Okay. And then I guess another point — this is more to Sarah — there is no explanation for the deviation from an ANSI standard, if the agency were to deviate from ANSI under Section 6 of the Act.

MS. SHORTALL: I guess I don't know what description of that there is in the proposal. The deviation language may be such, there is no — other than language, there is no real difference in the effect of the standard or effectiveness of the standard.

If it is the latter, then the need for the explanation would not necessarily be required.

MS. CORDARO: Okay. Well, our opinion would be that there would be a substantial — I mean, we have also pointed out vehicle mounted versus not vehicle mounted, so there would be a substantial deviation from the ANSI standard, in our opinion. That would require an explanation from the agency.

MR. BOLON: So do you think there is an advantage in having a definition at all?

MS. CORDARO: You know, honestly, I can't answer that immediately. I don't know if Jim can weigh in on that. I don't know if Chuck has some initial thoughts, but without polling our members and kind of discussing this — again, this was like six o'clock on Friday, and so we're all kind of, you know, rushing this morning and late Friday night to kind of give you some information back, to give you some feedback from our members. I couldn't tell you.

MR. STAFFORD: Chuck?

MR. STRIBLING: Yeah. Where you were talking about deviation, I'm kind of scratching my head, and it sort of leads to the question Mr. Bolon asked.

When I read the ANSI standard, digger derrick is not defined.

MS. CORDARO: That's correct.

MR. STRIBLING: There are definitions for digger and there are definitions for derricks, center of gravity, la-dee, la-dee-dah, but there is no definition for digger derrick.

MS. CORDARO: There's a scope coverage which —

MR. STRIBLING: Correct.

MS. CORDARO: Right. Explains what the scope of the ANSI standard applies to.

MR. STRIBLING: Right. So maybe that's an answer to your question. I'm not saying it shouldn't be defined, but it kind of makes me wonder if the national consensus standard doesn't define it, why didn't they? I wasn't on that committee. I can't answer that question.

MR. STAFFORD: I don't think any of us were, actually.

Paul?

MR. JUSS: They didn't define it, but they have lots of pictures showing what they intended, and they all have augers on them.

MS. CORDARO: And that's fine, but again, i that's the definition that's being proposed, we believe it's a substantive change that doesn't warrant technical amendment. It warrants a Proposed Rule, which is what I guess I hear the agency intends to do, but in addition, it substantively impacts the settlement agreement that was reached with Edison Electric regarding the exclusion of digger derricks in relation to Subpart B work.

MR. JUSS: But that settlement agreement didn't have a definition.

MS. CORDARO: Right, because the agency hadn't proposed one, originally.

MR. BOLON: Well, but it was a settlement agreement.

MS. CORDARO: Wait. We settled on the language as it existed at the time, which would substantively change that settlement agreement. You would narrow the exclusion even further than what was agreed upon, but that would be an issue that we would take with the agency. That's not an ACCSH issue.

MR. BOLON: Do you find —

MS. CORDARO: Other than that's the definition of digger derricks —

MS. SHORTALL: Mr. Chair? Mr. Chair? We have another representative here from the Solicitor's Office who worked on the Proposed Rule, as well as the challenges to it. It might be helpful if he came up to give some clarification.

MR. STAFFORD: Who is that?

MS. SHORTALL: Mr. Euell, Richard Euell.

MR. EUELL: Richard Euell.

With respect to the settlement agreement, OSHA entered into a settlement agreement with EEI and agreed to propose a rule, and we did do that.

I think what Ms. Cordaro is talking about is that the digger derrick exemption is an exemption that would apply to digger derricks. So any definition that is applied would affect the scope of that definition.

MS. CORDARO: Right.

MR. EUELL: Whether or not it gets changed to what was agreed to as part of the settlement, I don't think is really the issue.

MS. CORDARO: That's right.

MR. EUELL: That was all I was going to say.

MR. BOLON: Let me say we were not trying to affect the settlement agreement with our definition.

MS. CORDARO: I recognize that, but —

MR. BOLON: We merely said we were going to provide these definitions, and that's what we are trying to do.

MR. STAFFORD: So, as I understand it, then by adopting these definitions, then we are. This does impact what you agreed to in the settlement agreement, right?

MR. EUELL: What we agreed to in the settlement agreement was to propose the rule we proposed.

[Laughter.]

