U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
ADVISORY COMMITTEE ON
CONSTRUCTION SAFETY AND HEALTH (ACCSH)
Thursday, May 23, 2013
Frances Perkins Building
200 Constitution Avenue, N.W.
COMMITTEE MEMBERS PRESENT:
Erich J. (Pete) Stafford, Chairman
Director of Safety and Health, Building and Construction
Trades Department, AFL-CIO
Executive Assistant Director, International Union of
Painters and Allied Trades/Finishing Trades Institute
International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers
AFL-CIO, MOST Administrator
S&H National Coordinator, United Association of
Plumbers and Pipefitters
Kristi Barber (telephonic)
President, Glenn C. Barber & Associates
Kevin R. Cannon
Director of Safety and Health Services, Associated
General Contractors of America
Thomas Marrero, Jr.
National Safety Director, Tradesman International
Donald L. Pratt
President and CEO, Construction Education and
Consultation Services of Michigan
National Director of Safety, National Electrical
OSH Federal-State Coordinator, Kentucky Labor Cabinet,
Department of Workplace Standards
COMMITTEE MEMBERS PRESENT: [continued]
Steven D. Hawkins (telephonic)
Administrator, Tennessee Occupational Safety and
Letitia K. Davis (telephonic)
Director, Occupational Health Surveillance Program,
Massachusetts Department of Public Health
Jeremy Bethancourt (telephonic)
Co-Owner and Program Director,
Arizona Construction Training Alliance
Deputy Director, Office of Construction Safety
& Health, CDC/NIOSH, Office of the Director
DESIGNATED FEDERAL OFFICIALS:
Deputy Director, DOL-OSHA Directorate of Construction
Dean McKenzie (Alternative)
Office of Construction Services, Directorate of
Damon Bonneau, ACCSH Coordinator, Office of Construction
Services, Directorate of Construction
ACCSH Counsel, Office of the Solicitor, DOL
OSHA, DIRECTORATE OF CONSTRUCTION:
OSHA, DIRECTORATE OF CONSTRUCTION: [continued]
Bob Biersner, Solicitor's Office
Mary Brandenberger, OSHA, Office of Communications
Graham Brent, National Commission for Certification
of Crane Operators
Lance Burney, Sigalarm
Chris Cole, Inside OSHA
Tim Couples, Federal Highway Administration
Todd Cunningham, National Rural Electric Cooperative
Richard De Angelis, OSHA, Office of Communications
Debbie Dickinson, Crane Institute Certification
Nigel Ellis, Ellis Fall Safety Solutions
Richard Ewell, Solicitor's Office
Ben Gott, The Hale Newspaper
Rich Gottwald, International Sign Association
Dan Glucksman, Internat'l Safety Equipment Association
Bill Hering, Matrix SME, representing Association
of Union Constructors
ALSO PRESENT: [continued]
Gwen Foley Hering, Matrix SME
La Tonya James-Rouse, Esq., American Staffing Assoc.
George Kennedy, NUCA
Bryan Lincoln, OSHA, Office of Regulatory Analysis
Lisa London, Division for Enterprise Development,
University of Texas, Arlington
Kate Lynn, OSHA, Office of State Plans
John Masarick, Independent Electric Contractors
Rob Matuga, National Association of Home Builders
Revae Moran, GAO, Government Accountability Office
Lana Nieves, Office of Health Enforcement
Thad Nusell, The Insurance Services Office
Beth O'Quinn, Specialized Carriers and Rigging Assoc.
Bill Parsons, Air Force Chief of Ground Safety
Arthur Sapper, Crane Power Line Safety Organization
Jim Tigon, Aginomics
Stephen Todd, Specialized Carriers and Rigging Assoc.
Jim Tomaseski, Internat'l Brotherhood of Electrical Workers
Tom Trauger, Winchester Homes
Bruce Watson, Occupational Safety and Health Reporter
Rod Weber, PENTA Building Group
Lauren Williams, Associated Builders and Contractors
Lisa Wilson, Solicitor's Office
Opening Remarks/Agenda Overview -
Assistant Secretary's Agenda Update and Remarks -
Dr. David Michaels
DOC Regulatory Update - Jim Maddux, Director,
Directorate of Construction
Crane Amendments - NRTL - Approved Equipment -
DOC, Office of Construction Standards and
Guidance - Paul Bolon
Public Comment on Crane Amendments
Debbie Dickinson, Crane Institute Certification
SIP IV - Remove requirements for chest x-rays
in certain health standards, such as cadmium
and inorganic arsenic, that may affect
construction employees and permit digital
storage of x-rays (not just film) - Chris Brown
and Rebecca Reindel, Directorate of Standards
Comments on behalf of NIOSH - Matt Gillen
SIP IV - Revise the construction personal
protective equipment standards to make clear
the requirement that equipment must fit each
employee - Paul Bolon and Dayton Eckerson,
Directorate of Construction, Office of
Construction Standards and Guidance
Comments on behalf of NIOSH - Matt Gillen
SIP IV - Remove the requirement for certification
of training in Subpart M - Fall Protection -
Paul Bolon, Directorate of Construction, Office
of Construction Standards and Guidance
Arthur Sapper on behalf of Crane Power Line
Lance Burney, Sigalarm
Nigel Ellis, Ellis Fall Safety Solutions
Rich Gottwald, International Sign Association
Graham Brent, National Commission for the
Certification of Crane Operators
Jim Tomaseski, International Brotherhood of
Dan Glucksman, International Safety Equipment
Debbie Dickinson, Crane Institute Certification
PROCEEDINGS [10:06 a.m.]
OPENING REMARKS/AGENDA OVERVIEW
CHAIRMAN STAFFORD: Let's go ahead and get started. We have a full agenda and just three hours to cover it. Welcome to the Construction Advisory Committee.
My name is Pete Stafford. I'm Chairman of the Committee, a labor representative. I want to first start out by thanking all of our members for your patience.
We are kind of flying by the seat of our pants here in terms of our meetings, with OSHA's limitations in their budget. There is no longer travel support or at least in this year for ACCSH meetings.
There are some folks around this table that actually paid their own dime to be at this meeting today and I greatly appreciate that, and for the others, this is why we have abbreviated the agenda.
We have several members that couldn't do that and will be participating by phone, but we certainly have a quorum, I think, based on what I hear from the folks on the phone, that we have all members right now in attendance.
With that, I'd like to go ahead again and welcome you, and let's start the meeting by introductions, starting on my left.
MR. PRATT: Don Pratt. I'm here representing employers.
MS. SHORTALL: Sarah Shortall, ACCSH counsel.
MR. ERICKSON: Roger Erickson, employee rep.
MR. MARRERO: Tom Marrero, Tradesmen, International, employer rep.
MR. RIVERA: Jerry Rivera, NECA, employer rep.
MR. GILLEN: Matt Gillen, NIOSH, Office of Construction Safety and Health.
MR. CANNON: Kevin Cannon, The Associated General Contractors of America, employer rep.
MS. COYNE: Sarah Coyne, employee rep.
MR. STRIBLING: Good morning. Chuck Stribling, Kentucky Labor Cabinet, representing the state plans.
MS. SHADRICK: I'm Laurie Shadrick, ACCSH employee member.
MR. BARE: Ben Bare, DOC or Directorate of Construction, I'm the DFO.
CHAIRMAN STAFFORD: Designated Federal Official.
Those of you on the phone, please go ahead. Why don't we start with you, Jeremy?
MR. BETHANCOURT: Jeremy Bethancourt, public representative.
MS. DAVIS: Tish Davis. Massachusetts Department of Public Health, public representative.
MS. BARBER: Kristi Barber, employee representative.
CHAIRMAN STAFFORD: That's it, I think. We have a full quorum. Let's go around the room as well. We are kind of in tight quarters, we will at least know who we are going to be close to for the next three hours. Nigel, why don't we start with you and work our way around?
MR. ELLIS: I'm Nigel Ellis, Ellis Fall Safety Solutions, EFSS, based in Wilmington, Delaware. Fall protection is my interest and that's why I'm here.
MR. MADDUX: Jim Maddux, OSHA's Directorate
MS. McALLISTER: Kia McAllister, I work in the Directorate of Construction.
MS. DICKINSON: Debbie Dickinson, Executive Director, CIC, Crane Institute Certification. Good morning.
MR. SAPPER: Good morning. Art Sapper here for the Crane Power Line Safety Organization.
MR. WEBER: Good morning. Rod Weber with the PENTA Building Group, Las Vegas.
MR. CUNNINGHAM: Todd Cunningham, National Rural Electric Cooperative Association.
MR. BOLON: Paul Bolon, I'm in the Directorate of Construction.
MR. JUSTH: Bruce Justh, Directorate of Construction.
MR. WATSON: I'm Bruce Watson of Occupational Safety and Health Reporter.
MR. BRENT: Good morning. Graham Brent, National Commission for the Certification of Crane Operators, NCCCO.
MS. PATTERSON: I'm Erin Patterson, Directorate of Construction.
MS. BRIEFEL: Ashley Briefel, Directorate of Construction.
MS. O'QUINN: Beth O'Quinn, Specialized Carriers and Rigging Association.
MS. WILLIAMS: Lauren Williams, Associated Builders and Contractors.
MS. NIEVES: Lana Nieves, Office of Health Enforcement.
MR. HERING: Bill Hering, Matrix SME and also representing the Association of Union Constructors.
MS. HERING: Gwen Foley Hering, Matrix SME.
MS. MORAN: Revae Moran with Government Accountability Office.
MR. TRAUGER: Tom Trauger, Winchester Homes.
MR. MATUGA: Rob Matuga, National Association of Home Builders.
MR. KENNEDY: George Kennedy, NUCA.
MR. TIGON: Jim Tigon, Aginomics.
MR. GLUCKSMAN: Dan Glucksman, International Safety Equipment Association.
MR. NUSELL: Thad Nusell, The Insurance Services Office.
MS. WILSON: Lisa Wilson, the Solicitor's Office.
MR. TOMASESKI: Jim Tomaseski, International Brotherhood of Electrical Workers.
MR. GOTTWALD: Rich Gottwald, The International Sign Association.
MS. LYNN: Kate Lynn, OSHA Office of State Plans.
MR. LINCOLN: Bryan Lincoln, OSHA Office of Regulatory Analysis.
MR. TODD: Stephen Todd, Specialized Carriers and Rigging Association.
MR. MASARICK: John Masarick, Independent Electric Contractors.
MR. BIERSNER: Bob Biersner, Solicitor's Office.
MR. PARSONS: Bill Parsons, Air Force Chief of Ground Safety.
MR. GOTT: Ben Gott, The Hale Newspaper.
MR. De ANGELIS: Richard De Angelis, OSHA Office of Communications.
MR. COLE: Chris Cole, Inside OSHA.
MR. COUPLES: Tim Couples, Federal Highway Administration.
MS. BRANDENBERGER: Mary Brandenberger, OSHA Office of Communications.
MR. HARVEY: I'm Chuck Harvey, Directorate of Construction.
MR. BRANCH: Garvin Branch, Directorate of Construction.
MR. EWELL: Richard Ewell, Solicitor's Office.
MS. QUINTERO: Danezza Quintero, Directorate of Construction.
MR. McKENZIE: Dean McKenzie, Directorate of Construction.
MR. PAYNE: Michael Payne, Directorate of Construction.
CHAIRMAN STAFFORD: Thank you. That looks like that covers everyone. Again, welcome, and thank you very much for being here.
I will remind you now and I will remind you throughout the meeting, for any folks who want to make public comment to the Committee, there is a sign-in sheet in the back. Due to our abbreviated schedule, we are going three hours today and three hours tomorrow, depending on the number of folks signing up, we may have to limit the time for speaking because we want to give everybody an opportunity.
I am going to say right now maybe ten minutes or so would be an appropriate amount of time. We just don't have much more than that.
With that, Ben, do you have any announcements?
MR. BARE: No, I just want to welcome everyone, and particularly Sarah Coyne and Jerry Rivera, to the meeting. We have an action packed agenda to get through. Look forward to working with everyone.
CHAIRMAN STAFFORD: I think there are action packed agenda's, that's for sure. I'd like to take this opportunity to acknowledge Bill Hering, while I am thinking about it. Bill is a past member, and it is great to have him here and still working with the Committee. Bill, thank you.
MS. SHORTALL: I have a couple of announcements. The first is Walter Jones is unable to be with us today and tomorrow. He has assigned his proxy as per OSHA regulations to Pete Stafford.
Also, many of the exhibits that are going to be discussed today have already been put into the Docket for this meeting. The Docket number is OSHA-2013-0006. Those items are available on Regulations.gov.
CHAIRMAN STAFFORD: Thank you, Sarah. We have on the schedule, David Michaels -- Ben, do you need to do the evacuation procedures?
MR. BARE: This is a new room. The evacuation procedures would be to go out to the entrance where you came in and you go down the hallway to the stairways and work your way down and back to the center lobby and exit there. There will be a meeting place out in front of the central lobby area.
CHAIRMAN STAFFORD: Thank you.
MR. HAWKINS: Mr. Chairman?
CHAIRMAN STAFFORD: Yes, Steve?
MR. HAWKINS: This is Steve Hawkins. I recorded my name, I didn't know if it got announced that I was in attendance or not.
CHAIRMAN STAFFORD: No, why don't you go ahead and introduce yourself, Steve?
MR. HAWKINS: My name is Steve Hawkins. I'm the Administrator of the Tennessee OSHA Program, and I'm a public safety agency representative to ACCSH.
CHAIRMAN STAFFORD: Thank you. I guess I need to take this opportunity, too, for all ACCSH members, remember to say your name if you have a comment or question, and particularly, I think, it's important for you folks on the telephone if you have any comments, to please state your name prior to proceeding.
With that, let's go ahead. Dr. Michaels was our first presenter. I just heard from Debbie that he's running just a few minutes late. Like I said, we have a lot to talk about over the next couple of days. I don't want to linger too long.
Perhaps, Jim, we can get started with you, and we will kick you out when David gets here, and then have you come back on.
MR. MADDUX: Sounds good.
MR. BETHANCOURT: This is Jeremy. I think we are experiencing difficulties with the image. Were they going to continue to try to work on that or should we just kind of forget about that for this morning?
CHAIRMAN STAFFORD: I think they are working on that as we speak, Jeremy, so hopefully, you will be on-line soon.
MR. BETHANCOURT: Okay. We will just keep watching them. Thank you, Pete.
CHAIRMAN STAFFORD: Thanks. It's my pleasure, and typically at all our ACCSH meetings, we start out by hearing from the Assistant Secretary for OSHA, Dr. Michaels. We are here to advise him and OSHA on policies and regulations for this Agency, and it has been great to work with David.
ASSISTANT SECRETARY'S AGENCY UPDATE AND REMARKS
DR. MICHAELS: Thank you so much. My apologies for being late. It's great to see all of you. You have already introduced yourselves, I assume. I want to welcome the new members and welcome again the continuing members. This has been a very productive committee. We have certainly benefited greatly from your advice, and we look forward to that continuing.
I am also grateful to see such a large audience here. I think it reflects the important work this Committee does and the good work that OSHA is doing, that we have generated such public interest. We are very pleased to see all of you here.
Certainly, construction safety is an area that we take very seriously and we value your advice. Construction fatalities continue to be at levels we think are absolutely unacceptable. We need to address them and look at new ways to reduce fatalities, injuries and illnesses in the construction industry.
We have an Acting Secretary, as you know, Seth Harris. He's been with this Administration since the very beginning. He also served --
CHAIRMAN STAFFORD: Steve? Can we ask people on the phone to put their phone on mute? Thanks.
SPEAKER: It's difficult to hear Dr. Michaels.
DR. MICHAELS: I'm sorry. Secretary Harris has a long history of supporting workplace safety and health. We continue to work with him very closely and we are looking forward to having a new Secretary of Labor, Tom Perez, hopefully in the not too distant future.
I also know he has a deep long-standing commitment to worker safety and health. As the Labor Commissioner of Maryland, he showed us that. We don't expect major changes in what we do when he comes.
I know you are going to cover many issues today. You are getting very important updates.
There are just really two areas I want to talk about, to give you updates on what we are doing, and I'll be available for questions afterwards to cover other things as well.
The two areas I'd like to talk about, one is protecting temporary workers, and the other is strengthening protections. Every time I come to this meeting I talk about some different issues and try to fill you in on what we are doing and get your thoughts
on it, and say this is a new area that OSHA is going in.
There are two areas. Temporary workers is one that we have been working on for a while. It's very, very important because of the changing nature of the workforce. In recent months, we have seen many reports of temporary workers suffering serious injuries, sometimes fatal injuries, in some cases, on their first day of the job.
You can find this yourself if you Google "first day on the job fatality," you will see cases out there. They are shocking.
One of our most recent high profile enforcement cases involved the Bacardi Bottling Company in Jacksonville, Florida, following the death of a 21-year-old temporary worker, Lawrence "Day" Davis, he was known as "Day." He was crushed to death his first day on the job.
He was told to clean up the glass under a palletizer. I have some pictures. There are big signs on that palletizer saying "Danger - Do Not Enter."
No one told him about lock or tag out. He was sent by a temporary agency. It was his first day on the job. His supervisor said go in there with a broom and clean out that glass. What is he going to do? The sign says don't go in there. If it was your first day on the job and you had no background in this thing, you would assume you were doing a safe job -- he went in there, someone turned the machine on. His first day on the job was his last day on earth.
Our investigation found that he and his co-workers were never trained on lock and tag out procedures, and that training could have saved his life.
Many of the workers who are killed in their first days on the job are doing construction work. Workers like 21-year-old Adrian Semoran in New York. He fell 40 feet from a scaffold working on the restoration of an 11 story building in New York. It was his first day on the job. He wasn't given a safety harness or any necessary safety training. He left behind a wife and two young daughters.
Last August, Mark Rainey, a 60-year-old temporary worker at Ohio Roofing Company was working in the hot summer sun on the roof. He was throwing roofing materials down into a dump truck. He started to become lethargic and confused, he lost consciousness and he died of heat stroke. He also left behind two daughters and three grandchildren, a large extended family.
The Bureau of Labor Statistics tells us 31 percent of all heat related fatalities in 2011 were in construction. BLS has also given us some important information about temporary and contract workers in construction and their risk of fatality. They have just done a very important report. It is their first work on what they call "contract workers."
This includes temporary workers, workers who have various different contractual relationships with an employer, but not the normal employer/employee relationship. They are there on contract for whatever reason.
BLS tells us that fatal work injuries involving contractors accounted for 542 of the 4,693 reported deaths from work injuries. That is about 12 percent.
We see anecdotally in the cases that come to us significant numbers of workers who are contract workers, temporary contingent workers, killed on their first days on the job, the first day, the second day, the first week. This, by the way, has been true for 100 years, and the studies done 100 years ago show new workers are at greater risk of injury and greater risk of fatality.
I think what's interesting about what's going on in the workplace today is there is a great deal more use of non-traditional contracting relationships using staffing agencies than we saw 20 or 30 years ago.
When we look at situations, we think about what's the employer's thinking in this case? An employer calls for a small number of workers to fill a job temporarily, maybe for a day, maybe for a week, maybe for a month, maybe for six months. In some cases, we see temporary workers working for a year.
Some of those workers eventually may be hired, but many of them always stay in this temporary status.
In any case, think that you're the employer and normally you train your employees to do the job safely, and we believe every employer should do this. I'm looking at people here, some of the trade associations, who I know tell their members they have to train people to do the job safely.
You bring in a temporary worker who is just going to be there for a relatively short period of time, are you going to put the resources in to train them to do that job safely? OSHA's answer is yes, you better do that, because if you don't do that, you're exposing them to unnecessary risk and you're breaking the law.
We have started an initiative that tells our COSHOs to look at temporary workers and to look at training that is provided to those workers, and if the training was a required training, were they given that training. When we are going out to work sites in construction and manufacturing, we plan on doing that.
The report from BLS on contract workers also noted that Hispanic and Latino contract workers accounted for 28 percent of the total fatal injuries among contractors compared to 16 percent, which is their representation in overall fatal injuries. Hispanic and Latino workers are over represented in this group of contract workers who are being killed on the job.
As I said, we have a new initiative that we're working on that will focus on temporary workers that tells our COSHOs -- we have already sent this memo out -- underscoring the importance of assessing whether employers who use temporary workers are complying with their responsibility under the law, because temporary workers have all the same protections as every other worker, and we have to make sure that is well understood.
We are going to code on our records when temporary workers are exposed to safety and health violations so we can begin to track this, and we are asking our inspectors to assess whether these temporary workers receive training and receive that training in a language and vocabulary that they understand. We know non-English speakers are also over represented among the temporary workers.
In addition, OSHA is working with the American Staffing Association. We are putting together a webinar for their members that highlights employee rights and employer responsibilities. The American Staffing Association shares our concern. This webinar is going to include important information about the hazards, addressing them, and also best practices for staffing agencies and their client employers.
We expect everybody to come together and step up to the plate on this. This is a very important issue.
We would be interested in your thoughts in thinking about how this particularly applies to construction and ways we can move this forward and save some lives.
Another important area I'd like to discuss with you is the ongoing work we have strengthening our whistleblower protection activities. Acting Secretary of Labor Harris recently testified before the House Appropriations Committee on our budget, on the fiscal year 2014 budget, and that request includes a $5.9 million increase for our whistleblower program.
That actually includes a 40 percent increase in our field investigators, which is a huge increase and we appreciate the White House's support on that. It is really significant in this day and age to get a 40 percent increase in any component of the budget, but we were certainly asking for that.
Secretary Harris told Congress our program has tremendous value, and while we face resource challenges, we are ready and willing to move forward with whatever resources are provided. We are pushing very hard right now, and we have to.
Since 2005, the total number of whistleblower complaints that OSHA has received increased from about 1,900 to about 2,800 per year. It's up about 40 percent.
During that time frame, and this is not well known to many people in the field, OSHA's whistleblower responsibilities increased. We now cover 22 different statutes, we have gotten ten new statutes since 2005.
We are the whistleblower investigators not just for the OSHA law and the 11(c) component to the OSHA law, which says very clearly that workers can't be or shouldn't be retaliated against for raising safety and health concerns with their employer or with OSHA or other agencies as well.
In addition, we are the investigator for a wide range of different laws. One recent one is the Food Safety Modernization Act. If a worker in a food factory sees activity going on that threatens the safety of the food for the American public, if he or she raises that concern with the employer or with the USDA or actually with the Food and Drug Administration, that worker is protected, and shouldn't be retaliated against, or it becomes an OSHA issue and OSHA investigates.
Sarbanes-Oxley is one of our laws. If an accountant, in some cases, if a CEO of a publicly traded corporation sees financial fraud, securities fraud, and raises a concern with the Board of Directors, with the SEC, and they are retaliated against -- we have cases involving CEOs actually raising this -- OSHA investigates.
We cover a wide range of laws that are written to protect the health and safety not just of American workers but the health, safety and well being of the entire country.
The laws that we investigate include the Clean Water Act, the Clean Air Act, the Pipeline Safety Act, Dodd-Frank and Sarbanes-Oxley for securities and financial fraud, Food Safety Modernization, several of the transportation laws that are designed to ensure that our modes of transportation are safe, we cover what we call AIR21, which covers aviation, the Federal Railway Safety Act, the Surface Transportation Act, and in all of these areas, we are getting more and more complaints, so our resources are being stretched thinner and thinner, but we are doing, I think, a better job in addressing this.
Sixty-one of our complaints were 11(c). Straight ahead OSHA complaints, but 39 percent are these other laws. The largest group after 11(c) are complaints under the Federal Railroad Safety Act, we have 353 complaints right now. It's a new law.
It says very clearly that railroad workers have the right to raise concerns, but also in this law it says very clearly that railroad workers must be protected when they report injuries to their employer.
The reason for that is injury reporting is an important part of safety and health.
If injuries are not reported, then they can't be investigated, and if we can't investigate injuries, we can't keep track of them, we can't investigate even the near misses, but if we can't investigate injuries, then future injuries won't be prevented.
There was a great deal of testimony before Congress by railroad workers saying that the railroad industry discourages injury reporting, and that is a safety and health issue.
This law is very clear about that. OSHA has issued dozens of findings, some of them well above $100,000 each, because this law allows us to add punitive damages as well to railroads, who we have found have retaliated against workers for reporting injuries.
We have one case where a worker who had a 35-year perfect record, never being injured at work, blacked out, hit their head, and then was retaliated against after reporting that injury. We thought that was absolutely illegal. We issued a finding. Â
Our message has clearly been heard by the railroad industry and we are very gratified that BNSF, one of the largest carriers, has signed a voluntary agreement with OSHA eliminating the points policy. They used to give points to workers who were injured, no matter what the cause, no matter how they were injured. Those points were held against them.
BNSF has seen the light. They have signed a very good accord with us that we think is a model for other railroad companies and also other industries to look at saying this is how we are going to treat injuries in the future.
We have settled a large number of cases with them. We are very pleased with that development, and we look forward to working in that direction with other employers, in other industries as well.
To help us do a better job, we have established a whistleblower protection advisory committee, which is a sister committee to you. It gives us advice on how to improve our whistleblower activities and how to make a bigger difference out there in the world because we cover so many different industries with so many different activities.
We have asked the committee in particular to focus on a couple of areas. One of those is actually thinking about the culture of workplaces and how employers might recognize workers who raise concerns actually as individuals who can help rather than ones who are in the way who need to be essentially retaliated against.
We think there are a lot of employers who have very good practices, who understand this issue well, who have set up systems to encourage people to raise concerns rather than to retaliate against them.
We would like to look at that issue with that committee and we are hoping this Committee as well can give us some advice on that area, who has good programs, how do they work, what can we learn from them.
We have also elevated the whistleblower program, whistleblower protection program, to its own directorate run by a member of the Senior Executive Service, who has extensive experience, not just in the area of labor and employment, but specifically on whistleblower issues.
We have also for the first time given this directorate its own budget so we know exactly how much money is being spent and how we can make sure the money is being spent right.
Unfortunately, this is the period of sequestration, and that will be a challenge not just to our whistleblower program but to all our programs. It had made a very big difference in our work. We have made the decision, as many of you know, not to furlough workers, OSHA staff, and as a result of that, we have cut back in many areas.
In whistleblower, in construction, all of our areas, we are trying to do our best with less. We will continue to do that.
Those are the two areas I just wanted to raise with you but I'm happy to talk about other areas as well, and I'm very glad you are here, and want to thank you again for the good work you do.
CHAIRMAN STAFFORD: Thank you very much, Dr. Michaels. Any questions or comments for Dr. Michaels?
MR. MARRERO: How are you doing, Dr. Michaels? Tom Marrero with Tradesmen International, an employer rep.
Are there any plans on creating a subgroup for the protection of temporary workers? I know you guys are working with the ASA and so forth. What is OSHA envisioning with all of this?
DR. MICHAELS: It's a new initiative. We are working -- what we tend to do with all our initiatives, we think about compliance assistance and getting education out to employers and workers, and we think about enforcement, is enforcement a relevant path in this case. I think we see both of them are. We believe getting the right information out with ASA will help us a great deal.
On the other hand, we are seeing situations which are intolerable, and we certainly will enforce in those situations.
We have an informal work group within OSHA. We haven't set up a work group within any of the advisory committees, but we would certainly be eager for you to address it in any way you like, and if you can help us with that. It clearly is an important issue and we certainly could use some help.
CHAIRMAN STAFFORD: We can talk about that, maybe setting up a work group. Any other questions or comments? Anyone on the phone?
MS. DAVIS: Yes. Pete, this is Tish Davis. Hi, David, thank you for the presentation. I just want to weigh in on a couple of issues with respect to temporary workers that we have been trying to address here in Massachusetts.
As you know, we have new legislation providing temporary workers with rights to have additional information about their employers and employment status and health and safety issues.
One of the things that is really clear to me is we need better clarification on who is responsible for training. Is it the temporary agency or is it the host employer, or what aspects of training should be assigned to those two parties. I think more clarification on that is important.
We have guidance that says a temporary agency has to provide general health and safety information and the host employer needs to obviously provide the site-specific training.