MR. EUELL: But I think it would be unfair to say that it wouldn't have any effect in the real world if you defined digger derrick differently than what — if we made a substantive change that would affect the scope of digger derricks, but the digger derrick definition was not part of the settlement.

I think everybody — the point of the settlement was to get to exempting activities that went beyond, including listing transformers onto the ground.

So I think what Ms. Cordaro is saying that if you have an auger that is not attached at the time and you are using the equipment to lift something onto the ground, that that would change the way potentially that the exemption could function.

MR. STAFFORD: Okay. I understand that. I'm just trying to understand if we take action today, that OSHA proceeded and it impacts the settlement agreement, what does that mean? For those of us that are in the dark, like me, I don't really know much about the settlement agreement, other than there is a settlement agreement.

MR. EUELL: Just to be clear, the settlement agreement was that OSHA would issue a rule, a Proposed Rule, and it has done that, and the settlement agreement has been fulfilled. The case has been dismissed. So you are not going to affect a settlement agreement per se in the legal sense.

MS. CORDARO: Well, I mean, to some extent, I would maybe disagree with that, because I would argue if — and in part, I think our recommendation would be that ACCSH hold off on this particular issue, and maybe the agency can reopen the ACCSH record for additional comments.

But I guess my point with what you just said is that, to some extent, we may argue, go back in and argue that the agency didn't settle in good faith. I mean, again, that's an issue that we would take internally.

MS. SHORTALL: I think we're here for the purpose of discussing the Proposed Rule and not here for the purpose of bringing up issues that should have and could have been brought up during the settlement agreement, and I think we should be concentrating here on the Proposed Rule.

Ms. Cordaro, I would suggest that some of the issues you have already raised are things that the agency might very well have concluded, should have been brought up during the original challenge to the rule, and would not be germane to this Proposed Rule.

So I think that needs to be added into the mix to understand how the agency might proceed on these proposed amendments of corrections.

MR. STAFFORD: All right. Thank you, Sarah.

Again, Paul, I am not sure where this leaves us. It seems like we have some cleaning up to do. I mean, if Chip would say that — you know, on these what look like on appearances look like minor things that were pretty easy to do and if we're 90 percent there, what do we need to do to get to 100 percent there, to make sure there is no confusion or ambiguity before we take action on proceeding.

MR. BOLON: Well, I think I will ask counsel. I will ask Sarah.

I mean, we bring proposals to you to get your recommendations.

MS. SHORTALL: We've specifically asked you to make a recommendation today about this Proposed Rule. Your recommendation might be to proceed with it. It might be to not proceed with it. It might be to do something else, but today, what is asked for this body, to make a recommendation to the agency.

MR. BOLON: Okay. Well, I appreciate —

MS. SHORTALL: This is also on the record. So, certainly, the agency will be able to view the transcripts of any public comments that have been made during their entire rulemaking, and this record here will be part of the record as a whole that the agency will use to make any final decisions on its proposed amendments and correction.

MR. BOLON: I think maybe the question that I am interested in is, does any recommendation, is it a commitment to every word and letter as specified here, or is it a little bit broader than that? Because we talked about fixing some of the editorial things like on the "may," "must," "shall" thing and —

MS. SHORTALL: Well, I think the agency is going to have to make a decision about how it will receive ACCSH's recommendations, remembering that the only statutory duty OSHA has is to come here and ask for recommendations and make sure that we have allowed a chance for ACCSH to give the recommendations, plus additional comments, and that you must consider them and answer those in the Proposed Rule and in the Final Rule. There is no commitment by the agency to adopt anything. There is no requirement.

MR. STAFFORD: All right. Thank you, Sarah.

Chuck, do you want to comment?

MR. STRIBLING: Yeah. Sarah sort of hit on what I was going to say. I mean, we make recommendations. It's up to the agency if they want to follow those recommendations or not or tell us to go fly a kite.

Now, personally — I mean, this will be a Proposed Rule, and it will go out there for comment. I bet people are going to comment, you know, depending upon the definition or lack of definition for digger derrick or how that's going to be examined. I suspect some state plans may comment.

It's also important to remember that that settlement agreement does not necessarily apply in half the nation-plus, in the 27 state plans. They are not mandated to abide by that settlement agreement. I'm not saying they do, not saying they don't, but it doesn't really address the issue on a truly national perspective, but that's beyond — I'm sorry. I didn't mean to get off on that.

So I don't have a problem with a recommendation to the agency if we looked at this, saying, you know, we recommend it and maybe OSHA review the "may" and the "must" and the "shall" and the "shoulds," and maybe take a second look at the digger derrick. And what they proposed is what they propose, and then we have a second shot to comment, and they will have to address that comment before they issue the rule.

I think it's healthy to get it out there, to get a comment, so that the issue maybe could be settled in a broader perspective than just a settlement agreement that's really nonbinding in over half the nation.

MR. STAFFORD: I appreciate that, Chuck.

Any questions or comments from anyone on the phone?

MS. SHORTALL: I want to add one point of clarification here, and that is under the Construction Safety Act in OSHA's own regulations, we are required to get ACCSH's recommendations, present a Proposed Rule, and get their comments and recommendations.

The issue of public comment is not an issue that goes directly to this particular issue of getting your recommendations. It is a separate requirement under FACA, the Federal Advisory Committee Act, that says for all Federal Advisory Committee meetings, you must allow people a chance to submit comments, and if there are no prohibitions against doing so, allow them also to come and speak before the Committee.

So we're doing that for a separate requirement, and it doesn't — it happens to be dovetailing onto the Proposed Rule but is not required by the statutory requirement to get your recommendations on a proposed rule.

MR. STAFFORD: Thank you, Sarah.

Jim Tomaseski or anyone else have a public comment?

Jim, come on up, please.

Thank you, Ms. Cordaro.

MS. CORDARO: Thank you.

MR. TOMASESKI: Thank you. I am going to open this can of worms again on this digger derrick exclusion, okay?

MS. SHORTALL: Would you please give your name, and please spell your last name?

MR. TOMASESKI: Oh, sorry. Jim Tomaseski. Last name is spelled

T-o-m-a-s-e-s-k-i.

Just to try to clarify something on this, on the digger derrick, there's a lot of different scenarios of when you would temporarily remove the bit from a digger derrick truck. One example was given. I can give you another real easy example.

You're going to dig a big hole, and you've got a big bit on. And when you're finished, you got to set a pole, and the bit gets in the way, so you got to take it off. When you're through, you put something back on.

Most of these digger derricks, which are commonly referred to as "auger trucks" in the industry, not "digger derricks," but that's just the official name for them, they come with multi-size bits when you purchase them. So they are intended to be easily removed for whatever purpose you have to use them for. There could be a lot of different times when you remove them. It could be for a very short period of time, or it could be for a longer period of time, but there's definitely reasons to actually move the bit itself that digs the hole. Installing anchors is another very common example.

So the question is, when the propose says "equip with," what does that mean when you remove it? It's no longer "equip with." So how is it going to be enforced is really the question. When this goes out, how do we tell our people, well, this is what we need to look forward to on how this is going to be enforced? We really don't know.

So we were discussing the ANSI standard, the A10.31 standard, which is kind of the bible of digger derricks, and I think it was correctly noted that it doesn't have a definition of digger derrick. I'm on that committee. Why we didn't write a definition, I guess we thought the standard didn't need one, because it has two sections in it that's in the scope, equipment that's covered, and part two is equipment that's not covered. And so under the equipment that's covered, it was correctly stated before that the intent was to cover equipment that's designed to accommodate the devices to dig holes, set poles, and other types of work with those devices.

In my opinion, the IBEW's position, that would be the preferable stance to take, the approach, is to look at the design and it "accommodates," not necessarily "equip," because today it's "equip," tomorrow it isn't, the next day it is, again, for several different reasons. That's it on the digger derricks.

I wanted to also comment on a couple other things, on the electrical. When you're talking about the difference between AC and DC voltages, first of all, DC, number one, is very unfamiliar to a lot of people, very unfamiliar, even to expert electrical people. DC on the power line side isn't very commonly used. It's been in some parts of the country for a long time, but it's not very — that's about to change, though.

A lot of the new work, a lot of the new installations that are going in, these high-voltage installations, are going to be DC because the engineers and manufacturers and so forth have found a more economical way to do this. So a lot of the new lines we're going to see are DC, and it's going to pose a lot of different issues for the power companies, for contractors, for everybody that's going to be working around these things.

So I'm saying all that just to say that the traditional method of establishing clearance distances has been geared towards AC voltage, not DC, and so for the unqualified electrical worker, you know, the 10 feet, add 50 kV, and the equation that's used for voltages above that, the .4 inches per 1 kV over the 50 kV, it was really established on science behind AC voltage and not DC.