I just want to put that out there. The other thing is we are also interested in the issues -- as you know, we do surveillance of work related illnesses and injuries, and ways in which we can better document the hazards faced by temporary workers.
One of the recommendations that came out of a recent meeting is that there be an additional item on the OSHA logs that identifies workers as temporary workers. I know that involves a recordkeeping change, but again, I just wanted to put that out there, and developing new approaches to how we can really document these issues better than currently is important.
DR. MICHAELS: Thank you, Tish. I think many of you know that Massachusetts is the first state to pass legislation on this, and we are watching very carefully and hope to see what the impact is of that legislation.
You raised some very interesting points and we would love it if this Committee wants to think about those issues and give us advice.
CHAIRMAN STAFFORD: We appreciate it. I think we should as a Committee take a look at this issue. I have a question for you, David, given the budget constraints, I know you have two national campaigns going on now, on heat, and of course, construction on falls.
We have a training and outreach committee that we are thinking about talking about maybe things we would do in the future, either extending a campaign or adding a new one for construction. Is that something, given the budget situation at this point, to consider?
DR. MICHAELS: These campaigns take as much money as you can put into them. We have obviously cut back the money that we put into everything we do, but we are very grateful that these campaigns, in particular, falls, has the support and activity of a wide range of stakeholders I see in this room, the home builders, laborer's union, NIOSH, they have all helped us with that campaign.
We are beyond a lot of the initial expenses of materials, that you all helped with. I see Matt here from NIOSH. NIOSH played a big role. Everybody has really been on board for these campaigns.
We are going to continue them. Starting new campaigns, I think right now it is not something we are about to do. We have two we need to do. We will continue to do them. They are important.
CHAIRMAN STAFFORD: One last thing, I would like to thank you. At the last meeting, our Committee recommended to OSHA that OSHA go back and do an evaluation of the OSHA outreach training program, you know, 80 percent of the students that go through that program are for the construction industry.
In my understanding talking to DOE staff and your office, you are looking into that, maybe finding some way that we could bring someone in to help us, again work with our training and outreach committee to do that kind of assessment.
I think it is very important to our industry and everyone around this table certainly, and we thank you very much for taking a look at that for us.
DR. MICHAELS: Good.
CHAIRMAN STAFFORD: Any other questions or comments?
MR. HAWKINS: Mr. Chairman?
CHAIRMAN STAFFORD: Steve, please.
MR. HAWKINS: I would like to just comment on Dr. Michaels' comments on both the things you talked about, and that is temporary workers and discrimination protection. What we see frequently in our state is a temporary worker will complain about a safety or health issue, and the host employer frequently feels like all they have to do is tell the temporary agency please don't send Pete Stafford back out to my site tomorrow, and they don't.
We clearly communicate to that host employer as well as the temporary service that, you know, we're going to investigate this allegation and one of you could be held liable for this act.
It is interesting that Dr. Michaels brings up both of those things. I think one of the true problems we have with temporary workers is they don't feel like they have any safety and health rights in the workplace.
They feel very vulnerable and frequently when they do raise an issue, sure enough, they are asked not to come back the next day. Often times, those are folks right on the margin, you know, just barely making ends meet, and a few days of missed pay is a major problem to them.
I would just like to point out those two things intersect frequently.
DR. MICHAELS: Steve, you are absolutely right. We see that as well. That does raise interesting issues about the role of not just the proximate employer but the staffing association. If the staffing association agrees not to send them back, are they then compliant. These are areas we are just beginning to address. We are very interested in looking at them.
We would love your thoughts and your advice. Really what we want to do is make sure these workers are protected, and anything we can do to get there will be valuable.
CHAIRMAN STAFFORD: Anyone else?
CHAIRMAN STAFFORD: Dr. Michaels, thank you very much.
DR. MICHAELS: Again, my apologies for being late.
CHAIRMAN STAFFORD: Thank you so much.
MS. SHORTALL: Mr. Chairman? At this time, I'd like to enter two exhibits into the record for this meeting. As Exhibit No. 1, the agenda for today and tomorrow, and as Exhibit No. 2, Walter Jones' proxy designating you to take his vote.
CHAIRMAN STAFFORD: Thank you, Sarah. Where is Mr. Maddux? Jim, do you want to give us an update on the Directorate of Construction?
Jim Maddux is the Director of DOC. Pleasure to have you here. Jim?
DIRECTORATE OF CONSTRUCTION REGULATORY UPDATE
MR. MADDUX: Thanks, Pete. Thanks, everybody. Like Ben and Dr. Michaels, I want to start out congratulating Sarah and Jerry for joining the Committee. We also have six members whose memberships have been renewed for two years, Tish Davis, Kevin Cannon, Tom Marrero, Chuck Stribling, Laurie Shadrick, and Pete Stafford, who will continue, as you can tell, as the Chair of the Committee.
I just want to thank all of you for all that you do. I know this is a volunteer kind of thing. We pay very poorly for your labor. We will continue to do so. I especially want to thank everybody that is participating by phone. I know this is really a difficult thing to try to participate via the phone.
We are trying to do some things to make that a better experience, by limiting the meetings to three hours a day. We are hoping this room will have better acoustics than we had in the other room we were in last time, and things like that.
Please let us know whatever we can do to try to make it a positive experience for everybody.
I did want to report some regulatory accomplishments. I do want to say we do have a very full agenda, as Ben said. I don't want to go through kind of all the recommendation history that the Committee is making, but I did want to point out that three of the issues that we are discussing at this meeting came from ACCSH recommendations.
The issues of proper PPE fit, the issue of the tunneling decompression tables, and an update for the Manual of Uniform Traffic Control Devices, are all recommendations that this Committee made where we are now taking this next step of actually consulting with the Committee on the actual implementation or getting into the rulemaking process on them. It's good to see these issues moving forward.
We also have a few regulatory accomplishments since the last time we got together. The standard to include underground in demolition work under the crane standard has been completed and just went into effect a couple of days ago.
This eliminates the old crane standard which we had codified as Subpart DD, just to preserve coverage for those industries. Now we can begin taking down some of the old letters of interpretation, eliminating any confusion those old letters may have created.
Very shortly, we will publish a final rule implementing the Digger Derrick settlement agreement we made with EEI. That is also approaching completion, probably within the few weeks.
One of the issues that this Committee is working on are several more of the elements that will be included in a corrections and amendments standard to the crane standard.
One of these, which is very important, we have had several members of the public report to the Committee on this, is the proposal to extend the dates to implement operator certification, along with the interim requirements that we have in place right now, that employers continue to ensure their operators are qualified.
We are hoping to use this three-year extension to give us the needed time to reexamine these issues of certification, including certification by type and capacity, and more importantly, the proper way to ensure that crane operators are qualified to do the work they do.
We have a team in place, Paul is running that, to take a look at these issues, and we are going to continue to try to make sure we have a good crane standard that ensures employees' safety.
While crane issues have been taking up a lot of our time, we are also continuing to work on our confined space standard, and we are making good progress there. I think it will be able to get into clearance pretty soon.
I also just wanted to make a brief mention of the fall prevention campaign that Pete raised with Dr. Michaels. The campaign is continuing to be a huge success. Christine Branche at NIOSH and I did a couple of kick-off events already this year.
The fall protection web pages are now at over half a million page views, which I think is well beyond any kind of an expectation that we would have had for the campaign. It really has gotten a tremendous amount of traffic, and a lot of people are doing a lot of things to support the campaign.
We recently published a new letter safety document that is very interesting. It is formatted specifically for book readers, on your Tablet or Smartphone. This is a very exciting development. It is the first product of this type that OSHA has done.
We are going to be working on more of these kinds of mobile applications, I think, in the future, especially in tight budget times where we don't have the publication budget that we have had in past years, trying to get things out in electronic and mobile device friendly formats is a big deal for us.
The last thing I would like to do is to embarrass Mr. Bare a little bit. I hate to inform the Committee but you are going to lose your designated Federal official. Mr. Bare has decided to retire. This will probably be his last meeting with the Committee.
Of course, I thank him for his many years of service with OSHA, and especially with the Directorate of Construction. He's been a great ally and partner in our work, and I hope that other people will congratulate him on his decision.
CHAIRMAN STAFFORD: Yes, Ben.
MR. MADDUX: I'll be happy to take any questions that the Committee has.
CHAIRMAN STAFFORD: Any questions or comments for Jim? Yes, Kevin?
MR. CANNON: The type and capacity issue and the extension of the effective date, three years down the road, I think that will give folks a better understanding of where they are at this point, but I don't think it really solves the true problem as to those who are going to continue to certify their operators through the two organizations that are considered to be not compliant.
Is there any further guidance to say to the industry as to how they should proceed in certifying the operators? I understand some folks may be holding back on certifying because they are not sure if their certifications will be valid.
MR. MADDUX: I don't think that we really can give them additional advice right now, Kevin. We are looking at a two-stage rulemaking process. The first stage will extend these effective dates by three years, kind of hold the position we are in right now, and then we are going to have to reexamine these issues through a rulemaking to decide what to do for the permanent fix.
Unfortunately, we are back into the rulemaking mode. That means that we have an open mind in terms of what to do. We will reexamine these issues thoroughly, go back out for public comment, and try to figure out the right way to deal with the issue.
CHAIRMAN STAFFORD: Can you give us an indication of timing for step two, when that process would start, Jim?
MR. MADDUX: We are hoping to get the first step going in the next month or so, to extend the dates. We have a team in place that is coming up with options right now in terms of what we would propose.
We are going to have to take a look at that, make some regulatory decisions about how to move forward, take a look at whether or not those options have economic impact, all the usual things we would do through rulemaking's.
I am really hopeful we can step out smartly and do this in a reasonable time frame, at least reasonable in terms of regulatory programs, regulatory stuff does not move quickly. It's definitely very high on our priority list of things to push on.
MR. CANNON: I say that because based on the discussions during this ACCSH meeting, it was brought up that you have some customers/clients that require a particular certifying organization, and it could very well be one of those that would be deemed not complying with the certification requirements, and then you also have some states that may be introducing laws that require a particular certifying organization which may be one of the two.
That is why I say I think folks who are in those positions need to have a better understanding how they should go about it, instead of just sitting on the side lines until it is figured out.
MR. MADDUX: I think certifications in general seem to be an increasing part of how employers make sure that their workers have a certain skill level to do all sorts of things in the world. The crane operator certifications are just one example of that.
I think as people are continuing to get their operators certified, the popularity of these programs is continuing to increase. I am hopeful that people will continue to do everything they can to make sure these crane operators are qualified to do the very sensitive work they do.
Especially with these larger cranes and with cranes that are operating in urban areas, when something goes wrong, it can be a real problem in terms of worker safety and public safety and lots of things.
CHAIRMAN STAFFORD: This may be a part of Paul's presentation, but I'm assuming you're looking to ACCSH for some kind of recommendation with respect to step one and if we are going to recommend the three or delay in implementation.
I participated in the stakeholder meeting myself and we have quite an issue here going on. I think it is the right thing to do. Clearly, we have to understand as an industry what we are doing with respect to this standard. It is incredibly important. Just observing the stakeholder meeting and seeing where we are at, you could almost see the two sides of what's going on here.
I think CETA intended one thing and it didn't necessarily come out at the end of the pipe. I think it's the right thing to do to extend this step one while it's getting sorted out. I would make that recommendation when the time comes, Jim.
MR. MADDUX: Paul will be presenting today to the Committee on this extension of the dates, and we would appreciate a recommendation and consideration of that by the Committee.
When we have figured out how we think the right way to move forward is with a proposal to deal with the larger issue, we will be coming back to the Committee to ask you to consider our ideas on that and give your advice about how best to move forward.
The Committee will continue to be involved with this as we work our way through the solution.
CHAIRMAN STAFFORD: Any other questions or comments? Jerry?
MR. RIVERA: Jerry Rivera with NECA, employer rep. I just have a question. I was looking at the Notice and it says that OSHA is considering the rulemaking process. Are you confirming that it will go through the rulemaking process to address certification/qualifications?
MR. MADDUX: Yes, I think that what we clearly know is the problems that we have are inherent in the language of the crane standard. The only way to make any change here is through some sort of a change in the regulatory language.
I guess it's possible that we could go into all of this and there would be such a strong comment saying no, where you are at is exactly the right place to be, that you should just maintain that and keep doing that.
With what we have learned in the stakeholder meetings and through all our other interactions with stakeholders on this issue, I think that's pretty unlikely.
MR. RIVERA: Do you have a time line on the Notice of Proposed Rulemaking?
MR. MADDUX: No, we don't. I wouldn't say we are early in it because of course, we have learned a lot about this issue as we were going through the previous rulemaking, so we have a pretty good knowledge base here. We have to take a look at what it will take to get all of our materials together so we can move forward with a proposed rule.
As we all know, there are a lot of requirements in the rulemaking process, and we need to first of all kind of come up with the policy approach that we think is right and then we need to make sure that we do all the right things through the rulemaking process.
MR. RIVERA: Thank you.
CHAIRMAN STAFFORD: Any other questions or comments? Anyone on the phone?
MR. ERICKSON: Jim, Roger Erickson, MOST Programs. You had mentioned in your opening remarks confined space. Could you bring us up to date on that item?
MR. MADDUX: We have been working for a couple of months now kind of trying to close up a couple of sections of the preamble. I think over the last couple of weeks, we made some really, really good strides in doing that. We have now agreement on kind of the last chapter we were trying to work out with our attorneys.
We are making the final touches to the economic analysis. I think we can get that moving into the clearance process certainly by the middle of July or something like that.
Once we get into the clearance process, going through the Department of Labor processes we have in place, and then going through the OMB process, it's hard to predict those time lines.
I think we are approaching at least getting to a point with our work where we are ready to start that clearance.
MR. ERICKSON: Thank you.
CHAIRMAN STAFFORD: Anyone else? Anybody on the phone have any questions or comments?
CHAIRMAN STAFFORD: All right, Jim. You are off the hook.
MR. MADDUX: Thank you very much.
CHAIRMAN STAFFORD: Thanks for being here. I guess, Paul, we will start with you.
MR. BONNEAU: Mr. Chairman, we have some additional chairs that we could bring in, if we could take a short pause.