Now, saying all that, the numbers that are there, the clearance distances that are there are probably okay in terms of that clearance, but we are really not talking real apples to apples. We are talking apples to oranges, so it may be useful to clarify that in the rulemaking to at least explain, so you won't get the engineers coming out of the woodwork saying, "No, that's not it," okay?

The other thing, too, on the "minimum approach distances" versus "minimum clearance distances," that's a good catch, because minimum approach distances are unique to the qualified electrical worker, and it's how safe we can get to working on or around energized parts. And that can be very confusing when you talk about the unqualified electrical worker. It's not minimum approach distance anymore. Really, "minimum approach distance" shouldn't be anywhere in this cranes and derrick standard. It doesn't belong in it, in any way at all.

That's my comments.

MR. STAFFORD: Thank you, Jim.

MS. SHORTALL: Mr. Tomaseski, would you please identify the organization you are representing today, if any?

MR. TOMASESKI: The International Brotherhood of Electrical Workers.

MS. SHORTALL: Thank you.

MR. STAFFORD: Thanks, Jim.

Okay. Any questions or comments — hang around, Jim, just in case — of Jim?

MR. JONES: I just have one small question on the digger derrick definition. You say the ANSI standard doesn't define it. Does OSHA need to define it? Is it necessary?

MR. TOMASESKI: Well, after hearing this conversation today, I would say yeah. I mean, if we've got a standard here that excludes digger derricks when doing certain work from the standard, what is a digger derrick? There is no direction in the standard that tells you what it is or what it isn't. So somewhere, there's got to be some kind of guidance of what a digger derrick is.

MR. STAFFORD: Thanks, Jim.

Any other questions or comments?

Chuck.

MR. STRIBLING: Yeah. I was just going to say to that point, the ANSI standard uses pictures and shows you what a digger derrick is. Sometimes a picture is worth a thousand words and can convey the meaning or the intent of the standard. Don't know if that would be helpful for the agency here, but you already have some pictures and crane signals, so maybe it's worth the review.

MR. STAFFORD: Thanks, Jim. I appreciate it.

MS. SHORTALL: Mr. Bolon, do you have — does OSHA have any plans after the amendments and corrections become final of issuing or revising guidance documents you have on cranes and derricks?

MR. BOLON: We would be revising any of the documents we've put out or any that are coming out, so that they would be consistent with any of these changes.

MS. SHORTALL: So, theoretically, a picture of a digger derrick could be included in those pictures?

MR. BOLON: Sure.

MS. SHORTALL: All right.

MR. STAFFORD: Kevin.

MR. CANNON: I guess for Paul, these proposed changes, has this had any impact on issuing the compliance directive, or has this already been taken into consideration?

MR. BOLON: No. I mean, our directives is in review now, and I don't think this presents any problem for that.

MR. STAFFORD: Thank you.

Any other questions or comments particularly from those members on the phone?

ATTENDEE: No.

MS. DAVIS: No.

ATTENDEE: No.

MR. STAFFORD: All right. I appreciate it.

MR. PRATT: This is Don Pratt. I do have a question for Sarah.

MS. SHORTALL: Yes.

MR. PRATT: Sarah, are we allowed to modify one of these?

MS. SHORTALL: Well, you can't modify OSHA's proposal, but you can make a recommendation that OSHA modify one of their items in their proposal, if you would like to do that.

MR. PRATT: I feel like we're getting close to a vote here, and I think what I've seen here is very good, okay? And I think even the forklift standard is better, and it's explained better than it was before.

However, I would like to go on the record as saying that I believe that forklifts should be excluded from 1926.1400 in the scope.

MS. SHORTALL: Well, regardless of whether the full Committee votes to include or exclude forklifts, you as a member can still make that recommendation, and OSHA would need to consider — also consider individual recommendations from members, or at least respond to it.

MR. PRATT: Okay. So depending on how the vote goes today, I should make that recommendation personally then?

MS. SHORTALL: Well, it sounds like you've already made that recommendation, yes, if you'd like to make it in a formal way.

MR. PRATT: Thank you, Sarah.

[Laughter.]

MR. PRATT: That's what I was looking for.

MS. SHORTALL: Okay. Thank you, Don.

MR. STAFFORD: Chuck.

MR. STRIBLING: Mr. Chairman, to get us close to a vote on this, would it be appropriate for something along the lines of the Committee make a recommendation to the agency to proceed with the Proposed Rule addressing the corrections and amendments provided to the Committee today with additional attention to the definition of a digger derrick and the "must," "may" language?

MR. STAFFORD: Yeah, I think so. I mean, that's what they're looking for with a recommendation to proceed with the Proposed Rule that will open this back up for a comment to address these issues, but as far as what we're here doing today, I appreciate the discussion. I think we've given OSHA some good comments on what you could do now, and I think for the purposes of this body, we need to recommend whether we think OSHA should proceed with the Proposed Rule. And I think that's where we're at.

Don, you're correct that we're getting close to taking a vote in terms of our recommendation for OSHA.

So you just laid out, Chuck, what I consider a pretty good motion. So, if you should repeat that in the form of a —

MS. SHORTALL: Can I — can I make sure I've got it down here right?

MR. STAFFORD: I was going to ask him to repeat it, so that you will have it down right.

MR. STRIBLING: I defer to the expert.

MS. SHORTALL: It sounds like Mr. Stribling is making a motion that ACCSH recommends that OSHA proceed with the proposed amendments and corrections to the Section 1926, Cranes and Derrick standard, with additional attention to digger derrick definition and the use of "may," "must" language.

And I don't know if you were also including Mr. Cannon's and allow at least 60 days for public comment, or if that was a separate one.

MR. STAFFORD: Well, there's no reason not incorporating that language if we agree to that, Sarah.

MS. SHORTALL: Okay. I'll leave that out. So it's just ending and use of the "may," "must" language.

MR. STRIBLING: I believe that pretty much captures it.

MS. SHORTALL: All right.

MR. STRIBLING: I would expect that no matter how long the comment period it, it will probably be extended.

MS. DAVIS: I second it. This is Tish Davis.

MR. STAFFORD: All right. So we have a motion made and seconded. All those in favor, signify by saying aye.

[Chorus of ayes.]

MS. SHORTALL: Okay.

MR. STAFFORD: Wait a minute. I got to do the roll call. Okay. Hold on a second.

MS. SHORTALL: Sorry.

MR. STAFFORD: All right. So we need to do a roll call.

Jeremy, we have a motion and a second. How do you vote? Jeremy?

MR. BETHANCOURT: Aye.

MR. STAFFORD: Steve Hawkins? Steve Hawkins?

[No audible response.]

MR. STAFFORD: Are you there, Steve?

[No audible response.]

MR. STAFFORD: Tish Davis?

MS. DAVIS: Aye.

MR. STAFFORD: Tom Marrero?

MR. MARRERO: Aye.

MR. STAFFORD: Don Pratt?

MR. PRATT: Aye.

MR. STAFFORD: Roger Erickson?

MR. ERICKSON: Aye.

MR. STAFFORD: Laurie Shadrick?

MS. SHADRICK: Aye.

MR. STAFFORD: Kevin Cannon.

MR. CANNON: Aye.

MR. STAFFORD: Walter Jones.

MR. JONES: Aye.

MR. STAFFORD: Matt Gillen.

MR. GILLEN: Aye.

MR. STAFFORD: Aye.

The ayes seem to have it, yeah.

[Laughter.]

MS. SHORTALL: Okay.

MR. STAFFORD: Okay, Sarah. So I don't know what —

MS. SHORTALL: I had one, two, three, four, five, six, seven, eight, nine, ten for; no opposed.

MR. STAFFORD: All right. Thank you. We appreciate it. We'll be back in touch. Okay.

Any announcements about exhibits at this point, Sarah?

MS. SHORTALL: Yes. I thank you for reminding me.

I'd like to enter into the record as Exhibit No. 4, discussion of amendments and corrections to the cranes and derricks and construction standard; as Amendment No. 5, the proposed amendments to cranes and derrick standard; and as Exhibit No. 6, an e-mail from Steve Yohay on 3/15/13 requesting an opportunity to have Tressi Cordaro speak at the 3/18/13 ACCSH meeting.

MR. STAFFORD: Okay. Thank you, Sarah.

Okay. I want to thank everyone who joined us today and all the members for participating on such short notice. We appreciate it. We will work out with DOC the next meeting, but right now, it looks like that we're still looking at May for the next full ACCSH meeting.

And if there's no other questions or comments, the meeting is adjourned. Thank you.

[Whereupon, at 2:59 p.m., the ACCSH meeting was adjourned.]


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