CHAIRMAN STAFFORD: Sounds good. How about a five-minute break? A five-minute break.
CHAIRMAN STAFFORD: We can reconvene. For your folks on the phone, I think some of you can see us and some of you cannot. OSHA staff has asked me to tell you if you can't see us, try to log back on, and I believe that will fix the issue.
We are going to spend the majority of the remainder of our time talking about SIP IV. I guess we are going to start with our favorite issue of crane amendments. Paul?
CRANE AMENDMENTS - NRTL - APPROVED EQUIPMENT
MR. BOLON: Right, we are going to do two crane issues and then get into SIP. SIP is Standards Improvement Project.
There are two issues about cranes we wanted to bring before the Committee today. The first one is an amendment to the crane standard, and the second one is the one that Jim Maddux already talked about, which is to extend the compliance date for the operator certification in that part of the crane standard.
At the last ACCSH meeting, we presented a list of crane amendments, six or eight things, including new definitions, corrections, a fix on using forklifts to lift and move things.
The first item that we are dealing with, which is the NRTL approved equipment, will be part of that proposal, will be part of the crane amendments, and I will go through this issue here.
In your written materials, it is at the end of Exhibit 3. I think there are also some copies on the back table.
Several provisions in the final crane standard permits use of NRTL approved equipment, that is proximity alarms and insulating links, as one of several options for additional safety on power lines, and NRTL is an acronym that stands for "nationally recognized testing laboratory."
In one provision, insulating links are a requirement when working very close to power lines, whereas in the other instances, the proximity alarms and links are options, one of several options.
When it issued the standard, OSHA was aware that there weren't any proximity alarms or insulating links that had been listed, labeled or accepted by a nationally recognized testing laboratory, but they included as options under several provisions of power line work, and as I mentioned, it was a requirement, and this was in the expectation that the devices would soon become available.
Including them as options under some of the provisions, we didn't see it as a hindrance because employers could always choose from other available options, and when the equipment became NRTL approved, that would also be another option they could use.
Because both for proximity alarms and insulating links there are still options under several sections, we are not proposing to modify the substance of those. For one section, which is 1410, the insulating links must be used within the permitted minimum clearance distances, and it requires employers to use a number of precautions concurrently including an insulating link to protect workers.
To take into account the fact there were no NRTL listed labeled or accepted insulating links at the time the rule was issued, we temporarily required non-NRTL devices to be used, but also required that employees who may come into contact with the equipment, the load or the load line, to be insulated or guarded from the equipment by other means.
As I said, OSHA anticipated that NRTL devices would become available soon after the rule was issued. So far, no insulating links have been NRTL labeled or accepted, nor does it appear they will be in the near future.
To accommodate the absence of compliant devices, we are proposing to revise the standard to permit employers either to use an NRTL listed or labeled or accepted device, which is an option they can use when they become available, when they become NRTL approved, or two, they can use an insulating link that is not NRTL listed, labeled or accepted in conjunction with another means of insulating or guarding workers from the equipment, the load or load line.
Basically, our final standard has a requirement for employers that because the equipment is not available, it is infeasible, and in our effort to fix it and also to get us off trying to anticipate certain dates -- we had very specific dates in the final rule -- NRTL can be used if and when the equipment becomes approved.
Any questions from the Committee?
CHAIRMAN STAFFORD: Questions or comments?
MR. CANNON: I have a question. Does it make sense? Do you know a time line for these devices to be available?
MR. BOLON: I know there are a number of issues of getting NRTL approval for this equipment. One of them was, for instance, just the market size. It's not a huge market. It required some specialized equipment for testing.
We have an office that is involved in the NRTL auditing, the laboratories and so forth. I know they are working on some alternative means of NRTL improvement that can better handle situations like this. I think they are thinking it will take a year or two to get those in place.
MR. CANNON: There are alternatives to nationally recognized testing laboratory listed, labeled or accepted devices that would be considered?
MR. BOLON: We are going to consider them. There are some alternatives. One, I believe, is called "qualified laboratories." There are some alternatives that we will consider as alternatives as we go ahead.
MR. CANNON: In turn, would that change the language that would be in the standard?
MR. BOLON: It could. If there is something that we think is adequately safe or is a substitute, then that's an alternative we could end up doing.
CHAIRMAN STAFFORD: Any other questions or comments?
MR. RIVERA: Jerry Rivera with NECA, employer rep. I'm thinking you mentioned there might be other alternatives. I know the issue came up a while back about manufacturer self declaration. I don't remember what the ultimate outcome was.
I know the industry or least the nationally recognized testing laboratories saw the value in going through that process. I don't know what the ultimate outcome was, but consider that when you move forward.
It is intriguing, and this is just a comment, how can we require a nationally recognized testing laboratory to perform this or have that requirement without that technology being available. It is kind of the carrot and the horse type of deal.
MR. BOLON: I think the technology is available. I think it is really just a question of the size and market and any NRTL having the right equipment. It requires a combination because you have the electrical aspect to it and the tension aspect because it's part of a load line. I think that tripped them up, and the size of the market.
We are aware of your first point. Europe tends to have manufacturer self-certification. We are also aware of that.
CHAIRMAN STAFFORD: Paul, back to Kevin's comments, if there are other alternatives, are you thinking about specifying what those are or just saying "other alternatives" can be utilized?
MR. BOLON: I think what we are saying is we are going to investigate them. This is the most straightforward and obvious solution in that a decision was made they should be NRTL approved. We really don't want to keep a standard before employers that is confusing and infeasible.
This is proposing a simple and obvious alternative that was already in the original standard, that is using the insulating link plus some other protection.
We will be considering all the alternatives that have been mentioned here during the rulemaking.
CHAIRMAN STAFFORD: Kevin?
MR. CANNON: The public will have an opportunity?
MR. BOLON: Absolutely.
CHAIRMAN STAFFORD: Anyone else? Anyone on the phone?
MR. BOLON: By the way, this is Bruce Justh with me. He's working in the Directorate of Construction and worked in the Solicitor's Office for many years.
Our next topic is one that Jim Maddux mentioned in his remarks, and you have already discussed a little bit. I don't know if you want to discuss it more. This is the issue of the crane operator certification. This is what we just talked about, the NRTL equipment would be part of the crane amendments. This would be a separate proposal.
Because crane operator certification has not played out as we anticipated, that everyone would be reasonably certified by type and capacity by November 2014, in order to avoid disruption to the industry and also to initiate a new rulemaking basically on what "qualification" is. We are proposing to extend the dates requiring operator certification by three years.
The fix is rather simple. It's just extending the dates. The second part, which will really get into what "qualification" should mean is a tougher job, but it's not part of just extending the dates.
CHAIRMAN STAFFORD: We were talking about this earlier. It's my view that the industry really doesn't have much of a choice. I think for this Committee, we should probably take the action, make the recommendation that the dates are extended by that three-year period. It's very unfortunate.
I don't know when CDAC began, but it was many, many years ago. The agency has been working on this for a very, very long time. To have to do this is in a lot of ways very frustrating for many of us in this room, some more than I, I'm sure. Selfishly, from my perspective, moving forward, we can see this isn't something that's in place and we can move on.
This is going to be a sap of resources, and with resources more and more limited as we move forward, the agency is going to be backing up, opening up the rule again and dealing with this issue all over again.
I think it's frustrating on many levels. With that said, we are in a mess right here, and I think we need time, the industry needs time, OSHA needs time to figure it out.
I would like to entertain a motion from this Committee that we recommend OSHA extend the rule for three years to whatever that would be. What is that? November 10, 2017. I can put that, Ms. Sarah, in the form of a motion or ask someone on the Committee to do so.
MS. SHORTALL: I don't know if we have any public comment yet on this particular issue, might want to see if any member of the public signed up to speak on this issue before you finish your deliberations.
CHAIRMAN STAFFORD: Okay. I know we have several folks that have signed up. I'm not sure what the issues are. As Sarah has just pointed out, if there is anyone that wanted to comment as part of the public comment period about this issue, the extension, then it would be appropriate to hear from them now. Yes?
MS. DICKINSON: My name is Debbie Dickinson.
CHAIRMAN STAFFORD: Do we have a mike for Debbie?
MR. BETHANCOURT: Mr. Chairman, this is Jeremy, if I could ask a question before she or he -- I can't really hear very well -- begins. Perhaps that person could have a seat at the table so we can hear well, by having a microphone.
CHAIRMAN STAFFORD: Debbie, come on up here. MR. BETHANCOURT: Thank you, Mr. Chairman.
MS. DICKINSON: Thank you for giving me a few minutes to speak today. I'll keep my comments brief because I know we have a tight schedule.
This Committee has heard many opinions regarding the OSHA regulation that was issued --
MS. SHORTALL: Excuse me. Will you please identify your name, your organization, before you start?
MS. DICKINSON: Yes, you didn't hear me over there. I'm Debbie Dickinson, Executive Director of CIC. I've been the Executive Director of CIC, Claim Institute Certification, since 2007.
CIC was accredited, nationally accredited, on five levels in 2008 by type and capacity. Our subject matter experts, our governing committee, had our programs and gave the input of accrediting crane operators by type and capacity because employers, as Jim said earlier, were looking for certification as a means to distinguish a difference in the levels of the knowledge, skills and abilities of crane operators, to be able to tell the difference between someone who tested out on 15/18 ton cranes and someone who operated a crane at a much higher capacity and demonstrated knowledge, skills and abilities across those levels.
They worked very hard for years leading up to this point, and every one of the programs and the titles that we have issued for two full years before this regulation was published in 2010, we have a certificate of accreditation from NCCA, the National Commission for Certifying Agencies, to back up that credential.
A lot of work, a tremendous amount of work and study, time and testing has gone into the over 30,000 tests conducted since then.
I come from a standpoint of saying this is something that we spent a lot of time studying, and the value of it is that having higher levels of certification or graduated levels of certification by type and capacity does just what the employers who approached us -- and helps this group assembled -- asked for, and that is to be able to distinguish knowledge, skills and abilities and to be able to look how do match people up to the jobs and to the machines.
Does it replace common sense, good business practices? Of course not. Certification is qualification in terms of who you hire, who you bring to the job site, who you consider putting on which type of machines, it is a credential to know what to do with the crew and with the personnel.
Good common sense, good business practices, lift planning with your crew are not going to be replaced or legislated in any way, shape, form or fashion. That is what keeps people safe at work.
Next, I've heard some fantastic and rather amazing numbers floated for the cost of certifying by type and capacity. Mike Tillery, a claims supervisor with Southern Nuclear will be quoted in an E&R Magazine article, along with some other individuals, who stated their cost of type and capacity certification.
One of the organizations that came to us and has certified for years their operators by type and capacity, their average cost is 300 to $500 a year per operator, including the cost of training, certification, and the cranes.
Not an unreasonable number. From where some of these numbers are coming from with regard to the cranes, with regard to the cost of training, is pretty amazing to me, we don't have that kind of budget. I would sure like to, but we certainly don't. Those are not in our cost factors.
Is there anything in the rule that can be improved? I think having a definition and understanding what "qualification" is, it's not an end all, it's not a blanket, it's not this fixes everything and you don't need to do anything else, that's silly, but what businessperson does that. You hope none.
At some point, we just cannot legislate common sense. People have got to have good business practices.
Additional definition around what "qualification" is, certification as who you start with, what you do, and a basis, that is a norm outside of our industry, across many professional industries.
Thank you very much. Those are the comments that I wanted to bring for consideration today.
CHAIRMAN STAFFORD: Thank you, Debbie. We have several folks. I think we should hear all the comments. We have several folks that are signed up to comment at the end of the day.
We will reserve any official motion or recommendation until tomorrow morning after we have a chance to hear all the comments, and we will move on from this issue. I think that will be the appropriate thing to do.
MS. SHORTALL: Mr. Chair, if someone is not addressing the particular issue before the table right now, which is you wanted a motion on the training certification extension deadline, you can defer those and move forward with that. If there are comments pertaining to something else, you can wait until later. If they are not germane to the item before you, you don't have to listen to the comments at this particular moment.
CHAIRMAN STAFFORD: I think we should go ahead and push them back and move on. There are four people on the list.
MR. SAPPER: Mr. Chairman, can I speak for a moment? It would be extremely inconvenient for my client to speak at the end of the meeting. I had signed up in advance to speak. I thought I would be recognized by the Chair.
CHAIRMAN STAFFORD: You certainly will be recognized from the Chair. Typically, as we have said, and it's on the agenda, Mr. Sapper, all the public comments are at the end of the meeting. I wanted to make a motion, that was my mistake, and I was informed by my Solicitor that we couldn't make a motion unless the public had specific things they wanted to speak about with respect to the issue of the three year extension, and that is all.
MR. SAPPER: I wanted to speak about the insulating link issue which has been already spoken about on the floor, if I could have --
MR. SHORTALL: Mr. Sapper, your comments at this point are out of order. It is at the discretion of the Chair and as time permits, how much time and when the Chair will permit you to speak.
CHAIRMAN STAFFORD: We will do it at the end with the sign-in public comments with the other folks.
SPEAKER: One question, when you say "the end" --
CHAIRMAN STAFFORD: The end of today's meeting. As I said earlier, we will have public comment. Typically, at all ACCSH meetings, anybody that signs up for public comment, we make time at the end of the meeting. We will do that for both today and tomorrow. It is reflected on the agenda.
Let's move on. Who is going to be walking us through from the Directorate of Standards and Guidance on SIP?
MS. SHORTALL: Mr. Chair, while they get up to the microphone, I'd like to mark as Exhibit No. 3, the amendments to Subpart CC of Cranes and Derricks, and as No. 4, the proposed rule on operator certification.
CHAIRMAN STAFFORD: Thanks, Ms. Sarah.
I don't know who you are, sorry about that, you will have to introduce yourselves. Please do.
SIP IV - REMOVE REQUIREMENTS FOR CHEST X-RAYS IN
CERTAIN HEALTH STANDARDS, SUCH AS CADMIUM AND INORGANIC ARSENIC, THAT MAY AFFECT CONSTRUCTION EMPLOYEES AND
PERMIT DIGITAL STORAGE OF X-RAYS (NOT JUST FILM)
MR. BROWN: My name is Chris Brown. I'm a health scientist in the Directorate of Standards and Guidance.
MS. REINDEL: My name is Rebecca Reindel and I'm an industrial hygienist in the Directorate of Standards and Guidance.
MR. BROWN: We will be walking you through some information on proposed amendments to screening and diagnostic radiography requirements in OSHA standards, and we will be talking in general about eight OSHA standards that our proposed amendments would affect, but specifically, three that concern the construction industry.
All of these are detailed in a table that was made available on the ACCSH website as well as in the back of the room. What we will be discussing is covered in this table as well as in a handout that is back there as well, if you are interested in that.
Just to give you some background on this issue, OSHA's standards include a number of medical surveillance requirements that are designed primarily to detect the onset of certain adverse health effects so that appropriate intervention measures can be taken, and each individual OSHA standard has a number of provisions for medical surveillance monitoring and what sort of measures employers are required to take as a result of that.
Chest x-ray is one that has traditionally been used in a number of standards to detect lung cancer among other health effects.
We are primarily interested, at least for the first part of this presentation, in that lung cancer outcome. OSHA has done a preliminary evaluation of presently available scientific evidence, and we have considered professional opinion, a number of consensus standards, and the opinions of several professional organizations that deal with these types of issues, and have preliminarily come to the conclusion that chest x-rays are fairly ineffective at detecting lung cancer, and are basically exposing workers to what can be considered unnecessary radiation.
Unfortunately, at this time, there doesn't seem to be a suitable replacement as a screening tool for lung cancer, so there is not really one that has been widely shown in the scientific evidence to reduce lung cancer morbidity and mortality as a result of using it as a screening tool.
Therefore, we are proposing to remove the lung cancer screening requirements using chest x-ray for five standards, and those include two that affect the construction industry, cadmium in construction, inorganic arsenic, and then the other three that are more applicable to general industry are the general industry cadmium standard, coke oven emissions, and the acrylonitrile standard.
Speaking about cadmium, with specific regard to the construction standard, that is 1926.1127, the primary health effects of concern in that standard are renal disease and lung cancer.
Cadmium exposure has been linked to other health effects, including bronchitis, fibrotic lung changes, emphysema like lung changes, and those are all detected by other screening tools not involving chest x-rays, so things like pulmonary function testing, physical exams as part of medical screening, and other techniques.
The cadmium standard for construction affects about 3,750 workers.
Moving to inorganic arsenic, the primary health effects of concern there are lung cancer and skin irritation. Again, skin irritation is something that can be detected by signs and symptoms reported by workers during medical exam's, and that standard would affect about 157 workers.
What we are proposing to do there is eliminate the chest x-ray screening requirement for lung cancer, and we would be updating the standard as well as any appendices that would need to be updated if the regulatory text were to be changed.
Rebecca is going to talk a little bit about making some modifications to other standards that do not involve removing the chest x-ray requirements completely.
MS. REINDEL: Good morning. Aside from removing chest x-ray requirements, we are suggesting updates to some existing chest x-ray requirements for standards that use chest x-rays to detect other outcomes other than lung cancer. For instance, such as asbestosis in the asbestos standards.
The OSHA standards, we are not proposing to remove chest x-rays from these, just to update the chest x-ray requirement to be clear. OSHA is considering modernizing its standards to align with the current medical practice guidelines.
There are updates such as digital radiography for chest x-rays, the ILO in 2011 released a set of reference images for digital radiography, digital chest x-rays, so that the traditional form of chest x-rays can use digital radiography instead, and we would basically be proposing to permit digital radiography use in place of traditional chest x-rays and change some of the regulatory language to show that, and also allow equivalent diagnostic studies just as in the standards we are proposing to remove chest x-rays to allow equivalent diagnostic studies in place of traditional chest x-ray requirements where it is appropriate.
The proposal does use the ILO new standard of reference images or would permit them, the ones from 2011.
The equivalent diagnostic studies that we propose to allow would be things such as CT, low dose CT or high resolution CT. These are not shown to be completely effective at this time and only preliminary findings show these could be possible equivalent diagnostic studies. We are considering using those in this case.
This updating would cover three asbestos standards, which would be 1910.1001 and 1926.1101, 1915.1001. The 1926.1101 would obviously pertain to construction, so it would affect these three standards.
Since the chest x-rays cannot be removed from the standards at this time, some language we are considering using would be proposing modifications to the asbestos standard in construction, and it would be adding words like using "or an equivalent diagnostic study."
This would permit equivalent diagnostic studies to be administered at the discretion of the physician, which is some of the language that is already in the standard.
OSHA would also, just in the removal of chest x-ray requirements, update the regulatory text in any associated appendices that go along with that.
CHAIRMAN STAFFORD: Any questions or comments?
CHAIRMAN STAFFORD: Matt?
MR. GILLEN: Thank you.
COMMENTS ON BEHALF OF NIOSH
MR. GILLEN: This is an important topic and NIOSH does have some subject matter experts on this issue, and I conferred with them and came up with some bullet points here to share with the group.
Not everybody in ACCSH may know that NIOSH is mandated by Federal law to provide radiographic surveillance to underground coal miners and to maintain a certification program documenting physician competency and using the ILO classification system, the B Reader Program is something that NIOSH operates.
NIOSH has performed research related to the transition from film to digital radiography, and we have a topic page about digital imaging, and we have guidelines on the topic that OSHA may refer to, NIOSH guidelines called "Application of Digital Radiography for the Detection and Classification of Pneumoconiosis." I can provide the web link for that.
That provides recommendations in proper image acquisitions, storage and display criteria, and we are also building a repository of identified digitally acquired chest radiographs and computed tomography, CT scans, to be used for research training, quality assurance, publication and other public health purposes.
There is evidence showing that film based chest x-rays are not an effective screening tool for lung cancer. Medical surveillance is an important tool for protection of worker health, and baseline testing at pre-placement or at the initiation of a program plays an important role.
A question to consider for standards involving lung carcinogens is whether removing the chest x-ray requirement would leave workers in positions without an imaging substitute for baseline testing, and even with known limitations, chest x-rays serve to document the absence of disease, so NIOSH is available for additional discussions with OSHA if you would like to talk about that issue a little bit further as you make your decisions for the proposal.
Also, NIOSH is currently evaluating the applicability of the low dose computed tomography, LDCT, as a screening tool for workers exposed to lung carcinogens, but the work is not yet finished, and it will take some time before we can provide a final recommendation.
The current available efficacy studies for LDCT are for cancers related to smoking, and societal and professional organizations currently recommend that type of screening only for smokers and former smokers who are age 55 to 74 who smoked 30 pack years or more and either continue to smoke or have quit within the past 15 years.
For asbestos, which causes cancer and non-cancer lung disease, the current Standards Improvement Project language will allow the use of equivalent diagnostic studies at the discretion of the occupational physicians. This will allow the use of digital radiography.
We wanted to report that NIOSH is not aware of any other currently available equivalent diagnostic studies that have been shown to be an effective screening tool for lung cancer in non-smoking workers potentially exposed to lung carcinogens.
We did want to suggest that OSHA might refer to the NIOSH guidelines somewhere, the NIOSH guidelines for digital radiography, in addition to those from the ILO, because there are a few differences in them, and perhaps the appendices.
Lastly, NIOSH noted that the SIP language includes deletion of chest x-ray information in the recordkeeping requirements, and given these recordkeeping requirements also reflect tests that have already been given, and some of the requirements explicitly address x-rays with "a demonstrated abnormality in all subsequent x-rays," that is language that is in the coke oven and inorganic arsenic standard.
OSHA should word these requirements carefully to assure they apply only to new records. OSHA would not want to inadvertently suggest that existing Legacy records no longer need to be retained.
Those are some of the points that NIOSH and its subject matter experts wanted to share with ACCSH. Thanks.
CHAIRMAN STAFFORD: Thank you, Matt. Any other questions or comments?
CHAIRMAN STAFFORD: If I understand you, Matt, is OSHA not talking to NIOSH about this?
MR. BROWN: OSHA has every intention of consulting with NIOSH.
CHAIRMAN STAFFORD: But hasn't done that yet?
MR. BROWN: Not yet. We have been in the preliminary stages of evaluating the evidence, and still plan to discuss this with NIOSH.
CHAIRMAN STAFFORD: I would suggest that is a very good idea. I think that is what NIOSH is there for. I don't know the science. We do medical screening programs. I thought CT scans was proven scientifically to be a good early detection screening.
MR. BROWN: The benefits of that are still being explored. Some of the studies that exist right now suggest that the benefits aren't seen until many years later, so the tradeoff between radiation exposure and the reduced mortality from lung cancer aren't really showing up until several years down the road. Workers aren't going to see an immediate benefit from that, but some of the studies do suggest that is the case over time.
CHAIRMAN STAFFORD: Any other questions or comments? Â Anyone on the phone?
MS. DAVIS: This is Tish. I just want to weigh in that I would like to hear more about the relevance of use of CT scans for even arsenic and cadmium exposure. I would support the recent recommendation there be more conversation about it.
CHAIRMAN STAFFORD: Thank you. Anything else?
MS. REINDEL: Thank you.
CHAIRMAN STAFFORD: Thank you very much.
MS. SHORTALL: Mr. Chair, maybe Matt, you could get the conversation out further away from here. I would like to add into the record at this point Exhibit No. 5, proposed amendments of screening and diagnostic radiography requirements in OSHA standards presentation by Chris Brown and Rebecca Reindel.
The proposed amendments of screening and diagnostic requirements in OSHA standards, Exhibit 7, and as Exhibit 6, screening and diagnostic requirements in OSHA standards.
CHAIRMAN STAFFORD: Thank you, Sarah. Paul?
SIP IV - REVISE THE CONSTRUCTION PERSONAL PROTECTIVE
EQUIPMENT STANDARDS TO MAKE CLEAR THE REQUIREMENT THAT
EQUIPMENT MUST FIT EACH EMPLOYEE
MR. BOLON: Hi. Paul Bolon again from the Directorate of Construction, the Office of Standards and Guidance. With me is Dayton Eckerson, who is a staff person who is working on the Standards Improvement Project, which we call "SIP."
Just to keep everything in order, the presentation that you just heard on x-rays and storage technology and so forth, those were two items that we are planning to include on the Standards Improvement Project, and then there are four more you are going to hear, two right now from Dayton and I, and then two tomorrow.
The Standards Improvement Project, this is the fourth version we have done. We had published an RFI and asked for comments. I think we got 25 to 30 comments. We probably have 10 or 15 things that are really mostly just technical corrections, correcting typo's in references, things like that. These six items are fairly substantial for SIP items, and I suspect we are going to have more to present at the next ACCSH meeting.
The two that we are going to present right now are ones that actually originated at least in part from ACCSH. The first one deals with ensuring in the construction standards that personal protective equipment, that's PPE, fits correctly.
PPE, when you have to use it, making sure that it fits correctly is really essential. It is critical for it to work correctly.
This came up in discussions with ACCSH at least in one facet in the work group that dealt with issues affecting female employees. It was often reported to be the case that they didn't have PPE that was appropriately sized.
That is part of the impetus for changing the wording in the construction PPE standards. We think this will clarify the standards. We don't think it's imposing a new duty. We think it is clearer and more explicit language which will provide guidance to everyone, both employees and employers.
Again, I would just say properly fit PPE is really essential, it's critical for the PPE to do its job.
This was an idea that was presented by several commentors to the RFI. As I said, it also originated right here in ACCSH.
Comments from the Committee?
CHAIRMAN STAFFORD: Any questions or comments? Go ahead, Matt.
COMMENTS ON BEHALF OF NIOSH
MR. GILLEN: Mr. Chairman, I consulted with our subject matter experts in our National Personal Protective Technology Lab, and they as well feel like the selection is an important issue. They did point out there are some other issues for selection in addition to fit, and it relates to suitability for the hazard, especially when it comes down to respirators.
They pointed out there is some existing language in l926.32 that defines the term "suitable," and "suitable" means that which fits and has the qualities or qualifications to meet a given purpose, occasion, condition, function or circumstance.
They wanted to share the idea that the 1926.95(c) language -- some consideration might be given to thinking about modifying that language to say to ensure it is suitable, meaning that it fits, meets the given purpose, circumstances, for each affected employee.
CHAIRMAN STAFFORD: I think that is an excellent suggestion. I think overall the Committee is very supportive of this one, and this came through here, and this is something we have talked about.
MR. PRATT: Mr. Chairman and Paul, I agree PPEs have to fit properly and I like Matt's idea with "suitable." I think that is good.
What I am fearful of is we have to make sure that we put language in where the employee cannot say well, it doesn't fit properly, and therefore, I'm not going to use it. I think we have to be very careful about how we write this, how we develop this process.
I absolutely agree that personal protective equipment must be fit and must be fit properly. We already have that in the rules. We need to make sure that we don't put something in here that is going to give employees a way out, something they can use to say well, my employer didn't give me the right color glasses, as an example. Maybe that is going overboard. I want to try to make my point.
Or as an example, my harness doesn't fit properly. As we all know who have been in this business, you can buy a harness for X amount of money, 40 to $50, or you can buy a harness for 150 to $200.
We just have to be sure that we don't put something in here where we are giving the employee the right to back out of something or do something that would be contrary to what Matt just mentioned.
CHAIRMAN STAFFORD: Sarah, please.
MS. COYNE: Sarah Coyne with IUPAT, employee representative. Maybe I am misunderstanding you. If a worker -- are you implying that if a worker is asked to do exterior high work and my size, for example, and the only thing that is available is a 3X harness, I shouldn't be able to say that it doesn't fit so I'm not going to do it?
MR. PRATT: No, Sarah, that's not what I'm not saying at all. I'm just saying the language is going to be very important in how we develop this rule, to make sure that we don't put something in there that gives the employee a way out of doing something.
Obviously, a harness has to fit the body. That is not what I'm talking about. I'm talking about -- I have a couple of harnesses myself. I have one that is very comfortable and I have one that is not very comfortable. They were both issued by an employer.
I'm just saying we want to make sure that we are not getting ourselves in a trap here. I think it's a great idea. I think we have to make sure equipment fits properly, especially when it comes to breathing devices.
On the other hand, we just can't go overboard. That's all I'm saying.
MS. COYNE: Agreed. Thank you.
CHAIRMAN STAFFORD: Any other questions or comments? Laurie, please.
MS. SHADRICK: Laurie Shadrick. I think it would be in the employer's best interest to have properly fitting equipment on the job for the employee to avoid accidents and injuries.
CHAIRMAN STAFFORD: I think that is the intent. That's the idea. Any other questions or comments?
CHAIRMAN STAFFORD: Paul?
SIP IV - REMOVE THE REQUIREMENT FOR CERTIFICATION OF
TRAINING IN SUBPART M - FALL PROTECTION
MR. BOLON: The next item we are going to bring to your attention, it is actually one that we have talked about on at least one occasion before with ACCSH, and that is in SIP, we are often looking for ways to remove burdens that are unnecessary or find better substitutes or technologies or provide alternatives.
One thing that we do is try to find ways to eliminate paperwork. I know in the last several SIPs, we have been removing certifications, written certifications for various things, and the one that we are bringing to your attention now is we have a big paperwork burden for certifying training for fall protection.
That is the one we are proposing to delete. We don't think recording certification necessarily leads to more training. It doesn't really necessarily help our compliance officers cite if there was no training.
CHAIRMAN STAFFORD: I have a comment. I absolutely don't agree with that. I think that is the wrong approach. Subpart M is a very important standard. I don't care how far you go back and look at the data, consistently one-third of the people that get killed in this industry are getting killed from falls.
To do anything to weaken that standard, I think is a mistake, and our industry relies a lot on it, the Union side folks coming out of training centers that are already trained using third party training providers, and I think a simple thing of asking for a piece of paper that training was provided is not necessarily over burdensome to the industry, and I personally don't think that is an appropriate thing to be doing.
MR. CANNON: I was just going to ask for clarification. With removing the certification requirements, does that eliminate the need to maintain such a written record of training that's being conducted?
MR. BOLON: Yes, for OSHA enforcement purposes.
MR. CANNON: I agree with Pete, if it's not written, if it hasn't been done, let's say the compliance officers rely on employee interviews, are there like standard questions that they ask or is it a pop quiz? How do you verify in the absence of any records?
MR. BOLON: Are you suggesting it would be better to require keeping the records of training rather than --
MR. CANNON: Yes. I think folks would do that anyhow.
CHAIRMAN STAFFORD: I think that is the case. Don, and then we will go to Jerry.
MR. PRATT: Mr. Chairman, Paul, I think this is directed to you. Do you know where this came from? Where did this request -- I have a question and I have a comment. Do you know where this came from, Paul? Who recommended this?
MR. BOLON: It came basically from me because when we look at SIP, we have a lot of information on where the paperwork burden arises, and this was something that just jumped out.
MR. PRATT: Mr. Chairman, if I could make a comment now.
CHAIRMAN STAFFORD: Sure; please.
MR. PRATT: I happen to agree with you, Mr. Chairman.
MR. PRATT: Our industry needs to be better at recordkeeping. We need to do a better job of training. We need to make sure the employer is protected in certain instances where the training has been properly done.
I think doing away with this would be a mistake.
CHAIRMAN STAFFORD: Jerry and then Tom, and then I'm sure we will come back around. Jerry?
MR. RIVERA: Jerry Rivera with NECA, employer rep. I think the language is worded funny. Maybe I see the intent to provide some relief as far as generated paperwork, but maybe it could be something like maintain digital records or records of training. I think we are trying to deviate from certification does mean the person is qualified, maybe that might be the rationale.
The trail of maybe paperwork, whether it's digital, paper, it's a common practice in the construction industry, it is required for subcontractors. That is already in play. To take it away, I don't know if we will deviate from it as an industry in general, so the paperwork or the digital records will continue to be upheld.
Maybe we should word that differently if the intent is to not imply the certification or the records mean the person is qualified, but other means to maintain records versus paperwork, like digital format.
MR. BOLON: We certainly permit it. We permit any format, I think, in terms of compliance. This certification is just a written certification that the training occurred.
CHAIRMAN STAFFORD: It's not necessarily a card in your pocket or whatever. It's a piece of paper that Jerry was trained on this particular issue.
MR. RIVERA: : In that case, I want to reaffirm that we do need that.
MR. BETHANCOURT: Mr. Chairman, I have a question.
CHAIRMAN STAFFORD: Hold on one second, Jeremy. Tom is first and then we will come back around. Tom?
MR. MARRERO: I happen to agree with you, too, Mr. Chairman. In essence, I think all protection training is beneficial to an employer as well as to the employee, especially with new hire's. If you have a guy that's green, who has never won a harness, it's imperative that we train them.
CHAIRMAN STAFFORD: Jeremy and then Tish.
MR. BETHANCOURT: Let Tish go.
CHAIRMAN STAFFORD: Tish and then Jeremy.
MS. DAVIS: I agree with Pete, I don't think the requirement to record the training should be eliminated. I can appreciate, Paul, that the inspectors do not rely on that information in the course of investigations because clearly a bad actor could be a bad actor with respect to recordkeeping. I can appreciate that.
I think it serves other purposes, and we really need to think about those other purposes. I think it gives weight to the requirement, it puts employers on notice. I think those other purposes need to be considered as well.
CHAIRMAN STAFFORD: Thanks, Tish. Jeremy?
MR. BETHANCOURT: I agree a great deal with what many of the Committee members have said. I don't necessarily agree in getting rid of the requirement. I do recognize that it is a burden, per se. One thing that I have recognized in our industry is there are employers, as Tish alluded to, that are bad actors, who utilize those certifications as a means of simply claiming an affirmative defense, where they have been able to amass a good amount of paperwork to protect the employer, where it may be the employer just relied only on the paperwork.
I'm curious if there is any thought when they were explaining that they want to assist the COSHO, that the COSHO was meeting with an inability to enforce the spirit of the law with the fact that the certification is supposed to be a means to document that you have given a certain type of training and the employee understands the training.
I have some questions, the COSHOs are finding they can't enforce the spirit because of the paperwork that's there or -- I can't say we would stop or advise any of the folks we interact with to stop having certification.
Like Tish said, it gives weight to the importance of the training. We gave training yesterday and we documented it.
I guess that is one of my concerns. I have a few concerns about the reason why they would take it off. Would it reduce a burden? Yes. Then would it introduce another burden? Yes. How do you prove you have given somebody training? How do you verify they have the training? Employees aren't perfect, they may not remember all the nuances of it, but if they remember the main points, I suspect maybe that is how a COSHO would be able to verify they have training.
Those are just some comments I have. Thank you, Mr. Chairman.
CHAIRMAN STAFFORD: Thank you, Jeremy. I'm assuming, and I can't speak for Paul, I believe what they are saying is the compliance officers aren't necessarily asking to see the certification, that they can tell training has been done by observation.
MR. BOLON: By observation and by interviewing employees.
CHAIRMAN STAFFORD: If we observe somebody falling off a roof, then we can say they weren't properly trained.
MR. CANNON: The training can be delivered and the individual still not follow the training content and program.
CHAIRMAN STAFFORD: Anyone else on the phone?
CHAIRMAN STAFFORD: We will go back around the table. Chuck?
MR. STRIBLING: Thank you. Chuck Stribling, Kentucky Labor Cabinet. I can tell you that with our program, and we have a full staff of compliance officers, when we have gone to a site and we have asked an individual in employee interviews have you had training on fall protection, yes, I have. Well, what was your training was about, what did you talk about. You don't spend 30 minutes on it.
We have never turned around and then cited an employer for not having the certification, because we just don't ask. If the employees tell us they have been trained, they have been trained.
Where this is important though is in the case of a fatality. You don't have an employee to interview. I can't ask that employee were you trained. We would ask the employer has this employee been trained. That certification becomes very important then because they can show it to us and then okay.
Bad actors will do what bad actors do. Most employers are not bad actors. That certification record does come in handy. Occasionally, you will have interviews and you will ask an employee have you been trained in fall protection, well, I was trained at such and such place before I got here. Certification comes into play there, did the employer talk to the employee about what do you know, what do you don't know.
Some employees were trained by that particular employer but it's been a few years and I don't exactly remember, so then we would go to an employer and say has so and so been trained, yes, he has, here's the certification record, we're done. Compliance officer moves on.
It does have a value. I understand it could be construed as a burden to employers. It is also a very valuable tool for employers just to simply keep the compliance officer happy, if you will, and then they don't have to address the whole training issue. Thank you.
CHAIRMAN STAFFORD: Thank you, Chuck. Kevin?
MR. CANNON: Do you have any examples of how it has been cited? You said over 700 times. Is it a date missing or a signature missing?
MR. BOLON: The simple answer is I don't know. Dean?
MR. McKENZIE: Probably a total lack of documentation.
CHAIRMAN STAFFORD: Okay. Jerry?
MR. RIVERA: This is Jerry Rivera with NECA, employer rep. Maybe instead of deleting the entire requirement, to say a training record. I think the information, the content requested, name, type of training and so forth, it is important, date trained, and employers use that to assess whether it is current or you need to go back to it. Maybe it doesn't need to be a certified record, but a training record in essence.
Again, I think it is vitally important to maintain accurate records that the training is occurring and the language is there that identified the identity of the employee who was trained, the date, the type of training, signature, acknowledgment that the training did occur.
Again, it plays a vital role in the administration of the fall protection training program that employers currently run.
CHAIRMAN STAFFORD: Thank you, Jerry. Matt?
MR. GILLEN: To me, what it is is it's really the manifestation of an accountability system. You have to be accountable for this, and that's important. If people aren't doing it, it might indicate there are other areas where accountability needs to be looked at. It kind of is important.
CHAIRMAN STAFFORD: I agree. I think it sounds like we all agree. Ms. Sarah, if we need to make that in the form of a recommendation, that this Committee would like to see this removed from SIP IV, I think --
MS. SHORTALL: You can entertain such a motion.
CHAIRMAN STAFFORD: I'll entertain such a motion. Would someone want to make that motion?
MR. BETHANCOURT: I'll make a motion for that, Mr. Chairman. This is Jeremy.
MR. ERICKSON: I second.
CHAIRMAN STAFFORD: All right. Jeremy, if you want to frame the motion for purposes of the record.
MR. BETHANCOURT: I would make a motion that we remove this particular item from the SIP agenda, as the ACCSH members seem to be in consensus that this requirement on employers is actually more of a benefit and not necessarily a burden. Is that enough specific?
CHAIRMAN STAFFORD: That's probably more than we need.
MR. BETHANCOURT: I agree.
CHAIRMAN STAFFORD: How about that we move that OSHA removes training certifications, Subpart M, off of SIP IV?
MR. BETHANCOURT: I make that motion.
CHAIRMAN STAFFORD: We have a second from Roger Erickson. All those in favor, signify by saying aye.
[Chorus of ayes.]
CHAIRMAN STAFFORD: Any opposed?
MS. SHORTALL: I apologize. We have to at the very least have the persons on the phone do a roll call of their votes.
MR. BETHANCOURT: This is Jeremy, aye.
MS. DAVIS: This is Tish, aye.
MS. BARBER: This is Kristi, aye.
MR. HAWKINS: This is Steve Hawkins. I vote aye.
MS. SHORTALL: Thank you.
CHAIRMAN STAFFORD: Thank you, Sarah. Ms. Sarah?
MS. SHORTALL: I would like to add as Exhibit No. 8, the SIP IV Candidates for Proposed Rulemaking presentation.
CHAIRMAN STAFFORD: Let's move on. If you would like to make public comments, please sign up. I think we should probably move to public comment. We are a little bit ahead of schedule, which is a good thing. I don't have the list before me. Debbie has already gone, I assume.
MS. DICKINSON: I can make another one.
CHAIRMAN STAFFORD: I'm sure you can. We'll put you at the end, Debbie, to make sure the other folks have time. We have eight folks signed up, including you. We will move to have you come up here.
In the sake of time, I'd like to limit any comments to ten minutes for now, to give everyone a chance. If we have more time for discussion at the end, we will be glad to do that.
The first person is Arthur Sapper, who would like to talk about the insulating links standard, I believe. Arthur, please.
MS. SHORTALL: Mr. Sapper, are you giving the presentation instead of the client that you indicated would be presenting?
MR. SAPPER: I'm sorry. I'm making a presentation on behalf of the Crane Power Line Safety Organization.
MS. SHORTALL: Okay. Thank you.
MR. SAPPER: Thank you, Mr. Chairman. I'm speaking on behalf of the Crane Power Line Safety Organization. I'm Art Sapper. The Crane Power Line Safety Organization is concerned with safety of employees who work near power lines. It has advocated the use and improvement of things like proximity alarms and insulating links.
I'm here to speak today to urge the Committee to not approve OSHA's proposed amendments to the insulating link requirements of the crane standards.
The problem is that although Mr. Bolon is absolutely right, the current standard has not worked and it is important that I take a moment to explain why it hasn't worked. It has not worked.
The approach that they have proposed is not going to be much better and it is certainly not going to protect employees very well. There is a much better approach.
The reason the current standard hasn't worked is it fails to match the economy of scale of the market, which is tiny. No one can afford the equipment to get NRTL certification, as Paul did say. The problem is there are certain internal NRTL requirements that OSHA has set. I'm not asking those be changed at this time, and the Committee doesn't have jurisdiction over them anyway, but it has jurisdiction over the crane standard.
The problem is that the proposal would allow as an alternative permanent solution to the problem of electrocution the use of insulating links not meeting any criteria for performance or safety, plus gloves. That's what the proposal is. There is no requirement that it meet any standard, that it be approved by anybody. You just purchase it on the market, could be anything, as long as you use gloves, that would be legal.
It unnecessarily exposes employees to danger. I'm personally familiar with cases in which wedding rings have become widow makers because they wear holes in the gloves and the employees don't check them every day.
There are links on the market also that pose great problems. They are not as safe as others, and yet the OSHA proposal would allow them.
What am I talking about? There are insulating links that don't work if they are wet. They don't work if they're dirty. The manufacturer's literature requires they be cleaned or dried. We are talking about construction sites. We all know they are going to get wet, they are going to get dirty, and there are crane operators or riggers who are just not going to towel them off. They won't work. They will get flash over on the outside surface of the link, and the rigger holding the line will be electrocuted.
There is a better way. Â There are links on the market that meet ANSI UL 2737. They work if they are wet. They work if they are dirty. If they don't work, they self test all the time and they report if they are not. I'm not working, don't use this crane.
These are links that meet ANSI UL 2737. Unfortunately, even though that standard has been approved by OSHA for use by NRTLs, the NRTLs, including UL, can't get certification because of the NRTL requirements.
We are proposing put an incentive on the market for employers to buy these better insulating links. If they are certified by the manufacturer or if they are approved by a qualified testing laboratory, not a NRTL, a QTL, if you will, which the OSHA standards recognize, it is in 1926.449 already, then that would be an alternative. That is what we are proposing. You would not have to use gloves.
Why is that important? Because if you require even the ANSI UL 2737 links to be used with gloves, there is then no economic incentive for employers to buy the best links. You still have to use gloves. They are no better, so I might as well use something else.
Give the market an incentive to cause employers to buy the best so we don't rely on gloves, which will turn out to be otherwise the line of protection, which we don't want. Â After all, OSHA's safety philosophy has for decades been let's not rely on PPE if we don't have to. Why are we doing it differently here?
I have a proposal. It is in my slides. I would also ask the Chairman for his indulgence. Somehow, a slide got dropped. I have copies of an additional slide. Essentially, these slides, including the slide I am adding, Mr. Chairman, if you would be so kind, would simply say here are two alternatives for OSHA's consideration.
I would ask the Committee to move this and vote that OSHA be required to consider these alternatives, either, that you don't have to use gloves, as long as you have an ANSI UL, which OSHA has approved already, link, that is certified by the manufacturer or certified by a qualified testing laboratory.
That's our proposal. If there are any questions, Mr. Chairman, from the Committee members, I would be happy to answer them.
CHAIRMAN STAFFORD: Thank you very much, Mr. Sapper, for your comments. Any questions?
MR. RIVERA: I have a couple of questions. I guess the proposed language is that products or insulating links that lead to ANSI UL 2737 be accepted as a means of protection for line workers?
MR. SAPPER: Correct, as long as they are certified as meeting that standard by the manufacturer or by a qualified testing laboratory.
MR. RIVERA: The qualified testing laboratory would certify that, not the manufacturer itself?
MR. SAPPER: It could be one or the other. I would say that would be in the Committee's discretion.
MR. RIVERA: My only concern with the manufacturer's self qualification of that process is while it has a role in the development of that product, it's vital that self certifying opens up a different can of worms.
MR. SAPPER: Here's why self-certification might be a good idea. If a manufacturer sticks his neck out to certify something as meeting UL 2737, he better be right, or else there are going to be battalions of lawyers crawling all over him. I trust the legal system on that score.
I've advised manufacturers, and I think this is the dynamic that is going to work. I think that would be an useful thing. That is why Paul did mention that as an alternative. He's right. It is a serious alternative and should be considered. I would ask the Committee to vote accordingly.
CHAIRMAN STAFFORD: Thank you again, Mr. Sapper.
MR. SAPPER: Thank you all.
CHAIRMAN STAFFORD: Next on the list is Lance Burney. Come on up, Lance.
MS. SHORTALL: Mr. Chair, while he's doing that, I'd like to mark as Exhibit No. 9 the missing slide from Art Sapper's earlier presentation.
CHAIRMAN STAFFORD: Thank you, Sarah.
MR. BURNEY: Hi, my name is Lance Burney. I'm the owner of Sigalarm, we are a manufacturer of proximity alarms here in the U.S. I'm not good at public speaking so I'm just going to read off this and won't be looking up, if that is okay.
CHAIRMAN STAFFORD: That's fine, you have ten minutes.
MR. BURNEY: There you go, I'm going to speed read. Our products have been on the market since the 1960s. My wife and I have owned the company since 1999. We have sold thousands of units around the world without any requirements to do so. It is strictly based solely on our performance, reputation, reliability and ability to keep operators and their equipment away from power lines.
To my knowledge, there has never been a lawsuit, product liability claim, or litigation against any of Sigalarm's products.
I am here publicly to put on the record the unintentional negative consequences resulting from the unnecessary additional burden placed on Sigalarm and its primary core product line of devices known as "proximity alarms."
I have submitted multiple testimonials, test reports, NIOSH field studies, requirements by the Corps of Engineers to use our products, some going back as early as the 1970s. I'm very concerned about the unintentional elimination of proximity warning devices as an option in the standard while not addressing the potential limitation of other options, especially the option of spotters, which I'll address in a few moments.
We believe CETA is a vastly improved standard with several layers of protection including Table A measures, and no one method was meant to be the only source of protection.
However, jeopardizing worker safety is based on the following: creating a definition for "proximity alarm" that requires NRTL testing when (1) there is no standard to do so. There is no standard in existence for NRTL to even test. There is no NRTL approved/accredited to test these devices. Pretty much, we are in a deadlock.
Our primary core line of business is we don't have one now. It has caused a significant problem for us.
There are alternate testing standards available to the Secretary of Labor. There are alternates that are available, and we would like for you to consider those for testing sites, NRTL.
Again, no standard, no accredited NRTL, and because of the size of our market, to my knowledge, we are one of two maybe manufacturers of proximity alarms in the world, especially in the United States. There is no NRTL that is going to go buy expensive equipment to go test two products. It is just not going to happen.
We have been essentially written out of the standard which we don't believe was the intention of CETA. We believe CETA wanted to give the employers options, five options, and that is not happening right now. We are concerned about that, especially one like ours with a history of protecting people that we have done for so many years.
We ask that OSHA explain its scope of accreditation for proximity devices and how to move forward, identify who is in charge of the scope and criteria so we can work with them.
OSHA mentioned NIOSH testing, again, some limitations of proximity alarms which we have already addressed in the manual and it explicitly excludes from employees or operators using our products in those two potential areas brought up.
If you eliminate one of the five options, then some of the other options are for a spotter. Well, a spotter has been proven cannot judge the distance between power lines and equipment. If you can't judge the distance, if you don't have a proximity alarm available, most people are going to fall back on a "spotter." They have been proven not to be able to judge that distance.
The least we would like to do is ask for spotter testing, since we have been tested, to find out the relationship, apples to apples, if that's even doable because the tests that we presented had operators five feet in air and they had 20 minutes to stand there and try to give a definition of how far that power line was from the crane boom, and they were off as much as five feet, while taking up to 20 minutes to do so, in studies.
We are very concerned there is a lack of safety out there for the workers right now.
I'm skipping over a bunch of stuff, but I'm really nervous, but I'm going to keep going. I know we are on a time limit.
The last thing I would like to say is there has been an unintentional restriction of trade, since that is our primary core business, because of this NRTL requirement, no standard to test to and not one approved, we are pretty much out of business. We think that is a problem.
CHAIRMAN STAFFORD: I would, too.
MR. BURNEY: We believe there is no one measure utilized to protect workers. We feel proximity alarms should be immediately available, especially ones that have a 40 year history like we have. We are just asking for common sense, just some common sense.
I urge the Committee to reconsider requirements, and consider the thousand of existing customers that are successfully utilizing proximity alarms to keep clear of power lines right now, while maybe pushing on them something that hasn't been tested. Like I said, a spotter, insulated links, things like that.
I would ask if anybody has ever heard of anybody ever being injured using a proximity alarm, and I don't believe there has. We have thousands of units around the world, in every kind of working condition, from Alaska in the snow to the Amazon, on moving equipment.
CHAIRMAN STAFFORD: Thank you. Any questions or comments? Â Jerry?
MR. RIVERA: Lance, thanks for the presentation. I noticed there is a challenge with the nationally recognized testing laboratories, and I'm asking you as a manufacturer of this product, would it be easier to have kind of a qualified laboratory test that kind of equipment? I'm just trying to assess moving forward if that is a feasible means.
MR. BURNEY: There is a little bit of vague area whereas I think OSHA was asked -- there were two concerns, how do we address that. We test, obviously, before they go out the door. There needs to be something besides an NRTL requirement, especially on a product that has been protecting workers for 40 years. We cannot do that right now.
MR. RIVERA: Would the qualified testing laboratory be an alternative?
MR. BURNEY: I believe OSHA would have to approve a standard, and that's where again there is a roadblock; roadblock, roadblock. The standard has to be approved and then we have to get past the NRTL. There are two separate issues that need to be addressed, and I'm thinking immediately.
CHAIRMAN STAFFORD: Thank you. Anything else? Any other questions or comments?
CHAIRMAN STAFFORD: Mr. Burney, thank you very much. We will certainly consider --
MS. SHORTALL: Can I get one explanation? Â I can understand how to members of the public certain things feel like a road block, but the reason OSHA has do a standard is Congress has delegated to the Occupational Safety and Health Administration to set requirements and to set rules for protecting worker safety. They have not designated that to qualified laboratories nor nationally recognized testing laboratories, that would be an undue, unauthorized delegation of power.
MR. BURNEY: Thank you.
CHAIRMAN STAFFORD: Thank you. Nigel Ellis.
MR. BONNEAU: Mr. Chairman, I have on the back table a sheet with a link to the public comments that were submitted that are in the Docket.
CHAIRMAN STAFFORD: All right. Thank you, Damon.
MR. ELLIS: My name is Nigel Ellis. I'm President of Ellis Fall Safety Solutions. I've been in the fall protection business since 1970. I've studied the subject I'm going to relate to the Committee and guests, which I am going to term --
MS. SHORTALL: Pardon me, Mr. Ellis, could you pull the microphone closer to you? Thank you.
MR. ELLIS: I'm going to talk today about a new definition for three point control. Three-point control really amongst a number of other definitions, is related to what you hold at low heights for stability and balance, be it a ladder, step bolts, or any other thing. In the case of car carriers, it could be the hood of a car that is being transported.
Now this is a subject I've been studying for over ten years right now. I believe it's responsible for many deaths and injuries at low levels, particularly from those types of stationary vehicles that are being moved and require holding onto with very little traction at all.
First of all, the results from the University of Michigan Biomechanics Department in January 2011, a Ph.D. thesis produced by Justin Young, now Dr. Young, Professor Young, which shows some critical conclusions regarding three point control.
Three-point control is not the same as three-point contact, but has the performance to hold a human body in starting a fall.
I'm having more detailed discussions with OSHA following this meeting concerning the engineering of the test results I'm going to summarize to you in the next few minutes.
Fall protection through the use of hands alone and feet, of course, is critical for ladders, both portable and fixed. Ladders are responsible for 179 deaths per year, give or take one or two each year. Also, fall protection with the use of hands is important for grab bars, hand holds of all different types on machinery, and some principles need to be established. I'm hoping the Committee will take this up.
Many industry standards and practices have adopted three point contact, including transportation, stationary vehicles, such as car carriers, and produced from the following results, which could affect every industry out there where people are off the ground by a few inches up to maybe 18 feet, which is the least a landing can absorb your fall at maximum legality.
One, if you want to stay up and you beginning to fall, hold the horizontal bars only, which means in the case of a ladder, rungs only. The ladder rungs and holding bar must be round. The bars must be 1 to 1.5 inch in diameter for optimum grip.
Women upper body strengths, emphasis needs to be placed in training because 20 percent could not hold on their own weight, and these tests were done mildly dynamic with having a step that rotated vertical to produce a drop.
The engineering tables will be presented in July 2013 at the ISFP, International Society for Fall Protection, symposium in Las Vegas. The overall results were presented in November 2012 in the Professional Safety Journal, which was peer reviewed.
I am requesting that ACCSH study the industries affected and make recommendations to OSHA about design safety of handholds including rungs. That is my presentation, Mr. Chairman.
CHAIRMAN STAFFORD: Thank you very much, Nigel. Any questions or comments?
CHAIRMAN STAFFORD: Thank you, Nigel. We will consider that. Thank you very much.
Mr. Weber, PENTA Building Corp.?
MR. WEBER: I don't have anything.
CHAIRMAN STAFFORD: Okay. Mr. Gottwald?
MR. GOTTWALD: Thank you. I am Rich Gottwald with the International Sign Association. I don't have any formal comments but I wanted to comment on the motion to extend the certification date out three years.
I represent the International Sign Association, and I'm really, I think, speaking here on behalf of all small businesses. Just so you know who we are, we represent the manufacturers and installers of small signs, any sort of sign you see out there, whether it be a Starbucks or men's room, whatever it is. Our members do that sort of stuff.
There are about 25,000 sign companies in this country. Most of those companies have less than 50 employees. They are small family run operations.
I have worked with them for a lot of years now, and I encourage them to comply with laws. When this regulation was published back in 2010, with an implementation date of 2014, I think we did the right thing and we have been on the ball and we started working with our members to get them trained and certified to the new rule. We sent out a memo last week, you have a little bit more than a year left to get on the ball.
Slowly, they are doing it, and they are spending upwards of $3,000 per individual to get trained and certified. Now I am going to have to call them and tell them that forget this, it's going to be another three years because OSHA can't decide the difference between the definition of "qualification" and "certification."
I was on Google back there while some of you were speaking. In 1960, Kennedy made a speech and he said by the year 1969, we are going to put a man on the moon and we are going to get him back safely. In nine years, they did that.
OSHA has been messing around with this rule for longer than that because they can't decide the definition of "certification" versus "qualification."
I want the record -- in no way am I asking for more regulation on small businesses in this country, but they want clarity and they want to know what the rules are so they can get back to doing what they do best, and that is running their businesses.
CHAIRMAN STAFFORD: Thank you. Any questions or comments?
MR. GILLEN: Mr. Gottwald, do you have any more detail about the kind of cranes your members use? It's not clear to me what they would use the cranes for. It is installing the signs?
MR. GOTTWALD: This is installing the signs. These are mobile cranes, boom trucks. Basically, any sign that is above ten feet is installed with a crane.
CHAIRMAN STAFFORD: Thank you. Any other questions or comments?
CHAIRMAN STAFFORD: Graham? I'm sorry, Ms. Sarah?
MS. SHORTALL: While the next speaker comes up, I'd like to mark a few additional exhibits for the record.
As Exhibit No. 10, Mr. Sapper's entire presentation on behalf on the Crane Power Line Safety Organization. Exhibit No. 11, presentation by Lance Burney of Allied Safety System d/b/a Signalarm.
CHAIRMAN STAFFORD: Thank you, Sarah. Graham, I guess we're talking about cranes.
MR. BRENT: I guess so, Mr. Chairman. Thank you. For the record, my name is Graham Brent. I'm Executive Director of the National Commission for the Certification of Crane Operators, NCCCO.
I'm going to keep my comments brief and to the point, recognizing that we have a limited amount of time. I would emphasize that the comments I'm going to make are those of a service organization, so we have heard a lot about the industry position on things, this Committee seeks to represent the industry position.
As a service organization, we seek to reflect what the industry itself has indicated it needs.
I'd like to point out that in the 17 years we have been certifying crane operators, we have issued 135,000 certifications of which 78,000 were to crane operators, which accounts for roughly something in excess of 98 percent of those certifications issued in the country.
I make those comments because we have heard this morning already comments about the impact on the industry that this rule, as OSHA has seen certain aspects of it, what that would mean for those who have already been issued certifications in those 17 years.
Because they have been deemed non-compliant by Federal OSHA, and we are one of the two earlier referenced this morning non-compliant crane operator certification bodies, and we are non-compliant for a reason, and the reason is that CETA's intent was not to require certain aspects that OSHA has deemed subsequently to be required.
You could say that while we're non-compliant with the Federal rule, we believe we are compliant with the committee that put this rule together and as already been pointed out, over ten years ago.
We have been told that the intent of CETA is not important. It has been stated several times by the Directorate. We are hoping as an organization, since we feel we are pretty much in touch with the industry's feeling on the matter, that OSHA now may be inclined more to listen to the intent of the original crafter's of this document, and which this Committee approved a number of years ago.
It is unfortunate for sure that it has taken so long for OSHA to register that the industry does have a problem with a couple of aspects of this rule regarding crane operator certification and specifically issues of certifying by capacity and what the meaning of "certification" actually is.
On the first aspect, the issue is not if a certification body can test by capacity. It is perfectly appropriate and possible for a certification body to do that. The construction of the test is not difficult.
The issue is why should they, and this comes back to the intent of CETA, and what is the basis for requiring that. It has already been pointed out by our accrediting body, where is the data that would indicate that was important.
OSHA has certainly indicated in its remarks over the last 18 months in particular the position of the accrediting body is extremely important. We are not just accountable to the industry and accountable to OSHA, but we are also accountable to the accrediting body and the accrediting bodies are very clear that you need data to support your position on these types of issues.
It is also gratifying to see that most of the 44 stakeholders that accepted OSHA's invitation to participate in the stakeholder meetings that were held in April also don't see the value and were almost unanimous and some overwhelmingly in favor of not proceeding in the way OSHA seems to think we should or the industry should.
Although this delay, as it has been characterized, will certainly not be popular within the industry, I don't think it really makes anyone particularly happy to see another three-year extension, and we have already heard from the previous speaker the effect that will have on him and his organization and members.
We do see it in many ways as vindication of what the industry has been trying to tell OSHA now and somewhat intensely for the last 18 months.
In addition to that, we would urge OSHA to move swiftly to phase two. We heard something this morning about phase one, which is the proposal before the Committee here. We have not had any indication from Director Maddux as to how long it will take to get to phase two, which is the really important part, as to exactly what OSHA intends to address with respect to reopening or readdressing of those issues that have been so much in contention.
We would certainly urge OSHA to move on this with all speed so that removes the uncertainty from the industry, and I guess we would have to use the word "reluctantly," Mr. Chairman, we would reluctantly support the Committee in its deliberations to approve the motion to extend the deadline.
That concludes my comments.
CHAIRMAN STAFFORD: Thank you, Graham. Any questions or comments for Graham?
CHAIRMAN STAFFORD: Jim Tomaseski?
MR. TOMASESKI: Good afternoon. I'd like to comment on two subject, if you would, the first being the crane operator certification compliance date and also on the insulating links' issue, so I will be brief for both.
First, I would just like to say that the IBEW agrees with the need to do something about the compliance date for 2014. I'm not sure we necessarily agree with what's been proposed.
I say that because to expand on a comment that was made earlier. There is a bit of an unknown out there. We don't know what's going to happen at the end of the rulemaking if and when the rulemaking takes place, and what good is just going for three years.
The rulemaking might take three years and we still don't know what we are going to have at the end of that three years.
I would think the most appropriate way to do this would be to just extend the compliance date -- not have a compliance date until the rulemaking is finished, and then at that point, whatever the outcome is with operator certification/qualification, establish a compliance date at that point. To me, that would make more sense.
On the second issue with the insulating links, these things are in use today. People are using them. That's a personal choice. If they want to use them, that's fine. I don't have a problem with those.
There are different methods to protect the worker on the ground. We do work on power lines, not just in the vicinity of energized power lines, but we do work on power lines every day. There are several different options with ropes that we will consider "hot ropes."
There is an ASTM standard, F1701, that establishes manufacture and testing criteria for ropes that we actually hang on energized 500,000-volt lines and the workers on the ground operate the ropes.
There are also fiberglass sticks that can be put in line with a non-dielectric rope that we use to protect workers every day also. They are rated different sizes, different ratings.
You can be a little bit innovative on how to protect workers on the ground, not just with rubber gloves. Rubber gloves have defined limitations, depending upon the class of rubber insulating gloves that you have, you pretty much cannot insulate over 35,000 volts.
At any voltage above that, which cranes are operating in the vicinity of every day, you need to do something different. Gloves are mandated in the standard, they just can't be used.
There are other methods to be used.
CHAIRMAN STAFFORD: Thank you. Any questions or comments? I do. What you are suggesting is we extend the time period for the certification issue indefinitely, until the rule is opened back up and simply the new rule comes out? Is that what you are saying?
MR. TOMASESKI: "Indefinitely" just sounds bad. Maybe it can be worded a little bit different.
MR. TOMASESKI: Until the rulemaking is finalized and a determination at that point of what type of delay needs to be established.
CHAIRMAN STAFFORD: Kevin?
MR. CANNON: I guess it makes sense because you are going to still have folks that are going to be certified through either the two organizations -- say just yesterday, a guy got certified, November 2017, he's still going to be invalid because it's within the five year re-certification.
CHAIRMAN STAFFORD: I get that, but I don't understand how you cannot do an extension.
MR. CANNON: No, I agree with him as far as lifting any absolute end all date because you are going to have people still going through the processes and still have to figure out where they are going.
MR. TOMASESKI: I get questions all the time, what do we do. With all this going on, people are aware of the stakeholder meetings and the issues that were discussed at the stakeholder meetings, now they want to know what to do.
I don't have a good answer for them, except do what your employer tells you to do.
We are spending money, and a lot of those funds come out of joint labor/management funds, and depending upon what is going to happen at the end, we may have to spend more money, double what we have already spent. Why do that now unless we know what we need to do is my point.
CHAIRMAN STAFFORD: Okay. I appreciate that. Yes, Jerry?
MR. RIVERA: I just want to make a comment. Jerry Rivera, NECA. Mr. Chairman, I would support an alternate motion to not establish a compliance date until the rulemaking process takes its toll. That might be a better alternative.
You are right, we have a lot of our employers asking us what to we do, some are certifying, some are not, some are qualifying. It's a whole big mess, they don't have any direction. Waiting until the rulemaking process is handled on that approach makes total sense to us. We would support that motion.
CHAIRMAN STAFFORD: Okay. We will take action one way or the other tomorrow. I think we have another comment on this issue and we will have to figure that out. I understand what you are saying. We will have to take an action in the morning in terms of an official recommendation.
Thank you. Dan Glucksman?
MR. GLUCKSMAN: Thank you. Dan Glucksman with the International Safety Equipment Association. I wanted to make a comment on the issue of PPE fitting and so forth.
An interesting discussion on the notion of suitability. I would like to see the term "suitability" in Appendix B at 1910.132.
If we do go the suitability route, I do think it's important that PPE fitting within Appendix B --
MR. GILLEN: In the standard?
MR. GLUCKSMAN: Right, thanks. That "fit" still be specifically mentioned even within a reference to suitability.
MR. GILLEN: The definition includes the word "fit."
MR. GLUCKSMAN: Okay; great. Really, that's all.
CHAIRMAN STAFFORD: We should have started with you.
MR. GLUCKSMAN: I know we talked about women but I know the issue of fit also extends to all sizes, whether it is a small man, women. It really covers the entire range of workers, although I know the genesis of this was on PPE for women. Thank you.
CHAIRMAN STAFFORD: Thank you very much. Ms. Sarah?
MS. SHORTALL: As Exhibit 12, the presentation by Nigel Ellis on three point control and ladder hand hold breaking strength experimental results.
CHAIRMAN STAFFORD: Okay. Thank you. Debbie, we have a few minutes.
MS. DICKINSON: Thank you for allowing me this opportunity to continue. I will keep my comments brief. I do have some handouts here. Again, my name is Debbie Dickinson with CIC, Crane Institute Certification, where I am the Executive Director.
I do understand that there has been and even today this conversation with regard to what is the right thing to do that keeps taking a financial turn. That is very important. None of us can operate without financial resources.
The concern for me is we spend more time talking about the financial impact than we are talking about the safety impact, and with regard to what does this mean to the employer in terms of who you certify, who you put on a job, who do you even put forth for certification.
Working with some of our customers, particularly in the electrical and utility world, we advise don't certify every single body you think might ever be in this position, wait. Make sure those persons are properly trained.
The numbers that I gave -- my card is available, I am here, see me, I can substantiate those numbers in great detail. The quote I gave was from Southern Company, a multi-state user of cranes, certifying a lot of individuals. They have run those numbers very carefully. They are real numbers.
The cost to add a certification during the five years particularly, we are talking hundreds of dollars, not thousands. Hundreds of dollars, not thousands.
When we look at the added safety benefit of being able to distinguish different skills, knowledge and ability levels -- there are solutions. There are solutions for the organizations that themselves say they are not compliant to the current rule.
I'm very thankful to our governing committee and the fact they had a type and capacity certification in mind back in 2008. I realize what a good place that puts us in. I am very happy for that.
I don't know why but for some reason on the lattice boom, we failed, although we documented it, we failed to file initially under a capacity rating for our lattice boom cranes. We have since corrected that. We have done it.
One of the things we are doing as an organization that our committee voted on, we are providing re-testing for those operators at no charge, because we failed to give them the right credential, so we are taking that hit. They didn't mess up, we did. We are taking that hit.
Other solutions would be to look at the cranes that people certified on, if there's no documentation, because Graham is right, that record building does have to happen, that documentation, you can't just start doing it, you have to provide all of that, and the data has to be collected over a period of time and a number of tests.
We have that data. We have since filed, but for those people who were caught in the cracks, we are taking care of them.
There are solutions. The industry does need answers. For me as an executive director of a certification body, it's pretty scary to think everything might just be thrown up in the air now and where are we. We have spent a small fortune trying to be completely compliant, including the re-testing at our own dime.
We are very concerned for the customers that we serve and helping them to know what you need to do, and we are getting those same questions as the gentleman said before, people are asking what do we do.
CHAIRMAN STAFFORD: Thank you, Debbie. Any questions or comments for Debbie?
CHAIRMAN STAFFORD: Any questions or comments generally?
CHAIRMAN STAFFORD: I appreciate your patience under this situation. We will reconvene tomorrow morning again at 10:00 a.m. Thank you. Thank everyone for being here.
MR. BETHANCOURT: Would it be possible for us who are not able to actually be there -- if there are items that have been distributed, can we get those sent to us via e-mail, if there are going to be any future discussion for tomorrow's meeting?
CHAIRMAN STAFFORD: Â I'm looking at staff. The answer is yes.
MR. BETHANCOURT: Thank you, Mr. Chairman.
CHAIRMAN STAFFORD: Ms. Sarah?
MS. SHORTALL: We will have to send them electronically. We will send what we received today electronically. You should have already received the comments from Mr. Sapper and Mr. Burney. Do you have those?
MR. BETHANCOURT: Yes, ma'am.
MS. SHORTALL: Okay. We will send the others electronically, in case you wish to discuss the items tomorrow.
I have one other additional sort of housekeeping. Were you able to hear people speaking or were there problems that we can correct by tomorrow?
MR. BETHANCOURT: I did not have any problem. It went fairly well once they started going up to the front. Of course, the folks that were out in the crowd -- speaking for myself, not the other folks on the line -- I didn't hear anybody out in the crowd. That would be the only thing, if there is any interaction with folks in the crowd, we are going to have to find a way to bring them up.
MS. SHORTALL: There wasn't. What about the rest of you, did you have any problems hearing after Tish brought up the issue?
MS. DAVIS: I thought it worked remarkably well. I could hear almost everything.
MS. SHORTALL: Okay. Thank you. Steve?
MS. HAWKINS: Ms. Sarah, I can hear fairly well, I would echo what Jeremy said.
MS. SHORTALL: Okay. Ms. Barber?
MS. BARBER: I heard pretty well. It really helped when the people were speaking directly into the microphone.
MS. SHORTALL: Okay. We will make sure we get that tomorrow. Thank you.
CHAIRMAN STAFFORD: Thank you. We will adjourn until tomorrow morning at 10:00 a.m. Thanks.
(Whereupon, at 12:48 p.m., the meeting was recessed, to reconvene the following day, Friday, May 24, 2013.)
* * * * *
Agenda for May 23-24, 2013
Walter Jones' proxy to
Amendments to Subpart CC
of Cranes and Derricks
Proposed rule on
Proposed amendments of screening
And diagnostic radiography requirements
in OSHA standards presentation
by Chris Brown and Rebecca Reindel
Screening and diagnostic
Requirements in OSHA standards
Proposed amendments of screening and
diagnostic requirements in OSHA standards
SIP IV Candidates for Proposed
Missing slide from presentation
By Arthur Sapper on behalf of Crane
Power Line Safety Organization
Mr. Arthur Sapper, entire
presentation on behalf of the Crane
Power Line Safety Organization
Presentation by Lance Burney of
Allied Safety System d/b/a Signalarm
Presentation by Nigel Ellis on
three-point control and ladder hand hold
breaking strength experimental results